Regulic v. Columbus

[Cite as Regulic v. Columbus, 2022-Ohio-1034.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Slobodan Regulic et al., :
Plaintiffs-Relators/ :
Appellants, No. 21AP-268
: (C.P.C. No. 20CV-3396)
v.
: (ACCELERATED CALENDAR)
City of Columbus et al.,
:
Defendants-Respondents/
Appellees. :
D E C I S I O N
Rendered on March 29, 2022
On brief: O'Reilly Law Offices, and Michael J. O'Reilly, for
appellants. Argued: Michael J. O'Reilly.
On brief: Zach Klein, City Attorney, Alana V. Tanoury, and
Sheena D. Rosenberg, for appellees. Argued: Alana V.
Tanoury.
APPEAL from the Franklin County Court of Common Pleas
NELSON, J.
{¶ 1} Under the law of Ohio, as elsewhere, governmental action alleged to cause
flooding of private property may be immune to negligence claims while still subjecting the
governmental entity to the possibility of takings compensation proceedings.
{¶ 2} Plaintiffs/Relators-Appellants Slobodan and Milka Regulic sued the City of
Columbus (and its Mayor as "named in a representative capacity only," so together
"Columbus" or "the city") on May 27, 2020 complaining that a home they purchased in the
No. 21AP-268 2
city in 2001 has flooded "about twice per year" since that time. Complaint at ¶ 1, 2, 6 and
Ex. A (2001 date); see also Complaint at ¶ 21 ("From time to time over the years, including
in 2004, 2005, 2006, 2014, 2016, 2017, February and May 2018, May 2019, and March and
May 2020, [the Regulics] have suffered basement and kitchen floods and sewage
backups"). They attributed the flooding primarily to city negligence at or before the time of
their purchase, including "(a) [housing development] plan review, (b) permit issuances,
(c) construction inspection, (d) issuance of completion certificates, [and] (e) acceptance of
maintenance from the developer without appropriate collection on subdivision bond," as
well as to unspecified problems with "operation and maintenance of the Subdivision's
storm and sanitary sewer systems." Complaint at Count I, ¶ 30 (for negligence).
{¶ 3} Beyond their negligence claim and their related request for money damages,
the Regulics also alleged that city "acts and omissions that result in the actual and repeated
overflow of sewage onto the[ir] [p]roperty" and that "reasonably may be expected" to give
rise to "[f]urther overflow of sewage" constitute an uncompensated taking of their property
entitling them to a writ of mandamus to compel the city to begin property appropriation
proceedings pursuant to R.C. 163.01 et seq. Id. at Count II, ¶ 34, 36 (for mandamus). They
further asked to be designated "if they shall so move" as representatives of a class of
subdivision homeowners. Id. at Count III.
{¶ 4} Columbus filed an answer to the complaint on September 8, 2020 and an
amended answer on October 27, 2020. Then, on November 2, 2020, Columbus filed a
motion for judgment on the pleadings. The trial court granted that motion by a Decision of
March 24, 2021.
{¶ 5} Columbus was entitled to judgment on the Regulics' negligence claim for two
reasons, the trial court found. First, pursuant to R.C. 2744.02(A)(1) and (2), the city is
immune from liability for damages to persons or property caused in connection with
"governmental" as opposed to "proprietary" functions, and the negligent conduct alleged in
the complaint fell within Columbus's exercise of its "governmental" responsibilities. See
Decision Granting MJP at 3-7, citing to R.C. 2744.01(C)(2)(p) (inspections and actions
undertaken in connection with building, zoning, sanitation, and plumbing codes, the
approval of building construction plans, and the issuance or revocation of building permits
are "governmental function[s]"; R.C. 2744.01(C)(2)(l) (so is "[t]he provision or
No. 21AP-268 3
nonprovision, planning or design, construction, or reconstruction of a public improvement,
including, but not limited to, a sewer system"); R.C. 1311.25(A) (defining a "[p]ublic
improvement" as "any construction, * * * alteration, demolition, or repair of a * * * drainage
system, water system, * * * sewer, ditch, sewage disposal plant, water works," and the like);
and to Coleman v. Portage Cty. Eng., 133 Ohio St.3d 28, 2012-Ohio-3881, ¶ 30-31 (for the
proposition that despite generic reference to sewer maintenance or operation issues, which
generally would involve proprietary functions, a complaint invokes "a design or
construction issue" to which immunity attaches as a governmental function if fixing the
problem would require the government to redesign or rebuild the system).
{¶ 6} "Here," the trial court observed, immunity applied because the Regulics'
"Complaint makes no allegations regarding Defendant City's day-to-day maintenance,
inspection, repair, or removal of obstructions in the sewer system, and instead relates to
Defendant City's design and construction of the storm and sanitary systems in the
Subdivision, the actual construction of Plaintiffs' home in a flood zone, and the installation
and subsequent removal of a holding tank, which purportedly caused an increase in the
severity of the flooding. * * * * As such [sic], * * * because Plaintiffs' claims are actually
based on alleged failures in the design, construction, or update of the sewer system * * *,
and are not based on the general maintenance of the sewer system, [Columbus] was
participating in a governmental, not [a] proprietary function. * * * * As such [sic], * * *
[Columbus] is entitled to a general grant of immunity" and to "judgment in [its] favor as a
matter of law on Plaintiffs' negligence claims." Decision Granting MJP at 6-7.
{¶ 7} Second and alternatively, the trial court found, the Regulics' negligence claim
is barred by the two-year statute of limitations that applies to actions against political
subdivisions for damages to persons or property caused in connection with a governmental
or proprietary function. Id. at 8-9, citing R.C. 2744.04(A). The Regulics "allege that their
home was built in 1999, that they purchased their home in 2001, and that they began having
flooding problems as early as 2001, and at the latest 2004. * * * * However, [they] did not
file their Complaint until May of 2020," the trial court observed. Id. at 8. "[T]he alleged
wrongful act was committed in 1999 when Plaintiffs' home was built and Defendants
negligently [according to the Complaint] issued permits, approved plans, and inspected
construction completed by the developer. * * * * [The Regulics'] cause of action accrued
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when Plaintiffs discovered that they were injured by the alleged wrongful conduct * * *,
which was when the first incident of flooding occurred, either 2001 or 2004. * * * * In
addition, the [trial] Court finds that a continuing tort theory does not apply because
Plaintiffs' Complaint does not sufficiently allege continuing acts of negligence, only
continuing damages." Id. at 9.
{¶ 8} As to mandamus, the trial court acknowledged that the writ " 'is the
appropriate action to compel public authorities to institute appropriation proceedings
where an involuntary taking of private property is alleged.' " Id. at 10, quoting State ex rel.
Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 53 (further citation omitted).
Pursuant to R.C. 2305.09(E), the trial court continued, an action for relief based on physical
or regulatory taking of property generally must be brought within four years from when the
cause accrued. Id. at 10, citing Doner at ¶ 34 (further citation omitted). Beyond the initial
permitting issues, the trial court recited, the Regulics "further allege that [Columbus]
negligently installed and subsequently removed a holding tank in 2010, which purportedly
caused an increase in the severity of the flooding." Id. at 11, citing Complaint at ¶ 23-24.
With the Regulics having alleged that they experienced flooding in "2004, 2005, 2006,
2014, 2016, 2017, February and May 2018, May 2019, and March and May 2020," the trial
court ruled that the four-year limitations statute precluded their mandamus claim.
Contrary to the Regulics' argument, the trial court found, the "Complaint does not
sufficiently allege any facts regarding any ongoing conduct or control on behalf of
[Columbus], and instead only alleges that there have been continuing or ongoing damages."
Id. at 11.
{¶ 9} The trial court granted Columbus's motion for judgment on the pleadings and
instructed the city's lawyers to "submit the appropriate judgment entry." Id. at 12.
{¶ 10} After that decision, but before the trial court entered judgment, the Regulics
moved for leave to amend their complaint. March 31, 2021 Motion for Leave to File an
Amended Complaint, and for a Stay. The motion gave only a one sentence explanation of
its grounds: "Plaintiffs request leave to amend, to allow the Court and opposing counsel to
have a clearer reading of the Complaint, and thereby protect the interests of justice and
fairness." Id. at 2. The proposed amendment recast the claimed negligence to move away
from allegations involving permitting events that occurred before the Regulics bought the
No. 21AP-268 5
property and focused the negligence count on unspecified but assumed negligent sewer
maintenance and operation. Id. at ¶ 26 of proposed amendment (complaining of "flooding
* * * the type of which that [sic] does not happen in the absence of the City's negligent
maintenance"). It would have dropped the mandamus count and added others.
{¶ 11} On April 26, 2021, the trial court filed a Decision and Entry denying the
motion for leave to amend. That decision found that the amendment would not correct the
deficiencies of the original complaint, and observed that the negligence claim still identified
no particular sewer maintenance or operation issue and that the Regulics still were alleging
"that the Subdivision's sewer system has design or/and or [sic] construction issues, not
maintenance issues." April 26, 2021 Decision & Entry denying amendment at 2 (emphasis
in original); id. at 3 ("Plaintiffs' allegations relate to Defendants' approval of the design and
construction of Plaintiffs' home * * * * [and] on Plaintiffs' allegations, Defendants would
need to redesign, reconstruct, or update the sewer systems"). Further, the trial court ruled
that "the Court cannot allow Plaintiffs to try and 'change' the facts to evade dismissal." Id.
at 4. Two days later, the trial court issued a Judgment Entry predicated on the grant of the
motion for judgment on the pleadings and reciting that "this case is dismissed with
prejudice * * *." (A virtually identical "Judgment Entry" from April 9, 2021 also appears in
the record, apparently simply as an exhibit to Columbus's response to the Regulics' motion
for leave to amend; it was not signed at that point by the trial judge, who appended her
signature under "It Is So Ordered" language to the April 28, 2021 judgment entry.)
{¶ 12} The Regulics filed their notice of appeal on May 26, 2021, appealing both the
grant of Columbus's motion for judgment on the pleadings and the denial of their own
motion for leave to amend their complaint (both of which decisions became final and
appealable with the April 28, 2021 Judgment Entry dismissing their case with prejudice).
In their brief to us, they advance four assignments of error:
[I.] Where the Defendants' motion for judgment on the
pleadings under Civil Rule 12(C) contained significant
argument that sounded only under Civil Rule 12(B)(6), it was
error for the court to ground its dismissal entirely under Civil
Rule 12(C).
[II.] The trial court abused its discretion in deciding it was
already proved that the City had committed no negligence in a
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proprietary function within two years of the filing of the
complaint.
[III.] The court abused its discretion in denying plaintiffs leave
to amend their complaint.
[IV.] The trial court erred in ignoring the continuing taking
doctrine in granting judgment on the pleadings based on the
statute of limitations as to the second count in the case, for
mandamus to commence an eminent domain proceeding.
Appellants' Brief at 2-3 (emphasis omitted and capitalizations adjusted).
{¶ 13} We begin with the third assignment because a finding that the trial court's
dismissal was directed to the wrong complaint would moot the rest of the appeal. But it
wasn't: the trial court did not abuse its discretion in denying the motion for leave. Indeed,
the Regulics' one-paragraph argument in support of this assignment of error underscores
that "it was over four months" between the time that Columbus filed its motion for
judgment on the pleadings and the time the trial court decided that motion. Appellants'
Brief at 17. The Regulics did not amend their complaint as of right within the time
permitted by Civil Rule 15(A) (even though, as the Regulics observe, "Defendants took over
three months to file their first answer," Appellants' Brief at 17). The Regulics did not move
for leave to amend during the five-plus months between the time they filed their complaint
and the time Columbus moved for judgment on the pleadings. And, as they concede, they
did not move to amend during the almost five months between the filing of the motion for
judgment on the pleadings and the trial court's detailed decision granting that motion.
{¶ 14} The Regulics' lone argument in support of this assignment of error — that
"absolutely none of the ten months [between the filing of the complaint and the grant of the
motion for judgment on the pleadings] was caused by [them]," Appellants' Brief at 17 —
does not explain why the trial court's work on the motion for judgment on the pleadings in
the context of the unamended complaint should be set at naught and party briefing on the
negligence issues begun anew, or why justice would require otherwise. On the facts of this
case, and while recognizing that leave to amend is to be liberally granted absent bad faith
or undue delay or prejudice, we cannot say that the trial court abused its discretion in not
finding that the interests of justice required the leave to be granted. See, e.g., Fisk v. Rauser
& Assocs. Legal Clinic Co., LLC, 10th Dist. No. 10AP-427, 2011-Ohio-5465, ¶ 13-15, citing
No. 21AP-268 7
Wilmington Steel Prods., Inc. v. Cleveland Elec. Illuminating Co., 60 Ohio St.3d 120, 122
(1991) ("The grant or denial of a motion for leave to amend a pleading lies within the sound
discretion of the trial court, and upon appeal we will not reverse the trial court's
determination absent an abuse of that discretion"); Fisk at ¶ 15 (trial court justified in
concluding that attempt to "reinvent the case on entirely separate alternative legal grounds"
so as to avoid summary judgment was "prejudicial to opposing parties and constituted
inefficient use of the judicial system's time and resources").
{¶ 15} Further still, the balance of the Regulics' briefing and statements of their
counsel at argument here lead us to understand that they do wish to pursue their request
for mandamus — a request not renewed in their proposed amended complaint. And they
make no attempt here to contest the trial court's finding that the frequently conclusory
allegations of the proposed amended complaint would not save their negligence claim or
support new ones. We overrule the Regulics' third assignment of error.
{¶ 16} We turn to the Regulics' first assignment of error. To the (seemingly large)
extent that it argues that the trial court should not have considered Columbus's motion for
judgment on the pleadings as being such pursuant to Civil Rule 12(C), but rather should
have construed it as a motion to dismiss for failure to state a claim under Rule 12(B)(6), we
do not really understand the point. The Regulics do not base this assignment on an
argument that the pleadings were not closed at the time the motion was made. And they
advanced no Rule 12(B)(6) theory (whatever it is intended to be) to the trial court in
opposing the motion. See December 14, 2020 Memorandum Contra of Plaintiffs to
Defendants' Motion for Judgment on the Pleadings.
{¶ 17} The standard applied by the trial court in assessing the motion for judgment
on the pleadings required it to " 'construe[] the material allegations in the complaint, with
all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true' "
and then to ascertain whether " 'the plaintiff could prove no set of facts in support of his
claim that would entitle him to relief.' " March 24, 2021 Decision granting motion at 2,
quoting State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570 (1996).
That is the same standard that would have governed the trial court in assessing a Civil Rule
12(B)(6) motion made before an answer had been filed. See, e.g., Morrissette v. DFS Servs.,
LLC, 10th Dist. No. 10AP-633, 2011-Ohio-2369, ¶ 9 (citations omitted) (in ruling on a
No. 21AP-268 8
12(B)(6) motion, court must presume all of complaint's factual allegations to be true, draw
all favorable inferences in favor of nonmoving party, and then determine whether it appears
beyond doubt from the complaint that plaintiff can adduce no facts that would entitle him
to recovery). And because a motion for judgment on the pleadings and a motion to dismiss
for failure to state a claim each turns on whether a complaint fails on its face as a matter of
law, we review grants of each de novo (afresh, with no deference to the trial court's
determination). Compare, e.g., Chen v. Shie-Ming Hwang, 10th Dist. No. 14AP-535, 2014-
Ohio-5863, ¶ 17 (motion for judgment on the pleadings), with Morrissette (motion to
dismiss for failure to state a claim).
{¶ 18} As we have observed before: "A motion for judgment on the pleadings is
essentially a motion to dismiss for failure to state a claim after an answer has been filed."
RotoSolutions, Inc. v. Crane Plastics Siding, LLC, 10th Dist. No. 13AP-1, 2013-Ohio-4343,
¶ 15, citing Gawloski v. Miller Brewing Co., 96 Ohio App.3d 160, 163 (9th Dist.1994); see
also, e.g., Rushford v. Caines, 10th Dist. No. 00AP-1072, 2001 Ohio App. Lexis 1512, *5
(Mar. 30, 2001) ("A Civ.R. 12(C) motion for judgment on the pleadings has been
characterized as a belated Civ.R. 12(B)(6) motion to dismiss, and the same standard of
review is applied, both at the trial and appellate levels") (citations omitted); 1 Baldwin's
Ohio Civil Practice, Section 12:10, 884-85 (2021-22 ed.) (reiterating that a "Civ.R. 12(C)
motion is, in effect, a 'belated' substitute for a Civ.R. 12(B) motion," and a Civ.R. 12(B)
motion may be reasserted through a 12(C) motion after answer). The Regulics appear to
have become entangled in one court's (quite proper) application of Civ.R. 12(C) to a case in
which a defendant's answer gave rise to a motion because it admitted liability, but the
standard articulated there is nothing different. See Appellants' Brief at 13, citing Trinity
Health Sys. v. MDX Corp., 180 Ohio App.3d 815, 2009-Ohi0-417, ¶ 18 (7th Dist.). The
distinction that the Regulics attempt to draw in their first assignment of error is unavailing.
{¶ 19} Having filed answers earlier to the Regulics' complaint, Columbus moved for
judgment on the pleadings pursuant to Civil Rule 12(C). The Regulics do not argue to us
that the trial court erred in the substance of its determination that Columbus is shielded by
governmental immunity as to any negligence claim supported by the facts specified in the
complaint (including matters involving the holding tank). Nor do the Regulics attempt any
argument under their first assignment that the trial court erred in its alternative holding
No. 21AP-268 9
that the two-year statute of limitations would bar such (specified) claims in any event.
Understandably, they cite no authority for the assignment's proposition that the Rule 12(C)
motion should not have been decided as a 12(C) motion. The trial court was obliged to
decide the motion; it did not err by addressing that motion on its own terms.
{¶ 20} Rather, the Regulics seem to object here to not having been able to use their
complaint as a placeholder for some future, as yet undiscovered negligence claim. See, e.g.,
Appellants' Brief at 13 (contending that "the trial court * * * too easily discounted averments
that there had been [unspecified] negligence in a proprietary function"). They refine their
point to some extent in their second assignment of error, under which they all but concede
that their complaint does not identify "what type of negligence led to any particular incident
during a lengthy timeline." See id. at 15; compare id. at 16 (arguing that trial court
overlooked "possibility" that currently unspecified negligence in a proprietary function
could be identified to surmount immunity and statute of limitations barriers, thus again in
their view demonstrating the sort of "mistakes that can arise when 12(B)(6) and 12(C)
analyses are mashed together"); id. at 15 (arguing under second assignment that they
should be permitted to show that the city was negligent in some unnamed "proprietary act
or omission * * * in 2019 or 2020").
{¶ 21} The General Assembly explicitly has provided municipalities with (defined
and somewhat circumscribed) immunity in the performance of governmental functions
and has established reasonably short limitations periods to constrain negligence claims
with regard to proprietary functions. See R.C. 2744.02 and 2744.04. And the Supreme
Court of Ohio has been clear that even "creative" (let alone, we conclude, entirely
amorphous or conclusory) pleading cannot transform what truly are claims involving
governmental functions into claims of proprietary negligence that would bypass the
litigation short-circuiting that immunity is designed to provide. See Coleman, 2012-Ohio-
3881 at ¶ 30 ("complaint presents a [governmental function] design or construction issue"
if remedying the identified problem would require reconstruction or redesign), ¶ 31
(disallowing "creative" attempt to mask claim). The Regulics do not contest the trial court's
finding that to the extent they articulated any factual alleged wrongdoing by Columbus,
they complained about governmental and not proprietary functions. And refusal to make
out any claim at all will not succeed where disguise would fail.
No. 21AP-268 10
{¶ 22} The Regulics fix on subparagraph 30(f) of their Complaint, which baldly
asserted "negligence on matters of * * * (f) operation and maintenance of the Subdivision's
storm and sanitary sewer systems." See Appellants' Brief at 15. In that regard, just as in
Amrhein v. Telb, 6th Dist. No. L-06-1170, 2006-Ohio-5107, ¶ 16, the "complaint consists of
nothing more than unilateral legal conclusions framed as allegations. The * * * complaint
is devoid of factual allegations of recoverable conduct. The appellant[s] simply present[]
the outcome itself as evidence of malfeasance. That does not suffice to survive a Civ.R.
12(C) motion."
{¶ 23} Amrhein underscores that "[i]t is well established that a trial court's approach
in reviewing a Civ.R. 12(C) motion for judgment on the pleadings is substantively
analogous to the approach taken on [a] Civ.R. 12(B)(6) motion for failure to state a claim
upon which relief may be granted. The same standard of review is applied equally to both
types of motions." Id. at ¶ 10 (citation omitted). Columbus appropriately cites to Kanu v.
Univ. of Cincinnati, 10th Dist. No. 18AP-517, 2018-Ohio-4969, ¶ 10, where in affirming a
Rule 12(B)(6) dismissal for failure to state a claim we recited that "the court need not accept
as true any unsupported and conclusory legal propositions advanced in the complaint." As
we emphasized there, " '[t]o constitute fair notice [so as to state a claim] the complaint must
still allege sufficient underlying facts that relate to and support the alleged claim.' " Id. at
¶ 10 (citations omitted); see also, e.g., Habibi v. Univ. of Toledo, 10th Dist. No. 19AP-583,
2020-Ohio-766, ¶ 13 (quoting Kanu in noting that legal conclusions do not suffice to state
a claim); Stainbrook v. Ohio Secy. of State, 10th Dist. No. 16AP-314, 2017-Ohio-1526, ¶ 11,
citing Haas v. Stryker, 6th Dist. No. WM-12-004, 2013-Ohio-2476, ¶ 10 (another 12(B)(6)
case, noting that "only claims supported by factual allegations can avoid dismissal"); Tuleta
v. Med. Mut. of Ohio, 8th Dist. No. 100050, 2014-Ohio-396, ¶ 12, quoting Grossniklaus v.
Waltman, 5th Dist. No. 09CA15, 2010-Ohio-2937, ¶ 26 ("complaint must still allege
sufficient underlying facts that relate to and support the alleged claim, and may not simply
state legal conclusions"); Scott v. Columbus Dept. of Pub. Util., 192 Ohio App.3d 465, 2011-
Ohio-677, ¶ 8 (10th Dist.) (case cited to trial court by Regulics notes that a complaint must
allege, as complaint there did, "a set of facts that, if proven," would permit recovery);
compare Columbus v. Sanders, 5th Dist. No. 11 CAE 05 0047, 2012-Ohio-1514, ¶ 10-11
(discussing standard of review for judgment on the pleadings, court notes that "the
No. 21AP-268 11
complaint must allege sufficient facts to support any conclusions, and unsupported
conclusions are not presumed to be true"; a "[j]udgment on the pleadings may be granted
where no material factual issue exists" and is "restricted solely to the allegations contained
in those pleadings").
{¶ 24} We overrule the Regulics' first and second assignments of error. Although it
will come as no solace to the Regulics, we observe that had the governmental immunity
issue been joined earlier, in the context of a motion to dismiss pursuant to Civil Rule
12(B)(6) before the pleadings were closed, the dismissal of those negligence claims would
have been with prejudice also (as would be true with the claims that the trial court further
identified as failing under the alternative, statute of limitations ruling). Indeed, such claims
would have failed any way they were formulated. See, e.g., Schmidt v. Grossman Law
Office, 10th Dist. No. 14AP-127, 2014-Ohio-4227, ¶ 9-10 (judgment on the pleadings as
based on immunity was "unquestionably * * * on the merits" and therefore with prejudice);
compare Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, ¶ 17
(under Civ.R. 12(B)(6), claim will be deemed adjudicated on the merits only if it can be
pleaded in no other way); State ex rel. Arcadia Acres v. Dept. of Job & Family Servs., 123
Ohio St.3d 54, 2009-Ohio-4176, ¶ 15 ("a dismissal grounded on a complaint's 'failure to
state a claim upon which relief can be granted' constitutes a judgment that is an
'adjudication on the merits.' As a result, res judicata bars refiling the claim").
{¶ 25} The Regulics' fourth assignment of error relates to the mandamus request
that they initiated as relators seeking compensation for the taking of their property that
they claim Columbus has effected through actions that they assert have caused or increased
the regular flooding of their property. In a more specific allegation, the Regulics aver that
"after 2005 and through about 2010, [Columbus] * * * had installed and operated an above
ground fiberglass or heavy plastic holding tank to hold excess rainwater in a nearby City
park which partially alleviated the frequency and severity of the flooding incidents."
Complaint at ¶ 23. The City then "removed such tank from the park and the problem
returned to its earlier severity, or even greater severity given changes in climate causing
more frequent high intensity rain." Id. at ¶ 24. They want the city to initiate an
appropriations action to compensate them for "repeated overflow of sewage onto [their
property]," which they assert constitutes a taking; they add that "[f]urther overflow of
No. 21AP-268 12
sewage reasonably may be expected given the allegations * * *, and a further
uncompensated taking will result." Id. at ¶ 34, 36.
{¶ 26} As the trial court recognized, see Decision Granting MJP at 10, " '[m]andamus
is the appropriate action to compel public authorities to institute appropriation
proceedings where an involuntary taking of private property is alleged,' " quoting Doner at
¶ 53, quoting State ex rel. Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63 (2002). "Under
R.C. 2305.09(E), an action for relief on the grounds of a physical or regulatory taking of
real property must generally be brought within four years after the cause of action accrued."
Doner at paragraph one of the syllabus.
{¶ 27} After again reviewing the complaint's allegations, including particularly the
allegations with regard to the holding tank and its removal (allegations that the trial court
had characterized earlier as involving the "design, construction, or update of the sewer
system," see Decision Granting MJP at 6), the trial court found that the "mandamus claim
is * * * barred by the applicable four-year statute of limitations," id. at 12. That is because,
the trial court explained, the "[c]omplaint does not sufficiently allege any facts regarding
any ongoing conduct or control on behalf of [Columbus], and instead only alleges that there
have been continuing or ongoing damages." Id. at 11. We understand the Regulics' fourth
assignment of error to contest this rationale. See Appellants' Brief at 17-18 (stating
assignment and citing State ex rel. DeFranco v. Geauga Cty. Bd. of Commrs., 11th Dist. No.
2013-G-3143, 2015-Ohio-2811, ¶ 25 for the proposition that generally, "a continuing
violation exists when the government's action inflicts accumulating harm").
{¶ 28} We note that DeFranco involved a one-time act that did not inflict
accumulating harm or change the nature or degree of the alleged take over time: "relators'
property was not subject to a continuing violation." Id. at ¶ 26 (with summary judgment
granted to respondent). It did not demonstrate the point that we think the Regulics attempt
to make. But the Supreme Court's decision in Doner, as cited by the trial court in the
mandamus section at page 14 of its decision and by Columbus in opposing the fourth
assignment of error, see Appellees' Brief at 22, 24, 25, is much more on point.
{¶ 29} Doner instructed: "When an act carried out on the actor's own land causes
continuing damage to another's property and the actor's conduct or retention of control is
of a continuing nature, the statute of limitations is tolled." 2011-Ohio-6117 at paragraph
No. 21AP-268 13
two of the syllabus. The only factual recitations in the Regulics' complaint (as read with all
reasonable inferences drawn in favor of the nonmoving Regulics) that relate to an allegedly
harmful act carried out on the city's own land involve the removal of the holding tank
(assertedly from a "City park," see Complaint at ¶ 23) that purportedly caused flooding of
the Regulics' house to return to earlier levels or reach "even greater severity," id. at ¶ 24.
But that allegation seems to us sufficient under the generous standard that obtains in
review of a motion for judgment on the pleadings to allow for factual development of the
claim (and of statute of limitations calculations) rather than providing for immediate
dismissal.
{¶ 30} Columbus argues that the Regulics "do not allege continuing acts or control
on the part of the City to toll the statute of limitations," Appellees' Brief at 25. While
acknowledging the allegation that "the City * * * removed a storm-water holding tank from
a nearby park in 2010," Columbus insists that "[o]ther than the fact that the City owns the
sewer systems, Appellants fail to allege any facts showing continuing conduct or control on
the part of the City that would toll the four-year statute of limitations." Id. at 26. But as the
city's language here suggests, the Regulics do allege ongoing city control over the sewer
system for which the holding tank, the trial court found, had according to the pleadings
been part of the "design, construction or update." Decision Granting MJP at 6; Complaint
at ¶ 4 ("Columbus is the provider of * * * sanitary sewer and storm sewer services to the
subject Property") and ¶ 5 (Columbus "owns and operates and has maintenance obligations
for the infrastructure of the Subdivision").
{¶ 31} Doner affirmed application against the government of the general principles
that when an owner acts on his own land to direct force against the property of another
without that other person's permission, he can be liable in damages, and that if such force
(including flooding) " 'is continued by the act of such owner and actor * * * as a continuing
trespass * * * each additional damage thereby caused * * * is an additional cause of action;
and, until such continued trespass * * * ripens into and becomes a presumptive right and
estate * * * [the other] may bring his action.' " Doner at ¶ 39 (citation omitted), ¶ 45
("[t]here is no logical rationale for refusing to apply this rule to takings cases and [the] R.C.
2305.09(E) [limitations period]." Doner further quoted United States v. Dickinson, 331
U.S. 745, 749 (1947) (" 'when the Government chooses not to condemn land but to bring
No. 21AP-268 14
about a taking by a continuing process of physical events, the owner is not required to resort
either to piecemeal or to premature litigation to ascertain the just compensation for what
is really "taken" ' "). Id. at ¶ 48.
{¶ 32} Doner went on to counsel that "[i]n eminent-domain cases involving claims
of government-induced flooding, the claimant establishes a taking by proving that (1) the
flooding is either intended by the government or is the direct, natural, or probable result of
government-authorized activity and (2) the flooding is either a permanent invasion or
creates a permanent liability because of intermittent, but inevitably recurring, overflows."
Id. at ¶ 65. We are not called upon to assess, nor could we assess at this juncture, whether
the Regulics can adduce proof to meet these intent and significance requirements. We
conclude only that under the standards that guide us in review of a grant of a motion for
judgment on the pleadings and in light of Ohio's notice pleading system, the Regulics'
allegations regarding the holding tank matter are sufficient to require further proceedings
at the trial court on the mandamus claim.
{¶ 33} We sustain the Regulics' fourth assignment of error to that extent.
{¶ 34} Having overruled the first, second, and third assignments of error, and
having sustained in part the fourth assignment, we affirm the judgment of the Franklin
County Court of Common Pleas in part (including with regard to its dismissal of the
Regulics' negligence claims), reverse it in part (with regard to the mandamus claim to the
extent described above), and remand the matter for further proceedings consistent with
this decision.
Judgment affirmed in part, reversed in part;
and cause remanded.
KLATT and JAMISON, JJ., concur.
NELSON, J., retired, of the Tenth Appellate District,
assigned to active duty under the authority of the Ohio
Constitution, Article IV, Section 6(C).
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