Riveredge Dentistry Partnership v. ClevelandRiveredge Dentistry Partnership v. Cleveland
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 16, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-932884
Appearances:
The Dolan Law Firm, LLC, and Michael A. Dolan, for appellees.
Mark D. Griffin, Cleveland Director of Law, James R. Russell, Jr., Chief Assistant Director of Law, and Carli R. Young, Assistant Director of Law, for appellant.
MICHAEL JOHN RYAN, J.:
{¶ 1} Defendant-appellant the City of Cleveland (“appellant“) appeals the trial court‘s decision to deny its partial motion for summary judgment and grant
I. Background
{¶ 2} This case concerns repeated flooding and water damage to the basement of a commercial building located at 3865 Rocky River Drive in the West Park neighborhood of Cleveland, Ohio. West Park sits on the western border of Cleveland and contains the popular Kamm‘s Corners retail and entertainment district.
{¶ 3} In 1925, appellant initiated construction of a storm sewer culvert in West Park, known as the “Albers sewer.” The Albers sewer is a 60-inch brick storm sewer that sits between the boundary of Kamm‘s municipal parking lot (“parking lot“) and the appellees’ property and crosses through the northeast boundary of the property. The Albers sewer empties, discharges, and drains into the Northeast Ohio Regional Sewer District (“NEORSD“) combined sewer system, which is located on Rocky River Drive. Between 1925 and May 2019, stormwater from the parking lot was discharged directly into the Albers sewer. A curb constructed along the property‘s western property line separated the building from the parking lot and
{¶ 4} In 1996, appellant acquired the parking lot. By 2015, the parking lot had fallen into disrepair, but nothing was done at that time. In 2018, appellant worked with NEORSD to apply for a grant for improvements to the parking lot. In May 2019, appellant contracted with Cook Paving & Construction Company (“Cook Paving“) to complete construction of five new bio-retention basins to divert stormwater away from the Albers sewer.
{¶ 5} Prior to the 2019 construction, when the parking lot‘s catch basins clogged with silt and debris, stormwater flowed along a curb at the western end of the lot, discharging onto the properties of popular bars and restaurants located immediately north of the subject building. The new basins were constructed to accept diverted parking lot stormwater and discharge it into the ground. Two of the basins (Basins 4 and 5) are interconnected and located on the property line of the parking lot and the appellees’ building. The basins extend along the entire length of the building and are located within ten feet of the foundation of the building. Basins 4 and 5 replaced the curb that had previously separated the parking lot from the appellees’ property. The curb separating the parking lot from the Basins 4 and 5 was cut out in front of each basin, so that the curb no longer divided the parking lot from the basins.
{¶ 6} Appellees have varying property interests in the subject building. The building consists of two stories and a basement; there are six office units, including
{¶ 7} Since late May 2019, the basement of the subject building has experienced repeated intermittent flooding. According to appellees, stormwater flooded the building over 80 times between late May 2019 and mid-October 2024. Appellees alleged that the flooding caused them to incur lost rents and damage to paint, paper, carpet, drywall, as well as the accumulation of mold in the basement units.
{¶ 8} In June 2019, appellees notified appellant of the flooding, which they attributed to the stormwater run-off from the parking lot into Basins 4 and 5, located next to appellees’ property. In response, appellant had Cook Paving construct curbs in the parking lot attempting to direct some of the stormwater into the other three retention basins.
{¶ 9} In May 2020, Riveredge filed suit against appellant and Cook Paving alleging appellant intentionally diverted the parking lot‘s stormwater away from the Albers sewer and into the five bio-retention basins, causing flooding to the building‘s basement. The complaint alleged that appellant and Cook Paving “jointly, severally, intentionally, recklessly, and/or negligently” caused, diverted, or allowed ground and surface water from appellant‘s parking lot to be discharged onto appellees’
{¶ 10} Riveredge filed a first and second amended complaint, adding the NEORSD as a defendant. In the second amended complaint, Riveredge alleged that appellant and NEORSD recklessly and/or negligently diverted stormwater from the sewer system and onto Riveredge‘s property, causing the building to flood.
{¶ 11} NEORSD moved to dismiss pursuant to
{¶ 12} In June 2022, appellant filed a notice of removal to federal district court. Riveredge subsequently filed a fourth amended complaint in federal court, adding the remaining appellees as plaintiffs. The claims against NEORSD were eventually dismissed. The parties filed cross motions for summary judgment. The court dismissed the federal takings claim as to WVCA, the Shah Trust, Dr. Kim, and Kamm Property, finding that their claims were barred by the applicable two-year statute of limitations. Riveredge Dentistry Partnership v. Cleveland, 2024 U.S. Dist. LEXIS 26292, *56 (N.D. Ohio Feb. 15, 2024). As to Riveredge, the court
{¶ 13} In state court, appellees filed a verified petition for a writ of mandamus. The parties also filed cross motions for summary judgment, and a hearing was held on the motions. Appellees claimed that the recurring flooding resulted from appellant‘s stormwater diversion and constituted a taking of private property in violation of the
{¶ 14} The trial court denied appellant‘s motion for summary judgment and granted the appellees’ motion for summary judgment, determining that appellees were entitled to a writ of mandamus.
{¶ 15} This appeal followed.
I. The trial court erred as a matter of law by granting summary judgment to all Relators and issuing a writ of mandamus to compel appropriation proceedings.
II. The trial court erred as a matter of law by denying the City‘s motion for partial summary judgment because there are Relators that lack standing, cannot meet their burden, and the applicable statute of limitation bars their claims for a writ of mandamus.
III. Law and Analysis
{¶ 16} In the first assignment of error, appellant argues that the trial court erred in granting summary judgment in favor of appellees and issuing a writ of mandamus to compel appropriation proceedings.
{¶ 17} Summary judgment is a burden-shifting exercise. Initially, the moving party must point to evidentiary materials to show there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). If the moving party meets this burden, a reciprocal burden is placed on the nonmoving party. Id. at 293. The nonmovant may not rest upon the mere allegations or denials of pleadings, but its response, by affidavit or as otherwise provided in the rule, must set forth specific facts showing that there is a genuine issue for trial. Id., citing
{¶ 18} The
{¶ 19} In order to be entitled to a writ of mandamus, appellees must establish a clear right to compel the government actor to commence the appropriation action, a corresponding clear legal duty of the government actor to institute that action, and a lack of an adequate remedy at law. State ex rel. Doner v. Zody, 2011-Ohio-6117, ¶ 53. “[T]he appropriate standard of proof in mandamus cases is proof by clear and convincing evidence.” Doner at ¶ 55.
{¶ 20} Any direct encroachment upon land, which subjects it to a public use that excludes or restricts the dominion and control of the owner over it, is a taking for which a right of compensation is guaranteed under the
{¶ 21} Inverse condemnation “is ‘a cause of action against the government to recover the value of property taken by the government without formal exercise of the power of eminent domain.‘” Doner at ¶ 62, quoting Moden v. United States, 404 F.3d 1335, 1342 (2005). “‘Not every “invasion” of private property resulting from government activity amounts to an appropriation.‘” Doner at ¶ 64, quoting Columbia Basin Orchard v. United States, 132 Ct. Cl. 445, 449 (1955). Appellees must show that the government intended to invade a protected property interest or
Even where the effects of the government action are predictable, to constitute a taking, an invasion must appropriate a benefit to the government at the expense of the property owner or at least preempt the owner‘s right to enjoy his [or her] property for an extended period of time, rather than merely inflict an injury that reduces its value.
(Cleaned up.) Id.
{¶ 22} In cases “involving claims of government-induced flooding,” a taking may be established
when the evidence shows that (1) the flooding is either intended by the government or that the flooding is the direct, natural, or probable result of government-authorized activity and (2) the flooding is either a permanent invasion or creates a permanent liability because of intermittent, but inevitably recurring overflows.
{¶ 23} To satisfy the causation prong, appellees
need not allege or prove that defendant specifically intended to take property. There need be only a governmental act, the natural and probable consequences of which effect such an enduring invasion of [r]elators’ property so as to satisfy all other elements of a compensable taking. In essence, relators must prove both that respondents’ actions caused the flooding and that the flooding was a foreseeable result of their actions.
{¶ 24} Thus, as it applies to this case, the first prong of the Doner test requires that appellant either intended the flooding or that the flooding was the direct, natural, or probable result of appellant‘s activity. Appellees claim both — that
{¶ 25} The Doner Court specifically addressed situations involving flooding caused by the construction of storm sewers:
In cases of flooding caused by actions of the government . . . “the construction and operation of a municipal storm sewer system so as to cause material damage to a down-stream landowner, as a result of flooding from rains or other causes which are reasonably foreseeable, is a direct encroachment upon that land which subjects it to public use that excludes or restricts the landowner‘s dominion and control over his [or her] land and such owner has a right to compensation for the property . . . .”
Doner at ¶ 60, quoting Masley v. Lorain, 48 Ohio St.2d 334 (1976), syllabus.
{¶ 26} Doner requires the trial court to determine if the flooding is a permanent invasion or creates a permanent liability because of intermittent, but inevitably recurring, overflows. Id. at ¶ 65. In considering the appropriation prong — the nature and magnitude of the government action — we note that it is undisputed that the flooding was intermittent and inevitably recurring. The flooding rendered the building‘s basement unusable, and the foundation of the building suffered structural damage. Appellees submitted an estimate to cure the structural and other damage caused by the flooding in the amount of $458,629 and an estimate for mold abatement in the amount of $71,292.93. The building was valued at $850,000 prior to the installation of the basins. An updated valuation showed the building was currently valued at $240,000. This demonstrates a decrease in the fair market value.
{¶ 28} Appellant argues that the trial court failed to consider the Ark. Game factors. According to appellant, if the trial court had applied the proper test, the court would have found that “there is at least [an] issue of fact for the factors required to find a compensable taking by flooding.” (Respondent‘s brief on appeal, p. 15.)
{¶ 30} Appellees direct this court to several instructive cases, and we take note of a long line of Ohio Supreme Court cases that hold that a taking may result where sewage or stormwater from a governmental authority causes damage to a property owner. In Doner, 2011-Ohio-6117, the construction of a new spillway to facilitate the discharge of lake waters intermittently overflowed onto privately owned property. The Ohio Supreme Court cited United States v. Cress, 243 U.S. 316 (1917), where the Court determined that “[t]here is no difference of kind, but only of degree, between a permanent condition of continual overflow by backwater and a permanent liability to intermittent but inevitably recurring overflows; and, on principle, the right to compensation must arise in the one case as in the other.” Id. at ¶ 60, citing Cress at 328. See also Gilbert v. Cincinnati, 125 Ohio St.3d 385 (2010) (city-owned pump station that discharged sanitary sewage into a creek running through private property on “79 days between 1998 and 2008” was held to be a physical taking that violated the downstream property owners’ constitutional rights); Masley, 48 Ohio St.2d 334, at the syllabus (“The construction and operation of a municipal storm sewer system so as to cause material damage to a downstream landowner, as a result of flooding from rains or other causes which are reasonably
{¶ 31} Appellees showed, by clear and convincing evidence, that the flooding was the direct, natural, or probable result of appellant‘s construction of the bio-retention basins. Appellant counters that they offered evidence that the building
{¶ 32} In 2021, appellees retained a structural engineer to inspect the basement after a basement exit door became inoperable. The engineer, Christopher Jasinski, reported that the repeated flooding of property and building with stormwater caused mold, damage to the interior basement walls, and cracks in the exterior basement foundation walls and basement floor. Jasinski concluded that the basins were the cause of the frequent flooding of the basement level of the building.
{¶ 33} Michael McAndrews (“McAndrews“), a landscape architect employed by appellant, was responsible for the design, drafting, and implementation of the basins. He also supervised the construction. According to McAndrews, he intentionally designed the basins to maximize stormwater discharge into the basins and intentionally placed Basins 4 and 5 within ten feet of the building. R.E. Warner & Associates (“R.E. Warner“), an engineering firm, contracted with appellant for general engineering and architectural services. Jennifer Kalin, director of business
{¶ 34} Appellant does not contest that the new basins discharge stormwater from the parking lot into the ground within ten feet of the building and that it constructed the basins knowing that the basement of the building was downstream and lower than the basins. Appellant also offered no evidence to counter the evidence appellees provided that the new storm basins caused the flooding to appellees’ building.
{¶ 35} Given the construction of the basins, which did not include barriers to prevent water from infiltrating the ground, the high volume of stormwater flowing from the parking lot, the downhill direction of the water flow, and the close proximity of the basins to the building, the flooding of appellees’ property was a foreseeable result of appellant‘s actions.
{¶ 36} Based on the evidence before this court, appellees have shown by clear and convincing evidence that appellant‘s action in constructing the basins constituted a compensable taking.
{¶ 37} The first assignment of error is overruled.
{¶ 39} Appellant contends that appellees, save Riveredge, filed their claims outside the two-year statute of limitation that applied to this case —
{¶ 40} The construction of the retention basins was substantially completed in May 2019. Appellant was notified about the flooding in June 2019. Appellees brought their takings claims on May 10, 2022. Assuming that the statute of limitations began to run in June 2019 when flooding first started, appellees timely asserted their claims.
{¶ 42} Accordingly, the appellees’ claim was timely filed.
{¶ 43} Next, appellant claims that WVCA does not have standing to seek a writ of mandamus because the association does not own the subject property. We disagree.
{¶ 44} In Riveredge, 2024 U.S. Dist. LEXIS 26292, the district court found that WVCA had standing to bring a state takings claim:
[T]he court finds the [WVCA] has standing to assert a takings/inverse condemnation claim. Under [
R.C. 5311.20 ], a condominium owner‘s association has authority to sue as a separate legal entity in any action relating to the “common elements.” [R.C. 5311.20 ]. In relevant part, “common elements” are defined as “[a]ll other areas, facilities, places, and structures that are not part of a unit,” which includes: “(a) Foundations, columns, girders, beams, supports, supporting walls, roofs, halls, corridors, lobbies, stairs, stairways, fire escapes, entrances, and exits of buildings; [and] (b) Basements, yards, gardens, parking areas, garages, and storage spaces; . . .” [R.C. 5311.01(F) ]. “Further, ‘pursuant toR.C. 5311.20 , the unit owners association, on behalf of all unit owners and for each of them, is the proper party to bring an action for damages pertaining to the common areas sustained by any or all of the unit owners.‘”
(Cleaned up.) Id. at *32 – 33.
{¶ 45} The court concluded that because WVCA‘s claim includes allegations “concerning the common elements of the building, with flooding alleged to have caused damages to common areas of the Building‘s basement, foundation, and structural elements,” WVCA had standing to assert a state-law takings claim. Id. at *33. We agree with the reasoning of the district court and find that WVCA has standing to assert a takings claim.
{¶ 46} Moreover, as noted by the trial court, both
{¶ 47} Finally, appellant argues appellees, except for Riveredge, have an adequate remedy at law.
{¶ 49} In Doner, 2011-Ohio-6117, appellees raised both federal and state takings claims in their writ of mandamus. As the trial court in this case noted, the Doner Court did not dismiss the state takings claim despite the pending federal takings claim. Because appellees’ state tort claims are barred by
{¶ 50} Accordingly, the trial court‘s judgment is affirmed. Case is remanded for the court to issue a writ of mandamus to compel the initiation of appropriation proceedings.
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.
MICHAEL JOHN RYAN, JUDGE
EILEEN T. GALLAGHER, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR