Lake Park Estates Pond Assn. v. Brecksville

2024 Ohio 660, 236 N.E.3d 926

• Court: Ohio Court of Appeals
• Decided: February 22, 2024
• Docket: 112589
• Status: Published

Opinion

[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