Shirk v. Alger ( 2009 )

[Cite as Shirk v. Alger, 2009-Ohio-6028.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
RICHARD SHIRK,
PLAINTIFF-APPELLANT, CASE NO. 6-09-10
v.
VILLAGE OF ALGER, OPINION
DEFENDANT-APPELLEE.
Appeal from Hardin County Common Pleas Court
Trial Court No. 20081085CVH
Judgment Affirmed
Date of Decision: November 16, 2009
APPEARANCES:
Richard Shirk, Appellant
Jamey T. Pregon for Appellee
Case No. 6-09-10
ROGERS, J.
{¶1} Plaintiff-Appellant, Richard Shirk, appeals the judgment of the
Court of Common Pleas of Hardin County denying his motion for summary
judgment and granting summary judgment to the Village of Alger (“Alger”). On
appeal, Shirk argues that the trial court erred in granting summary judgment to
Alger on the basis that he failed to demonstrate a proximate cause between Alger’s
actions and his damages; that the trial court erred in granting summary judgment
to Alger where there was no genuine issue of material fact to defeat his claims;
that the trial court erred in applying a two-year statute of limitations to his claims,
pursuant to R.C. 2744.04(A); and, that the trial court erred in granting summary
judgment to Alger on the basis that it was protected by governmental immunity.
Based on the following, we affirm the judgment of the trial court.
{¶2} In March 2008, Shirk filed a complaint against Alger1 alleging an
unconstitutional taking of his private property without just compensation pursuant
to Sections 16 and 19, Article I of the Ohio Constitution, continuing trespass, and
negligence on the basis that Alger’s failure to maintain and repair drainage
systems, its decision to build up a nearby street higher than the existing curb, and
its alteration of water flow resulted in water flowing onto his property and causing
1
We note that other parties were also named as Plaintiffs in the complaint, including Billy and Rosa
Phillips, and Shirk’s wife, Angela. However, the Phillips’ voluntarily dismissed their complaint during the
proceedings, and only Shirk appeals the trial court’s judgment.
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damage to his residence. In his complaint, Shirk alleged that the first instance of
water damage to his property occurred in May 2004.
{¶3} In April 2008, Shirk requested leave to amend his complaint to
include a negligence claim that Alger failed to reconstruct a retaining wall to
maintain the storm drainage system, and that it failed to properly maintain village
streets, also resulting in water damage to his property.
{¶4} In May 2008, the trial court granted Shirk leave to amend the
complaint.
{¶5} In December 2008, Alger filed its answer to the complaint, denying
any negligence and asserting multiple defenses, including that Shirk’s claims were
barred by the statute of limitations and governmental immunity, and that the
damages sustained on Shirk’s property were the proximate result of an act of God
and of independent acts of the plaintiffs and other third parties over whom Alger
had no control.
{¶6} In March 2009, Shirk filed a motion for summary judgment.
Contained in the motion were multiple excerpts from various statutes, cases, and
answered interrogatories, with little discussion or argument.
{¶7} In April 2009, Alger filed a motion for summary judgment and
response to Shirk’s motion for summary judgment, arguing that it was entitled to
summary judgment because Shirk’s claims were barred by the statute of
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limitations and its governmental immunity, and because Shirk failed to produce
evidence establishing proximate cause between its actions and the flooding on his
property.
{¶8} Subsequently, Shirk filed a memorandum in opposition to Alger’s
motion for summary judgment, copying additional cases into the motion and again
asserting that Alger’s negligence caused flooding on his property.
{¶9} Shortly thereafter, Alger filed a reply brief in support of its summary
judgment motion, asserting that Shirk failed to respond to the authorities listed in
its summary judgment motion; that, according to Shirk’s admissions as to when he
discovered the flooding, no genuine issue of material fact existed to establish that
his claim would not be barred by the statute of limitations; that it was entitled to
summary judgment because Shirk had failed to establish negligence on the part of
Alger, or a proximate cause between the claimed negligence and the flooding of
his property; and, that it was entitled to summary judgment because it was
protected by governmental immunity.
{¶10} In June 2009, the trial court overruled Shirk’s motion for summary
judgment and granted Alger’s motion for summary judgment, stating the
following in its judgment entry:
The Plaintiffs’ amended complaint appears to allege the
following claims: (1) negligence in maintaining a storm sewer
system, (2) negligence in “building a road higher than the curb,”
(3) a “constitutional taking” under Article 1 and 19 of the Ohio
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Constitution, and (4) a continuing trespass. Summary judgment
in favor of the Defendant is granted as to all of these claims.
At the outset, the Court notes that the Plaintiffs have failed to
meet their burden to establish that the Defendant did, or did not
do, something to proximately cause their claimed damages in
this case. * * * The Plaintiffs have no experts to establish what,
if anything, Alger has done wrong with respect to the storm
sewer system in Alger. There is no competent evidence in the
record to demonstrate that the Defendants have proximately
caused any of the Plaintiffs’ claimed damages. Accordingly,
there are no genuine issues of material fact, and the Defendant is
entitled to judgment on all claims as a matter of law.
There are other alternative grounds to grant Defendant
summary judgment in this case. The Court finds the
Defendant’s arguments at Section II(A) of the Defendant’s
motion for summary judgment persuasive as to the statute of
limitations defense. The Plaintiffs admit that they first observed
surface water damage that caused property damage to their
property in August of 2003. The Plaintiffs further concede that
in May of 2004, they knew they had a “serious” problem. As
such, the two year statute of limitations on the Plaintiffs’ claims,
as set forth in O.R.C. §2744.04, started running on either of
these two dates, which makes the Plaintiffs’ filing of their
complaint untimely. * * *
The Court further rejects the Plaintiffs’ reliance on the
continuing trespass doctrine, given the Supreme Court’s
decision in Sexton v. Mason, 117 Ohio St.3d 275 (2008). There is
no evidence of ongoing tortuous [sic] conduct of the Defendant in
the record. The Plaintiffs’ only allegations of tortuous [sic]
conduct by the Defendant involve alleged actions taken long
before March 4, 2006, which is two years before the Plaintiffs
filed this action.
The Court also finds persuasive the arguments set forth by the
Defendant at Section II(B) of its motion for summary judgment.
Those arguments are adopted by the Court, and the Court finds
that the Defendant is immune from Plaintiffs’ claims. The Court
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also finds the Defendant’s arguments at Section II(D) of the
Defendant’s motion for summary judgment, and adopts those
arguments with respect to the Constitutional takings claim made
by the Plaintiffs.
The Plaintiffs, in their motion for summary judgment, failed to
establish that they are entitled to judgment as a matter of law.
The Plaintiffs’ motion fails for the reasons the Defendant’s
motion succeeds, as set forth above.
(Decision and Entry on Pending Motions for Summary Judgment, pp. 2-3).
{¶11} It is from this judgment that Shirk appeals, presenting the following
pro se assignments of error for our review.
Assignment of Error No. I
TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANT BASED UPON NO
COMPETENT EVIDENCE IN THE RECORD TO
DEMONSTRATE PROXIMATE CAUSE.
Assignment of Error No. II
TRIAL COURT ERRED IN OVERRULING MOTION FOR
SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF, BASED
UPON THE FACTS OF THE CASE IN THE RECORD AND
THAT THERE WAS [SIC] NO MATERIAL QUESTIONS OF
FACT THAT THE DEFENDANTS WERE ENTITLED TO
SUMMARY JUDGMENT ON ALL CLAIMS.
Assignment of Error No. III
TRIAL COURT ERRED IN APPLYING THE TWO YEAR
STATUTE OF LIMITATIONS FOR CONTINUOS [SIC]
TRESPASS.
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Assignment of Error No. IV
TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANT BASED UPON
IMMUNITY UNDER O.R.C. 2744.04(A) [SIC].
{¶12} We initially note that, although Shirk asserts four assignments of
error, his brief contains only one argument for all assignments. App.R. 16(A)(7)
and Loc.R. 11(A) require an appellant’s brief to contain a separate argument for
each assignment of error unless the same argument pertains to more than one
assignment of error, and, where arguments have not been adequately set forth for
review, we need not address them. App.R. 12(A)(2); Bellefontaine v. Miller, 3d
Dist. No. 8-08-32, 2009-Ohio-2818, ¶34. However, in the interest of justice, we
will address the merits of Shirk’s appeal. Furthermore, due to the nature of
Shirk’s arguments, we elect to address assignments of error numbers one and two
together, and three and four together.
Assignments of Error Nos. I and II
{¶13} In his first assignment of error, Shirk argues that the trial court erred
in denying his motion for summary judgment and granting Alger’s motion for
summary judgment on the basis that he failed to establish proximate cause
between Alger’s actions and the flooding on his property. Specifically, he
contends that Alger’s change in the flow of the storm sewer and its negligence in
maintaining the drainage system proximately caused flood damage to his property.
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{¶14} In his second assignment of error, Shirk argues that the trial court
erred in denying his motion for summary judgment and granting summary
judgment to Alger where there was no genuine issue of material fact to defeat his
claims.
{¶15} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.
Accordingly, a reviewing court will not reverse an otherwise correct judgment
merely because the lower court utilized different or erroneous reasons as the basis
for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr.
Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶25, citing State ex rel. Cassels v.
Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92.
Summary judgment is appropriate when, looking at the evidence as a whole: (1)
there is no genuine issue as to any material fact; (2) reasonable minds can come to
but one conclusion and that conclusion is adverse to the party against whom the
motion for summary judgment is made; and, therefore, (3) the moving party is
entitled to judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick
Chemical Corp., 73 Ohio St.3d 679, 686-687, 1995-Ohio-286. If any doubts exist,
the issue must be resolved in favor of the nonmoving party. Murphy v.
Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95.
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{¶16} The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of
material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. In doing
so, the moving party is not required to produce any affirmative evidence, but must
identify those portions of the record which affirmatively support his argument. Id.
at 292. The nonmoving party must then rebut with specific facts showing the
existence of a genuine triable issue; he may not rest on the mere allegations or
denials of his pleadings. Id.; Civ.R. 56(E).
{¶17} In order to establish a claim for negligence, a party must show four
things: that a duty was owed, that there was a breach of that duty, proximate
causation, and injury resulting therefrom. Turner v. Cent. Local School Dist., 3d
Dist. No. 4-95-8, 1995 WL 442498, citing Mussivand v. David (1989), 45 Ohio
St.3d 314.
{¶18} In the case at bar, Shirk contends that Alger’s negligence in
maintaining a drainage system and its alteration of the flow of the storm sewer
resulted in flood damage to his property. In his motion for summary judgment,
Shirk cited and extensively quoted case law and statutes, but he included very little
argument or proof of the claimed negligence. Shirk did not present any evidence
in his motion of the duty owed by Alger, how it breached that duty, or how the
breach of that duty proximately caused flood damage to his property, other than
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his own opinion on the matter. Shirk continually claimed throughout his various
filings in this case that he had evidence of Alger’s failure to adequately maintain
the drainage system, but the only proof he offered on the matter was video and
photographs of flooding on his property and work being done by Alger on various
drainage areas. At no point did he present evidence establishing a proximate cause
link between Alger’s actions and the flooding on his property. Consequently, we
find that Shirk has failed to establish an actionable claim for damage to his
property, and, as such, we find that the trial court did not err in overruling his
motion for summary judgment and in granting summary judgment to Alger.
{¶19} Accordingly, we overrule Shirk’s first and second assignments of
error.
Assignments of Error Nos. III and IV
{¶20} In his third assignment of error, Shirk argues that the trial court erred
in granting summary judgment to Alger on the basis that he failed to bring his
claim within the two-year statute of limitations pursuant to R.C. 2744.04(A).
{¶21} In his fourth assignment of error, Shirk argues that the trial court
erred in granting summary judgment to Alger on the basis that Alger was
protected by governmental immunity.
{¶22} Due to our disposition of Shirk’s first and second assignments of
error, finding that summary judgment was appropriate because Shirk failed to
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establish proximate causation between Alger’s actions and the flood damage to his
property, Shirk’s further claims on the trial court’s granting of summary judgment
are rendered moot, and we decline to address them. App.R. 12(A)(1)(c).
{¶23} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.
/jlr
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