N. Coast Premier Soccer, L.L.C. v. Ohio Dept. of Transp. ( 2012 )

[Cite as N. Coast Premier Soccer, L.L.C. v. Ohio Dept. of Transp., 2012-Ohio-5297.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
NORTH COAST PREMIER SOCCER, LLC
Plaintiff
v.
OHIO DEPARTMENT OF TRANSPORTATION, et al.
Defendants
Case No. 2009-07091
Judge Joseph T. Clark
Magistrate Lewis F. Pettigrew
JUDGMENT ENTRY
{¶ 1} On March 30, 2012, the magistrate issued a decision recommending
judgment in favor of plaintiff in the amount of $102,725.50. On March 30, 2012,
pursuant to Civ.R. 53(D)(4)(e)(i), the court entered judgment for plaintiff in the amount of
$102,725.50.
{¶ 2} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).” On April 12, 2012, plaintiff filed its objections, and on April 23, 2012,
defendants filed their objections. A transcript of the proceedings was previously filed on
January 23, 2012.
{¶ 3} Plaintiff brought this action alleging negligence. The case concerns flooding
that occurred in August 2007 on plaintiff’s large soccer complex situated on property
located both north and west of the interchange of U.S. Route 224, Interstate 71, and
Interstate 76 (I-76) in Seville, Ohio.
Case No. 2009-07091 -2- ENTRY
{¶ 4} Prior to the commencement of this action and prior to the flooding at issue
in this case, the Ohio Department of Transportation (ODOT) commenced an eminent
domain proceeding against plaintiff in the Medina County Court of Common Pleas.
Gordon Proctor, Director of Ohio Department of Transportation v. North Coast Premier
Soccer, Ltd., et al., Case No. 06-CIV-0108. As a result of the proceeding, ODOT
acquired property from plaintiff for a construction and improvement project.1
{¶ 5} To accomplish the improvement project, ODOT was required to obtain a
permit from the Ohio Environmental Protection Agency for a national pollutant discharge
elimination system (NPDES). Such a permit allows a contractor to discharge sediment-
laden storm water onto the surrounding property so long as the contractor has in place
a storm water pollution prevention plan (SWPPP) with appropriate temporary sediment
erosion controls (TSEC) utilizing best management practices (BMPs). BMPs are
controls that regulate the release of storm water during construction to ensure
compliance with the NPDES permit.
{¶ 6} On August 20, 2007, heavy rains forced a shutdown of the construction site.
Storm water subsequently began accumulating on the south side of ramp E-S,
eventually backing up onto I-76, forcing the closure of several lanes of traffic. ODOT’s
project engineer, Luke Wysocki, directed the Ruhlin Company to pump the water off of
I-76 and into a ditch along I-76 (I-76 ditch), which is adjacent to plaintiff’s property.
However, the magistrate determined that at least 27,228,000 gallons of sediment-laden
water was discharged onto plaintiff’s soccer fields and that the fields acted as a filter
strip depositing the sediment and cleaning the water prior to reaching a ditch to the
north of plaintiff’s property.
1
On November 29, 2011, this court ruled that plaintiff settled and released all claims with respect
to the property identified in the Judgment Entry in the eminent domain proceeding. Although defendants
have objected to the ruling, the issue of a release of claims was not before the magistrate. Accordingly,
defendants’ fourth objection is OVERRULED.
Case No. 2009-07091 -3- ENTRY
{¶ 7} The magistrate concluded that “defendants owed a duty to plaintiff to
comply with the NPDES permit and that defendants breached that duty by failing to
employ reasonable BMPs in dealing with the storm water. As a result of defendants’
failure to employ appropriate BMPs prior to discharging sediment into storm water,
[plaintiff’s] fields were damaged.” Magistrate’s decision, page 11. The magistrate
further concluded that plaintiff had proven that it was entitled to damages in the amount
of $102,725.50 for repair costs, lost net profits, and the $25 filing fee.
{¶ 8} Plaintiff argues that the magistrate erred both in finding that it failed to
present any competent evidence of negligence in either the construction or design of
the interchange and in his calculation of damages. Defendants argue that the
magistrate erred both in concluding that defendants breached any duty it owed to
plaintiff and in his calculation of damages. Defendants further argue that the magistrate
erred by not concluding that plaintiff’s claims are barred by the statute of limitations.
{¶ 9} In reviewing a party’s objections, the “court must conduct an independent
analysis of the underlying issues, undertaking the equivalent of a de novo determination
and independently assessing the facts and conclusions contained in the magistrate’s
decision.” Shihab & Assoc. Co. LPA v. Ohio Dept. of Transp., 168 Ohio App.3d 405,
2006-Ohio-4456, ¶ 13 (10th Dist.); Dayton v. Whiting, 110 Ohio App.3d 115, 118 (2nd
Dist.1996).
{¶ 10} As an initial matter, in their fifth objection, defendants argue that the
magistrate erred in concluding that plaintiff’s claims are not barred by the statute of
limitations. The magistrate determined that, pursuant to the two-year statute of
limitations found in R.C. 2743.16(A), plaintiff filed its claim within the applicable time
period. The magistrate further determined that even if plaintiff’s claim was filed more
than two years after the damage occurred, the discovery rule applies. As such, the
magistrate concluded that the statute of limitations does not bar plaintiff’s claim. The
court agrees with the magistrate’s conclusions. Indeed, the discovery rule provides that
the statute of limitations begins to run when plaintiff discovers or, through the exercise
Case No. 2009-07091 -4- ENTRY
of reasonable diligence, should have discovered a possible cause of action. O’Stricker
v. Jim Walter Corp., 4 Ohio St.3d 84, 87 (1983); Dalesandro v. Ohio Dept. of Transp.,
10th Dist. No. 10AP-241, 2010-Ohio-6177 (noting that the discovery rule applies to
cases involving latent property damage). The testimony established that although
plaintiff’s property routinely flooded, plaintiff did not realize that this particular flood was
unlike any other previous flood until the water receded sometime after August 23, 2007.
Plaintiff’s complaint was filed on August 24, 2009. Accordingly, defendants’ fifth
objection is OVERRULED.
{¶ 11} In its first objection, plaintiff argues that the magistrate erred in not finding
that defendants were negligent in the design and construction of the interchange ramp
E-S. The magistrate determined that plaintiff failed to present any competent evidence
of such negligence. A review of the transcript reveals that plaintiff did not present the
court with any convincing testimony establishing that the design and construction were
performed negligently. Indeed, plaintiff’s expert was not qualified to testify regarding
interstate design and construction. Moreover, defendants’ expert, Ron Trivisonno,
testified that the failure of the culverts and embankment could not have been prevented.
Furthermore, neither Trivisonno nor Wysocki faulted defendants for constructing an
embankment-style ramp on an aquifer. The court agrees with the magistrate’s
conclusion. Accordingly, plaintiff’s first objection is OVERRULED.
{¶ 12} In their first objection, defendants argue that the magistrate’s
determination that defendants breached a duty to plaintiff rests on a misunderstanding
of the testimony. Defendants argue that ODOT recognized deficiencies in the project
and notified its contractor. As such, defendants assert that ODOT was participating in
the process of amending the SWPPP. However, the magistrate found that defendants
failed to employ reasonable BMPs in dealing with the storm water. Indeed, the
transcript reveals that ODOT was aware of problems with storm water management well
before the August 2007 flooding; however, ODOT failed to take any steps to update its
Case No. 2009-07091 -5- ENTRY
BMPs prior to August 20, 2007. Moreover, Wysocki admitted that storm water was not
managed correctly in August 2007. Accordingly, defendants’ first objection is
OVERRULED.
{¶ 13} In their second and third objections, defendants generally argue that
plaintiff suffered no harm as a result of the August 2007 flood and that the magistrate
incorrectly calculated plaintiff’s damages. In its second objection, plaintiff argues that
the magistrate incorrectly calculated the costs to repair the soccer fields and its lost
profits. The magistrate determined that plaintiff suffered damages for out-of-pocket
expenses in the amount of $62,140 and lost net profits in the amount of $40,560.50.
{¶ 14} Regarding out-of-pocket expenses, plaintiff’s representative, Michael
Sweeney, testified that plaintiff incurred $126,269 in restoration costs. Sweeney
obtained estimates for much of the restoration work; however, plaintiff relied upon its
own employees to perform such work. As such, plaintiff’s estimate of restoration costs
was not the actual cost to perform such work. Moreover, some of the restoration
expenses were not related to the flood. Indeed, Sweeney admitted that plaintiff
replaces drain tile in its soccer fields every year and that the flood “exacerbated” the
deterioration.
{¶ 15} Regarding plaintiff’s lost profits, the magistrate determined plaintiff was
entitled to $40,560.50. Such a determination was based upon the testimony of both
certified public accountant, Jeffery Firestone, and Sweeney regarding the inability to
schedule games on the seven fields affected by the flood and the harm such an
obstacle caused to plaintiff’s business reputation.
{¶ 16} The trial court as the trier of the facts is the sole judge of the credibility of
witnesses and, as such, may believe or disbelieve all or part of any witness’ testimony.
See R. Ruben v. L. Ruben, 10th Dist. No. 82AP-914 (July 26, 1983); Phillips v. Sharp,
44 Ohio App. 311 (6th Dist.1932). In this case, the magistrate agreed with defendants’
assertion that plaintiff’s out-of pocket expenses and lost profits were exaggerated, but
the magistrate did not believe that plaintiff suffered no harm as a result of the flood.
Case No. 2009-07091 -6- ENTRY
Rather, the magistrate found that, in consideration of both Sweeney and Firestone’s
testimony, and the evidence adduced at trial in support of defendants’ assertions, the
extent of the damage was as not as great as plaintiff asserts.
{¶ 17} Upon review of the testimony and other evidence admitted in the
proceedings, the court finds that the magistrate’s approach to the calculation of both
out-of-pocket expenses and lost net profits reflects careful deliberation based upon all of
the relevant evidence. In fact, an independent review of the evidence by the court
reveals that the magistrate’s findings are supported by the greater weight of the
evidence. Accordingly, defendants’ second and third objections and plaintiff’s second
objection shall be OVERRULED.
{¶ 18} Having overruled each of the parties’ objections, pursuant to Civ.R.
53(D)(4)(e)(i), the court hereby “adheres to the judgment previously entered.”
_____________________________________
JOSEPH T. CLARK
Judge
cc:
Anthony J. Coyne Jeffrey L. Maloon
Brendon P. Friesen Randall W. Knutti
55 Public Square, Suite 2150 Assistant Attorneys General
Cleveland, Ohio 44113 150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130
003
Filed June 6, 2012
To S.C. Reporter November 15, 2012