Mauldin v. Youngstown Water Dept.Mauldin v. Youngstown Water Dept.
Atty. Matthew C. Giannini, 1040 S. Commons Place, Suite 200, Youngstown, Ohio 44514 for Plaintiff-Appellant and
Atty. Jeffrey Limbian, City of Youngstown, Law Director, 26 South Phelps Street, 4th Floor, Youngstown, Ohio. 44503, Atty. Kathleen Thompson, Sr. Asst. Law Director, 9 W. Front Street, 3rd Floor, Youngstown, Ohio 44503, for Defendants-Appellees.
{¶1} Plaintiff-Appellant Dorothy Mauldin appeals the decision of the Mahoning County Common Pleas Court granting summary judgment in favor of Defendant-Appellee Youngstown Water Department et al. The court found the action was untimely filed outside of the two-year statute of limitations in
STATEMENT OF THE CASE
{¶2} On May 22, 2017, Appellant filed suit alleging the water department was to turn off the water to a house she owned as she requested on July 10, 2013, but the water department negligently or recklessly performed this function which caused flooding. She sought to recover for the damages to the house. In addition to the city water department, the complaint named as defendants the mayor and the water commissioner in their representative capacities1 (hereinafter collectively referred to as “the city“). The city filed an answer for itself and the named defendants raising affirmative defenses such as statute of limitations and immunity.
{¶4} Appellant‘s response to the city‘s summary judgment motion reviewed the statutory test for political subdivision immunity and applied the exception to immunity in
{¶5} In support of her argument on negligence, she submitted a work order showing the city received a request for water shut off on July 9, 2013 and arrived at the property the next day. After reporting the meter reading, an employee wrote, “Need w/order Notify shop to repair rod for final.” Appellant relied on the contents of her written claim submitted to the city to establish: water flooded the house from the upstairs bathroom causing damages; a city employee arrived within an hour of her call; the employee told her something was wrong with the shut-off valve at the street; and he turned off the water from the basement.
{¶6} Although Appellant‘s response to summary judgment admitted she discovered the injury on November 28, 2013, the city‘s statute of limitations argument was not countered. A heading in the response stated, “O.R.C. 2744.02(B) provides an
{¶7} On December 17, 2018, the court granted the motion for summary judgment finding the tort action for damages was barred by the two-year statute of limitations. Pointing to November 28, 2013 as the date the damages were admittedly discovered, the court concluded the May 22, 2017 complaint was filed well outside the two-year statutory time frame for filing the action. Appellant filed a timely notice of appeal.
ASSIGNMENT OF ERROR ONE: STATUTE OF LIMITATIONS
{¶8} Appellant sets forth two assignments of error, the first of which contends:
“THE TRIAL COURT ERRED WHEN IT GRANTED DISMISSAL OF PLAINTIFF‘S COMPLAINT UNDER CIVIL RULE OF PROCEDURE 56(C) AGAINST THE CITY OF YOUNGSTOWN AND THE YOUNGSTOWN WATER DEPARTMENT BASED ON THE STATUTE OF LIMITATIONS.”
{¶9} Pursuant to the statute of limitations applied by the trial court, “An action against a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function * * * shall be brought within two years after the cause of action accrues, or within any applicable shorter period of time for bringing the action provided by the Revised Code.”
{¶10}
{¶11} Firstly, Appellant did not cite
{¶12} The specific language in
{¶14} This court has previously concluded that where the special two-year statute of limitations in
{¶15} There is similar law holding that a claim seeking damages against a political subdivision for trespass is subject to the special two-year statute of limitations in
{¶16} In the case at bar, Appellant is relying on an even less specific division in
{¶17} In addition,
{¶18} Amendments to
{¶19} As concluded by other courts, Appellant cannot avoid the specific and recent statute applying to actions seeking to recover damages from the political subdivision for injury to property from acts or omissions in governmental or proprietary functions by citing to the catch-all clause of a statute of limitations generally covering “an injury to the rights of the plaintiff not arising on contract.” See Fifth Third Bank v. Cope, 162 Ohio App.3d 838, 2005-Ohio-4626, 835 N.E.2d 779, ¶ 38 (12th Dist.) (rejecting the four-year statute of limitations in
{¶20} Additionally, as stated supra, the four-year statute of limitations was not raised to the trial court as prevailing over the two-year statute of limitations. The trial court correctly applied the two-year statute of limitations in
ASSIGNMENT OF ERROR TWO: IMMUNITY
{¶21} Appellant‘s second assignment of error alleges:
“THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT FOR THE APPELLEE AS THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER THE CITY OF YOUNGSTOWN WATER DEPARTMENT WAS NEGLIGENT IN THE PERFORMANCE OF PROPRIETARY FUNCTIONS THAT RESULTED IN $16,900.00 OF DAMAGE TO APPELLANT‘S PROPERTY * * *.”
{¶22} Reiterating her response to the city‘s summary judgment motion, Appellant‘s argument under this assignment of error reviews the statutory test for political subdivision immunity and cites the exception to immunity in
{¶23} However, as the city responds, the trial court did not grant summary judgment on the issue of immunity or negligence in the performance of a proprietary function. As set forth in our Statement of the Case, the city‘s motion for summary judgment was wholly based on
{¶24} Since the city did not make an immunity argument in the summary judgment motion, the trial court did not address immunity. The trial court‘s judgment entry clearly rendered judgment solely on statute of limitations grounds. An issue is moot if it is “no longer live or the parties lack a legally cognizable interest in the outcome.” State ex rel. Gaylor, Inc. v. Goodenow, 125 Ohio St.3d 407, 2010-Ohio-1844, ¶ 10. Here, the issue of immunity was not addressed by or presented to the trial court as the city‘s motion was focused on the statute of limitations defense. Since summary judgment was granted for the city only because the two-year statute of limitations expired before the complaint was filed, this assignment of error on immunity is not properly before this court and is moot. See Harsh v. City of Columbus, 10th Dist. Franklin No. 01AP-54 (Aug. 2, 2001) (holding the two-year statute of limitations applied in action against a political subdivision for a claim alleging damage to real property, the untimely action was barred, and the immunity issue alternatively addressed by the trial court was moot).
{¶25} For the foregoing reasons, the trial court‘s judgment is affirmed.
Donofrio, J., concurs.
Waite, P.J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.