Windsor Realty & Mgt., Inc. v. Northeast Ohio Regional Sewer Dist.
68 N.E.3d 327
Ohio Ct. App.2016Background
- Windsor Realty manages an 87-unit apartment complex; the City of Cleveland supplied water and NEORSD supplied sewer services and billed Windsor quarterly.
- Beginning 2005 and again in 2008 Windsor received sharply increased bills, alleged an underground leak (found by Windsor’s inspector, repaired for $4,000), and disputed large prior invoices; the City inspected, replaced the meter in 2008, and later destroyed the old meter.
- Windsor alleges the City negligently missed the 2005 leak, overbilled Windsor, refused account adjustments, threatened shutoffs, and failed to honor an alleged July 2012 settlement with the City’s Director of Utilities to monitor a new meter for three cycles and then adjust disputed balances.
- Windsor sued City, NEORSD, and Withers asserting breach of contract, breach of settlement, negligence, negligent misrepresentation (against Withers), spoliation (destruction of the 2008 meter), promissory estoppel, and sought injunctive relief; a preliminary injunction restored service and required a $25,000 escrow by Windsor.
- Appellants moved to dismiss under Civ.R. 12(B)(6), asserting sovereign immunity for tort claims under R.C. Chapter 2744, that contractual/settlement claims cannot be enforced against political subdivisions or were not alleged properly, and that Withers lacked authority to bind the City.
- The trial court denied the motion; the appellate court reviewed (limited by R.C. 2744.02(C)) and affirmed in part, reversed in part, dismissed portions for lack of jurisdiction, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over appeals of denial of motion to dismiss | Windsor maintained tort and contract claims; trial court denial appealable where immunity denied | Appellants argued multiple substantive errors; many issues not tied to immunity | Court: Appellate jurisdiction limited to denial of immunity under R.C. 2744.02(C); appeal dismissed in part for issues not implicating immunity |
| Spoliation claim against City/NEORSD | Windsor: meter was willfully destroyed knowing litigation probable to disrupt Windsor’s case | Appellants: political subdivisions immune from intentional torts under R.C. 2744 | Held: Spoliation is an intentional tort and does not fall within negligence exception; immunity bars the spoliation claim — reversed dismissal denial and claim dismissed |
| Negligence claims against City/NEORSD (immunity) | Windsor: negligent performance of proprietary functions (water/sewer operation/inspection) — exception at R.C. 2744.02(B)(2) applies | Appellants: inspections are governmental functions (immune) or, if proprietary, other defenses under R.C. 2744.03 reinstate immunity | Held: At pleading stage Windsor alleged facts sufficient to invoke the proprietary-function negligence exception; trial court correctly denied dismissal on immunity grounds (affirmed) |
| Negligent misrepresentation against Withers (employee immunity) | Windsor: Withers’ July 2012 representations induced reliance and formed settlement; he communicated false info negligently | Appellants: Withers immune under R.C. 2744.03(A)(6) from ordinary negligence | Held: Withers immune from simple negligence absent bad faith, malice, or wanton/reckless conduct; complaint alleges ordinary negligence only — dismissal of Withers reversed in appellee’s favor (claim barred) |
Key Cases Cited
- Hubbell v. Xenia, 115 Ohio St.3d 77 (Ohio 2007) (order denying political-subdivision immunity is final and appealable under R.C. 2744.02(C))
- Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123 (Ohio 2013) (limits appellate review to immunity issues where denial of immunity is appealed)
- Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28 (Ohio 1993) (elements of spoliation require willful destruction; negligent spoliation not recognized)
- Cater v. Cleveland, 83 Ohio St.3d 24 (Ohio 1998) (establishes three-tiered Chapter 2744 immunity analysis)
- Cramer v. Auglaize Acres, 113 Ohio St.3d 266 (Ohio 2007) (employee immunity under R.C. 2744.03(A)(6) and exceptions)