ALESSANDRA RISCATTI, ET AL. v. PRIME PROPERTIES LIMITED PARTNERSHIP, ET AL. [APPEAL BY CITY OF PARMA]
No. 97254
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 28, 2012
2012-Ohio-2941
BEFORE: Boyle, J., Stewart, P.J., and Rocco, J.
Civil Appeal from the Cuyahoga County Common Pleas Court, Case Nos. CV-714827 and CV-735966. RELEASED AND JOURNALIZED: June 28, 2012.
Timothy G. Dobeck
Law Director/Chief Prosecutor
Michael P. Maloney
Richard D. Summers
Assistant Law Directors
City of Parma
6611 Ridge Road
Parma, Ohio 44129
ATTORNEYS FOR APPELLEES
For Alessandra Riscatti, et al.
Drew Legando
Jack Landskroner
Thomas C. Merriman
Landskroner, Grieco, Madden, LLC
1360 West Ninth Street, Suite 200
Cleveland, Ohio 44113-1254
Stephanie Brooks
Steve Baughman Jensen
Allen M. Stewart
Allen Stewart, P.C.
325 North St. Paul Street
Suite 2750
Dallas, Texas 75201
Chris Nidel
Nidel Law, P.L.L.C.
2002 Massachusetts Avenue, N.W.
Suite 3
Washington, D.C. 20036
For Cuyahoga County, et al.
Cuyahoga County Prosecutor
BY: Michael A. Dolan
Assistant County Prosecutor
Justice Center Courts Tower
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113
For High Point Marathon, Ltd.
High Point Marathon, Ltd.
c/o Waheeba Abu-Zahrieh
P.O. Box 360214
Strongsville, Ohio 44136
For Northeast Ohio Regional Sewer District
Julie Blair
Regina M. Massetti
3800 Euclid Avenue
Cleveland, Ohio 44115
For Petroleum Station Properties, LLC
Charles A. Nemer
McCarthy, Lebit, Crystal & Liffman
101 West Prospect Avenue
Suite 1800
Cleveland, Ohio 44115
For Petroleum Underground Storage Tank
Mike DeWine
Attorney General
Cheryl R. Hawkinson
Assistant Attorney General
Executive Agencies
30 East Broad Street, 26th Floor
Columbus, Ohio 43215-3428
For Prime Properties Limited Partnership
David B. Maxman
Waxman Blumenthal, LLC
29225 Chagrin Boulevard
Suite 350
Cleveland, Ohio 44122
For Speedway Superamerica LLC, et al.
Christine M. Garritano
Robert B. Casarona
Roetzel & Andress, LPA
1375 East Ninth Street
One Cleveland Center, 9th Floor
Cleveland, Ohio 44114
Shane A. Farolino
Kelly J. Mahon
Roetzel & Andress, LPA
222 South Main Street
Suite 400
Akron, Ohio 44308
For United Petroleum Marketing LLC, et al.
United Petroleum Marketing
c/o Amin Mahammad, Statutory Agent
9391 Chesapeake Road
North Royalton, Ohio 44133
{¶1} Defendant-appellant, the city of Parma (“Parma“), appeals from a trial court‘s judgment denying its motions for judgment on the pleadings regarding its statute of limitations defense and its sovereign immunity defense. The city raises two assignments of error for our review:
“[1.] The trial court erred in denying appellant‘s motion for judgment on the pleadings as the statute of limitations,
[R.C.] 2744.04 , bars appellees[‘] claims.“[2.] The trial court erred in denying appellant‘s motion for judgment on the pleadings as appellant is immune from suit under political subdivision immunity,
[R.C] 2744.02 .”
{¶2} Finding no merit to its arguments, we affirm the decision of the trial court.
Procedural History and Factual Background
{¶3} Plaintiffs-appellees are current and former residents who live or lived on State Road in Parma. On August 29, 2009, an explosion occurred in the basement of the home of plaintiffs Alessandra and Elisabetta Riscatti and Laszlo Beres (“the Riscattis“). According to the complaint, “flames exploded from the sanitary sewer in the basement.” An investigation revealed that the explosion was caused by concentrated gasoline vapors that originated from drain pipes connected to underground storage tanks beneath a Marathon gas station near the Riscattis’ home. The drain pipes, built by Marathon in 1982, were connected to the sanitary sewer main and designed to keep the underground tank from floating if the ground-water table rose in response to rain or snow melt. As the
{¶4} Parma owns the public sanitary sewer lines. But as of May 1, 2008, Cuyahoga County (“County“) agreed to provide mainline cleaning and televising services to the sewer lines, and to provide maintenance of the sewer lines in the public rights of way.
{¶5} Northeast Ohio Regional Sewer District (“Sewer District“) provides sewer maintenance to various municipalities in the region, but only if the municipality contracts with the Sewer District. The Sewer District filed a motion to dismiss, asserting that Parma never entered into an agreement with the Sewer District, and thus, the Sewer District never had control or maintenance responsibilities over the sewer lines in Parma.1
{¶6} Several of the plaintiffs allege that they have smelled gasoline over the years, and some claim to have smelled gasoline in their homes since 1982. Plaintiffs assert that they repeatedly complained of the smell to various entities, including Parma, the Sewer District, and the County, but claim they were told that the odors in their home were not caused by gasoline from the Marathon gas station. According to plaintiffs, they were told that the odors were caused by “cooking, natural gas, or sewage gasses.” Despite
{¶7} Plaintiffs brought suit against the owners and operators of the Marathon gas station (including Marathon Oil Company and Prime Properties Limited Partnership), the Sewer District, Parma, the County, and various other entities, alleging that “reasonable inspection would have uncovered that the sanitary sewer system was transmitting [gasoline] to dozens of private homes.” The various entities filed several motions, including motions to dismiss and/or motions for judgment on the pleading, asserting multiple defenses. Plaintiffs allege in their complaint that defendants’ failure to undertake reasonable inspection caused their damages.
{¶8} Parma filed two motions for judgment on the pleadings, claiming in the first that the statute of limitations had run, and claiming in the second that it was immune from liability under
Standard of Review
{¶9} A motion for judgment on the pleadings presents only questions of law, which this court reviews de novo. Dearth v. Stanley, 2d Dist. No. 22180, 2008-Ohio-487, ¶ 24. Determination of a motion for judgment on the pleadings is restricted solely to the allegations in the pleadings and any writings attached to the
Statute of Limitations
{¶10} In its first assignment of error, Parma argues that the trial court erred when it denied its motion for judgment on the pleadings based on the statute of limitations defense.
{¶11} Before we review the merits of this assignment of error, however, we must first determine whether we have jurisdiction to do so. Appellate courts have jurisdiction to review the final orders of inferior courts within their districts. Ohio Constitution, Article IV, Section 3(B)(2);
{¶12} An appellate court has jurisdiction to review, affirm, modify, set aside, or
[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy * * *
(5) An order that determines that an action may or may not be maintained as a class action[.]
{¶13} Generally, a denial of a motion to dismiss is not a final appealable order. Pannunizio v. Hubbard, 11th Dist. No. 2003-T-0143, 2004-Ohio-3930, ¶ 5. That is because “the denial of a motion to dismiss does not determine the primary action or prevent a judgment.” Huntington Natl. Bank v. Ewing Lumber Co., Inc., 10th Dist. No. 82AP-785, 1983 WL 3450, *1 (Apr. 5, 1983). “A motion for judgment on the pleadings is the same as a motion to dismiss filed after the pleadings are closed.” Accelerated Sys. Integration v. Hausser & Taylor, LLP, 8th Dist. No. 88207, 2007-Ohio-2113, ¶ 33.
{¶14}
The rights protected by statutes of limitations are not irreparably lost absent immediate review, but, rather, the prejudice caused by a delayed trial and stale evidence may be best assessed after a trial. Our analysis above and Ohio law supports the conclusion * * * that the statute of limitations seeks to avoid unnecessary, prejudicial, and delayed trials, but does not accord an absolute right to be free from trial.
Prior to the adoption of the Ohio Civil Rules, it was well-settled that no final appealable order existed upon the overruling or sustaining of a demurrer to pleadings, since such an order, without more, left the action still pending in the lower court. Accordingly, Hughes v. Everett (App.1955), 129 N.E.2d 531, 71 Ohio Law Abs. 61, and Trunk v. Hertz Corp. (App.1964), 200 N.E.2d 894, 95 Ohio Law Abs. 364 [32 O.O.2d 264], held that the overruling of a demurrer based on the running of the statute of limitations was not a final appealable order.
State v. Torco Termite Pest Control, 27 Ohio App.3d 233, 235-236, 500 N.E.2d 401 (10th Dist.1985).
{¶16} In Hughes v. Zordich, 7th Dist. No. 99 C.A. 167, 2001 WL 1740069 (Apr. 25, 2001), the court addressed the appealability of a denial of a motion to dismiss based upon the statute of limitations. After acknowledging the constitutional limitations on the jurisdiction of appellate courts and reviewing the definition of a “final order” set forth in
{¶17} The fact that Parma is a political subdivision does not change this analysis.
{¶18} Thus, we conclude that an order denying a political subdivision‘s motion based on the statute of limitations defense is not an order denying that political subdivision “the benefit of alleged immunity.” See also Essman v. Portsmouth, 4th Dist. No. 08CA3244, 2009-Ohio-3367 (because trial court‘s decision denying political subdivision‘s motion based on its statute of limitations defense did not deny the political subdivision the benefit of
{¶19} We recognize that the trial court in this case added the Civ.R. 54(B)
{¶20} Accordingly, this court lacks jurisdiction to consider the trial court‘s denial of Parma‘s motion for judgment on the pleadings based on the statute of limitations defense. Parma‘s first assignment of error is overruled.
R.C. Chapter 2744
{¶21} The Supreme Court set forth a three-tiered analysis to determine whether a political subdivision is immune from tort liability: the first tier is to establish immunity under
{¶22}
{¶23}
{¶24} Under
{¶25} In the present case, the parties do not dispute the fact that Parma is a political subdivision and therefore entitled to the general grant of immunity under
{¶26} Parma argues that plaintiffs’ “theory of liability — that the public sanitary sewer system vented noxious gas onto plaintiffs’ property and into their homes, challenges the design, not the operation of the system.” Thus, Parma contends that it is immune from liability for acts that relate to a governmental function.
{¶27} Plaintiffs, on the other hand, maintain their claims challenge the “post-design, post-construction negligent conduct of [Parma], the Sewer District, and the County, which each failed to inspect the sewer and to take steps to repair the problem [that] caused the plaintiffs’ damage.” Plaintiffs assert that Parma (and the other governmental entities) had a duty to maintain, operate, and upkeep the sanitary sewer system and or to destroy the offending drain pipes. Plaintiffs further allege that Parma‘s negligent failures to inspect the sewer, combined with their failure to repair or destroy the offending drain pipes that allowed the contamination, caused the plaintiffs’ injuries. Thus, plaintiffs claim that Parma was not immune from liability under
{¶28} Ohio courts have long recognized that a city can be liable for the negligent maintenance of its sewers. See Portsmouth v. Mitchell Mfg. Co., 113 Ohio St. 250, 148 N.E. 846 (1925). In Mitchell Mfg., the Supreme Court held “that the construction and institution of a sewer system is a governmental matter, and that there is no liability for mere failure to construct sewers. However, * * * the operation and upkeep of sewers is
{¶29} The Supreme Court announced a similar rule in Doud v. Cincinnati, 152 Ohio St. 132, 137, 87 N.E.2d 243 (1949), stating:
A municipality is not obliged to construct or maintain sewers, but when it does construct or maintain them it becomes its duty to keep them in repair and free from conditions which will cause damage to private property * * *. The municipality becomes liable for damages caused by its negligence in this regard in the same manner and to the same extent as a private person under the same circumstances.
{¶30} “Determining whether an allegation of negligence relates to the maintenance, operation, or upkeep of a sewer system or, instead, the design, construction, or reconstruction of a sewer system is not always a simple inquiry.” Essman v. Portsmouth, 4th Dist. No. 09CA3325, 2010-Ohio-4837, ¶ 32. A complaint is properly characterized as a maintenance, operation, or upkeep issue when “remedying the sewer problem would involve little discretion but, instead, would be a matter of routine maintenance, inspection, repair, removal of obstructions, or general repair of deterioration.” (Citations omitted.) Id. But a complaint presents a design or construction issue if “remedying a problem would require a [political subdivision] to, in essence, redesign or reconstruct the sewer system.” (Citations omitted.) Id. at ¶ 32-33.
{¶31} After reviewing the record before us and “construing all material allegations in the complaint, along with all reasonable inferences drawn therefrom in favor of” plaintiffs, as we are required to do for a Civ.R. 12(C) motion, we conclude that plaintiffs’ complaint alleges the negligent performance of a proprietary function, not a governmental
{¶32} In Essman, 2010-Ohio-4837, the homeowners alleged that the city negligently operated the sewer system by failing to monitor the water levels in the system so as to prevent sewage intrusions onto homeowners’ properties. The sewer system was not designed to have water monitors. The court held that the homeowners’ true complaint (the sewer system should have had water monitors) related to the original design of the sewer system, a governmental function. Id. at ¶ 47. The court reasoned that the city would be required to perform extensive redesigning or reconstructing of the sewer system to correct the problem. Id. at ¶ 46.
{¶33} In Zimmerman, the homeowner alleged that the county negligently maintained and operated the sewer system by dumping sewage into a stream that flowed across their property. The court disagreed with the homeowner‘s characterization of the issue as negligent maintenance and operation. Id. at *3. The court found that the county‘s decision to pump sewage and rain water into the stream was a response to the sewer system‘s inability as designed and constructed to handle the volume of materials that currently passed through it. Id. The court held that this was not a problem that the county could remedy through routine maintenance; rather, it would require extensive redesigning and reconstructing of the system to meet current demands. Id.
{¶35} Accordingly, under Civ.R. 12(C), read in a light most favorable to plaintiffs, we conclude that their complaint alleges the negligent performance of a proprietary function, not a governmental function. Thus, an exception to immunity applies under
{¶36} Parma‘s second assignment of error is overruled.
{¶37} Judgment affirmed.
It is ordered that appellees recover from appellant 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
MELODY J. STEWART, P.J., CONCURS;
KENNETH A. ROCCO, J., DISSENTS WITH SEPARATE OPINION
KENNETH A. ROCCO, J., DISSENTING:
{¶38} I respectfully dissent from the majority opinion‘s disposition of this appeal. In my view, the majority opinion reads both
{¶39} I base my beliefs on the wording of the statutes and on the language the Ohio Supreme Court uses to interpret those statutes.
{¶40}
“An order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.” (Emphasis added.)
{¶41} The “chapter” includes
(A) 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, whether brought as an original action, cross-claim, counterclaim, third-party claim, or claim for subrogation, 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. The period of limitation contained in this division shall be tolled pursuant to section 2305.16 of the Revised Code. This division applies to actions brought against political subdivisions by all persons, governmental entities, and the state. (Emphasis added.)
{¶42} The chapter also contains
This chapter does not apply to, and shall not be construed to apply to, the following:
* * *
(B) Civil actions by an employee, or the collective bargaining representative of an employee, against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision.
{¶43} In Sampson v. Cuyahoga Metro. Hous. Auth., 8th Dist. No. 93441, 2010-Ohio-1214, this court found no lack of jurisdiction that prevented a review. I cannot see the distinction between a denial of immunity based upon a trial court‘s decision that the “defense” contained in
{¶44} Moreover, in reviewing this court‘s decision in Sampson, the Ohio Supreme Court made no distinction between the “exceptions” and the “defenses” to immunity in considering the applicability of
{¶45} This court previously has held that
{¶46} Because
R.C. Chapter 2744 governs political-subdivision immunity. Pursuant toR.C. 2744.02(C) , orders denying employees of a political subdivision immunity from liability under any provision of law are final, appealable orders. * * ** * *
* * * The General Assembly enacted
R.C. Chapter 2744 , stating that “the protections afforded to political subdivisions and employees of political subdivisions by this act are urgently needed in order to ensure the continued orderly operation of local governments and the continued ability of local governments to provide public peace, health, and safety services to their residents.” Am.Sub.H.B. No. 176, Section 8, 141 Ohio Laws, Part I, 1733. We noted in Hubbell, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, that “‘[t]he manifest statutory purpose ofR.C. Chapter 2744 is the preservation of the fiscal integrity of political subdivisions.‘” Id. at ¶ 23,
quoting Wilson v. Stark Cty. Dept. of Human Servs. (1994), 70 Ohio St.3d 450, 453, 639 N.E.2d 105.
We also note that judicial economy is better served by a plain reading of
R.C. 2744.02(C) . Id. at ¶ 24. “‘[D]etermination of whether a political subdivision is immune from liability is usually pivotal to the ultimate outcome of a lawsuit. Early resolution of the issue of whether a political subdivision is immune from liability pursuant toR.C. Chapter 2744 is beneficial to both of the parties. If the appellate court holds that the political subdivision is immune, the litigation can come to an early end, with the same outcome that otherwise would have been reached only after trial, resulting in a savings to all parties of costs and attorney fees. Alternatively, if the appellate court holds that immunity does not apply, that early finding will encourage the political subdivision to settle promptly with the victim rather than pursue a lengthy trial and appeals. Under either scenario, both the plaintiff and the political subdivision may save the time, effort, and expense of a trial and appeal, which could take years.‘” (Emphasis sic.) Id. at ¶ 25, quoting Burger v. Cleveland Hts. (1999), 87 Ohio St.3d 188, 199–200, 718 N.E.2d 912 (Lundberg Stratton, J., dissenting). “‘As the General Assembly envisioned, the determination of immunity could be made prior to investing the time, effort, and expense of the courts, attorneys, parties, and witnesses * * *.‘” Id. at ¶ 26, quoting Burger at 200 (Lundberg Stratton, J., dissenting).These policy considerations apply equally whether the immunity in question is based on R.C. Chapter 2744 or another provision of the law, including federal qualified immunity. Indeed, federal courts have applied a similar rationale in holding that orders denying a public official the benefit of qualified immunity are final and appealable. See, e.g., Mitchell v. Forsyth (1985), 472 U.S. 511, 525-530, 105 S.Ct. 2806, 86 L.Ed.2d 411. Qualified immunity “is an immunity from suit rather than a mere defense to liability; * * * it is effectively lost if a case is erroneously permitted to go to trial.” (Emphasis sic.) Id. at 526. Qualified immunity provides immunity not only from liability but from the “consequences” of a suit, including “‘the general costs of subjecting officials to the risks of trial-distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.‘” Id., quoting Harlow v. Fitzgerald (1982), 457 U.S. 800, 816, 102 S.Ct. 2727, 73 L.Ed.2d 396. Failure to give effect to the language of
R.C. 2744.02(C) by barring immediate appeal of denials of qualified immunity for alleged violations of Section 1983 would defeat the purpose for which the immunity exists.
Conclusion
Pursuant to
{¶48} The majority opinion relies upon Guenther v. Springfield Twp. Trustees, 2d Dist. No. 2010-CA-114, 2012-Ohio-203, in determining that the order in this case is not final and appealable, but Guenther fails to mention the Ohio Supreme Court‘s decisions in either Summerville or Mynes v. Brooks, 124 Ohio St.3d 83, 2009-Ohio-1971, 909 N.E.2d 511. In addition, the majority opinion‘s reliance upon Essman v. Portsmouth, 4th Dist. No. 08CA3244, 2009-Ohio-3367 is problematic because Essman predates Mynes, Summerville, and Sampson, and, too, the trial court in Essman made no Civ.R. 54(B) certification.
{¶49} In this case, appellees alleged in their amended complaints that Parma was negligent. According to
{¶50} According to the amended complaints, offensive odors caused by gasoline
{¶51} Appellees sought in this way to plead that Parma‘s negligence, i.e., its failure to “maintain” the State Road sewer line, was not fixed in time, but, rather, constituted a “continuing tort,” as considered in Sexton v. Mason, 117 Ohio St.3d 275, 2008-Ohio-858, 883 N.E.2d 1013. Appellees’ effort, however, contorted the applicable analysis.
{¶52} In Sexton, the Ohio Supreme Court did not consider the tort of negligence; rather, the court distinguished between a continuing trespass and a completed trespass, stating as follows:
The defendant‘s ongoing conduct or retention of control is the key to distinguishing a continuing trespass from a permanent trespass. We hold that a continuing trespass in this context occurs when there is some continuing or ongoing allegedly tortious activity attributable to the defendant. A permanent trespass occurs when the defendant‘s allegedly tortious act has been fully accomplished. (Emphasis added.)
{¶53} The court in Sexton noted that a trespass “typically occurs when a defendant enters another person‘s land * * * .” (Emphasis added.) The Sexton court reasoned that a “continuing trespass” thus exists when “force” is “continued by the act” of the “defendant actor.” This reasoning is in conformity with the common law definition of a “trespass” as being an “invasion.” Black‘s Law Dictionary (4th Ed.1951).
{¶54} A continuing trespass thus “occurs when there is some continuing or ongoing
A trespass under Ohio law is a continuing trespass only if the trespass itself, and not the ongoing injury or harm caused by a past, completed misdeed, is continuing. Ongoing conduct is the key to a continuing trespass. Id., citing Sexton v. Mason (12th Dist. No. CA2006-02-026), 2007-Ohio-38, at ¶ 17.
{¶55} Because this language focuses on the nature of the tortious conduct and the conduct at issue constituted a trespass, the court contemplated continuing action, not inaction. Proceeding with the foregoing foundation for its decision, Sexton held that a “discovery rule” applied with respect to damage to property from a trespass. Id., citing Harris v. Liston, 86 Ohio St.3d 203, 714 N.E.2d 377 (1999). Thus, allegations in a complaint that allege continuing damage are insufficient. The complaint must “allege continuing activity” by the defendant. Sexton; compare State ex rel. Doner v. Doty, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235.
{¶56} In this case, appellees alleged that toxic substances began entering their homes from the “Tank System” in 1982. The complaint stated that appellees noticed the gasoline smells at that time. The “trespass” onto their properties, therefore, had commenced. The gasoline originated from the gas station‘s pipes, over which Parma had no control, and entered the pipes of appellees’ homes, over which Parma had no control.
{¶57} Under these circumstances, if, as appellees argued,
{¶58} In an effort to overcome the application of
{¶60} According to the complaints, therefore, Parma‘s inaction, which dated from 1982, may have been negligent, but it did not constitute a “continuing violation” for purposes of evading the application of