CITY OF COLUMBUS v. DARYL T. SANDERS, et al.
Case No. 11 CAE 05 0047
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 28, 2012
2012-Ohio-1514
Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 10 CVC 05 0705. JUDGMENT: AFFIRMED.
For Appellants:
DAVID D. CONNOR
CHRISTOPHER M. CONNOR
Connor, Evans & Hafenstein LLP
501 S. High St.
Columbus, OH 43215
For Appellee:
ANDREW D.M. MILLER
City of Columbus, Department of Law
City Hall, Room 200
90 W. Broad St.
Columbus, OH 43215
{¶1} Defendants-Appellants Daryl T. Sanders and Barbara T. Sanders appeal the January 13, 2011 judgment entry of the Delaware County Court of Common Pleas granting a motion for judgment on the pleadings and dismissing Appellants’ amended counterclaim. Plaintiff-Appellee is the City of Columbus.
FACTS AND PROCEDURAL HISTORY
{¶1} The City is the owner in fee simple of real property bordering the O‘Shaughnessy Reservoir in Concord Township, Delaware County, Ohio (“the city property“). Appellants own real property located at 9220 Shawnee Trail, Powell, Ohio. The city property is adjacent to and abuts Appellants’ property and the O‘Shaughnessy Reservoir.
{¶2} On May 3, 2010, the City filed suit against Appellants in the Delaware County Court of Common Pleas alleging Appellants trespassed upon a portion of the city‘s property on multiple occasions without authority to do so. While on the property, Appellants cut down trees, cleared the city property, mowed the property, and stored objects on the city property. Appellants impermissibly maintained the city property as an extension of their own property. The City asserted claims for trespass to land, violation of
{¶3} In its complaint, the City alleged it “occupies, possesses, uses, and dedicates the [c]ity [p]roperty for purposes of wildlife habitation, filtration of pollutants
{¶4} Appellants answered the City‘s complaint and filed a counterclaim, which they later amended. In the first claim of their amended counterclaim, Appellants alleged the City allowed the city property to become overgrown with vegetation and overrun with insects and pests. The City refused to remove dead trees from the city property. The City‘s conduct in allowing the city property to be overrun affected Appellants’ ability to enjoy their property and has discouraged prospective buyers from purchasing Appellants’ property. Appellants further allege the City and its agents misled them about the requirements for obtaining a boat-dock permit and effectively caused them to be ineligible for a boat-dock permit, affecting the value of their property.
{¶5} In their second claim, Appellants alleged the intentional, negligent, and/or reckless actions or inactions of the City caused economic harm to Appellants by reducing the value of Appellants’ property. The third claim stated the City caused a substantial and unreasonable interference with the use and enjoyment of Appellants’ property. The fourth claim alleged the City caused Appellants economic harm in the amount of $98,860.00 by unreasonably interfering with the health, safety, and property rights of Appellants. Appellants alleged in the fifth claim through the extreme and outrageous conduct of its agents, the City caused Appellants to suffer severe and debilitating emotional distress. In the final claim, Appellants alleged the City violated
{¶6} The City moved for judgment on the pleadings pursuant to
{¶7} The trial court granted the City‘s motion and dismissed the amended counterclaim. The City voluntarily dismissed its complaint without prejudice against Appellants, thereby rendering the January 13, 2011 judgment entry a final appealable order.
ASSIGNMENT OF ERROR
{¶8} Appellants raise one Assignment of Error:
{¶9} “I. THE DELAWARE COUNTY COURT OF COMMON PLEAS ERRED IN GRANTING APPELLEE‘S MOTION FOR JUDGMENT ON THE PLEADINGS. THE FACTS OF THE PLEADINGS, IF CONSTRUED IN THE APPELLANT‘S FAVOR AS REQUIRED FOR MOTIONS FILED PURSUANT TO OHIO CIV.R. 12(C), ARE SUFFICIENT TO DEMONSTRATE THAT THE CITY OF COLUMBUS IS ENGAGING IN A PROPRIETARY FUNCTION AND, AS SUCH, IS NOT IMMUNE FROM LIABILITY UNDER
Standard of Review for Judgment on the Pleadings
{¶10} A motion for judgment on the pleadings presents only questions of law. Luthy v. Dover, 5th Dist. No. 2011AP030011, 2011-Ohio-4604, ¶ 13, citing Dearth v. Stanley, 2nd Dist. No. 22180, 2008-Ohio-487. In ruling on a motion for judgment on the pleadings, the trial court must construe the material allegations in the complaint and any reasonable inferences drawn therefrom in favor of the plaintiff. If it finds plaintiff can prove no set of facts entitling plaintiff to relief, the court must sustain a motion for judgment on the pleadings. Boske v. Massillon City School Dist., 5th Dist. No. 2010-CA-00120, 2011-Ohio-580, ¶ 12, citing Hester v. Dwivedi, 89 Ohio St.3d 575, 2000-Ohio-230, 733 N.E.2d 1161. However, the complaint must allege sufficient facts to support any conclusions, and unsupported conclusions are not presumed to be true. Id.
{¶11} Judgment on the pleadings may be granted where no material factual issue exists. However, it is axiomatic that a motion for judgment on the pleadings is restricted solely to the allegations contained in those pleadings. Giesberger v. Alliance Police Department, 5th Dist. No. 2011CA00070, 2011-Ohio-5940, at ¶ 18, citing Flanagan v. Williams, 87 Ohio App.3d 768, 623 N.E.2d 185 (4th Dist.1993).
{¶12} Our review of the trial court‘s decision granting judgment on the pleadings is de novo. See, State v. Sufronko, 105 Ohio App.3d 504, 644 N.E.2d 596 (4th Dist.1995).
{¶13} When reviewing a matter de novo, this Court does not give deference to the trial court‘s decision. Eagle v. Fred Martin Motor Co., 157 Ohio App.3d 150, 2004-Ohio-829, ¶ 11 (9th Dist.). “Under
Sovereign Immunity and Governmental vs. Proprietary Functions
{¶14} The City alleges it is entitled to judgment on the pleadings because it is immune from Appellants’ tort claims in regards to the city property. The issues raised by the parties concern sovereign immunity pursuant to the Political Subdivision Tort Liability Act and the exceptions to immunity set forth in
{¶15} The Supreme Court of Ohio has developed a three-tiered analysis for determining whether a political subdivision is immune from liability. Cater v. Cleveland, 83 Ohio St.3d 24, 697 N.E.2d 610 (1998). The first tier is the broad immunity conferred by
{¶16} The parties agree the City of Columbus is a political subdivision and therefore entitled to the broad immunity provided by
{¶17} “[B]efore judgment on the pleadings can be granted, it is necessary to consider the applicable law and determine if there are any facts that would afford
{¶18} The second tier contains five exceptions to immunity described in
{¶19} In reviewing the amended counterclaim for purposes of
{¶20} We turn to the issue upon which this case rests: whether the City‘s ownership, maintenance, and management of the city property, or lack thereof, constitute a governmental or proprietary function. “Accordingly, if a [political] subdivision negligently causes damages while engaging in a governmental function its immunity remains intact, but if it does so while engaging in a proprietary function its
{¶21} A “proprietary function” is a function that either (1) is specifically listed in
{¶22} By contrast,
The City‘s Use of the City Property Constitutes a Governmental Function
{¶23} The City argues its use of the city property constitutes a governmental function as defined under
{¶24} Under
{¶26} Appellants do not dispute the city property is used for recreational purposes. They argue the city property is used for recreational purposes in addition to other purposes, such as filtration of pollutants from neighboring properties, and therefore the City cannot rely upon
{¶27} The City also contends the city property is public grounds. Under
{¶28} The amended counterclaim alleges the City negligently maintained the city property, allowing overgrowth of vegetation, and the failure to remove dead trees. The conduct alleged by Appellants in their amended counterclaim as to the city property involves the City‘s maintenance and operation of the city property. Drawing all reasonable inferences in favor of the non-moving party, we find the character of the city property and the conduct alleged in the amended counterclaim demonstrate the
Issuance of the Boat-Dock Permit is a Governmental Function
{¶29} Appellants also allege the City negligently mislead them regarding the issuance of a boat-dock permit for the O‘Shaughnessy Reservoir. The City argues the issuance of a boat-dock permit also falls within the definition of a governmental function. We agree.
{¶30} Under
The City is Immune from the Claims of Negligence under R.C. 2744.02(B)(2)
{¶31} The amended counterclaim alleged the City‘s negligent conduct in maintaining the city property and negligent misstatements as to the boat-dock permit caused Appellants harm. Appellants assert
Immunity from Intentional Torts
{¶33} Appellants’ amended counterclaim also contained allegations of intentional tort by the City, such as the infliction of emotional distress.
CONCLUSION
{¶34} Upon our de novo review, we find pursuant to
{¶35} Appellants’ sole Assignment of Error is overruled.
By: Delaney, J.
Gwin, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
CITY OF COLUMBUS v. DARYL T. SANDERS, et al.
Case No. 11 CAE 05 0047
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
2012-Ohio-1514
JUDGMENT ENTRY
For the reasons stated in our accompanying Opinion on file, the judgment of the Delaware County Court of Common Pleas is AFFIRMED. Costs assessed to Appellants.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE