Lake Park Estates Pond Assn. v. Brecksville , 2024 Ohio 660 ( 2024 )

[Cite as Lake Park Estates Pond Assn. v. Brecksville, 2024-Ohio-660.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF OHIO
LAKE PARK ESTATES POND :
ASSOCIATION, ET AL.,
:
Plaintiffs-Appellants, No. 112589
:
v.
:
THE CITY OF BRECKSVILLE, OHIO,
ET AL., :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: February 22, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-21-948430
Appearances:
The Lindner Law Firm, LLC, and Daniel F. Lindner, for
appellants.
Mazanec, Raskin & Ryder Co., L.P.A., John T.
McLandrich, Frank H. Scialdone, and Terence L.
Williams; David J. Matty, Brecksville Director of Law, for
appellee.
SEAN C. GALLAGHER, J.:
Plaintiffs-appellants Lake Park Estates Pond Association, et al.,
appeal the decision of the trial court that granted the motion for summary judgment
of defendant-appellee the city of Brecksville, Ohio (“the city”), upon finding the city
is entitled to political-subdivision immunity in this matter and that denied the
plaintiffs-appellants’ motion for summary judgment. Upon review, we affirm the
decision of the trial court and remand the case.
I. Background
The Lake Park Estates Pond Association (“the LPE Pond
Association”) was formed by a group of property owners whose lots abut and extend
under a pond in the Lake Park Estates Subdivision in Brecksville, Ohio.1 On June 7,
2021, the LPE Pond Association and the property owners (collectively “the
appellants”) filed a verified complaint for declaratory judgment, specific
performance, writ of mandamus, monetary, and other relief. They asserted, among
other allegations, that the city has failed to maintain and repair the pond and its
man-made structures, which the appellants allege are part of the city’s stormwater
sewer system. The appellants raised claims against the city for declaratory judgment
under the Ohio Constitution — procedural and substantive due process (Count I),
declaratory judgment under the Ohio Constitution — takings (Count II),
mandamus — inverse condemnation (Count III), and trespass (Count IV). The
1 The property owners, who are also plaintiffs-appellants in this action, include Eric
and Jill Tayfel, James and Rachel Jones, Kevin and Allision Dranuski, Fred and Annette
Pedersen, and John Turner.
appellants’ claims against another defendant were bifurcated and are not involved
in this appeal.2
In its answer, the city asserted, among other affirmative defenses, the
defense of political-subdivision immunity. The appellants and the city filed cross-
motions for summary judgment, and the trial court conducted a hearing on the city’s
defense of political-subdivision immunity. Thereafter, the trial court ruled in favor
of the city.
The record reflects that the pond at issue has existed since the Lake
Park Estates Subdivision was developed. The pond is man-made; it has a headwall
that dams the naturally formed stream that feeds it and drains it, and it has an outlet
structure that helps control the water-elevation level in the pond. In the past few
years, the pond’s headwall and outlet structure, which are located on the property
owned by Eric and Jill Tayfel, have fallen into disrepair, causing the water level in
the pond to drop.
The parties dispute who is responsible for the repair and maintenance
of the pond and its associated structures. The appellants claim that the pond is a
part of the city’s stormwater sewer system and a public use. The city maintains that
the pond is on private property, that it serves no necessary stormwater conveyance
purposes, and that the pond exists solely for the aesthetic benefit of the appellants.
2The appellants also raised claims against another property owner, Julian
Colonna, Trustee of the Julian Colonna Trust UTD 10/6/2017, who is not a member of
the LPE Pond Association.
At a 1959 Brecksville Planning Commission meeting, it was
represented by the developer that the property owners having lots on the pond
would own the pond and take care of their own sections of the pond. The pond was
present when each of the individual appellants purchased their property. There is
no evidence that the pond was designed to be a part of the city’s stormwater sewer
system.
According to Gerald Wise, the city’s engineer, the pond was not
created by the city, the city does not hold any easements related to the pond or its
outlet structure, and the pond was never dedicated for public use. Although the city
utilizes an inlet structure to permit the flow of water into the pond, the inlet permits
water from the city’s stormwater sewer system to follow its natural watercourse
through the pond.
According to the city, it did not build the pond; rather, the pond was
created prior to or when the development was built, and it was formed by adding an
embankment and control structure to dam the natural watercourse to create an
aesthetic water feature. The city maintains that the appellants, as riparian owners,
are able to utilize the natural watercourse to create the pond or they can remove the
headwall and outlet structure and allow the water to continue on the natural
watercourse to the downstream properties, with no effect on the stormwater
management system. Further, there is no evidence of any flooding of the appellants’
properties, either before or after the outlet structure’s failure.
Michael Menoes, a registered professional engineer retained by the
city, indicated in his affidavit that the presence or absence of the pond does not affect
the stormwater management to the appellants, any upstream owner, or any
downstream owner. Menoes stated in his report that the removal of the subject
pond would reduce the risk of flooding for homes located adjacent to the pond. He
also stated that the removal would cause only a small increase in downstream
maximum water surface elevation during a rainfall event having a 10-year return,
and that to the extent removal of the subject pond would cause a significant increase
in the maximum water surface elevation of a downstream pond during a rainfall
event having a 100-year return period, it would still be several feet below the top
elevation of the pond.
Other evidence was presented in the matter that we have also
reviewed. Ultimately, on April 4, 2023, the trial court granted the city’s motion for
summary judgment upon determining that the city is entitled to political-
subdivision immunity, and the trial court denied the appellants’ motion for
summary judgment.3 This appeal followed.
II. Assignments of Error
Under their first assignment of error, the appellants claim the trial
court erred by granting the city immunity and by granting summary judgment on all
counts of the complaint. The appellants assert that “when a municipality
3 The trial court included Civ.R. 54(B) language in its judgment entry.
superimposes its storm sewer system upon a natural watercourse, the defense of
sovereign immunity does not preclude liability for damages caused by any attendant
abridgment of riparian rights” and that “[the city] is statutorily bound to repair and
maintain the pond and its structure as part of its stormwater sewer system because
decisions involving the proper maintenance of the sewer or drainage system is a
proprietary act which is mandatory and not discretionary.”
Under its second assignment of error, appellants assert the trial court
erred in denying their motion for summary judgment. Appellants claim they are
“entitled to a writ of mandamus compelling Brecksville to commence appropriation
proceedings to assess just compensation and damages due to appellants for
Brecksville’s taking of appellants’ properties and trespass thereon.”
III. Law and Analysis
Appellate review of summary judgment is de novo, governed by the
standard set forth in Civ.R. 56. Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-
8374, 75 N.E.3d 161, ¶ 14. Summary judgment is appropriate only when “[1] no
genuine issue of material fact remains to be litigated, [2] the moving party is entitled
to judgment as a matter of law, and, [3] viewing the evidence most strongly in favor
of the nonmoving party, reasonable minds can reach a conclusion only in favor of
the moving party.” Id., citing M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-
Ohio-5336, 979 N.E.2d 1261, ¶ 12.
The city is a political subdivision that pursuant to R.C. 2744.02(A)(1)
generally “is not 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 an
employee of the political subdivision in connection with a governmental or
proprietary function.” R.C. 2744.02(B) lists several exceptions to the general grant
of immunity, and if an exception applies, R.C. 2744.03 provides defenses to liability
that may be asserted to restore immunity.
Appellants claim the R.C. 2744.02(B)(2) exception to the general
grant of immunity applies to this case. R.C. 2744.02(B)(2) states: “Except as
otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political
subdivisions are liable for injury, death, or loss to person or property caused by the
negligent performance of acts by their employees with respect to proprietary
functions of the political subdivisions.” R.C. 2744.01(G)(2)(d) defines a “proprietary
function” to include “[t]he maintenance, destruction, operation, and upkeep of a
sewer system[.]”
Contrary to appellants’ arguments, the evidence in the record before
us fails to show that the pond and its outlet structure are part of the city’s stormwater
sewer system. The cases upon which appellants rely are all distinguishable. For
instance, in Economus v. Independence, 8th Dist. Cuyahoga No. 107713, 2020-
Ohio-266, there was evidence showing the city of Independence possessed a storm
sewer-drainage ditch easement as well as an easement over the retention basin, the
city had performed maintenance in these areas and dredged the retention basin in
the past, and the alleged failures led to flooding and property damage. Id. at ¶ 26-
30. In Nelson v. Cleveland, 8th Dist. Cuyahoga No. 98548, 2013-Ohio-493, it was
alleged that the city of Cleveland failed to maintain or clean out its sewers and catch
basins and that this led to a large unnatural accumulation of a pool of water on a
roadway that caused an accident. Id. at ¶ 20-25. In Accurate Die Casting Co. v.
Cleveland, 2 Ohio App.3d 386, 442 N.E.2d 459 (8th Dist.1981), the city did not
design its storm sewer system to merely conjoin a natural watercourse, but rather,
it enclosed the “entire watercourse” within storm sewer pipes so that no portion
thereof continued to flow in its natural state and flood damage occurred. Id. at 390.
This case does not involve any similar circumstances.
Although the appellants’ engineering expert George Hess opined that
the pond and the outlet structure are an integral part of the city’s stormwater sewer
and drainage system, this and his other conclusory assertions lack evidentiary
support in the record and are insufficient to create any genuine issue of material
fact. The record shows that the pond is situated on private property and that the city
did not construct, and has never maintained, the pond or its outlet structure.
Further, the pond was never dedicated to the city, and the city has no easement over
the pond or its outlet structure. Water flows from the city’s stormwater sewer
system along its natural watercourse through the pond, and the inlet structures
identified by appellants convey water along the preexisting natural watercourse.
The record also shows the pond is not necessary to the city’s stormwater
management system, there has been no flooding, and the collapse of the outlet drain
has caused the water level in the pond to be lowered. After reviewing the record, we
find the appellants have failed to produce evidence upon which to establish the pond
at issue and its outlet structure are a part of the city’s public stormwater sewer
system. The R.C. 2744.02(B)(2) exception to the general grant of immunity to a
political subdivision does not apply in this case.
While appellants argue the loss of the pond or eradication of its
shoreline have been caused by the city’s failure to maintain and repair the pond and
its structures, “Ohio courts have held that a city has no duty to maintain a private
drainage system on private property unless it has been established or used for public
purposes.” Economus at ¶ 24, citing Bibbs v. Cinergy Corp., 1st Dist. Hamilton No.
C-010390, 2002-Ohio-1851. It also is well settled that generally, “[a]n upstream
municipality may collect, by means of sewers, the surface water from a watershed
area within the corporate limits and channel it into a natural watercourse” without
incurring liability to downstream landowners. Munn v. Horvitz Co., 175 Ohio
St. 521, 196 N.E.2d 764 (1964), paragraph one of the syllabus, citing Mason v.
Commrs. of Fulton Cty., 80 Ohio St. 151, 88 N.E. 401 (1909). Moreover, “a
municipal corporation may make reasonable use of a natural watercourse to drain
surface water” and it generally is “not liable for increased flow caused simply by
improvement of lots and streets * * *.” Masley v. Lorain, 48 Ohio St.2d 334, 340,
358 N.E.2d 596 (1976), citing Hamilton v. Ashbrook, 62 Ohio St. 511, 57 N.E. 239(1900).
The record simply does not support appellants’ claims that a taking
or trespass has occurred in this matter. Here again, the cases cited by appellants in
support of their arguments are distinguishable from this case. In State ex rel.
Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio-1473, 928 N.E.2d 706, there
was evidence that the city deposited sewage into the natural watercourse so as to
cause physical interference with the landowners’ use and enjoyment of their
property. See id. at ¶ 30-31. In McNamara v. Rittman, 107 Ohio St.3d 243, 2005-
Ohio-6433, 838 N.E.2d 640, there was evidence that the cities’ construction
impacted the water supplies of the homeowners and the court recognized a property
right in groundwater located beneath their land. Id. at ¶ 245. In McKee v. Akron,
176 Ohio St. 282, 285, 199 N.E.2d 592 (1964), the homeowner alleged damage to her
property from an odor arising from a city’s sewage disposal plant. Id. at 283. In
Lucas v. Carney, 167 Ohio St. 416, 149 N.E.2d 238 (1958), the construction of a
public improvement on county property greatly increased the amount of water
flowing onto the plaintiff’s land and caused frequent flooding on the plaintiff’s
property. Id. at 417-419. None of those circumstances are present herein, and the
other cases cited by appellants are also distinguishable. The record in this case does
not support any of appellants’ claims, and we are not persuaded by appellants’
arguments otherwise.
After thoroughly reviewing the record, we find the city is entitled to
political-subdivision immunity in this case and that the trial court properly ruled
upon the cross-motions for summary judgment.4 The appellants’ assignments of
error are overruled.
4 We do not consider the city’s statute-of-limitations arguments, which were not
addressed by the trial court in the first instance.
Judgment affirmed. The case is remanded because there were
bifurcated claims against the remaining defendant.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas 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.
______________________
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR