Cincinnati v. Harrison

[Cite as Cincinnati v. Harrison, 2014-Ohio-2844.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CITY OF CINCINNATI, OHIO, : APPEAL NO. C-130195
TRIAL NO. A-0900755
Plaintiff-Appellee, :
vs. : O P I N I O N.
CITY OF HARRISON, OHIO, :
Defendant-Appellant, :
and :
BOARD OF COUNTY :
COMMISSIONERS OF HAMILTON
COUNTY, OHIO,
Defendant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: June 30, 2014
Terrance Nestor, Interim City Solicitor, and Frost Brown Todd LLC, Stephen N.
Haughey, Matthew C. Blickensderfer and Christopher S. Habel, for Plaintiff-
Appellee,
Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere and Michael E.
Maundrell, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} Defendant-appellant, the city of Harrison, Ohio, appeals from the trial
court’s summary judgment entry denying it the benefit of immunity from suit by the
plaintiff-appellee, the city of Cincinnati. Cincinnati sought declaratory and injunctive
relief to prevent Harrison from providing water service to customers in disputed areas
of western Hamilton County, Ohio. Because sovereign immunity under R.C. Chapter
2744 is not a defense to claims seeking injunctive relief, we affirm the trial court’s entry
of summary judgment, in part. But because the trial court erred in denying Harrison
the protections of the sovereign immunity statutes when it awarded money damages
for lost revenues and attorney fees, we reverse the trial court’s judgment, in part.
Because the other portions of the trial court’s summary-judgment entry that Harrison
seeks review of are not otherwise final, we cannot reach any conclusion on the merits of
these other arguments.
{¶2} Harrison’s sole assignment of error is overruled in part and sustained in
part. Because Harrison was not immune under R.C. Chapter 2744 from the injunctive
and declaratory relief ordered by the trial court, we affirm that portion of the trial
court’s March 27, 2012 judgment. But since Harrison was immune from the damages
awarded under claims sounding in intentional tort, and from the attorney-fees award,
we reverse that portion of the trial court’s judgment
Cincinnati and Harrison Compete for Water Customers
{¶3} We summarized the background of this dispute in our 2010 decision
affirming the trial court’s denial of Cincinnati’s motion for a temporary restraining
order:
The Greater Cincinnati Water Works (GCWW) is a department
of Cincinnati that provides water to the city and a majority of
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Hamilton County. Pursuant to [the 1987] contract with [the] Board of
Commissioners of Hamilton County, Ohio, GCWW began to develop a
project called “Water West.” The project was designed to provide for
the water needs of much of the western portion of Hamilton County.
GCWW expended a great deal of capital during the implementation of
the project, constructing water mains and lines throughout the area.
Assumptions were made, based upon projected usage and other
factors, that justified the expenditure and development.
Harrison was offered an opportunity to receive water service
from GCWW by purchasing water wholesale from GCWW, but
Harrison declined. Instead, Harrison decided to provide water to its
own citizens. Additionally, Harrison planned to provide water to two
additional areas: an area that had been annexed by Harrison and
another area of Harrison Township that had not. These two areas
were within the area that GCWW had planned to serve as part of
Water West. In fact, GCWW had already begun construction of its
own water mains in the two areas.
When Cincinnati learned that Harrison had begun the process
of spending public funds to install water mains and to otherwise
prepare to provide competing service, Cincinnati filed suit.
Cincinnati v. Harrison, 1st Dist. Hamilton No. C-090702, 2010-Ohio-3430, ¶ 2-4. The
additional “disputed areas” included portions of Crosby Township and northern
Harrison Township including some areas annexed by Harrison.
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Cincinnati’s Amended Complaint
{¶4} In February 2011, Cincinnati filed an amended complaint raising seven
claims for relief. Six of the counts alleged intentional conduct by Harrison. In count
one, Cincinnati alleged that Harrison’s encroachment into the disputed areas had
violated Cincinnati’s exclusive right to provide service in those areas. In enacting R.C.
Chapter 6103, Cincinnati argued, the General Assembly had authorized the county and
Cincinnati to enter into intergovernmental agreements for public water systems. See
R.C. 715.02 and 6103.02. Pursuant to those agreements, Cincinnati could “exercise any
power, perform any function, or render any service, on behalf of” the county. R.C.
307.15.
{¶5} Cincinnati contended that those functions included the ability to
enforce its exclusive rights under its 1987 contract with the county. Section 3 of the
contract provided that the county
will not furnish or contract with others to furnish during the term of
this contract, water to anyone within [the disputed areas], except
where [Cincinnati] is incapable of doing so * * *. [And that the county]
shall take no action, nor in any manner aid or assist others in taking
any action * * * to effect the construction or operation of any public
water system in the [County Water Area or in the supplemental Area]
or to secure a source of water supply for any other customers in [those
areas].
{¶6} Section 17 also stated that Cincinnati “is authorized to enforce in the
[disputed areas] all ordinances, laws, standards, specifications, rules and regulations
now or hereafter lawfully in effect in Cincinnati and/or the [County Water Area, the
area outside of Cincinnati consisting of the certain unincorporated territory of
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Hamilton County].” Cincinnati alleged that the disputed areas are within the
supplemental County Water Area covered under the contract.
{¶7} In count two, Cincinnati alleged that Harrison’s official legislative acts
authorizing encroachment had unlawfully impaired the county contract. In count five,
it alleged that Harrison had deliberately waited while Cincinnati and the county spent
tens of millions of dollars to develop infrastructure to serve the disputed areas and only
then had engaged in a “line laying contest” with Cincinnati in violation of the doctrines
of waiver, laches, and equitable estoppel. In count seven, Cincinnati asserted that
Harrison had tortiously interfered with the 1987 county contract and its amendments.
{¶8} Cincinnati sought declaratory and injunctive relief. It sought to enjoin
Harrison from taking further steps to encroach into the disputed areas, interfere with
Cincinnati’s ability to pay its existing debts used for improvements, or impair
Cincinnati’s ability to operate under the Water West plan. It also sought a declaration
that the 1987 contract and its amendments precluded Harrison from extending its
water system into the disputed area. Cincinnati’s prayer for relief included an award of
monetary damages, attorney fees, costs, and any other relief to which it was entitled.
{¶9} Harrison answered Cincinnati’s petition and raised, inter alia, the
defense that it was immune from Cincinnati’s claims under R.C. Chapter 2744, the Ohio
sovereign-immunity statute.
{¶10} In September 2011, the trial court granted Cincinnati’s motion to
bifurcate from this case the issues raised in counts three and four of the amended
complaint, alleging that Harrison’s encroachment into the disputed areas was an
unlawful regulatory taking. In April 2012, Cincinnati voluntarily dismissed the Board
of County Commissioners without prejudice under Civ.R. 41(A). Count six of the
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amended complaint had alleged that the county had breached the Water Area Contract
with Cincinnati.
{¶11} By mid-2012, the parties had amassed copious amounts of material in
support of their positions, including deposition testimony and numerous documents
from consulting engineers; Cincinnati, county, and Harrison officials; and GCWW
employees. The documentary evidence included emails, letters between city and county
officials, and engineering diagrams of the disputed areas.
{¶12} In July 2012, Harrison moved for summary judgment, asserting that
Cincinnati did not have exclusive authority to provide water to the disputed areas, that
Cincinnati lacked the standing to enforce its claims, that Cincinnati had acted in
conformity with Harrison’s contention that Cincinnati lacked exclusive authority, and
that in the absence of exclusive authority for either municipality to serve water to the
disputed areas, Harrison was entitled to “equal dignity” to provide water service.
Harrison also expressly argued that it was entitled to judgment as a matter of law on its
defense of sovereign immunity. Cincinnati filed a cross-motion for summary judgment
on the remaining counts of its amended complaint: counts one, two, five, and seven.
{¶13} In acknowledgement of the complex issues to be resolved, and with the
consent of the parties, the trial court received testimony from two “clarifying” expert
witnesses—one from each side—before ruling on the motions. See Loukinas v. Roto-
Rooter Servs. Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272, ¶ 22 (1st
Dist.) (a trial court may consider evidence other than that specified in Civ.R. 56 when
there has been no objection to its use).
The Trial Court’s Summary-Judgment Decisions
{¶14} On March 1, 2013, in a five-page written decision and judgment entry,
the trial court granted Cincinnati’s cross-motion for summary judgment. While the
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court’s judgment failed to mention Harrison’s sovereign-immunity defense, we
conclude that the trial court denied it, as it overruled Harrison’s motion for summary
judgment. The court also made specific “hold[ings]” regarding the four counts of the
amended complaint on which Cincinnati had moved for summary judgment:
1. Regarding Count One [alleging a violation of state law],
Cincinnati shall maintain exclusive jurisdiction over water service to
the disputed areas. Further, Harrison is hereby enjoined from any
further acts intended to encroach upon Cincinnati’s water service
rights to these areas.
2. Regarding Count Two [alleging impairment of contract],
Harrison’s legislative actions unlawfully impaired Cincinnati’s
contractual obligations and rights under the * * * contract. Harrison
is hereby enjoined from any further acts that will impair or interfere
with the fulfillment of said contract. Further, Cincinnati is entitled to
damages in the amount of lost revenues from customers that
Harrison began to serve in the disputed areas as well as legal fees,
costs, and expenses incurred by Cincinnati to defend its rights and
obligations under the contract (to be determined at a later date).
3. Regarding Count [Seven, alleging tortious interference with
the 1987 county contract and its amendments]1 Harrison’s actions
unlawfully and [tortiously] interfered with Cincinnati’s rights under
the * * * contract and Harrison is hereby enjoined from any further
1 In its March summary-judgment decisions, the trial court incorrectly referred to count five as
alleging tortious interference. That claim was raised in count seven of the amended complaint.
The court also referred to count seven as alleging claims for waiver, laches, and equitable
estoppel. Those claims were raised in count five. Throughout this opinion, we will refer to the
counts by their proper number as found in Cincinnati’s amended complaint.
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acts intended to interfere with Cincinnati’s rights under the contract.
Further, Cincinnati is entitled to damages in the amount of lost
revenues from customers that Harrison began to serve in the disputed
areas as well as legal fees, costs, and expenses incurred by Cincinnati
to defend its rights and obligations under the contract (to be
determined at a later date).
4. Regarding Count [Five, arguing laches, waiver, and
estoppel], Harrison’s actions (or lack thereof) (i) constituted a waiver
on its part of any right that it may have had to serve County customers
in the disputed areas; (ii) constituted actionable laches on its part
with respect to any right it may have had to serve County customers in
the disputed area; and (iii) caused Cincinnati to justifiably rely upon
said course of action by expending millions of dollars to provide water
service to the disputed areas, thus equitably stopping Harrison from
encroaching upon Cincinnati’s current service rights. In addition,
Harrison is enjoined from taking any further actions inconsistent with
the court’s declarations regarding waiver, laches, and equitable
estoppel.
{¶15} The trial court’s decision and judgment entry thus: (1) enjoined
Harrison from encroaching and interfering in the disputed areas, (2) awarded damages,
in an amount to be determined later, for the “amount of lost revenues” resulting from
the encroachment, and (3) awarded fees, costs, and expenses, in an amount to be
determined later, for the costs of litigation. Each of these orders effectively denied
Harrison the benefit of its alleged immunity from suit.
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{¶16} In addition to deferring the determination of the amount of lost
revenue, fees, costs, and expenses due to Cincinnati, the court also reserved “the right
to provide further relief as it deems appropriate.” Despite awarding Cincinnati an as
yet undetermined sum for attorney fees, the court did not make any finding that
Harrison had acted maliciously or in bad faith.
{¶17} On March 27, 2013, the trial court issued an amended decision and
judgment. The amended judgment repeated the resolution of the summary-judgment
motions announced on March 1. It also included, at Harrison’s request, the trial court’s
certification that there was no just reason for delay under Civ.R. 54(B). Harrison then
brought this appeal. In a single assignment of error, Harrison contends that the trial
court erred in denying its motion for summary judgment and in granting Cincinnati’s
cross-motion.
An Order Denying Sovereign Immunity Is Immediately Appealable
{¶18} Because an appellate court’s jurisdiction is limited to review of
judgments or final orders, it must determine its own jurisdiction to proceed before
reaching the merits of any appeal. See State ex rel. White v. Cuyahoga Metro. Hous.
Auth., 79 Ohio St.3d 543, 544, 684 N.E.2d 72 (1997).
{¶19} Thus, while the denial of a motion for summary judgment is generally
not a final, appealable order, “[w]hen a trial court denies a motion in which a political
subdivision * * * seeks immunity under R.C. Chapter 2744, that order denies the benefit
of an alleged immunity and is therefore a final, appealable order pursuant to R.C.
2744.02(C).” Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878,
syllabus and ¶ 9; see Sullivan v. Anderson Twp., 122 Ohio St.3d 83, 2009-Ohio-1971,
909 N.E.2d 88, syllabus (the statute permits an immediate appeal, in a multiple-claim
action, of an order denying alleged immunity, even when the order makes no
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determination pursuant to Civ.R. 54[B]). Since Harrison is appealing from an order
which denies it the benefit of an alleged immunity, we have jurisdiction to resolve that
issue. See Jones v. Norwood, 1st Dist. Hamilton No. C-120237, 2013-Ohio-350, ¶ 31.
The Summary-Judgment Standard
{¶20} The function of summary judgment is to determine from the evidentiary
materials whether triable factual issues exist, regardless of whether the facts of the case
are complex. A court is not precluded from granting summary judgment merely
because of the complexity or length of the factual record. See Gross v. Western-
Southern Life Ins. Co., 85 Ohio App.3d 662, 666-667, 621 N.E.2d 412, (1st Dist.1993).
{¶21} Summary judgment is proper under Civ.R. 56(C) 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) it appears from the evidence that reasonable
minds can come to but one conclusion, and with the evidence viewed most strongly in
favor of the party against whom the motion for summary judgment is made, that
conclusion is adverse to that party. See Dresher v. Burt, 75 Ohio St.3d 280, 293, 662
N.E.2d 264 (1996).
{¶22} Harrison’s immunity defense was resolved by the trial court on cross-
motions for summary judgment. We have in the past questioned the wisdom of
resolving matters seeking declaratory judgment by summary judgment, particularly
where the trial court has yet to fully declare the rights, status, and other legal
relations of the parties. E.g., Cincinnati v. Ohio Council 8, Am. Fedn. of State, Cty. &
Mun. Emp., AFL-CIO, 93 Ohio App.3d 162, 164, 638 N.E.2d 94 (1st Dist.1994).
Nonetheless, the parties’ election to address the issues by cross-motions for summary
judgment demonstrates that both sides believed that there was no genuine issue of
material fact in dispute and that the court was free to render a decision as to Harrison’s
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immunity as a matter of law. See Costanzo v. Nationwide Mut. Ins. Co., 161 Ohio
App.3d 759, 2005-Ohio-3170, 832 N.E.2d 71, ¶ 10 (1st Dist.). We review summary-
judgment determinations de novo, without deference to the trial court’s ruling. See
Polen v. Baker, 92 Ohio St.3d 563, 564-565, 752 N.E.2d 258 (2001).
{¶23} Harrison asserts that it is immune from liability for discretionary
decisions that its legislative and executive officials made in the exercise of governmental
functions to expand its municipal water system. See, e.g., R.C. 2744.03(A). Since
Cincinnati’s claims sound in intentional tort, Harrison argues, inter alia, that the trial
court erred in denying its motion for summary judgment in which it asserted that it was
entitled to immunity under R.C. Chapter 2744.
The Three-Tiered Sovereign-Immunity Scheme
{¶24} R.C. Chapter 2744 provides a three-tiered scheme that grants broad
immunity to political subdivisions. See Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-
Ohio-3319, 790 N.E.2d 781, ¶ 7. The first tier of the scheme provides a general grant of
immunity: “[A] political subdivision is not liable in damages in a civil action for injury,
death, or loss to person or property allegedly caused by any 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(A)(1).
{¶25} Once immunity is established, the next tier of the analysis carves out
certain exceptions to immunity listed in R.C. 2744.02(B) which re-establish the liability
of a political subdivision where there is negligence with respect to the exercise of
proprietary functions.
{¶26} Finally, if any exception applies to re-impose liability, the third tier of
the analysis focuses on whether any of the defenses contained in R.C. 2744.03 apply to
reinstate immunity. See Munday v. Lincoln Hts., 1st Dist. Hamilton No. C-120431,
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2013-Ohio-3095, ¶ 19; see also R.K. v. Little Miami Golf Ctr., 2013-Ohio-4939, 1
N.E.3d 833, ¶ 8 (1st Dist.).
{¶27} Here, Harrison argues that since Cincinnati’s claims sound in
intentional tort, it was entitled to immunity under R.C. Chapter 2744. Cincinnati
claimed that Harrison had tortiously interfered with and impaired its contract with the
county to provide water to the disputed areas. Cincinnati did not assert damages
arising from Harrison’s negligent establishment, expansion, or operation of its water
system in the disputed areas. Rather, Cincinnati argued that Harrison had taken
actions “both as a governmental entity and through its elected officials, deliberately
intended to solicit the County to enter into an agreement with Harrison giving it service
rights in the Disputed Areas despite the County Contract, and deliberately intended to
impair Cincinnati’s rights and duties under the County Contract.” Harrison argues that
these claims are barred by R.C. Chapter 2744, whether it had been engaged in a
governmental function, as it asserts, or in a proprietary function as Cincinnati argues.
See R.C. 2744.01(G)(2)(C) (classifying as a proprietary function “[t]he establishment,
maintenance, and operation of a utility, including but not limited to * * * a municipal
corporation water supply system.”).
{¶28} Harrison is correct that R.C. 2744.02(B) includes no specific exceptions
for intentional torts which would re-establish any liability granted under the first tier.
“[P]olitical subdivisions are immune under R.C. 2744.02 from intentional tort claims.”
Williams v. McFarland Properties, LLC, 177 Ohio App.3d 490, 2008-Ohio-3594, 895
N.E.2d 208, ¶ 11 (12th Dist.); see Hubbard v. Canton City School Bd. of Edn., 97 Ohio
St.3d 451, 780 N.E.2d 543 (2002); R.K. at ¶ 49.
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Harrison Is Not Immune to Claims for Injunctive and Declaratory Relief
{¶29} But the resolution of Harrison’s immunity as to the first, or injunctive,
relief ordered by the trial court lies in the General Assembly’s intent in enacting R.C.
Chapter 2744: “[t]o limit the exposure of political subdivisions to money damages.”
Engleman v. Cincinnati Bd. of Edn., 1st Dist. Hamilton No. C-000597, 2001 Ohio App.
LEXIS 2728, *6 (June 22, 2001); see Wilson v. Stark Cty. Dept. of Human Serv., 70
Ohio St.3d 450, 453, 639 N.E.2d 105 (1994). Where a political subdivision is not being
subjected to a claim for money damages, the near absolute immunity of R.C.
2744.02(A)—the first tier of the scheme—is not available.
{¶30} R.C. 2744.02(A)(1) extends immunity to political subdivisions against
claims for “damages in a civil action for * * * loss to person or property” but not to
those claims seeking equitable relief. “By its very language and title, [R.C. Chapter
2744] applies to tort actions for damages.” (Emphasis added.) Big Springs Golf Club v.
Donofrio, 74 Ohio App.3d 1, 2, 598 N.E.2d 14 (9th Dist.1991). Ohio courts have
uniformly held that while sovereign immunity bars tort claims for money damages, it
has no application in actions for equitable relief. See Portage Cty. Bd. of Commrs. v.
Akron, 156 Ohio App.3d 657, 2004-Ohio-1665, 808 N.E.2d 444, ¶ 186 (11th Dist.); see
also Mega Outdoor, LLC v. Dayton, 173 Ohio App.3d 359, 2007-Ohio-5666, 878
N.E.2d 683, ¶ 54 (2d Dist.); State ex rel. Johnny Appleseed Metro. Park Dist. v.
Delphos, 141 Ohio App.3d 255, 258, 750 N.E.2d 1158 (3d Dist.2001); Rocky River v.
Lakewood, 8th Dist. Cuyahoga No. 90908, 2008-Ohio-6484, ¶ 13; Parker v. Upper
Arlington, 10th Dist. Franklin No. 05AP-695, 2006-Ohio-1649, ¶ 9 (sovereign
immunity is only a defense to tort claims seeking monetary damages, and not to claims
seeking declaratory relief); State ex rel. Fatur v. Eastlake, 11th Dist. Lake No. 2009-L-
037, 2010-Ohio-1448, ¶ 41.
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{¶31} For example, R.C. Chapter 2744 does not provide immunity to a
political subdivision against a claim of unconstitutional taking of property damaged
during a drug raid. That claim is “constitutional in nature,” and statutory immunity is
not a proper defense to claims that “d[o] not sound in tort.” See Brkic v. Cleveland, 124
Ohio App.3d 271, 282, 706 N.E.2d 10 (8th Dist.1997).
{¶32} Where a sign company had sued the city of Dayton for a declaration that
it was entitled to a sign permit outside the right-of-way, for mandamus requiring the
city to prove the sign was installed on property zoned for billboards, for an injunction
restraining the enforcement of a stop-work order, and for compensatory damages, the
trial court granted the city summary judgment on each count of the complaint because
Dayton was “entitled to immunity.” Mega Outdoor, LLC, 173 Ohio App.3d 359, 2007-
Ohio-5666, 878 N.E.2d 683, at ¶ 54. Because “[s]overeign immunity applies to money
damages, not to claims for equitable relief, such as injunctive relief,” the Second District
Court of Appeals held that the trial court had erred in granting summary judgment on
the sign company’s claims for declaratory judgment, mandamus, and injunctive relief.
Id. But the trial court had properly granted summary judgment to the city on the
company’s claim for compensatory damages. See id. at ¶ 53.
{¶33} The established rule that sovereign immunity is not a bar to claims
seeking injunctive relief is not limited to situations where the plaintiff is a private
citizen. Where one municipality had filed a nuisance complaint against another
municipality, seeking an injunction against the operation of its dog park, the trial
court’s dismissal of the claim on the basis of sovereign immunity was reversed because
sovereign immunity under R.C. Chapter 2744 “applies only to an action for damages.”
Rocky River, 8th Dist. Cuyahoga No. 90908, 2008-Ohio-6484, at ¶ 13.
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{¶34} In its July 2012 motion for cross-summary judgment, Cincinnati moved
for summary judgment against Harrison on the four remaining counts of its amended
complaint: count one (violation of state law), count two (impairment of contract), count
five (waiver, laches, and equitable estoppel), and count seven (tortious interference).
As to each count, Cincinnati claimed that it was entitled to “injunctive and declaratory
relief” to enjoin Harrison from further acts of interference with its contract with the
county to provide water to the disputed areas. Cincinnati did not assert any claim in
the motion for monetary damages, though it had in its amended complaint.
{¶35} In its March 2013 judgment granting summary judgment to Cincinnati,
the trial court expressly enjoined Harrison from further acts intended to encroach on
Cincinnati’s water-service rights (count one), to impair or interfere with Cincinnati’s
contract with the county (count two), to violate its decision that Harrison’s actions were
barred by the doctrines of waiver, laches, and equitable estoppel (count five), and to
interfere with Cincinnati’s rights under the contract.
{¶36} Sovereign immunity under R.C. Chapter 2744 is not a defense to claims
seeking injunctive relief. See Portage Cty. Bd. of Commrs., 156 Ohio App.3d 657,
2004-Ohio-1665, 808 N.E.2d 808, at ¶ 186. Thus Cincinnati is entitled to judgment as
a matter of law, and the trial court did not err in overruling that portion of Harrison’s
motion for summary judgment asserting that it was entitled to immunity from the
injunctions ordered by the trial court. See Civ.R. 56(C). We overrule that portion of
Harrison’s assignment of error.
Harrison Is Immune From Damages Awarded in Intentional-Tort Claims
{¶37} Unlike the situation where a trial court has awarded declaratory or
injunctive relief, where the court awards money damages as relief for claims sounding
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in intentional tort, the political subdivision is immune. See Williams, 177 Ohio App.3d
490, 2008-Ohio-3594, 895 N.E.2d 208, at ¶ 11.
{¶38} In its March 2013 judgment the trial court awarded Cincinnati damages
for two counts, the second and the seventh. In both counts, Cincinnati had alleged that
deliberate, intentional conduct by Harrison had impaired and tortiously interfered with
Cincinnati’s county water contract. The trial court awarded Cincinnati “damages in the
amount of lost revenues from customers that Harrison [had begun] to serve in the
disputed areas.”
{¶39} This relief constituted an award of money damages under the first tier
of the sovereign-immunity scheme. See R.C. 2744.02(A)(1). None of the exceptions to
immunity listed in R.C. 2744.02(B) have application to re-establish liability for
intentional torts. Therefore, Harrison is immune from the trial court’s award of
damages for lost revenues. Since the trial court erred in awarding lost-revenues
damages, we sustain that portion of Harrison’s assignment of error.
Harrison Is Immune from the March 27, 2013 Award of Attorney Fees
{¶40} Harrison also argues that in awarding attorney fees to Cincinnati, under
counts two and seven, the trial court denied it the benefit of an alleged immunity under
R.C. Chapter 2477. It maintains that because R.C. 2744.05(A) prevents the trial court
from awarding punitive damages, its award of attorney fees was also barred. See R.K.,
2013-Ohio-4939, 1 N.E.3d 833, at ¶ 47.
{¶41} This is true where an award of attorney fees is predicated on punitive or
exemplary damages. E.g., Henry v. Akron, 27 Ohio App.3d 369, 371, 501 N.E.2d 659(9th Dist.1985) (since punitive damages were not available against a political
subdivision, “it follows that attorney fees also may not be awarded”). Here the trial
court did not award punitive damages.
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{¶42} But there are other grounds to support an award of attorney fees. This
court and the Ohio Supreme Court have held that an independent basis to award fees
against a municipal corporation exists when the award is supported by an express
finding of bad-faith conduct. See Thomas v. Cincinnati, 1st Dist. Hamilton No. C-
050643, 2006-Ohio-3598, discretionary appeal not allowed, 112 Ohio St.3d 1406,
2006-Ohio-6447, 858 N.E.2d 818; see also State ex rel. Durkin v. Ungaro, 39 Ohio
St.3d 191, 193, 529 N.E.2d 1268 (1988); compare Hunsche v. Loveland, 133 Ohio
App.3d 535, 542, 729 N.E.2d 393 (1st Dist.1999) (relying on the rule announced in
Henry at 371, but holding that despite a finding of bad-faith conduct, “neither punitive
damages nor attorney fees can be awarded against a municipal corporation”).
{¶43} But in the absence of a finding of bad faith, a trial court errs in awarding
attorney fees not supported by other statutory authority. See Wright v. Fleming, 1st
Dist. Hamilton No. C-070121, 2008-Ohio-1435, ¶ 5-6; see also KGM Capital, LLC v.
Jackson, 1st Dist. Hamilton No. C-130438, 2014-Ohio-2427, ¶ 24. Here the trial court
has made no finding that Harrison acted in bad faith. In the absence of that finding, or
other statutory authority to impose attorney fees, Harrison is entitled to the protection
of R.C. Chapter 2744 and thus is immune from the award of attorney fees ordered by
the court in its March 27 judgment.
{¶44} Since the trial court erred in awarding attorney fees against Harrison,
we sustain that portion of Harrison’s assignment of error.
The Trial Court’s Remaining Orders Not Implicating Immunity Are Not Final
{¶45} Less than two months after Harrison had filed its notice of appeal,
Cincinnati moved to dismiss the appeal in part. Cincinnati did not dispute that the
resolution of Harrison’s immunity was immediately appealable. It argued, however,
that those aspects of the trial court’s summary judgment entry not touching on
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immunity, including the measure of restitution and fees, the proper timing and scope of
the injunctive relief, and the award of other relief sought under count one of the
amended complaint, were not yet final orders and thus were not yet appealable, despite
the trial court’s determination that there was no just reason for delay. This was
particularly so where the trial court had expressly reserved the right to provide further
relief. For orders not immediately appealable under R.C. 2744.02(C) to be reviewable,
the orders must be final within the meaning of R.C. 2505.02 and meet the requirements
of Civ.R. 54(B), if applicable. See Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d
17, 540 N.E.2d 266 (1989). On June 12, 2013, a three-judge panel of this court
overruled the motion. See 1st Dist. Loc.R. 15.1(C).
{¶46} Cincinnati has renewed its argument in the required jurisdictional
statement contained in its appellate brief. See 1st Dist. Loc.R. 16.1(A)(2)(a). Because a
challenge to subject-matter jurisdiction is never waived, we may re-evaluate our
jurisdiction to proceed at any time, even on the consideration of a direct appeal. See
Internatl. Lottery v. Kerouac, 102 Ohio App.3d 660, 670, 657 N.E.2d 820 (1st
Dist.1995); see also Civ.R. 12(H)(3); State ex rel. White, 79 Ohio St.3d at 544, 684
N.E.2d 72. This subsequent decision is guided by a thorough review of the record and,
as here, by the written and oral arguments of counsel.
{¶47} Harrison argues that since the trial court denied its summary-judgment
motion in its entirety and added Civ.R. 54(B) certification to its March 27, 2013
judgment entry, for purposes of conserving judicial resources it is entitled to an
immediate appeal of all the orders contained within the trial court’s amended
judgment. In addition to the damages and fees issues, Harrison argues that the
interpretation of the county water contract, Cincinnati’s rights to enforce it, and the
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OHIO FIRST DISTRICT COURT OF APPEALS
interpretation of Cincinnati’s rights under R.C. Chapter 6103 are also ready for review.
We now disagree.
{¶48} Orders entered in an action for declaratory judgment, which is a special
proceeding, are final when they affect a substantial right. See R.C. 2505.02(B)(2); see
also Walburn v. Dunlap, 121 Ohio St.3d 373, 2009-Ohio-1221, 904 N.E.2d 863, ¶ 21. It
is beyond cavil that the trial court’s orders implicate Harrison’s substantial rights. See
R.C. 2505.01(A)(1). But here the trial court’s orders not touching immunity are
“tentative, informal, or incomplete” and are subject to change or reconsideration upon
the trial court’s own motion. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546,
69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Because the trial court’s orders, even though
entered in a declaratory judgment action, “contemplate further action,” they are not
final. State ex rel. New Concept Hous., Inc. v. Metz, 123 Ohio St.3d 457, 2009-Ohio-
5862, 917 N.E.2d 796, ¶ 3; see State ex rel. A & D Ltd. Partnership v. Keefe, 77 Ohio
St.3d 50, 53, 671 N.E.2d 13 (1996); State ex rel. Dewine v. Big Sky Energy, 11th Dist.
Ashtabula No. 2012-A-0042, 2013-Ohio-437, ¶ 12. Only after the trial court has
resolved these matters and has entered a final judgment will they be ready for appellate
review.
{¶49} Because the other orders Harrison seeks review of are not otherwise
final, “this court’s jurisdiction in this appeal, arising under R.C. 2744.02(C), is limited
to the review of the trial court’s denial of the benefit of immunity.” Jones, 1st Dist.
Hamilton No. C-120237, 2013-Ohio-350, at ¶ 32; see Todd v. Cleveland, 8th Dist.
Cuyahoga No. 98333, 2013-Ohio-101, ¶ 32 (appellate review under R.C. 2744.02(C) is
limited to the denial of immunity); Mortensen v. Bd. of Cty. Commrs., 12th Dist. Butler
No. CA2007-04-088, 2008-Ohio-1017, ¶ 13-14. When appealing a denial of immunity
under R.C. 2744.02(C), and where the order is not otherwise final and appealable, a
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OHIO FIRST DISTRICT COURT OF APPEALS
party may not raise other alleged errors concerning the denial of summary judgment.
See Leasure v. Adena Local School Dist., 2012-Ohio-3071, 973 N.E.2d 810, 822 (4th
Dist.); see also Inwood Village, Ltd. v. Cincinnati, 1st Dist. Hamilton No. C-110117,
2011-Ohio-6632, ¶ 7.
Conclusion
{¶50} Harrison’s sole assignment of error is overruled in part and sustained in
part. Because Harrison was not immune under R.C. Chapter 2744 from the injunctive
and declaratory relief ordered by the trial court, we affirm that portion of the trial
court’s March 27, 2013 judgment. But since Harrison was immune from the damages
awarded under claims sounding in intentional tort, and from the attorney fees awarded
here, we reverse that portion of the trial court’s judgment.
{¶51} Since we have overruled that portion of Harrison’s assignment of error
seeking review of issues not directly reaching its immunity, we do not reach any
conclusion on the merits of these other arguments.
Judgment affirmed in part, reversed in part, and cause remanded.
H ENDON , P.J., and F ISCHER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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