Riveredge Dentistry Partnership v. Cleveland

2021 Ohio 3817

• Court: Ohio Court of Appeals
• Decided: October 28, 2021
• Docket: 110275
• Status: Published

Opinion

[Cite as Riveredge Dentistry Partnership v. Cleveland, 2021-Ohio-3817.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

RIVEREDGE DENTISTRY PARTNERSHIP, :

Plaintiff-Appellant, : No. 110275 v. :

CITY OF CLEVELAND, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 28, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-932884

Appearances:

The Dolan Law Firm, L.L.C., and Michael A. Dolan, for appellant.

Eric Luckage, Chief Legal Officer, and Amanda L. Holzhauer, Assistant Legal Counsel, for appellee Northeast Ohio Regional Sewer District.

EILEEN T. GALLAGHER, J.:

Plaintiff-appellant, Riveredge Dentistry Partnership (the “appellant”),

appeals from the trial court’s dismissal of its claims against defendant-appellee, the Northeast Ohio Regional Sewer District (the “NEORSD” or “the district”). Appellant

raises the following assignment of error for review:

The trial court erred in dismissing appellee pursuant to Civ.R. 12(B)(6) when appellant’s second amended complaint asserts plausible claims of negligence by appellee in the operation of its sewer system.

After careful review of the record and relevant case law, we affirm the

trial court’s judgment.

I. Procedural and Factual History

Appellant owns real property improved with a two-story medical office

building located on Rocky River Drive in Cleveland, Ohio. Defendant, city of

Cleveland (“the city”), owns and operates an off-street parking lot facility, known as

Kamms Municipal Parking Lot (the “parking lot”), that adjoins appellant’s property

line. Appellant’s adjacent property is down grade from the city’s parking lot facility.

The NEORSD is a regional sewer district organized and existing as a

political subdivision of the state of Ohio under Chapter 6119 of the Ohio Revised

Code. Pursuant to R.C. 6119.06(F), the NEORSD is authorized to make grants to

political subdivisions for the acquisition or construction of water-resource projects

by such political subdivision.

In or about 2016, the city began developing plans for a construction

project to address ongoing storm-water flooding issues at the parking lot. To

facilitate the project, the city submitted a storm-water grant application to NEORSD

for funds to construct several storm-water retention basins to divert storm water

from the parking lot facility. Among other things, the grant application required the city to describe the objective and outcomes of the proposed project, submit proposed

plans for the design and installation of the project, submit drawings or figures of the

site and project, and offer other relevant project details. The application advised the

city that if the grant was awarded, the city was required to submit design documents

to the NEORSD “for review, comment, and approval prior to site work.”

In November 2018, the NEORSD entered into an agreement (the

“Agreement”) with the city, as part of the district’s Green Infrastructure Grant

Program, for the implementation and maintenance of the project with the grant

amount not to exceed $249,583.00. The NEORSD determined that the city’s

proposed project would promote the purpose of the grant program to remove

stormwater from the district’s combined sewerage system and reduce the release of

combined sewage into the environment. The Agreement required the city to operate

and maintain the project, stating:

3.5 Operation and Maintenance. Once constructed, the Member Community shall remain responsible for the operation and maintenance of the Member Community Project for the design life expectancy of the Project, as determined by the District. A twenty (20) year life expectancy is anticipated for the Project. The Member Community shall permit the District to provide technical review of the operation and maintenance manual developed for the Member Community Project prior to completion of construction. An annual operation and maintenance inspection report for the Member Community’s Project shall be submitted to the District annually by April 1st following completion of construction for the design life expectancy of the Project, as determined by the District.

In turn, the NEORSD agreed to the following:

2.4 District Approvals. (i) Review and approve or disapprove in writing the components of the Member Community’s Project; (ii) inspect and approve or disapprove in writing any and all components of the Member Community’s Project to determine compliance with the plans and specifications of the Member Community’s Project; and (iii) approve or disapprove in writing any changes to the Member Community’s Project.

Relevant to this appeal, the Agreement also specified as follows:

5.2 Disclaimer of Joint Venture. This Agreement is not intended to create a joint venture, partnership or agency relationship between the Member Community or the District, and such joint venture, partnership, or agency relationship is specifically hereby disclaimed.

Subsequent to entering into the Agreement with the NEORSD, the city

contracted with defendant Cook Paving & Construction Company (“CPCC”) to

construct the storm-water retention basins.

In May 2020, appellant filed a civil complaint against the city and

CPCC, alleging that as a result of the installation of storm-water retention basins

near appellant’s property line, appellant’s property has been “flooded with storm

water runoff from the [city’s parking lot] on numerous occasions between May and

September 2019, causing [appellant] to incur property damages, lost rents, and

associated clean up expense.” Complaint at ¶ 19. The complaint alleged that the city

and CPCC “jointly, severally, intentionally, recklessly, and/or negligently” caused,

diverted, or allowed ground and surface water from the city’s parking lot to be

discharged onto appellant’s property. Id. at ¶ 26-32.

In September 2020, appellant filed an amended complaint to name the

NEORSD as an additional defendant. A second amended complaint was later filed

in October 2020. In relevant part, the second amended complaint asserted that the

NEORSD (1) reviewed and approved all plans related to the storm-water retention basins prior to approving the city’s grant application, (2) approved the placement

and location of the storm-water retention basins, (3) financed the construction of

the storm-water retention basins in whole or in part, and (4) maintains control over

the operation of the storm-water retention basins by the city. Second Amended

Complaint at ¶ 25-26, 29-30.

Thus, the second amended complaint alleged that NEORSD

negligently “approved, consented to, caused, directed, and diverted” storm water

from its respective sewerage system into or onto appellant’s property, and that the

negligent operation of the sewerage system is a proprietary action that is excepted

from the shield of immunity set forth in R.C. 2744.02. Appellant sought money

damages and an order enjoining the defendants from “infringing [its] property

rights by unreasonably and impermissibly diverting, redirecting surface, storm, and

discharge waters from their respective systems and/or from the [parking lot] onto

[its] property.”

In November 2020, the NEORSD filed a motion to dismiss the second

amended complaint pursuant to Civ.R. 12(B)(6). In the motion, the NEORSD

initially argued that the second amended complaint was not properly before the

court because appellant failed to seek leave of court pursuant to Civ.R. 15(A) before

filing the second amended complaint. The NEORSD further argued that “there is

no legal basis or factual allegations that could render the NEORSD liable for the

actions of either the city of Cleveland or CPCC.” The district maintained that it did

not act jointly with the other defendants, and that its sole involvement with the project was providing funding through a grant program to the property owner and

reviewing the design plan as part of the grant process. In support of its position, the

NEORSD asserted that the second amended complaint establishes that the district

(1) does not own the parking lot; (2) does not operate the parking lot; (3) did not

construct the storm-water retention basins; (4) did not contract with CPCC to

construct the storm-water retention basins; (5) did not design, construct, or locate

the storm-water retention basins; and (6) is not responsible for the operation of the

storm-water retention basins.

Finally, the NEORSD argued that it is immune from liability under

R.C. 2744 et seq., “even if [appellant] had alleged facts supporting any type of claim

against the NEORSD.” The NEORSD noted that the second amended complaint and

its attachments show that the district “was not, and is not, responsible for either the

operation or upkeep of the basins at issue.”

Appellant filed a brief in opposition to the motion to dismiss, arguing

that the NEORSD was “intimately involved with all aspects of the basin project,

including final approval for project scope, location of the basins, schedules, changes,

record keeping, reports, accounts, and any and all activities related to the project.”

Thus, appellant asserted that its complaint pleaded plausible claims alleging that the

NEORSD “negligently operated its combined sewerage system by diverting storm

water from its system into [appellant’s] building and property.” Appellant further

maintained that R.C. Chapter 2744 does not apply to its claim for damages and is

inapplicable to its demands for injunctive and/or equitable relief. In January 2021, the trial court granted the NEORSD’s motion to

dismiss, in part,1 stating:

After review of the parties’ arguments, the court grants defendant NEORSD’s motion to dismiss pursuant to Civil Rule 12(B)(6). The court finds that defendant NEORSD was not responsible for the design, construction, or location of the water retention basins. This defendant’s only involvement was to provide the funding for the retention basin project. Accordingly, plaintiff’s second amended complaint fails to raise a viable claim against the defendant NEORSD. Therefore, defendant NEORSD is dismissed as a defendant in the within action.

Appellant now appeals from the trial court’s judgment.

II. Law and Analysis

In its sole assignment of error, appellant argues the trial court erred

in granting the NEORSD’s motion to dismiss because the second amended

complaint set forth plausible claims of negligence. Appellant contends that it “has

unequivocally asserted plausible claims of negligence against NEORSD in the

operation of its sewer system that are not subject to R.C. Chapter 2744 immunity.”

Standard of Review

A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim tests the

sufficiency of the complaint. Antoon v. Cleveland Clinic Found., 8th Dist. Cuyahoga

No. 101373, 2015-Ohio-421, ¶ 7. In deciding whether a complaint should be

dismissed pursuant to Civ.R. 12(B)(6), the court’s review is limited to the four

corners of the complaint along with any documents properly attached to or

1 The trial court rejected the NEORSD’s contention that appellant’s second amended complaint was not filed in compliance with Civ.R. 15(A). incorporated within the motion to dismiss. High St. Props. L.L.C. v. Cleveland, 8th

Dist. Cuyahoga No. 101585, 2015-Ohio-1451, ¶ 17, citing Glazer v. Chase Home Fin.

L.L.C., 8th Dist. Cuyahoga Nos. 99875 and 99736, 2013-Ohio-5589, ¶ 38. The court

accepts as true all the material factual allegations of the complaint and construes all

reasonable inferences to be drawn from those facts in favor of the nonmoving party.

Fahnbulleh v. Strahan, 73 Ohio St.3d 666, 667, 653 N.E.2d 1186 (1995); Brown v.

Carlton Harley-Davidson, Inc., 8th Dist. Cuyahoga No. 99761, 2013-Ohio-4047,

¶ 12, citing Garofalo v. Chicago Title Ins. Co., 104 Ohio App.3d 95, 104, 661 N.E.2d

218 (8th Dist.1995).

To prevail on a Civ.R. 12(B)(6) motion, it must appear beyond doubt

from the complaint that the plaintiff can prove no set of facts entitling the plaintiff

to relief. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327

N.E.2d 753 (1975), syllabus. If there is “‘a set of facts, consistent with the plaintiff’s

complaint, which would allow the plaintiff to recover, the court may not grant a

defendant’s motion to dismiss.’” High St. Props. at ¶ 16, quoting York v. Ohio State

Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). “‘A court cannot

dismiss a complaint under Civ.R. 12(B)(6) merely because it doubts the plaintiff will

prevail.’” Bono v. McCutcheon, 159 Ohio App.3d 571, 2005-Ohio-299, 824 N.E.2d

1013, ¶ 8 (2d Dist.), quoting Leichtman v. WLW Jacor Communications, Inc., 92

Ohio App.3d 232, 234, 634 N.E.2d 697 (1st Dist.1994).

Finally, as pertinent to this case, this court has recognized that the

affirmative defense of immunity under R.C. Chapter 2744 may be the basis of a dismissal under Civ.R. 12(B)(6). Para v. Jackson, 8th Dist. Cuyahoga No. 109516,

2021-Ohio-1188, ¶ 17, citing Main v. Lima, 3d Dist. Allen No. 1-14-42, 2015-Ohio-

2572, ¶ 15.

An appellate court conducts a de novo review of a trial court’s ruling

on a Civ.R. 12(B)(6) motion to dismiss. Perrysburg Twp. v. Rossford, 103 Ohio

St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5, citing Cincinnati v. Beretta U.S.A.

Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136. Under this standard

of review, the appellate court must undertake an independent analysis without

deference to the lower court’s decision. Hendrickson v. Haven Place, Inc., 8th Dist.

Cuyahoga No. 100816, 2014-Ohio-3726, ¶ 12.

In this case, the second amended complaint set forth claims of

negligence, alleging that the NEORSD breached its duty of care by approving,

placing, locating, and operating the storm-water retention basins in such a manner

and proximity to appellant’s property that it resulted in flooding and damage to

appellant’s building. Appellant further alleged that the NEORSD breached its legal

duty not to divert, drain, and/or direct surface, ground, or storm water from their

respective sewerage systems into or onto appellant’s property.

In order to establish negligence, one must show the existence of a

duty, a breach of that duty, and the breach was the proximate cause of an injury.

Menifee v. Ohio Welding Prods. Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).

Negligence may not be presumed from mere proof of an injury caused by some act

of the defendant. The burden is on the plaintiff to prove by a preponderance of the evidence that the defendant failed to exercise the care that a reasonably prudent

person is accustomed to exercise under the same or similar circumstances. Republic

Light & Furniture Co. v. Cincinnati, 97 Ohio App. 532, 536-537, 127 N.E.2d 767 (1st

Dist.1954).

Throughout these proceedings, the NEORSD has disputed the factual

allegations set forth in the second amended complaint, including appellant’s

characterization of the district’s involvement in the construction and operation of

the storm-water retention basins. The NEORSD reiterates that it “was not

responsible for the design, construction, location, or operation and maintenance of

the water retention basins” and that its “only involvement was to provide the

funding for the retention basin project.” The NEORSD notes that the documents

attached to the second amended complaint clearly show that the city, and not the

district, is responsible for the operation and maintenance of both the newly

constructed storm-water retention basins and the city’s parking lot. The NEORSD

further contends that “even if [it] had been involved in the design and construction

of the basins, it would still be immune from liability for the alleged damages under

R.C. 2744 et seq.”

In contrast, appellant asserts that it is disingenuous for the NEORSD

to suggest that the storm-water retention basins do not “operate” as part of its

sewerage system where (1) the district approved the location and placement of the

basins, (2) the district has past, present, and future control over the storm-water

retention basins, and (3) the storm-water basins are estimated to directly benefit and improve the operation of the district’s sewerage system by diverting 934,799.76

gallons of storm water per annum. Appellant further contends that the NEORSD is

not shielded by the immunity set forth under R.C. Chapter 2744 because its claims

for damages “clearly fall within the express liability set forth in R.C. 2744.02(B)(2)

for loss to persons or property caused by the negligent performance of acts with

respect to the operation of proprietary functions.” In addition, appellant asserts that

the statute does not apply to appellant’s prayer to enjoin the NEORSD from

continuing its negligent and unreasonable diversion of storm waters onto

appellant’s property.

We begin our discussion by addressing the NEORSD’s position that it

is immune from appellant’s negligence claims pursuant to R.C. 2744.02.

R.C. Chapter 2744, the Political Subdivision Tort Liability Act, sets

forth a three-tier analysis for determining whether a political subdivision is immune

from liability for injury or loss to property. Colbert v. Cleveland, 99 Ohio St.3d 215,

2003-Ohio-3319, 790 N.E.2d 781. In the first tier of the analysis, the court applies

the general rule provided in R.C. 2744.02(A)(1), which states that a political

subdivision is generally “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.”

That immunity is not absolute, however. In the second tier of the

analysis, the court determines whether any of the five exceptions enumerated in R.C. 2744.02(B) applies to expose the political subdivision to liability. These exceptions

occur when (1) the injuries are caused by the negligent operation of a motor vehicle

by an employee; (2) the injuries are caused by the negligent performance of an

employee with respect to a proprietary function; (3) the injuries are caused by the

failure to keep public roads, highways, and streets open, in repair, and free from

nuisance; (4) the injuries are caused by negligence of an employee and is on the

grounds of a building used for governmental purposes; or (5) the injuries are those

for which liability is expressly imposed by the Ohio Revised Code. R.C.

2744.02(B)(1)-(5).

If any of the exceptions enumerated in R.C. 2744.02(B) applies, the

court proceeds to the third tier of the analysis and determines whether any of the

defenses enumerated in R.C. 2744.03 applies to provide the political subdivision a

defense against liability. Colbert at ¶ 9. If none of the five exceptions applies, the

immunity analysis ends without proceeding to the third tier. Rankin v. Cuyahoga

Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, 889

N.E.2d 521, ¶ 32.

In this case, there is no dispute that the NEORSD is a political

subdivision. Accordingly, the NEORSD is immune from liability for appellant’s

alleged property damage unless any of the five exceptions to immunity enumerated

in R.C. 2744.02(B) applies to expose it to liability under the second tier of the

immunity analysis. Here, appellant alleges that the exception set forth under R.C.

2744.02(B)(2) applies. As previously stated, R.C. 2744.02(B)(2) provides that 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.” The NEORSD asserts that the

“second amended complaint is devoid of any factual allegation that would allow the

trial court to conclude that an NEORSD employee engaged in any proprietary

function related to the claims.”

In order to demonstrate that the language set forth under R.C.

2744.02(B)(2) would remove the district’s immunity, appellant must establish the

following: (1) the elements required to sustain a negligence action, and (2) that the

negligence arose out of a “proprietary function.” Williams v. Glouster, 2012-Ohio-

1283, 864 N.E.2d 102, ¶ 17 (4th Dist.), citing Gabel v. Miami E. School Bd., 169 Ohio

App.3d 609, 2006-Ohio-5963, 864 N.E.2d 102, ¶ 39-40 (2d Dist.).

The relevant function in this case involves a sewerage system. A

function that involves a sewerage system could be either governmental or

proprietary. R.C. 2744.01(G)(2) lists specific functions expressly designated as

proprietary functions. Relevant to this appeal, this list includes “[t]he maintenance,

destruction, operation, and upkeep of a sewer system.” R.C. 2744.01(G)(2)(d). See

Portsmouth v. Mitchell Mfg. Co., 113 Ohio St. 250, 148 N.E. 846 (1925) (Ohio courts

have long recognized that a city can be liable for the negligent maintenance of its

sewers.) In contrast, it is a governmental function if it involves “[t]he provision or

nonprovision, planning or design, construction, or reconstruction of a public

improvement, including, but not limited to, a sewer system.” R.C. 2744.01(C)(2)(l). “Determining whether an allegation of negligence relates to the

maintenance, operation, or upkeep of a sewer system or, instead, the design,

construction, or reconstruction of a sewer system is not always a simple inquiry.”

Essman v. Portsmouth, 4th Dist. Scioto No. 09CA3325, 2010-Ohio-4837, ¶ 2. A

complaint is properly characterized as a “maintenance, operation, or upkeep issue”

when “remedying the sewer problem would involve little discretion but, instead,

would be a matter of routine maintenance, inspection, repair, removal of

obstructions, or general repair of deterioration.” Id., citing Martin v. Gahanna, 10th

Dist. Franklin No. 06AP-1175, 2007-Ohio-2651, ¶ 17. On the other hand, a

complaint presents a design or construction issue if “remedying a problem would

require a city to, in essence, redesign or reconstruct the sewer system.” Id., citing

Zimmerman v. Summit Cty., 9th Dist. Summit No. 17610, 1997 Ohio App. LEXIS 52

(Jan. 15, 1997).

In this case, appellant’s assertion that the second amended complaint

sets forth a “maintenance, operation, or upkeep issue” is not well taken. The second

amended complaint, when read in its entirety, seeks damages and equitable relief

from flooding issues that stem from the allegedly inadequate design or construction

of the storm-water retention basins installed near appellant’s property. Appellant is

not alleging that remedying the flooding problem would involve little discretion and

would be a matter of timely inspections and maintenance. Rather, the second

amended complaint insinuates that in order to remedy the existing problem on the

city’s property, the defendants would, essentially, need to redesign or reconstruct the storm-water basin system. In fact, appellant acknowledges in the second

amended complaint that relief might only come from the removal or alteration of

the storm-water retention basins. Second Amended Complaint, p. 12. Under these

circumstances, we find the exception contained in subsection (B)(2) does not apply.

We recognize that appellant is attempting to characterize the

construction of the storm-water-retention basins as being inherently linked to the

NEORSD’s operation of its sewer district in order avoid the implications of R.C.

Chapter 2744. However, the documents incorporated into the four corners of the

second amended complaint unambiguously demonstrate that the NEORSD’s only

involvement in this manner was approving and awarding the city grant funds to

complete a project that the sewer district deemed consistent with the objectives of

the Green Infrastructure Grant Program. The Agreement expressly states that (1)

the city is responsible for the operation and maintenance of the water-basin project,

(2) the Agreement was not intended to create a joint venture, partnership or agency

relationship between the city and the NEORSD, and (3) the city was responsible for

completing the storm-water basin project pursuant to the approved design and

construction plans. Moreover, appellant concedes in the second amended

complaint that (1) the NEORSD did not construct the storm-water retention basins;

(2) the NEORSD did not contract with defendant CPCC; and (3) the city, and not the

NEORSD, “designed, constructed, and located the basins.” Second Amended

Complaint, ¶ 35, 42, 43, 50. In this court’s view, the NEORSD’s oversight, approval, and

involvement in the design and construction process in this case was limited to its

oversight of the grant program. Again, we reiterate the second amended complaint

specifically states that the city, and not the NEORSD, “designed, constructed, and

located the Basins in compliance with Title IV of NEORSD’s combined sewer code.”

Second Amended Complaint, ¶ 50. Nevertheless, even if this court were to conclude

that the sewer district was intrinsically involved in the design and construction of

the storm-water retention basins that have repeatedly flooded the appellant’s

property, its role in this matter was certainly not related to the maintenance,

operation, or upkeep of its own sewerage system.

There is no doubt that the Green Infrastructure Grant Program was

created to “remove stormwater from the combined sewer system and reduce the

release of combined sewage into the environment.” Second Amended Complaint,

exhibit A. In a broad sense, we agree that the environmental projects funded by the

grant program incidentally improve the NEORSD’s ability to maintain and operate

its sewer districts. However, the General Assembly has clearly distinguished

negligent acts related to the design, construction, or reconstruction of a sewerage

system from those related to a maintenance, operation, or upkeep issue. If this court

were to adopt appellant’s position in this matter, the distinction between these

functions would be eliminated. The fact that the NEORSD’s sewerage system

benefitted, albeit indirectly, from the storm-water basin construction project on city

property did not cause the function to become proprietary. Rather, the prevailing fact in this case is that the NEORSD is not responsible for the operation or

maintenance of the storm-water retention basins located on the city’s property.

Appellant also suggests in a footnote that immunity could be defeated

under the exception contained in R.C. 2744.02(B)(5). As mentioned, R.C.

2744.02(B)(5) provides that political subdivisions are exposed to liability where the

injuries are those for which liability is expressly imposed by the Ohio Revised Code.

Here, appellant suggests that R.C. 6119.50 is applicable and expressly imposes civil

liability on the sewer district.

R.C. 6119.50, titled “Filing Damage Claims,” provides property

owners the opportunity to file a written claim for damages that are sustained “by

reason of a proposed project, to be paid in whole or in part by special assessment[.]”

Although property owners must file their written claims within 28 days of the notice

required under R.C. 6119.47, the statute does not deprive the owner of his or her

right to recover damages arising, without his or her fault, from the acts of the sewer

district or its agents.

After careful consideration, we are not persuaded by appellant’s

reliance on R.C. 6119.50. Significantly, the construction of the storm-water

retention basins on the city’s property was not funded by a special assessment.

Rather, the money was granted to the city in accordance with the sewer district’s

environmental initiative program. The language set forth in R.C. 6119.50 clearly

provides property owners with an avenue to challenge projects funded by special

assessment. The statue contains no language to suggest it would extend to projects funded by monetary grants. Because the statute is narrowly tailored, we are unable

to conclude that the exception set forth under R.C. 2744.02(B)(5) applies.

Having found that the sewer district is immune and that no exception

to immunity applies, we find that appellant has failed to state a negligence claim

against the district upon which relief may be granted. See Maclin v. Cleveland, 8th

Dist. Cuyahoga No. 102417, 2015-Ohio-2956, ¶ 17.

Finally, regarding appellant’s request for injunctive relief,2 appellant

correctly states that “[i]mmunity under R.C. Chapter 2744 is * * * not a defense for

claims involving declaratory judgment or injunctive relief.” Barton v. Cty. of

Cuyahoga, 8th Dist. Cuyahoga No. 105008, 2017-Ohio-7171, ¶ 25. However, for the

reasons previously discussed, we find the NEORSD cannot provide appellant the

equitable relief it seeks. The materials attached to the second amended complaint

demonstrate that the subject property and the storm-water retention basins

constructed thereon are owned and operated by the city. The NEORSD has no

control over the property or the water-retention basins and, therefore, has no

authority or legal obligation to remove or alter the storm-water retention basins in

order to remedy the ongoing flooding issues.

Based on the foregoing, the trial court did not err by granting the

NEORSD’s motion to dismiss pursuant to Civ.R. 12(B)(6). Taking the allegations in

2 An injunction is an extraordinary equitable remedy that is available if there is no adequate remedy at law. Perkins v. Quaker City, 165 Ohio St. 120, 133 N.E.2d 595 (1956), syllabus; Garono v. State, 37 Ohio St.3d 171, 173, 524 N.E.2d 496 (1988). Its purpose is to prevent a future wrong that the law cannot. Sternberg v. Bd. of Trustees, 37 Ohio St.2d 115, 118, 308 N.E.2d 457 (1974). the second amended complaint as true and construing all reasonable inferences

drawn from those allegations in favor of appellant, we find appellant can prove no

set of facts entitling it to the relief requested. Our decision does not speak to the

extent of the harm suffered by appellant or the merits of appellant’s claims against

the remaining parties. Appellant’s sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to 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.

EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J.,* and KATHLEEN ANN KEOUGH, J., CONCUR

* Judge Larry A. Jones, Sr., concurred in this Journal Entry and Opinion prior to his death on October 7, 2021.

(The Ohio Constitution requires the concurrence of at least two judges when rendering a decision of a court of appeals. Therefore, this announcement of decision is in compliance with constitutional requirements. See State v. Pembaur, 69 Ohio St.2d 110, 430 N.E.2d 1331 (1982).)