Regulic v. Columbus
2022 Ohio 1034
| Ohio Ct. App. | 2022Background
- Slobodan and Milka Regulic bought a Columbus house in 2001 and alleged repeated basement/kitchen flooding beginning soon after purchase and continuing through 2020.
- Their complaint blamed the City for pre- and post-sale conduct: plan review, permits, inspections, acceptance of subdivision improvements, and operation/maintenance of storm/sanitary sewers; they sought damages (negligence) and mandamus to compel appropriation proceedings for an alleged taking.
- Columbus answered and moved for judgment on the pleadings under Civ.R. 12(C); the trial court granted the motion, dismissing negligence claims on governmental immunity and statute-of-limitations grounds and dismissing the mandamus claim as time-barred.
- The Regulics moved for leave to amend (to recast claims as proprietary maintenance claims and drop mandamus); the trial court denied leave and entered final judgment dismissing the case with prejudice.
- On appeal the Tenth District affirmed dismissal of negligence claims and denial of leave to amend, but reversed as to the mandamus claim to the extent the complaint alleged the City removed a storm-water holding tank (on City-owned land) and that the removal could be a continuing government act tolling the four-year takings limitations period.
Issues
| Issue | Regulic's Argument | Columbus's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by resolving Columbus’s Civ.R. 12(C) motion rather than treating it as a Civ.R. 12(B)(6) motion | 12(C) ruling improperly applied; 12(B)(6) standard should govern and permit different treatment | No substantive difference here; pleadings were closed and 12(C) is the proper vehicle; both motions use the same legal standard | No error — 12(C) was appropriate and the same de novo standard applies as in 12(B)(6) review |
| Whether the negligence claims survive governmental immunity and the two-year statute of limitations | Regulic: complaint pleaded operation/maintenance (proprietary) claims that avoid immunity and can include recent incidents | Columbus: allegations target design/construction/governmental functions (plan approval, permits, holding tank installation/removal) so immunity applies; alternative statute-of-limitations bar | Held for Columbus on negligence: allegations, as pleaded, concern governmental design/construction and are barred by immunity (and alternatively by the two-year statute) |
| Whether the trial court abused its discretion by denying leave to amend | Regulic: should be allowed to amend to allege proprietary maintenance/negligence occurring within limitations | Columbus: undue delay, prejudice, and proposed amendment would not cure defects; amendment sought to change factual theory late | No abuse of discretion — denial affirmed (amendment would not have corrected core defects and would prejudice efficiency) |
| Whether the mandamus claim (seeking appropriation proceedings for an alleged taking) was time-barred or saved by a continuing-violation/ongoing-control theory (holding tank removal) | Regulic: City removed a storm-water holding tank on City land (~2010) and continuing government control/acts caused recurring flooding; tolls the 4-year takings period so mandamus may proceed | Columbus: no continuing act or control pleaded; claim is time-barred under R.C. 2305.09(E) | Reversed in part — allegations that the City removed a holding tank on City property and that that action caused recurring flooding are sufficient at pleading stage to permit further proceedings on mandamus (possible continuing government-induced taking); remanded to trial court |
Key Cases Cited
- State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117 (Ohio 2011) (continuing government-induced flooding can toll the statute of limitations for takings; mandamus proper to compel appropriation proceedings)
- Coleman v. Portage Cty. Eng., 133 Ohio St.3d 28, 2012-Ohio-3881 (Ohio 2012) (claims that in substance challenge design or construction of public improvements are governmental functions and subject to immunity)
- State ex rel. Shemo v. Mayfield Heights, 95 Ohio St.3d 59 (Ohio 2002) (mandamus is proper to compel appropriation proceedings where an involuntary taking is alleged)
- State ex rel. Arcadia Acres v. Dept. of Job & Family Servs., 123 Ohio St.3d 54, 2009-Ohio-4176 (Ohio 2009) (dismissal for failure to state a claim is an adjudication on the merits and can bar refiling under res judicata)
- United States v. Dickinson, 331 U.S. 745 (U.S. 1947) (when the government effects a taking by a continuing process of events, a property owner need not bring premature or piecemeal suits; continuing process doctrine)