CR HILL, LLC, Plaintiff-Appellee, v. CITY OF WESTLAKE, Defendant-Appellant.
No. 110610
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
March 10, 2022
[Cite as CR Hill, L.L.C. v. Westlake, 2022-Ohio-693.]
MARY J. BOYLE, J.
JOURNAL ENTRY AND OPINION. JUDGMENT: REVERSED AND REMANDED. Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-914756.
Law Office of John R. Christie, LLC, and John R. Christie, for appellee.
Mazanec, Raskin & Ryder Co., L.P.A., James A. Climer, and Frank H. Scialdone; City of Westlake, Michaеl P. Maloney, Law Director, and Robin R. Leasure, for appellant.
MARY J. BOYLE, J.:
{¶ 1} Defendant-appellant, City of Westlake (“Westlake“), appeals the trial court‘s order denying it immunity from tort claims filed by plaintiff-appellee, CR Hill, LLC (“CR Hill“), following Westlake‘s rejеction of CR Hill‘s plan to build
{¶ 2} On May 1, 2019, CR Hill filed a four-count complaint against Westlake, alleging that Westlake improperly denied CR Hill‘s development plan. In Count 1, CR requested that the trial court “enter a declaratory judgment stating that [CR Hill‘s] plan meets all of the relevant codes and laws, as well as [Westlake‘s] master plan, and should be approved for construction and development.” In Counts 2, 3, and 4, CR Hill asserted several claims in damages, seeking lost profits; costs associated with formulating and submitting its dеvelopment plan; and additional expenses, including “professional service [fees], development fees, real estate fees, carrying costs, option fees, and other damages.” CR Hill alleges that these damages arе the “proximate result” of Westlake‘s denial of CR Hill‘s development plan and the denial was contrary to Westlake‘s own zoning laws and ordinances.
{¶ 3} After obtaining a stipulated leave to plead, Westlake filed its answer on July 1, 2019, asserting political subdivision immunity and lack of standing among its affirmative defenses.
{¶ 4} The parties proceeded to discovery. On October 12, 2020, Westlake moved for summary judgment, arguing that CR Hill lacked standing because it held no interest in the vacant land it had planned to develop and Westlake was immune
{¶ 5} On July 16, 2021, the trial court denied Westlake‘s motion for summary judgment, finding that CR Hill “has a contingent interest in the property sufficient enough for standing to maintain the instant suit,” and although Westlake
argues [that] it is protected with blanket immunity pursuant to
O.R.C. 2744.02(A)(1) [,] [i]n the motion and subsequent responsive pleadings, the parties debate over whether the city of Westlake‘s planning board and/or members of city coun[cil] acted “negligently” or “intentionally,” and consequently whether immunity may be invoked. * * * Accordingly, this court, has no choice but to find that genuine issues of material fact do indeed exist and, therefore, [Westlake‘s] motion for summary judgment must be denied.
{¶ 6} Westlake appeals this judgment, raising a singlе assignment of error for review:
ASSIGNMENT OF ERROR ONE
The lower court erred in denying the appellant/city of Westlake‘s motion for summary judgment because the city is immune.
{¶ 7} In its sole assignment of error, Westlake argues that the trial court erred in denying Westlake immunity because
{¶ 8} Appellate review requires a final, appealable order. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). Generally, denial of summary judgment is not a final order. State ex rel. Overmeyer v. Walinski, 8 Ohio St.2d 23, 23, 222 N.E.2d 312 (1966). An order denying a political subdivision the benefit of an alleged immunity from liability, however, is a final order.
{¶ 9} We review a grant or denial of summary judgment de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.
Summary judgment is appropriate if (1) no genuine issue of any material fact remains, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and construing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made.
State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826 N.E.2d 832, ¶ 9.
{¶ 10} A determination of whether a political subdivision has the affirmative defense of immunity involves a three-tiered analysis. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 13, citing Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7, and Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, ¶ 8. First, the party аlleging immunity must enjoy a general grant of immunity under
{¶ 11} First, we analyze the general grant of immunity under
{¶ 12} Next, we analyze whether one of the exceptions to immunity under
{¶ 13} Westlake argues that review of a development plan is an immune governmental function. CR Hill contends that Westlake‘s review of CR Hill‘s development plan is a nonessential proprietary function, and Westlake‘s planning commission and city council were negligent when they departed from Westlake‘s zoning code and rejected the plan. Based on our review of the law and the recоrd before us, we find Westlake‘s argument more persuasive.
{¶ 14}
{¶ 15} Conversely,
{¶ 16} In this case, Westlake was engaged in reviewing CR Hill‘s development plans for compliance with Westlake‘s zoning code and community standards. Actions a city takes in connection with its zoning code constitute а governmental function. Ormond v. Rollingbrook Estates Homeowners Assn., 8th Dist. Cuyahoga No. 76482, 2000 Ohio App. LEXIS 5731, 22 (Dec. 7, 2000).
{¶ 17} CR Hill contends that governmеnt functions are essential functions.
{¶ 18} CR Hill also cites no law in support of its contention that review of development plans constitutes a proprietary function or that enforcement of building or zoning codes is among or similаr to the nonexhaustive list of proprietary functions enumerated under
{¶ 19} The cases cited by CR Hill are inapposite. None of them addresses the issue of tort immunity under
{¶ 20} We find that Westlake‘s review of CR Hill‘s development plans is a governmental function as defined by
{¶ 21} Having concluded that Westlake was engaging in a governmental function when reviewing CR Hill‘s plans, we need not consider whethеr Westlake was negligent in rejecting those plans.
{¶ 22} In accordance with
{¶ 23} Accordingly, judgment reversed and remanded for entry of summary judgment in favor of Westlake on Counts 2, 3, and 4 of CR Hill‘s complaint.
It is ordered that appellant recover from appellee 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 Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and LISA B. FORBES, J., CONCUR