Nan Wallace v. City of Rossford
Court of Appeals No. WD-17-061
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
June 29, 2018
[Cite as Wallace v. Rossford, 2018-Ohio-2598.]
JENSEN, J.
Trial Court No. 2016CV0590
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Marvin A. Robon and Zachary J. Murry, for appellant.
Amy M. Natyshak and Shawn A. Nelson, for appellee.
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I. Introduction
{¶ 1} This is an appeal from the judgment of the Wood County Court of Common Pleas, granting summary judgment to appellee, the city of Rossford, on appellant‘s, Nan Wallace, claims for trespass, ejectment, and mandatory injunction.
{¶ 2} On October 27, 2016, appellant filed a complaint with the trial court, asserting the foregoing claims related to a dispute with appellee concerning an abandoned sewer line that runs underneath appellant‘s property. In the complaint, appellant alleged that she is the owner of a residence located at 337 Hillside Drive in the city of Rossford. Appellant acquired the residence from her parents’ estate. Appellant has periodically lived at the residence since 1967. The residence includes a single family home and a detached garage.
{¶ 3} According to appellant, she began to notice cracks forming in the walls, foundation, and chimney of the residence in 2013, and also noticed that the concrete floor in her garage had dropped more than 12 inches. Six years prior, appellant alerted the city to certain drainage issues she was experiencing on the property that were causing her basement to flood. The city responded by installing a catch basin at the end of appellant‘s driveway, which was tied into a storm-water pipe that flowed underneath appellant‘s driveway and garage and emptied into her back yard.
{¶ 4} According to her complaint, appellant alleged that she retained professional assistance from Jim Kelly of Edward Kelly & Sons, Inc. to investigate the cause of the cracks she was observing. Upon investigation, a blockage was found inside the storm-water pipe. The issue was discovered when the manhole cover over the catch basin was removed and a camera was inserted inside.
{¶ 6} Based upon her allegation that the city had no easement to permit the placement of the storm-water pipe underneath her residence, appellant alleged claims for trespass and ejectment, and sought a mandatory injunction to force the city to remove the pipe and to repair all damage caused by said removal.
{¶ 7} On December 28, 2016, the city filed its answer, in which the city generally denied the allegations contained in appellant‘s complaint, and asserted numerous defenses including statutory immunity under
{¶ 9} In the second and third affidavits, the city‘s superintendent for public works, Tyler Kolb, stated that the city installed a new storm sewer system along Hillside Drive in March 2014 in an effort to alter the water flow and address street flooding issues in that area. The new sewer system was attached to the catch basin in front of appellant‘s property, the water flow was reversed in the catch basin, and the preexisting storm-water pipe underneath appellant‘s property was “capped and the bottom of the catch basin on the sidewalk adjacent to [appellant‘s] property was filled with cement to cover the drainage tile so water would no longer flow through the drainage tile.”
{¶ 10} In the fourth affidavit attached to the city‘s motion for summary judgment, Patrick Altvater, a civil and municipal engineer, stated that he visited appellant‘s property on August 30, 2017, to investigate appellant‘s claims. Based upon his investigation, Altvater opined that the city met its standard of care regarding the maintenance and care of the storm-water pipe. Further, Altvater stated that the industry‘s standard practice
{¶ 11} In its motion for summary judgment, the city argued that it was entitled to judgment on appellant‘s trespass claim because it was untimely filed outside the two-year statute of limitations under
{¶ 12} Regarding appellant‘s ejectment claim, the city urged that it was in lawful possession of the land in question by way of a prescriptive easement. In making its argument, the city noted appellant‘s acknowledgement that she had lived at the residence since 1967 without any construction of the pipe during that time. Thus, the city reasoned that it was entitled to a prescriptive easement concerning the pipe. Moreover, the city argued that it was entitled to an easement by estoppel in light of the catch basin it attached to the storm-water pipe in 2007 at appellant‘s request. Because of these easements, the city argued that it was entitled to summary judgment on appellant‘s ejectment claim.
{¶ 14} On October 6, 2017, appellant filed a consolidated cross-motion for partial summary judgment and memorandum in opposition to the city‘s motion for summary judgment. In her motion, appellant argued that her trespass claim was filed within the applicable statute of limitations. Moreover, appellant cited
{¶ 15} Concerning her ejectment claim, appellant urged the trial court to reject the city‘s claims of a prescriptive easement and an easement by estoppel. Appellant argued that the city‘s prescriptive easement claim must fail because the storm-water pipe was buried underground and was therefore neither open nor notorious. To the extent such an easement did exist, appellant insisted that the city abandoned the easement when it constructed the new underground storm sewer system in 2014. As to the city‘s easement by estoppel claim, appellant asserted that she did not mislead or entice the city into
{¶ 16} In support of her mandatory injunction claim, appellant contended that she would continue to suffer irreparable harm if the court did not order the removal of the storm-water pipe from her property. Specifically, appellant stated that the pipe “has degraded and/or collapsed causing the ‘slow-motion’ destruction of Plaintiff‘s garage and surrounding property.”
{¶ 17} At the conclusion of her motion, appellant argued that she was entitled to partial summary judgment on the issue of the city‘s liability. Moreover, appellant insisted that the city‘s motion for summary judgment should be denied.
{¶ 18} Upon consideration of the parties’ arguments, the trial court issued its decision on the competing motions for summary judgment on November 16, 2017. In its decision, the trial court found that appellant had stated a cause of action for continuing trespass rather than permanent trespass, leading the court to conclude that the claim was not time-barred. Additionally, the court rejected the city‘s contention that it held a prescriptive easement and an easement by estoppel permitting it to install and utilize the storm-water pipe in question. Nonetheless, the court found that the city was entitled to immunity on appellant‘s trespass claim, because the exception to immunity concerning negligent conduct under
{¶ 20} Based upon its determination that the city was immune from liability concerning appellant‘s trespass claim and that appellant‘s remaining claims lacked merit, the trial court granted the city‘s motion for summary judgment, denied appellant‘s motion for partial summary judgment, and dismissed appellant‘s complaint. It is from this order that appellant timely appeals.
B. Assignments of Error
{¶ 21} On appeal, appellant presents the following assignments of error for our review:
- The trial court committed reversible error by entering summary judgment in favor of the Defendant-Appellee.
- The trial court committed reversible error by denying Plaintiff‘s Cross-Motion for Summary Judgment where the undisputed facts of the
{¶ 22} Because appellant‘s assignments of error are interrelated, we will address them simultaneously.
II. Analysis
{¶ 23} In her assignments of error, appellant argues that the trial court erred in granting the city‘s motion for summary judgment and denying her motion for partial summary judgment. Specifically, appellant contends that the city was not immune from liability on her trespass claim. Appellant also asserts that the trial court erred in its rejection of her claim for ejectment and a mandatory injunction. We will address these claims individually after reciting the appropriate standard of review.
A. Standard of Review
{¶ 24} A motion for summary judgment is reviewed de novo by an appellate court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “‘When reviewing a trial court‘s ruling on summary judgment the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.‘” Baker v. Buschman Co., 127 Ohio App.3d 561, 566, 713 N.E.2d 487 (12th Dist.1998).
{¶ 25} In order to obtain summary judgment at the trial level,
[I]t must be determined that (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one
B. The City‘s Immunity Regarding Appellant‘s Trespass Claim
{¶ 26} Initially, appellant argues that the trial court erred in finding that her “negligent trespass” claim was subject to the city‘s immunity under
{¶ 27} When determining whether a political subdivision is immune from liability, we engage in a “three-tiered analysis.” Rosenbrook v. Bd. of Lucas Cty. Commrs., 2015-Ohio-1793, 33 N.E.3d 562, ¶ 15 (6th Dist.), citing Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10. First, we examine whether the general grant of immunity provided by
{¶ 28} Here, appellant acknowledges that the city qualifies for immunity under
(B) Subject to sections
2744.03 and2744.05 of the Revised Code , a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:* * *
(2) Except as otherwise provided in sections
3314.07 andR.C. 2744.02(B)(2) refers to proprietary functions and the exception applies only where injury results from negligence.” Sisler v. Lancaster, 5th Dist. Fairfield No. 09-CA-47, 2010-Ohio-3039, ¶ 26. As such, courts have held that trespass claims, which are properly categorized as intentional torts, do not trigger the exception to immunity underR.C. 2744.02(B)(2) . See Fink v. Twentieth Century Homes, Inc., 8th Dist. Cuyahoga No. 99550, 2013-Ohio-4916, ¶ 21, citing Barge v. St. Bernard, 195 Ohio App.3d 28, 2011-Ohio-3573, 958 N.E.2d 636, ¶ 19 (1st Dist.) (“[T]he exceptions ofR.C. 2744.02(B)(1) through(B)(4) are limited to negligent conduct and do not apply to trespass or nuisance claims.“).
{¶ 31} In her complaint, appellant alleged that the city “negligently placed the storm sewer line on [appellant‘s] property without her knowledge or consent, and without a valid easement secured through payment or other consideration.” Appellant‘s allegation is perplexing given the fact that the storm-water pipe was installed prior to her parents’ acquisition of the property in 1967. Consequently, it follows that the city would not have sought permission from appellant or her parents when it installed the pipe sometime prior to 1967.2 {¶ 32} Although appellant‘s trespass claim was couched in a theory of negligence, the fact remains that “‘[I]ntentional conduct is an element of trespass.‘” Robinson v. Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 12, quoting Baker v. Shymkiv, 6 Ohio St.3d 151, 153, 451 N.E.2d 811 (1983). Because the tort of trespass addresses intentional conduct, it does not trigger the exception to immunity contained in
R.C. 2744.02(B)(2) . Therefore, the city is entitled to immunity on appellant‘s trespass claim, and the trial court properly dismissed the claim by grant of summary judgment to appellee.3
C. Appellant‘s Claim for Ejectment {¶ 33} Next, appellant argues that the trial court erred in finding that the presence of the storm-water pipe did not deprive her of the possession of her land, as required to support a claim for ejectment.
{¶ 34} The common law action in ejectment is codified in
R.C. 5303.03 , which provides:In an action for the recovery of real property, it is sufficient if the plaintiff states in his petition that he has a legal estate therein and is entitled to the possession thereof, describing it with such certainty as to identify the property, and that the defendant unlawfully keeps him out of the possession. It is not necessary to state how the plaintiff‘s estate or ownership is derived.
{¶ 35} Ejectment is the proper remedy against one wrongfully in possession of real property. Turnbull v. City of Xenia, 80 Ohio App. 389, 392, 69 N.E.2d 378 (2d Dist.1946). Ejectment is available where the plaintiff has a legal title and is entitled to the possession of the real property but is unlawfully kept out of the possession by the defendant. Id.
{¶ 36} Here, the uncontroverted evidence demonstrates that the city is no longer in possession of appellant‘s property. Indeed, the record shows that the city has abandoned any interest in the storm-water pipe, and has permanently capped it off by filling it with cement. A new storm sewer system was constructed in 2014 that alleviated the flooding concerns shared by appellant and her neighbors. “‘A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. Actual possession exists where the thing is in the immediate occupancy and control of the party.‘” Todd v. Sailing, 12th Dist. Warren No. CA89-03-022, 1990 Ohio App. LEXIS 1559, *10 (Apr. 23, 1990), quoting Black‘s Law Dictionary (5th Ed. Rev. 1979) 1047. Because the storm-water pipe is no longer under the city‘s control, and therefore no longer in its possession, we find that ejectment is not a proper avenue for relief for appellant. Thus, the trial court properly granted the city summary judgment on appellant‘s claim for ejectment. D. Appellant‘s Request for a Mandatory Injunction
{¶ 37} Finally, appellant argues that the trial court erred in denying her motion for partial summary judgment on her request for a mandatory injunction, and granting summary judgment to the city as to that request.
{¶ 38} “In order to obtain an injunction, a party must show by clear and convincing evidence that immediate and irreparable injury, loss or damage will result to the applicant and that no adequate remedy at law exists.” Lemley v. Stevenson, 104 Ohio App.3d 126, 136, 661 N.E.2d 237 (6th Dist.1995), citing Ackerman v. Tri-City Geriatric & Health Care, Inc., 55 Ohio St.2d 51, 378 N.E.2d 145 (1978).
{¶ 39} In her complaint, appellant sought injunctive relief in the form of a court order directing the city to remove the storm-water pipe that runs underneath her property and repair or replace any damage done to her property in the process of removal. Appellant contends that the city‘s taking of her property in violation of her constitutional rights constitutes irreparable injury sufficient to warrant the requested injunctive relief. The city argues, and the trial court found, that appellant has not shown that a failure to excavate the storm-water pipe would cause immediate and irreparable harm to appellant. According to the city, any damage done to appellant‘s property that could be attributable to the storm-water pipe is already complete and is therefore not subject to a mandatory injunction. We agree with the city. {¶ 40} Initially, we note that appellant has failed to introduce any evidence to demonstrate that the damage she has observed on her property was caused by the storm-water pipe. On the contrary, the city introduced evidence by way of affidavit that the damage cited by appellant was the result of extreme settling that occurred on appellant‘s property due to the fact that the residence and detached garage were built on cullet, which is inherently susceptible to such settling. This evidence was not refuted by appellant. Nevertheless, assuming, arguendo, that the city‘s failure to maintain the storm-water pipe caused the damage on appellant‘s property, it is undisputed that the city has permanently abandoned the storm-water pipe and capped it off according to industry standards,
thereby preventing any further damage on the property. An injunction is directed at preventing a future injury; it is not designed to redress past wrongs. Lemley at 136, citing State ex rel. Great Lakes College, Inc. v. State Medical Bd., 29 Ohio St. 2d 198, 280 N.E.2d 900 (1972). Therefore, we find that appellant‘s request for a mandatory injunction must fail. By extension, we find that the trial court properly granted summary judgment to the city on appellant‘s mandatory injunction claim. {¶ 41} As we have determined that the city was entitled to summary judgment on each of appellant‘s claims contained in the complaint, we find appellant‘s assignments of error challenging the trial court‘s grant of summary judgment to the city and denial of partial summary judgment to appellant not well-taken.
III. Conclusion
{¶ 42} In light of the foregoing, the judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
James D. Jensen, J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.