Peshek v. SpringfieldPeshek v. Springfield
Rendered on the 7th day of August, 2009.
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JAMES E. HEATH, Atty. Reg. No. 0003757, 5 East Columbia Street, Springfield, Ohio 45502
Attorney for Plaintiffs-Appellees
JEROME M. STROZDAS, Atty. Reg. No. 0003263, Law Director, 76 East High Street, Springfield, Ohio 45502
Attorney for Defendants-Appellants
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FRENCH, J. (by assignment)
{¶ 1} Defendants-appellants, City of Springfield (“City“), Springfield Mayor Warren R. Copeland, Assistant Mayor Orphus R.S. Taylor, Commissioner Karen B. Duncan, Commissioner Daniel J. Martin, Commissioner Kevin O‘Neill, and Springfield City Manager Matt Kridler (collectively, “appellants“), appeal the
{¶ 2} On September 7, 2007, plaintiffs-appellees, Ty and Lori Peshek (“appellees“), filed a complaint for declaratory judgment and damages against appellants. In the complaint, they alleged that they had purchased property at a sheriff‘s auction in April 2002. At that time, the property was connected to city water and sanitary sewer lines, the sewer connection having occurred pursuant to an agreement with prior owners of the property. The property was “to be sold free of all liens and encumbrances.” The property is located on St. Paris Pike outside city corporate limits.
{¶ 3} The complaint also alleged that, by letter dated April 11, 2003, a city employee notified appellees that “payment of the ‘outstanding sewer connection fee’ of $4,476.84 was required before the ‘connection/establishment of sewer services to this property.’ ” In April 2004, the City disconnected the sanitary sewer lines to the property. As a result, appellees sought (1) a declaration that they are not obligated to pay a connection fee to the City, (2) damages in the amount of $7,637.69 for the installation of a septic system, and (3) damages in the amount of $21,960 for the projected costs of reconnecting the sanitary sewer system.
{¶ 4} In December 2007, appellants moved for summary judgment in their favor. Through that motion, appellants contended, first, that appellees had not made allegations against, or sought relief from, the Commissioners or City Manager. These individuals, appellants argued, should be dismissed from the
{¶ 5} Second, appellants contended that appellees had no contractual right to the municipal sewer service because (1) appellees were not parties to any agreement for service, and (2) the terms of an agreement between the City and the prior property owners had not been fulfilled. In support, appellants attached a May 1997 Development Incentive Agreement between the City and the previous owners of the St. Paris Pike property, James and Kathy Howell. The agreement provided that the Howells (identified as “Developer“) wished to obtain city sewer services for the property. The City agreed to furnish those services after the Howells tapped an available sewer line and paid a connection fee of $4,446.94. The City agreed to provide service within five days after the Howells made the connection, requested an inspection, and received city approval. The Howells agreed to annex the property to the City and to pay all sewer charges.
{¶ 6} The Howells also agreed that the sewer services were for their sole benefit. They could not assign their interest or rights to any other entity without the City‘s consent. And, in the event the Howells did convey their interest in the property “without providing for such assumption,” and did not cure that failure after notice from the City, the City could, “at its option, terminate the sewer services provided pursuant to this agreement.”
{¶ 7} Once sewer services became available, the Howells were to pay the City $250 per year until the property was annexed. The agreement was binding upon and inured to the benefit of the parties, “their respective legal representatives, successors and assigns.”
{¶ 8} The City Commission also passed Ordinance No. 97-210, which appellants attached to their motion. That ordinance authorized the City Manager to enter into the Development Incentive Agreement and approved it.
{¶ 9} With their motion, appellants submitted evidence that the terms of the agreement had not been fulfilled, that is, (1) the connection fee of $4,446.94 had not been paid, (2) the annual fee of $250 had not been paid, and (3) annexation had not occurred. Because the agreement had not been fulfilled, appellants argued, appellees, the new owners of the property, were not entitled to its benefits.
{¶ 10} Third, appellants contended that appellees had no other right to city sewer service because the City has no obligation to provide its services outside its boundaries. Without annexation, the property remained outside city limits.
{¶ 11} Finally, appellants argued that appellees’ acquisition of the property through a sheriff‘s sale was of no consequence. The City had no lien or encumbrance on the property, nor was it a party to the foreclosure proceedings.
{¶ 12} The trial court held a hearing on the motion on February 29, 2008. Thereafter, the trial court denied the motion by entry.
{¶ 13} In May 2008, appellants filed a second motion for summary judgment. By this motion, appellants contended that they are immune from liability pursuant to
{¶ 14} In response, appellees contended that the disconnection was a proprietary function, for which appellants did not have immunity. Appellees also contended that no legislative act authorized appellants’ disconnection of an existing sewer connection.
{¶ 15} The trial court denied appellants’ second motion for summary judgment. Without detailed analysis, the court found that there existed a genuine issue of material fact as to whether an exception to immunity applied.
{¶ 16} Appellants filed a timely appeal, and they raise the following assignment of error:
{¶ 17} “The trial court erred when it overruled [appellants‘] second motion for summary judgment.”
{¶ 18} We review a summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. We apply the same standard as the trial court, viewing the facts in a light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 12.
{¶ 19} Pursuant to
{¶ 20} Here, the legal question before us is whether appellants are immune from liability pursuant to
{¶ 21} Here, under the first-tier general rule, the City is not liable to appellees for damages caused by the City or its employees for the disconnection of the sewer line, an action the parties agree is either a governmental or proprietary function. As to the second tier, appellants argue that the disconnection is a governmental function, and no exception to liability applies. Appellees, in response, contend that
{¶ 22} Appellants contend that
{¶ 23} Section 4, Article XVIII of the Ohio Constitution authorizes any municipality to acquire, construct, own, lease, and operate a public utility within or outside its corporate limits. Section 6, Article XVIII also authorizes a municipality owning or operating a public utility to sell and deliver a surplus utility product outside its boundaries. The Supreme Court of Ohio has held that, in general, the council of the municipality has the power to determine the terms on which a surplus
{¶ 24} Before the trial court, appellants submitted evidence of the legislative act by which the City set the terms for providing sewer service to customers outside its corporate limits. Specifically, Resolution No. 3724, adopted by the City Commission on December 12, 1972, provides: “That it shall be the policy of the City to extend water and sewer facilities to areas contiguous to the City upon annexation.” Other evidence established that Resolution No. 3724 has not been repealed, appellees’ property lies outside the city limits, and the property has not been annexed to the city. Therefore, the provision of sewer service to appellees’ property is contrary to the City‘s terms of providing service.
{¶ 25} Nevertheless, appellees argue that the City has no power to disconnect sewer service already being provided to customers outside its limits. To the contrary, however, the Supreme Court of Ohio has repeatedly held that, in the absence of a contract, a municipality does not have a continuing obligation to provide water or sewer service to extraterritorial customers. See Bakies at ¶20-21, citing Indian Hill; Fairway Manor, Inc. v. Bd. of Commrs. of Summit Cty. (1988), 36 Ohio St.3d 85, 89; and Grandview Hts. v. Columbus (1963), 174 Ohio St. 473.
{¶ 26} Appellees submitted a March 19, 1956 agreement between the City
{¶ 27} Only the 1997 Development Incentive Agreement, which appellees submitted in opposition to appellants’ second motion for summary judgment, provides for sewer service. As appellants argue, however, the City has no agreement with appellees. Furthermore, the benefits of the 1997 agreement cannot accrue to appellees because the City never approved their assumption of the agreement. And, even if the benefits of the agreement could accrue to appellees, the agreement would not require the City to continue to provide sewer service because the terms of the agreement—payment of a connection fee, payment of annual fees, and annexation—have not been fulfilled. Therefore, with or without the 1997 agreement, the City has no continuing obligation to provide sewer service to appellees’ property and has the power to discontinue it. The actions taken by the City and its employees—notifying appellees of the terms of continuing service and ultimately disconnecting the line itself—were all necessary to the exercise of the City‘s power to prescribe the terms for sewer service and to discontinue service if those terms are not met. Therefore,
{¶ 28}
{¶ 29} Although appellants moved for summary judgment in favor of the individual defendants, appellees did not address the individual defendants in their memorandum in opposition, nor did the trial court address them. Instead, appellees opposed summary judgment, and the trial court denied summary judgment, only on the basis of
{¶ 30} In short, appellees submitted no evidence that would support liability against the individual appellants. Their pleading, evidence, and arguments supported a question of fact only as to
{¶ 31} For all these reasons, we conclude that appellants are immune from
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BROGAN and FAIN, JJ., concur.
(Hon. Judith L. French, from the Tenth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
James E. Heath
Jerome M. Strozdas
Hon. Douglas M. Rastatter