EARL COHEN, PLAINTIFF-APPELLEE/CROSS-APPELLANT vs. CITY OF BEDFORD HEIGHTS, ET AL., DEFENDANTS-APPELLANTS/CROSS-APPELLEES
No. 101739
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 2, 2015
[Cite as Cohen v. Bedford Hts., 2015-Ohio-1308.]
E.A. Gallagher, J., Jones, P.J., and McCormack, J.
JOURNAL ENTRY AND OPINION
RELEASED AND JOURNALIZED: April 2, 2015
For City of Cleveland
John Mills
City of Cleveland Law Department
601 Lakeside Avenue
Room 106
Cleveland, Ohio 44114
For City of Bedford Heights
Ross S. Cirincione
5306 Transportation Blvd.
Garfield Heights, Ohio 44125
ATTORNEYS FOR APPELLEE/CROSS-APPELLANT
Jonathan W. Winer
5276 Rome-Rock Creek Road
Rome, Ohio 44085
James M. Lyons
240 East Main Street
Painesville, Ohio 44077
{¶1} Defendant-appellant the city of Cleveland (“the city“) appeals the Cuyahoga County Court of Common Pleas’ partial denial of its motion for judgment on the pleadings. The city argues that the trial court erred in denying it political subdivision immunity against plaintiff-appellant Earl Cohen‘s negligence claim based on the allegations in the complaint. Cohen cross-appeals, arguing that the trial court erred in granting the city‘s motion in part and dismissing his claim against the city for unjust enrichment. For the following reasons, we affirm the judgment of the trial court.
{¶2} Cohen filed a complaint against the city and the city of Bedford Heights on January 13, 2014, alleging that the two cities negligently failed to take reasonable measures to prevent a catastrophic spike in water usage at a Bedford Heights residence that he had purchased at a foreclosure sale in February 2013. The property is served by a water supply system operated by the city and a sanitary sewage disposal system operated by the city of Bedford Heights.
{¶3} At the time Cohen purchased the property, he paid as part of the purchase price, delinquent taxes reflecting $12,894.61 in delinquent water charges and $1,796.89 in delinquent sanitary sewer charges. After purchasing the property, Cohen was charged an additional $8,543.08 in delinquent sewer charges.
{¶4} Cohen‘s complaint alleges that the charges stem from a “catastrophic spike” in water usage that occurred from October 2010 to April 2011 and represents an increase of approximately 4,000% over the historical water usage for the residence. Cohen
{¶5} The city answered the complaint and filed a motion for judgment on the pleadings arguing that Cohen‘s claims were barred by the two-year statute of limitations set forth in
{¶6} The city‘s first assignment of error provides:
The trial court erred in not granting judgment on the pleadings in favor of the city of Cleveland on all claims against it on the basis of the expiration of Plaintiff‘s claims under the statute of limitations at
R.C. 2744.04(A) .
{¶7} A motion for judgment on the pleadings presents only questions of law, which this court reviews de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79,
{¶8} Accordingly, we must accept as true all the material factual allegations of the complaint and construe any inferences to be drawn from those allegations in favor of the nonmoving party. Brown v. Carlton Harley-Davison, Inc., 8th Dist. Cuyahoga No. 99761, 2013-Ohio-4047, ¶ 12, citing Garofalo v. Chicago Title Ins. Co., 104 Ohio App.3d 95, 104, 661 N.E.2d 218 (8th Dist.1995). In order to prevail on a Civ.R. 12(B)(6) motion, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling plaintiff to recover. Hester v. Dwivedi, 89 Ohio St.3d 575, 230, 733 N.E.2d 1161 (2000); O‘Brien v. Univ. Comm. Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.
{¶9} The city argues that the trial court erred in failing to find that Cohen‘s claims against it were barred pursuant to
{¶11} “The discovery rule provides that a cause of action does not arise until the plaintiff knows, or by the exercise of reasonable diligence should know, that he or she has been injured by the conduct of the defendant.” Flagstar Bank, F.S.B. v. Airline Union‘s Mtge. Co., 128 Ohio St.3d 529, 2011-Ohio-1961, 947 N.E.2d 672, ¶ 14, citing Collins v. Sotka, 81 Ohio St.3d 506, 507, 692 N.E.2d 581 (1998). “The rule entails a two-pronged test—i.e., actual knowledge not just that one has been injured but also that the injury was caused by the conduct of the defendant.” Id., citing O‘Stricker v. Jim Walter Corp., 4 Ohio St.3d 84, 447 N.E.2d 727 (1983). A statute of limitations does not begin to run until both prongs have been satisfied. Id.
{¶12} The city argues that the discovery rule is a common law doctrine that is inapplicable to the statute of limitations provided in
{¶13} In W. 11th Street Partnership v. Cleveland, 8th Dist. Cuyahoga No. 77327, 2001-Ohio-4233, this court noted that
{¶14} Consistent with our statement in W. 11th, Ohio courts have applied the discovery rule to determine when an action accrues for the purposes of
{¶15} We conclude that the trial court did not err in applying the discovery rule to the allegations in Cohen‘s complaint.
{¶17} The city‘s second assignment of error provides:
The trial court erred in not granting judgment on the pleadings in favor of the city of Cleveland on all claims against it on the basis of the statutory immunity provided to the city as a political subdivision by
Chapter 2744 of the Ohio Revised Code.
{¶18}
(5) The political subdivision is immune from liability if the * * * loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶20} The city argues that Cohen‘s theory of negligence in this case is that the city failed to monitor water usage at the property, detect an aberration based on the property‘s historical water usage and prevent a leak. The city argues that the Cleveland Division of Water has no process or procedures in place to so monitor and prevent leaks at a private property. The city further argues that the Cleveland Division of Water‘s decision not to implement such a policy is an exercise of judgment or discretion regarding the use of limited resources and thus protected by immunity pursuant to
“In Ohio, a notice-pleading state, the plaintiff need not prove his or her case at the pleading stage. * * * Thus, a plaintiff need not affirmatively dispose of the immunity question altogether at the pleading stage. * * * Requiring a plaintiff to affirmatively demonstrate an exception to immunity at this stage would be tantamount to requiring the plaintiff to
overcome a motion for summary judgment at the pleading stage. * * * Instead, a plaintiff must merely allege a set of facts that, if proven, would plausibly allow for recovery.”
Id. at ¶ 14, quoting Scott v. Columbus Dept. of Pub. Utils., 192 Ohio App.3d 465, 2011-Ohio-677, 949 N.E.2d 552, ¶ 8 (10th Dist.).
{¶21} At this stage of the proceedings, an appeal from a motion for judgment on the pleadings, our analysis is restricted only to the facts alleged in the complaint. Cohen alleges that the city “knew or should have known” that the property was unoccupied and that the spike in water usage was due to a water leak. Cohen alleges that despite this purported knowledge the city failed to act to prevent the leak. Ohio case law indicates that, depending on the facts, it is possible for a political subdivision to be sued for negligence in relation to its failure to prevent a water leak where that subdivision possessed knowledge that a property was vacant. See, e.g., Franklin v. Columbus, 130 Ohio App.3d 53, 719 N.E.2d 592 (10th Dist. 1998) (denying summary judgment in favor of the city of Columbus because a genuine issue of fact existed as to whether the city was negligent in its operation of a water service where the homeowner allegedly notified the city that the property was vacant, the city failed to terminate service as requested and a water leak occurred).
{¶22} Cohen‘s complaint does not explain how the city allegedly possessed knowledge of the property‘s vacancy and, more importantly, the water leak. Because the precise facts underlying Cohen‘s negligence claim are unclear, the trial court did not err in denying the city‘s motion for judgment on the pleadings.
{¶24} Cohen‘s cross-appeal provides the following sole assignment of error:
The trial court erred in dismissing cross-appellant‘s claims against the city of Cleveland which are based upon the theory of unjust enrichment.
{¶25} Cohen argues that the trial court erred in dismissing his unjust enrichment claim against the city. We disagree. Municipal corporations cannot be made liable on the basis of an implied contract or for claims based upon the theory of quantum merit or unjust enrichment. Cleveland Hts. v. Cleveland, 8th Dist. Cuyahoga No. 79167, 2001 Ohio App. LEXIS 5010 (Nov. 8, 2001), citing Eastlake v. Davis, 94 Ohio App. 71, 74, 114 N.E.2d 627 (11th Dist.1952); Wellston v. Morgan, 65 Ohio St. 219, 228, 62 N.E. 127 (1901); Cuyahoga Cty. Hosp. v. Cleveland, 15 Ohio App.3d 70, 72, 472 N.E.2d 757 (8th Dist.1984); Cincinnati Ins. Co. v. Cleveland, 8th Dist. Cuyahoga No. 92305, 2009-Ohio-4043, ¶ 25.
{¶26} Cohen argues that this rule is not an absolute bar to an unjust enrichment action but offers no argument in support of an exception applicable to the facts of this case as alleged in the complaint. See, e.g., Pilot Oil Corp. v. Ohio Dept. of Transp., 102 Ohio App.3d 278, 656 N.E.2d 1379 (10th Dist.1995) (acknowledging that the doctrine of promissory estoppel may be applied where a municipality makes a representation in the context of a contractual relationship with another party, so long as the representation was within the municipality‘s power to make, the subject matter of the contract was not illegal or ultra vires, and the representation induced reliance); Cooney v. Independence, 8th Dist. Cuyahoga No. 66509, 1994 Ohio App. LEXIS 5290 (Nov. 23, 1994) (holding
{¶27} Instead, Cohen relies upon this court‘s decision in Kraft Constr. Co. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio App.3d 33, 713 N.E.2d 1075 (8th Dist. 1998), wherein we found that a verdict against a county on the theory of unjust enrichment was not against the manifest weight of the evidence. However, Kraft is distinguishable from the present case because, in Kraft, we noted that the government waived its legal defense prohibiting recovery under the theory of unjust enrichment by failing to raise the matter before trial court or on appeal.
{¶28} Cohen‘s sole assignment of error is overruled.
{¶29} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
TIM McCORMACK, J., CONCUR