CITY OF CINCINNATI, OHIO, Plaintiff-Appellee, vs. CITY OF HARRISON, OHIO, Defendant-Appellant, and BOARD OF COUNTY COMMISSIONERS OF HAMILTON COUNTY, OHIO, Defendant.
APPEAL NO. C-130195; TRIAL NO. A-0900755
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 30, 2014
2014-Ohio-2844
Civil Appeal From: Hamilton County Court of Common Pleas. Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded. Please note: this case has been removed from the accelerated calendar.
Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere and Michael E. Maundrell, for Defendant-Appellant.
{¶1} Defendant-appellant, the city of Harrison, Ohio, appeals from the trial court‘s summary judgment entry denying it the benefit of immunity from suit by the plaintiff-appellee, the city of Cincinnati. Cincinnati sought declaratory and injunctive relief to prevent Harrison from providing water service to customers in disputed areas of western Hamilton County, Ohio. Because sovereign immunity under
{¶2} Harrison‘s sole assignment of error is overruled in part and sustained in part. Because Harrison was not immune under
Cincinnati and Harrison Compete for Water Customers
{¶3} We summarized the background of this dispute in our 2010 decision affirming the trial court‘s denial of Cincinnati‘s motion for a temporary restraining order:
The Greater Cincinnati Water Works (GCWW) is a department of Cincinnati that provides water to the city and a majority of
Hamilton County. Pursuant to [the 1987] contract with [the] Board of Commissioners of Hamilton County, Ohio, GCWW began to develop a project called “Water West.” The project was designed to provide for the water needs of muсh of the western portion of Hamilton County. GCWW expended a great deal of capital during the implementation of the project, constructing water mains and lines throughout the area. Assumptions were made, based upon projected usage and other factors, that justified the expenditure and development. Harrison was offered an opportunity to receive water service from GCWW by purchasing water wholesale from GCWW, but Harrison declined. Instead, Harrison decided to provide water to its own citizens. Additionally, Harrison planned to provide water to two additional areas: an area that had been annexed by Harrison and another area of Harrison Township that had not. These two areas were within the area that GCWW had planned to serve as part of Water West. In fact, GCWW had already begun construction of its own water mains in the two areas.
When Cincinnati learned that Harrison had begun the process of spending public funds to install water mains and to otherwise prepare to provide competing service, Cincinnati filed suit.
Cincinnati v. Harrison, 1st Dist. Hamilton No. C-090702, 2010-Ohio-3430, ¶ 2-4. The additional “disputed areas” included portions of Crosby Township and northern Harrison Township including some areas annexed by Harrison.
{¶4} In February 2011, Cincinnati filed an amended complaint raising seven claims for relief. Six of the counts alleged intentional conduct by Harrison. In count one, Cincinnati alleged that Harrison‘s encroachment into the disputed areas had violated Cincinnati‘s exclusive right to provide service in those areas. In enacting
{¶5} Cincinnati contended that those functions included the ability to enforce its exclusive rights under its 1987 contract with the county. Section 3 of the contract provided that the county
will not furnish or contract with others to furnish during the term of this contract, water to anyone within [the disputed areas], except where [Cincinnati] is incapable of doing so * * *. [And that the county] shall take no action, nor in any manner aid or assist others in taking any action * * * to effеct the construction or operation of any public water system in the [County Water Area or in the supplemental Area] or to secure a source of water supply for any other customers in [those areas].
{¶6} Section 17 also stated that Cincinnati “is authorized to enforce in the [disputed areas] all ordinances, laws, standards, specifications, rules and regulations now or hereafter lawfully in effect in Cincinnati and/or the [County Water Area, the area outside of Cincinnati consisting of the certain unincorporated territory of
{¶7} In count two, Cincinnati alleged that Harrison‘s official legislative acts authorizing encroachment had unlawfully impaired the county contract. In count five, it alleged that Harrison had deliberately waited while Cincinnati and the county spent tens of millions of dollars to develop infrastructure to serve the disputed areas and only then had engaged in a “line laying contest” with Cincinnati in violation of the doctrines of waiver, laches, and equitable estoppel. In count seven, Cincinnati asserted that Harrison had tortiously interfered with the 1987 county contract and its amendments.
{¶8} Cincinnati sought declaratory and injunctive relief. It sought to enjoin Harrison from taking further steps to encroach into the disputed areas, interfere with Cincinnati‘s ability to pay its existing debts used for improvements, or impair Cincinnati‘s ability to operate under the Water West plan. It also sought a declaration that the 1987 contract and its amendments precluded Harrison from extending its water system into the disputed area. Cincinnati‘s prayеr for relief included an award of monetary damages, attorney fees, costs, and any other relief to which it was entitled.
{¶9} Harrison answered Cincinnati‘s petition and raised, inter alia, the defense that it was immune from Cincinnati‘s claims under
{¶10} In September 2011, the trial court granted Cincinnati‘s motion to bifurcate from this case the issues raised in counts three and four of the amended complaint, alleging that Harrison‘s encroachment into the disputed areas was an unlawful regulatory taking. In April 2012, Cincinnati voluntarily dismissed the Board of County Commissioners without prejudice under
{¶11} By mid-2012, the parties had amassed copious amounts of material in support of their positions, including deposition testimony and numerous documents from consulting engineers; Cincinnati, county, and Harrison officials; and GCWW employees. The documentary evidence included emails, letters between city and county officials, and engineering diagrams of the disputed areas.
{¶12} In July 2012, Harrison moved for summary judgment, asserting that Cincinnati did not have exclusive authority to provide water tо the disputed areas, that Cincinnati lacked the standing to enforce its claims, that Cincinnati had acted in conformity with Harrison‘s contention that Cincinnati lacked exclusive authority, and that in the absence of exclusive authority for either municipality to serve water to the disputed areas, Harrison was entitled to “equal dignity” to provide water service. Harrison also expressly argued that it was entitled to judgment as a matter of law on its defense of sovereign immunity. Cincinnati filed a cross-motion for summary judgment on the remaining counts of its amended complaint: counts one, two, five, and seven.
{¶13} In acknowledgement of the complex issues to be resolved, and with the consent of the parties, the trial court received testimony from two “clarifying” expert witnesses—one from each side—before ruling on the motions. See Loukinas v. Roto-Rooter Servs. Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272, ¶ 22 (1st Dist.) (a trial court may consider evidence other than that specified in
The Trial Court‘s Summary-Judgment Decisions
{¶14} On March 1, 2013, in a five-page written decision and judgment entry, the trial court granted Cincinnati‘s cross-motion for summary judgment. While the
- Regarding Count One [alleging a violation of state law], Cincinnati shall maintain exclusive jurisdiction over water service to the disputed areas. Further, Harrison is hereby enjoined from any further acts intended to encroach upon Cincinnati‘s water service rights to these areas.
- Regarding Count Two [alleging impairment of contract], Harrison‘s legislative actions unlawfully impaired Cincinnati‘s contractual obligations and rights under the * * * contract. Harrison is hereby enjoined from any further acts that will impair or interfere with the fulfillment of said contract. Further, Cincinnati is entitled to damages in the amount of lost revenues from customers that Harrison began to serve in the disputed areas as well as legal fees, costs, and expenses incurred by Cincinnati to defend its rights and obligations under the contract (to be determined at a later date).
- Regarding Count [Seven, alleging tortious interference with the 1987 county contract and its amendments]1 Harrison‘s actions unlawfully and [tortiоusly] interfered with Cincinnati‘s rights under the * * * contract and Harrison is hereby enjoined from any further
acts intended to interfere with Cincinnati‘s rights under the contract. Further, Cincinnati is entitled to damages in the amount of lost revenues from customers that Harrison began to serve in the disputed areas as well as legal fees, costs, and expenses incurred by Cincinnati to defend its rights and obligations under the contract (to be determined at a later date).
4. Regarding Count [Five, arguing laches, waiver, and estoppel], Harrison‘s actions (or lack thereof) (i) constituted a waiver on its part of any right that it may have had to serve County customers in the disputed areas; (ii) constituted actionable laches on its part with respect to any right it may have had to serve County customers in the disputed area; and (iii) caused Cincinnati to justifiably rely upon said course of action by expending millions of dollars to provide water service to the disputed areas, thus equitably stopping Harrison from encroaching upon Cincinnati‘s current service rights. In addition, Harrison is enjoined from taking any further actions inconsistent with the court‘s declarations regarding waiver, lachеs, and equitable estoppel.
{¶15} The trial court‘s decision and judgment entry thus: (1) enjoined Harrison from encroaching and interfering in the disputed areas, (2) awarded damages, in an amount to be determined later, for the “amount of lost revenues” resulting from the encroachment, and (3) awarded fees, costs, and expenses, in an amount to be determined later, for the costs of litigation. Each of these orders effectively denied Harrison the benefit of its alleged immunity from suit.
{¶17} On March 27, 2013, the trial court issued an amended decision and judgment. The amended judgment repeated the resolution of the summary-judgment motions announced on March 1. It also included, at Harrison‘s request, the trial court‘s certification that there was no just reason for delay under
An Order Denying Sovereign Immunity Is Immediately Appealable
{¶18} Because an appellate court‘s jurisdiction is limited to review of judgments or final orders, it must determine its own jurisdiction to proceed before reaching the merits of any appeal. See State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 544, 684 N.E.2d 72 (1997).
{¶19} Thus, while the denial of a motion for summary judgment is generally not a final, appealable order, “[w]hen a trial court denies a motion in which a political subdivision * * * seeks immunity under
The Summary-Judgment Standard
{¶20} The function of summary judgment is to determine from the evidentiary materials whether triable factual issues exist, regardless of whether the facts of the casе are complex. A court is not precluded from granting summary judgment merely because of the complexity or length of the factual record. See Gross v. Western-Southern Life Ins. Co., 85 Ohio App.3d 662, 666-667, 621 N.E.2d 412, (1st Dist.1993).
{¶21} Summary judgment is proper under
{¶22} Harrison‘s immunity defense wаs resolved by the trial court on cross-motions for summary judgment. We have in the past questioned the wisdom of resolving matters seeking declaratory judgment by summary judgment, particularly where the trial court has yet to fully declare the rights, status, and other legal relations of the parties. E.g., Cincinnati v. Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Emp., AFL-CIO, 93 Ohio App.3d 162, 164, 638 N.E.2d 94 (1st Dist.1994). Nonetheless, the parties’ election to address the issues by cross-motions for summary judgment demonstrates that both sides believed that there was no genuine issue of material fact in dispute and that the court was free to render a decision as to Harrison‘s
{¶23} Harrison asserts that it is immune from liability for discretionary decisions that its legislative and executive officials made in the exercise of governmental functions to expand its municipal water system. See, e.g.,
The Three-Tiered Sovereign-Immunity Scheme
{¶24}
{¶25} Once immunity is established, the next tier of the analysis carves out certain exceptions to immunity listed in
{¶26} Finally, if any exсeption applies to re-impose liability, the third tier of the analysis focuses on whether any of the defenses contained in
{¶27} Here, Harrison argues that since Cincinnati‘s claims sound in intentional tort, it was entitled to immunity under
{¶28} Harrison is correct that
{¶29} But the resolution of Harrison‘s immunity as to the first, or injunctive, relief ordered by the trial court lies in the General Assembly‘s intent in enacting
{¶30}
{¶32} Where a sign company had sued the city of Dayton for a declaration that it was entitled to a sign permit outside the right-of-way, for mandamus requiring the city to prove the sign was installed on property zoned for billboards, for an injunction restraining the enforcement of a stop-work order, and for compensatory damages, the trial court granted the city summary judgment on each count of the complaint because Dayton was “entitled to immunity.” Mega Outdoor, LLC, 173 Ohio App.3d 359, 2007-Ohio-5666, 878 N.E.2d 683, at ¶ 54. Because “[s]overeign immunity applies to money damages, not to claims for equitable relief, such as injunctive relief,” the Second District Court of Appeals held that the trial court had erred in granting summary judgment on the sign company‘s claims for declaratory judgment, mandamus, and injunctive relief. Id. But the trial court had properly granted summary judgment to the city on the company‘s claim for compensatory damages. See id. at ¶ 53.
{¶33} The established rule that sovereign immunity is not a bаr to claims seeking injunctive relief is not limited to situations where the plaintiff is a private citizen. Where one municipality had filed a nuisance complaint against another municipality, seeking an injunction against the operation of its dog park, the trial court‘s dismissal of the claim on the basis of sovereign immunity was reversed because sovereign immunity under
{¶35} In its March 2013 judgment granting summary judgment to Cincinnati, the trial court expressly enjoined Harrison from further acts intended to encroach on Cincinnati‘s water-service rights (count one), to impair or interfere with Cincinnati‘s contract with the county (count two), to violate its decision that Harrison‘s actions were barred by the doctrines of waiver, laches, and equitable estoppel (count five), and to interfere with Cincinnati‘s rights under the contract.
{¶36} Sovereign immunity under
Harrison Is Immune From Damages Awarded in Intentional-Tort Claims
{¶37} Unlike the situation where a trial court has awarded declaratory or injunctive relief, where the court awards money damages as relief for claims sounding
{¶38} In its March 2013 judgment the trial court awarded Cincinnati damages for two counts, the second and the seventh. In both counts, Cincinnati had alleged that deliberate, intentional conduct by Harrison had impaired and tortiously interfered with Cincinnati‘s county water contract. The trial court awarded Cincinnati “damages in the amount of lost revenues from customers that Harrison [had begun] to serve in the disputed areas.”
{¶39} This relief constituted an award of money damages under the first tier of the sovereign-immunity scheme. See
Harrison Is Immune from the March 27, 2013 Award of Attorney Fees
{¶40} Harrison also argues that in awаrding attorney fees to Cincinnati, under counts two and seven, the trial court denied it the benefit of an alleged immunity under
{¶41} This is true where an award of attorney fees is predicated on punitive or exemplary damages. E.g., Henry v. Akron, 27 Ohio App.3d 369, 371, 501 N.E.2d 659 (9th Dist.1985) (since punitive damages were not available against a political subdivision, “it follows that attorney fees also may not be awarded“). Here the trial court did not award punitive damages.
{¶43} But in the absence of a finding of bad faith, a trial court errs in awarding attorney fees not supported by other statutory authority. See Wright v. Fleming, 1st Dist. Hamilton No. C-070121, 2008-Ohio-1435, ¶ 5-6; see also KGM Capital, LLC v. Jackson, 1st Dist. Hamilton No. C-130438, 2014-Ohio-2427, ¶ 24. Here the trial court has made no finding that Harrison acted in bad faith. In the absence of that finding, or other statutory authority to impose attorney fees, Harrison is entitled to the protection of
{¶44} Since the trial court erred in awarding attorney fees against Harrison, we sustain that portion of Harrison‘s assignment of error.
The Trial Court‘s Remaining Orders Not Implicating Immunity Are Not Final
{¶45} Less than two months after Harrison had filed its notice of appeal, Cincinnati moved to dismiss the appeal in part. Cincinnati did not dispute that the resоlution of Harrison‘s immunity was immediately appealable. It argued, however, that those aspects of the trial court‘s summary judgment entry not touching on
{¶46} Cincinnati has renewed its argument in the required jurisdictional statement contained in its appellate brief. See 1st Dist. Loc.R. 16.1(A)(2)(a). Because a challenge to subject-matter jurisdiction is never waived, we may re-evaluate our jurisdiction to proceed at any time, even on the consideration of a direct appeal. See Internatl. Lottery v. Kerouac, 102 Ohio App.3d 660, 670, 657 N.E.2d 820 (1st Dist.1995); see also
{¶47} Harrison argues that since the trial court denied its summary-judgment motion in its entirety and added
{¶48} Orders entered in an aсtion for declaratory judgment, which is a special proceeding, are final when they affect a substantial right. See
{¶49} Because the other orders Harrison seeks review of are not otherwise final, “this court‘s jurisdiction in this appeal, arising under
Conclusion
{¶50} Harrison‘s sole assignment of error is overruled in part and sustained in part. Because Harrison was nоt immune under
{¶51} Since we have overruled that portion of Harrison‘s assignment of error seeking review of issues not directly reaching its immunity, we do not reach any conclusion on the merits of these other arguments.
Judgment affirmed in part, reversed in part, and cause rеmanded.
HENDON, P.J., and FISCHER, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.