Gosser v. Warren Cty. Engineer's OfficeGosser v. Warren Cty. Engineer's Office
Reminger Co., L.P.A., and Timothy B. Spille and Robert W. Lotz, for appellee, Development Planning, Inc.
Stagnaro, Saba & Patterson Co., L.P.A., and Paul T. Saba, for appellee, Maronda Homes, LLC.
O P I N I O N
BYRNE, J.
{¶ 1} Terry Gosser brought civil claims concerning water damage to his home against Maronda Homes, LLC (“Maronda“) and Development Planning, Inc. (“DPI“). Maronda and DPI eventually moved for summary judgment. The Warren County Court of Common Pleas granted Maronda‘s and DPI‘s motions and dismissed Gosser‘s claims
I. Factual and Procedural Background
A. Woodlands of Morrow Development and Gosser‘s Home Purchase
{¶ 2} Woodlands of Morrow (“the Subdivision“) is a residential subdivision located in the Village of Morrow, Warren County, Ohio. DPI performed design work for the development of Phase I of the Subdivision. The parties agree that all of DPI‘s development work for the Subdivision, including recording the plat and all work relating to the design and construction of the water management system (that is, sewers and related construction), was “substantially completed” by December 2006.1
{¶ 3} Maronda is a home builder. Maronda built a home on the property located at 4987 Mary Louise Court in the Subdivision. The home was one of the first homes constructed in the Subdivision. The parties agree that Maronda completed the design, placement, and construction of the home in 2009. Gosser then purchased the home and the property on which it sat in July 2009. We will collectively refer to the home and land located at 4987 Mary Louise Court as “the Property.”
{¶ 4} The Property experienced water damage events soon after Gosser‘s purchase. As early as May 2010, Gosser experienced a water “backup,” which he attributed to a “drain” that could not handle the volume of water.2 He also experienced water damage on the Property in 2013, 2017, and 2019, which he attributed to “extensive water” being diverted to his house, which “the drain could not handle, and because the house was built too low based on Topography.” He also allеged that certain water intrusions in the late
{¶ 5} In 2019, Gosser exchanged emails with a representative of DPI regarding flooding in his yard and basement. The representative indicated that DPI “as the developer” was “planning to install additional storm drains which will alleviate the amount of water that is collecting behind your home.” However, DPI apparently took no action to install additional storm drains.
B. The Lawsuit
{¶ 6} On September 17, 2020, Gosser filed a complaint in the Warren County Court of Common Pleas asserting five counts against DPI and Maronda. The complaint set forth claims of negligence and trespass relating to the alleged defective design and construction of thе Subdivision‘s water management system, and for other actions by Maronda or DPI that allegedly caused water to divert onto or into the Property. Gosser also named two governmental entities—the Warren County Engineer‘s Office and the village of Morrow—as defendants. The trial court eventually dismissed both governmental defendants and neither are involved in this appeal.
{¶ 7} In its answer to Gosser‘s complaint, Maronda raised a counterclaim for declaratory judgment. Maronda asked the court to declare that it was not the developer of the Subdivision and that it had no control over the design, installation, or construction of the water management system.
{¶ 8} In April and May of 2021, DPI and Maronda separately moved for judgment on the pleadings, principally arguing that the pleadings demonstrated that DPI‘s work on the water management system and Maronda‘s construction of the Property were both completed more than 10 years prior to the filing of the complaint in 2020 and that Gosser‘s claims were therefore barred by the applicable statute of repose. That statute,
no cause of action to recover damages for * * * injury to real or personal property * * * that arises out of a defective and unsafe condition of an improvement to real property * * * shall accrue against a person who performed services for the improvement to real property or a person whо furnished the design, planning, supervision of construction, or construction of the improvement to real property later than ten years from the date of substantial completion of such improvement.
The statute defines “substantial completion” as:
the date the improvement to real property is first used by the owner or tenant of the real property or when the real property is first available for use after having the improvement completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first.
{¶ 9} The trial court subsequently issued a decision finding that there was insufficient evidence from which it could determine whether either the statute of repose, or other applicable statutes of limitations, applied. As such, the court denied Maronda‘s and DPI‘s motions for judgment on the pleadings.
{¶ 10} Meanwhile, Gosser moved to amend his complaint, asserting that during discovery he had uncovered additional information that was relevant to whether the statute of repose ran before he filed the complaint. The trial court granted Gosser leave to amend his complaint.
{¶ 11} Gosser‘s amended complaint contained six counts. Those six counts can be summarized as follows:
- Count One – Gosser alleged that “Maronda and/or [DPI]” installed a defective water management system in the Subdivision, which failed to “provide for adequate water mаnagement, including but not limited to detention and/or retention basins, storm sewers, and drainage pipes” for the Subdivision‘s water run-off. Gosser also alleged that “Maronda and/or [DPI]” “arranged for placement” of his home “close to a creek” and “knew or should have known that placement of [Gosser‘s] residence at such a low grade, near a creek, such
that satisfying minimum (10-year rain) requirements for placement of [Gosser‘s] residence would not be sufficient to protect [Gosser‘s] residence from flooding.” Gosser further alleged in Count One that “Maronda and/or [DPI]” diverted the natural flow of water, forcing an unreasonable amount of water from other homes to flow in, on, or under the Property. Gosser added that Mаronda, while constructing other homes in the Subdivision – including the home adjoining the Property – piled excavation dirt in a manner that diverted the natural flow of water and changed the pattern of water run-off towards the Property. - Count Two – Gosser alleged that Maronda or DPI committed a “continuing trespass” through the negligent design, placement, and diversion of the flow of water that was “caused by faulty water management design and the repeated and continuous storage of excavation dirt at nearby properties, thereby diverting water, and construction of new homes in the subdivision * * *.”
- Count Three – Count Three primarily focused on the alleged negligent actions of the Warren County Engineer‘s Office and the village of Morrow, alleging that they were negligent in allowing the construction of the Subdivision. As previously mentioned, these governmental entities were later dismissed and are not involved in this appeal. However, Count Three also repeated allegations that DPI and Maronda were negligent in having “failed to rectify” problems from the alleged defective construction described in other counts.
- Count Four – Gosser alleged that the defendants’ actions in causing water to flow onto the Property constituted a taking for which the defendants must compensate him pursuant to
Article I, Section 19 of the Ohio Constitution . - Count Five – Gosser alleged that DPI acted negligently in its engineering, calculations, and construction of the Subdivision.
- Count Six – Gosser alleged that Maronda “negligently temporarily moved and stored dirt from excavation” of other homes in the Subdivision, including the home next door to the Property, and that such actions “divert[ed] the natural flow of water.”
{¶ 12} Gosser did not clearly label the six counts in the amended complaint and, as demonstrated by the above summary, several of the counts are repetitive of other counts or only discussed legal arguments related to claims stated in other counts. Some claims
{¶ 13} In November 2021, Maronda and DPI separately moved for summary judgment. Maronda and DPI submitted various summary judgment documents, including affidavits and documents related to the timeline of the development of the Subdivision and the transfer of the Property to Gosser. DPI and Maronda again argued that Gosser‘s claims regarding the design and construction of the water management system and the design, placement, and construction of the Property were barred by the ten-year statute of repose or by applicable statutes of limitation, and that the remaining claims should also be dismissed for reasons discussed below. DPI ignored Gosser‘s claims regarding Maronda‘s movement and dumping of dirt. Maronda also ignored those claims and appears to have assumed that Gosser‘s factual allegations regarding its movement and dumping of dirt related to Gosser‘s claims regarding the design, construction, and placement of the Property.
{¶ 14} Gosser filed a memorandum in opposition to Maronda‘s and DPI‘s motions for
{¶ 15} In the course of summary judgment briefing Gosser filed two affidavits, which supplemented affidavits he had also filed earlier in the litigation. In these affidavits Gosser provided additional detail regarding multiple specific water intrusion events over the years, and he tied those events to problems with the design and construction of the water management system and to the original design, placement, and construction of his home on the Property. Gosser also made averments regarding additional construction activity in the Subdivision that included the movement of dirt, which he alleged resulted in additional, damaging water intrusions on the Property.
C. The Decision
{¶ 16} The trial court granted Maronda‘s and DPI‘s summary judgment motions and denied Gosser‘s summary judgment motion. The court found that the undisputed facts established that DPI substantially completed the design of the water management system in January 2006 and that all other development work in the Subdivision was substantially completed by December 2006. The court further noted that Gosser conceded that Maronda substantially completed the construction of the Property by January 2009, more than ten years before Gosser filed his complaint. Accordingly, the court found that the statute of repose barred Gosser‘s claims with respect to the design and construction of the water
{¶ 17} After finding that the statute of repose barred Gosser‘s claims regarding the design and construction of the water management system and the design, placement, and construction of the Property, the trial court nevertheless considered whether the claims were also barred by the applicable statute of limitations—that is,
The Subdivision‘s water management system was substantially completed in 2006. [Gosser‘s] residence was built in 2009. [Gosser] has repeatedly indicated that the first signs of water intrusion onto his property occurred in 2010 and 2013, and there were multiple instances of intrusion in 2015. Even if this Court were to find [Gosser] did not first discover the water intrusion issues until 2015, his claims would still be barred by the applicable four-year statute of limitation under
R.C. 2305.09 , as the complaint was not filed until September 2020. Accordingly, [Gosser‘s] complaint is barred by the statute of limitations and Maronda and DPI are entitled to judgment as a matter of law.
In reaching this conclusion, the trial court did not mention the water intrusion events that Gosser alleged occurred in his basement in 2017 and 2019. Nor did the court refer to Gosser‘s claims regarding Maronda‘s movement and dumping of dirt or the averments he made in his affidavits regarding those claims.
{¶ 18} The court noted that even if Gossеr‘s claims were not barred by the statute of repose and the statute of limitations, “Maronda would still be entitled to summary judgment on any and all claims that raise a theory Maronda was the developer of the Subdivision and/or the water management system, as [Gosser] concedes Maronda was not the developer.”
{¶ 19} Next, the court found that Maronda and DPI were entitled to summary judgment on Gosser‘s cause of action for taking without compensation in violation of the
{¶ 20} Finally, the trial court awarded Maronda the declaratory judgment it had requested in its answer to Gosser‘s complaint, finding that “[Maronda] is not the developer of the Subdivision; [and Maronda] had no control over the design, installation, or construction of the water management system.”
{¶ 21} The trial court dismissed the complaint and the amended complaint with prejudice.
{¶ 22} Gosser appealed, raising one assignment of error.
II. Law and Analysis
{¶ 23} Gosser‘s sole assignment of error states:
THE TRIAL COURT ERRED BY DENYING APPELLANT‘S MOTION FOR SUMMARY [JUDGMENT] AND GRANTING DEFENDANT‘S MOTION FOR SUMMARY [JUDGMENT].
{¶ 24} We will review the applicable standard of review before analyzing Gosser‘s arguments.
A. Summary Judgment Standard
{¶ 25} “Summary judgment is a procedural device used to terminate litigation when there are no issues in a case requiring a formal trial.” Franchas Holdings, L.L.C. v. Dameron, 12th Dist. Clermont No. CA2015-09-073, 2016-Ohio-878, ¶ 16, citing Roberts v. RMB Ents., Inc., 197 Ohio App.3d 435, 2011-Ohio-6223, ¶ 6 (12th Dist.). “Civ.R. 56 sets forth the summary judgment standard.” State ex rel. Becker v. Faris, 12th Dist. Clermont No. CA2020-10-058, 2021-Ohio-1127, ¶ 14. “Pursuant to that rule, a court may grant summary judgment only when (1) there is no genuine issue of any material fact, (2) the moving party
{¶ 26} “A material fact is one which would affect the outcome of the suit under the applicable substantive law.” Hillstreet Fund III, L.P. v. Bloom, 12th Dist. Butler No. CA2009-07-178, 2010-Ohio-2961, ¶ 9, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). The party moving for summary judgment bears the initial burden of demonstrating that no genuine issue of material fact exists. Touhey v. Ed‘s Tree & Turf, L.L.C., 194 Ohio App.3d 800, 2011-Ohio-3432, ¶ 7 (12th Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).
{¶ 27} Once the moving party meets this burden, the nonmoving party has a reciprocal burden requiring it to present evidence to demonstrate that there is some issue of material fact yet remaining to be resolved. Smedley v. Discount Drug Mart, Inc., 190 Ohio App.3d 684, 2010-Ohio-5665, ¶ 11 (12th Dist.). The nonmoving party does this by presenting “‘specific facts,” demonstrating the existence of a genuine triable issue; the nonmoving party “‘may not rest on the mere allegations or denials in its pleadings.‘” Oliphant v. AWP, Inc., 12th Dist. Butler No. CA2019-02-036, 2020-Ohio-229, ¶ 31, quoting Deutsche Bank Natl. Trust Co. v. Sexton, 12th Dist. Butler No. CA2009-11-288, 2010-Ohio-4802, ¶ 7, citing
B. Legal Analysis
{¶ 28} We begin with what Gosser does not argue on appeal. First, Gosser does not argue that the trial court erred when it found that the Subdivision‘s water management system was substantially complete in 2006, and that as a result any claims regarding DPI‘s design and construction of that system were barred by the statute of repose.4 Second, Gosser does not argue that the trial court erred when it found that Maronda‘s design, placement, and construction of the Property was substantially complete in 2009, and that as a result any claims regarding Maronda‘s design, placement, and construction of the Property were barred by the statute of repose. Third, Gosser does not argue that the trial court erred when it fоund that “Maronda would * * * be entitled to summary judgment on any and all claims that raise a theory Maronda was the developer of the [s]ubdivision and/or the water management system, as [Gosser] concedes Maronda was not the developer.” Fourth, Gosser does not argue that the trial court erred when it held that “Maronda and DPI are also entitled to summary judgment on [Gosser‘s] claim for * * * taking [without compensation], as Maronda and DPI are not governmental entities.”
{¶ 29} Because Gosser failed to challenge the trial court‘s decision on any of these grounds, the trial court‘s findings with respect to the statute of repose, Maronda‘s non-
{¶ 30} Likewise, Gosser does not assign error with respect to the trial court‘s decision granting Maronda‘s counterclaim for declaratory judgment. As a result, we must accept as true the trial court‘s declaratory judgment that “[Maronda] is not the developer of the Subdivision; [and Maronda] had no control over the design, installation, or construction of the water management system.”
{¶ 31} Instead of making any of the arguments we have just described, Gosser limits himself in this appeal to making two arguments regarding the statute of limitations. We now turn to those arguments.
1. Statute of Limitations: Permanent or Continuing Trespass
{¶ 32} First, Gosser argues that the trial court incorrectly found that DPI‘s design and construction of the Subdivision‘s water management system and Maronda‘s design, placement, and construction of the Property resulted in permanent trespasses on the Property, and that the court should have instead found that DPI and Maronda engaged in continuing trespasses. The distinction is significant, because a continuing trespass, unlike a permanent trespass, tolls the statute of limitations. Sexton v. Mason, 117 Ohio St.3d 275, 2008-Ohio-858, ¶ 47. Gosser therefore argues that because DPI and Maronda engaged in continuing trespasses, his claims regarding DPI‘s design and construction of the Subdivision‘s water management system and Maronda‘s design, placement, and
{¶ 33} We do not need to delve deeply into the legal and factual issues surrounding Gosser‘s continuing trespass argument because the argument is moot. The trial court found that Gosser‘s claims concerning the design and construction of the Subdivision‘s water management system and the design, placement, and construction of the home on the Property were barred by the
{¶ 34} In this appeal, Gosser has not challenged the trial court‘s finding that his claims regarding the design and construction of the water management system and the design, placement, and construction of the house on the Property were barred by the statute of repose. By failing to challenge the court‘s application of the statute of repose on appeal, Gosser effectively concedes that the trial court‘s application of the statute of repose was correct, and effectively concedes that the trial court did nоt err when it granted DPI‘s and Maronda‘s motions for summary judgment with respect to those claims barred by the statute
{¶ 35} In such a situation, where a party is properly granted summary judgment based on a dispositive legal argument, additional non-dispositive arguments of the party opposing summary judgment are rendered moоt. See Holcomb v. Holcomb, 12th Dist. Clermont No. CA2013-10-080, 2014-Ohio-3081, ¶ 28 (in summary judgment context, holding that defendant‘s failure to establish a material fact as to duty rendered an argument concerning proximate cause moot); McLemore v. Clinton County Sheriff‘s Office, 12th Dist. Clinton No. CA2-22-07-019, 2023-Ohio-1604, ¶ 57 (when trial court properly dismissed all claims on personal jurisdiction and
{¶ 36} Additionally, Gosser has provided no argument whatsoever to explain how the trial court‘s finding that the statute of repose bars his claims regarding the development and construction of the water management system and the dеsign, placement, and construction of the Property would be impacted by a continuous trespass finding. We are aware of no statutory or case law basis for applying the continuing trespass concept in the statute of repose context, as opposed to the statute of limitations context. Nor has Gosser pointed to any such authority. This only underscores that Gosser‘s arguments regarding continuing trespass and the statute of limitations are moot.
{¶ 37} We therefore do not need to consider Gosser‘s moot “continuing trespass”
2. Statute of Limitations: New Acts by Maronda and DPI
{¶ 38} Second, Gosser argues that the trial court should not have granted summary judgment with regard to certain acts of trespass and negligence by Maronda because thosе acts, which involved the movement of dirt on nearby properties that resulted in damages to the Property, occurred within the statute of limitations period and were unrelated to those claims that are barred by the statute of repose.
{¶ 39} This argument receives very little attention in the parties’ appellate briefing. But it is an argument that has been a part of this case from the beginning. We will trace that history.
{¶ 40} Initially, in Count Six of his amended complaint, Gosser alleged that Maronda “negligently temporarily moved and stored dirt from excavation” of other homes in the Subdivision, including the home next door to the Property, and that such actions “divert[ed] the natural flow of water” and caused damage to the Property. Gosser also referred to these alleged unlawful actions in Count One and Count Two. In Count Two he described these actions as resulting in trespasses on the Property, rather than negligence as indicated in Count Six.
{¶ 41} Next, Gosser provided summary judgment evidence supporting his claim regarding Maronda‘s movement and dumping of dirt when he filed an affidavit as an attachment to his motion for summary judgment/memorandum in opposition to Maronda‘s and DPI‘s motions for summary judgment. Specifically, in that affidavit Gosser stated, “After moving in, there was significant additional excavating until 2020 and additional dirt was dumped on the hill where [Gosser‘s] house was built.”
{¶ 42} Gosser provided further summary judgment evidence supporting his claims concerning Maronda‘s movement and dumping of dirt when he filеd another affidavit as an
17. Since moving in, until the date of this affidavit [that is, December 16, 2021] there was significant additional excavating throughout the entire subdivision resulting in additional dirt being dumped by Maronda‘s agent on the hill where my house was built.
18. After the initial 164 homes built in Phase 1, they have built over 100 additional homes in Phase 2.
19. When these homes are being built the Defendants move and dump dirt on the hill where my house is built causing it to roll down the hill plus natural erosion from water runoff from flash flooding.6 Creating a predominately narrower space around the creek. This causes the creek to fill more quickly when it rains than it previously did when I moved in. In 2018, DPI added 10 ft. of 3-inch rock, and said it fixed the problem, which did nothing.
20. These changes were made after I bought the house therefore the statutes of limitations would be extended to the time these changes occurred, and in addition a new house was subsequently built next to my residence in 2019.
21. After I purchase [sic] my residence, the defendant, Maronda, continued to improve the other surrounding real estate resulting in substantial improvement to property.
22. The improvements by Maronda were permanent and became an integral part of the subdivision after I purchase [sic] my residence.
{¶ 43} In their motions for summary judgment, Maronda and DPI argued that the statute of repose and the statute of limitations barred all of Gosser‘s claims. However, DPI did not specifically refer to Gosser‘s claims regarding Maronda‘s movement and dumping of dirt. Maronda, though, briefly addressed Gosser‘s allegations regarding its movement
{¶ 44} Maronda‘s argument here is difficult to understand. We agree that merely “[p]lacing dirt in the ordinary course of business” is not a claim. However, negligence and trespass are claims, and Maronda did not explain how Gosser‘s allegations rеgarding the movement and dumping of dirt, if true, would not present potentially valid and timely claims for trespass and negligence. Stated otherwise, if Maronda placed excavation dirt in a manner that diverted water onto the Property and caused damages, and such movement and dumping of dirt occurred within the applicable
{¶ 45} The trial court, however, completely ignored Gosser‘s claims regarding Maronda‘s movement and dumping of dirt in its decision granting summary judgment. The trial court simply did not analyze whether these claims were barred by the statute of repose or the statute of limitations. Instead, the trial court assumed that all water intrusion events on the Property were part of the ongoing “permanent trespass” associated with the original design and construction of the water management system and the design, placement, and construction of the Property. But this assumption did not reflect what Gosser alleged in his amended complaint or the summary judgment evidence set forth in his affidаvits.
Statutes of limitations can not start at the time the home was purchased. The continuation of excavating rerouting watеr and moving dirt around the Plaintiffs property causing a significant narrowing of the creek completely changing the property from date of purchase. This would change the Statutes of limitations to when the most recent changes in the area occurred. As of 2019 there were still homes being built and movement of dirt around Plaintiff‘s home. See Appendix to further substantiate plaintiff‘s position. [Sic throughout.]7
In other words, Gosser argues on appeal that summary judgment evidence showed that Maronda, by moving and dumping dirt that redirected water onto the Property, engaged in new acts of trespass and negligence, which acts occurred after and were unrelated to the design and construction of the water management system and the design, placement, and construction of the Property, and which are therefore not time-barred by the applicable statute of limitations.
{¶ 47} Maronda and DPI ignored this argument on appeal. Their briefs make no mention of Gosser‘s claims regarding Maronda‘s movement and dumping of dirt, and they did not respond to Gosser‘s (admittedly short) argument about this claim.
{¶ 48} Construing the facts averred by Gosser in a light most favorable to him, as we
{¶ 49} For these reasons, we find that the trial court erred when it granted summary judgment in favor of Maronda with respect to Gosser‘s negligence and trespass claims related to the movement and dumping of dirt and we remand for further proceedings with respect to those claims.
{¶ 50} Maronda suggested at oral argument that even if we were to find that Gosser made separate, timely claims against Maronda regarding the movement and dumping of dirt, we should find that those claims were still properly dismissed by the trial court because Gosser did not offer summary judgment evidence proving the elements of those claims. But this argument was not developed in Maronda‘s brief. And in the circumstances of this case, whеre the record indicates that the parties filed their motions for summary judgment early, months prior to the completion of discovery, we find Maronda‘s argument to be premature. However, our opinion today does not prevent Maronda from filing a motion for summary judgment with respect to Gosser‘s negligence and trespass claims regarding
{¶ 51} Finally, we note that Gosser‘s assignment of error stated that the trial court erred in denying his motion for summary judgment, but Gosser made no argument in thе body of his brief to support this contention. We therefore disregard this portion of his assignment of error.
III. Conclusion
{¶ 52} We partially sustain and partially overrule Gosser‘s sole assignment of error. We affirm the trial court‘s dismissal of all of Gosser‘s claims against DPI. We also affirm the trial court‘s dismissal of all of Gosser‘s claims against Maronda, with the exception of Gosser‘s negligence and trespass claims concerning Maronda‘s alleged movement and dumping of dirt. With respect to those two claims only, we sustain Gosser‘s assignment of error and remand for further proceedings.
{¶ 53} Judgment affirmed in part and reversed in part.
M. POWELL, P.J., and PIPER, J., concur.