Village of Rayland v. Jenkins

[Cite as Village of Rayland v. Jenkins, 2018-Ohio-3487.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

JEFFERSON COUNTY

VILLAGE OF RAYLAND,

Plaintiff-Appellant,

v.

GORDON MICHAEL JENKINS, et al.,

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY

Case No. 17 JE 0004

Civil Appeal from the

Court of Common Pleas of Jefferson County, Ohio

Case No. 14 CV 480

BEFORE:

Kathleen Bartlett, Cheryl L. Waite, Carol Ann Robb, Judges.

JUDGMENT:

REVERSED AND REMANDED

Atty. Brian Zets and Attorney Dale Cook, Two Miranova Place, Suite, 700, Columbus,

Ohio, 43215, for Appellant and

Atty. Mark Kepple, 1219 Chapline Street, Wheeling, West Virginia, 26003, for

Appellees.

Dated: August 27, 2018

–2–

BARTLETT, J.

{¶1} Appellant, Village of Rayland (“Appellant” or “the Village”), appeals the

judgment entry of the Jefferson County Court of Common Pleas denying its motion for

summary judgment. Appellant contends that it is immune from suit on the counterclaim

filed by Appellees, Gordon M. Jenkins and Andrea Jenkins, on the basis of sovereign

immunity. For the following reasons, the judgment of the trial court is reversed,

summary judgment is entered in favor of the Village and this matter is remanded to the

trial court for further proceedings on the complaint.

I. Facts and Procedural History

{¶2} The following facts are undisputed and taken from the affidavits of Richard

Bibbo, the Village Administrator at all time relevant to the complaint and counterclaim.

The Bibbo affidavits, and the attachments thereto, are the only evidence before us, as

Appellees offered no evidence in support of their opposition brief.

{¶3} Effective December 1, 2012, Appellant passed an ordinance establishing

a street light utility fee of four dollars per month for all residents and businesses within

the corporate limits. A street light utility fee fund was established from which Appellant

pays any and all necessary costs relating to the operation of street lights. The street

light utility fee is collected in conjunction with other utilities provided by the Village

through a unified monthly bill, which includes fees for garbage collection, and sewer and

water service. Village of Rayland Ordinance No. 12-2012.

{¶4} Appellees objected to the imposition of the street light utility fee and

refused to pay it. They regularly deducted the four dollar fee, as well as any past due

amount based on the four dollar fee, from their monthly utility payment. A notation

explaining their refusal to pay the fee was written on their remittance stub and check.

Similarly, when monthly late fees of ten dollars were assessed pursuant to Village of

Rayland Ordinance No. 8-95, Appellees deducted both the past due and current street

light fees and late fees from their monthly remittance. (9/2/16 Bibbo Aff. ¶10.) In a

letter to the Village dated February 20, 2013, Appellee, Michael Jenkins stated that he

Case No. 17 JE 0004

–3–

had no intention of paying the street light utility fee and he “implore[d]” Appellant to take

him to court on the matter. (2/20/13 Letter, p. 1.)

{¶5} In June and July of 2013, Appellant issued two separate undated

delinquency notices to Appellees. The delinquency notices read, in pertinent part:

THE VILLAGE RECORDS SHOW YOUR UTILITY BILL HAS NOT BEEN

PAID BEFORE THE DUE DATE. AN ADDITIONAL LATE CHARGE OF

$10.00 HAS BEEN ADDED TO YOUR BILL. IF THE BILL IS NOT PAID

WITH FIVE (5) DAYS, YOUR WATER WILL BE SHUT OFF. THE BILL

MUST BE PAID IN FULL BEFORE YOUR WATER WILL BE TURNED

BACK ON.

The first delinquency notice listed a past due amount of $50.00 and a scheduled shut off

date of July 1, 2013. The second delinquency notice listed a past due amount of $64.00

and a scheduled shut off date of July 29, 2013. (Undated Delinquency Notices.)

Appellant concedes that Appellees’ water service was terminated for non-payment of

street light fees, but there is no averment regarding the date that water services were

terminated or the length of time that Appellees were without water. (8/2/16 Bibbo Aff.,

¶14.)

{¶6} In 2014, Appellant filed a complaint in the small claims division of the

Jefferson County Court to recover $229.00 in past due fees from Appellees and

requested an Order directing Appellees to pay their street light utility fee in the future.

Case No. 2014-CVI-5. Appellees filed a single counterclaim alleging that the street light

utility fee ordinance is unconstitutional. Appellees further alleged that actions

undertaken by Appellant’s employees constituted violations of the takings, free speech,

and due process clauses of the Ohio Constitution. Appellees also asserted a wrongful

termination of water services claim, alleging that their water service was terminated for

their continuing refusal to pay the street light utility fee.

{¶7} In their appellate brief, Appellees allege that Appellant’s employees towed

Appellees’ car in order to gain access to the water valve on the property and damaged

their yard in the process. Appellees further allege that Appellant harassed them at

public meetings and pressured their landlord into ending their tenancy. However,

Case No. 17 JE 0004

–4–

Appellees offered no evidence in support of their opposition brief, so we cannot

consider these allegations. In their appellate brief, Appellant concedes that its

employees towed Appellees’ car in order to access the shut-off valve, mistakenly citing

the Bibbo affidavit, which contains no averment regarding the towing of Appellees’ car.

{¶8} Appellees clearly state in their counterclaim that they were not alleging

any federal claims or any state claims that may be preempted by federal claims. Based

on the alleged denial by Appellant of water service to Appellees for 24 days (another

allegation that is not supported by facts in the record), they seek compensatory,

punitive, and other damages for inconvenience and annoyance in the amount of

$750,000.00, as well as attorney’s fees, interest and cost. Because the counterclaim

met the amount in controversy requirement for the jurisdiction of the court of common

pleas, the matter was transferred from the small claims division to the common pleas

court on November 5, 2014.

{¶9} On September 2, 2016, after the close of discovery, Appellant filed two

motions for summary judgment: The first requested judgment on Appellant’s claim to

recover the delinquent utility and late fees, as well as an injunction imposing “an

ongoing requirement to pay $4.00 per month.” (9/2/2017 Mot. for S.J., p. 4.) The

second requested judgment on Appellees’ counterclaim.

{¶10} With respect to the counterclaim, Appellant argued that the ordinance was

constitutionally sound and that the Village had the authority to terminate Appellees’

water service due to nonpayment of the unified utility bill in full. Appellant further argued

that it was immune from liability pursuant to R.C. Chapter 2744. Appellant asserted

that, although it was engaged in a proprietary function, Appellees failed to demonstrate

any negligence on the part of the Village employees who terminated Appellees’ water

service.

{¶11} In Appellees’ response to the motions for summary judgment, they argued

that the termination of their water service for failure to pay their street light utility fee was

a due process violation. They further argued that the imposition of the late fees, which

were more than three times greater than the delinquent street light utility fees,

constituted cruel and unusual punishment. They asserted that municipalities may be

sued directly under 42 U.S.C. 1983, despite the fact that they specifically renounced

Case No. 17 JE 0004

–5–

any and all federal claims in their counterclaim. Finally, they argued that Appellant was

engaged in a proprietary function, and therefore could not assert an immunity defense.

{¶12} The trial court denied both motions without any legal analysis. (1/24/2017

J.E.) This timely appeal followed.

II. Standard of Review

{¶13} When a trial court denies a motion in which a political subdivision or its

employee 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. City of Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878. An

appellate court conducts a de novo review of a trial court’s decision to grant summary

judgment, using the same standards as the trial court set forth in Civ.R. 56(C). Grafton

v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before summary

judgment can be granted, the trial court must determine that: (1) no genuine issue as to

any material fact remains to be litigated, (2) the moving party is entitled to judgment as

a matter of law, (3) it appears from the evidence that reasonable minds can come to but

one conclusion, and viewing the evidence most favorably in favor of the party against

whom the motion for summary judgment is made, the conclusion is adverse to that

party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

Whether a fact is “material” depends on the substantive law of the claim being litigated.

Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th

Dist.1995).

{¶14} “[T]he moving party bears the initial responsibility of informing the trial

court of the basis for the motion, and identifying those portions of the record which

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280,

296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party

has a reciprocal burden of setting forth specific facts showing that there is a genuine

issue for trial. Id. at 293. In other words, when presented with a properly supported

motion for summary judgment, the nonmoving party must produce some evidence to

suggest that a reasonable factfinder could rule in that party’s favor. Brewer v.

Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).

Case No. 17 JE 0004

–6–

III. Law

{¶15} The Political Subdivision Tort Liability Act is codified in R.C. Chapter 2744

and was enacted in response to the judicial abolishment of the common-law doctrine of

sovereign immunity for municipal corporations in Haverlack v. Portage Homes, Inc., 2

Ohio St.3d 26, 442 N.E.2d 749 (1982), and Enghauser Mfg. Co. v. Eriksson Eng. Ltd., 6

Ohio St.3d 31, 451 N.E.2d 228 (1983). See Franks v. Lopez, 69 Ohio St.3d 345, 347,

632 N.E.2d 502 (1994). The Act established statutory tort immunity in specific cases in

which political subdivisions, including cities and townships, may otherwise be sued in

negligence. Haynes v. Franklin, 95 Ohio St.3d 344, 2002-Ohio-2334, 767 N.E.2d 1146,

at ¶ 9. The availability of sovereign immunity is a question of law properly determined

by the court prior to trial. Emmerling v. Mahoning Cty. Bd. of Commrs., 7th Dist. No. 15

MA 0165, 2017-Ohio-9066, ¶¶ 16-17, appeal not allowed sub nom. Emmerling v.

Mahoning Cty. Bd. of Commrs., 152 Ohio St.3d 1466, 2018-Ohio-1795, 97 N.E.3d 501,

¶¶ 16-17 (2018), citing Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862

(1992).

{¶16} The determination of whether or not a political subdivision is immune from

tort liability for injuries or death to a person involves a three-tiered analysis. Rastaedt v.

Youngstown, 7th Dist. No. 12 MA 0082, 2013-Ohio-750, ¶ 10; Colbert v. Cleveland, 99

Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7. R.C. 2744.02(A) sets forth the

general rule of immunity for political subdivisions, stating: “Except as provided in

division (B) of this section, 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.” Five exceptions are set forth in subsection (B).

If an exception is found, immunity can still exist if the political subdivision shows that

one of the defenses contained in R.C. § 2744.03 applies.

{¶17} R.C. 2744.09 sets forth several exceptions that remove certain types of

civil actions entirely from the purview of R.C. Chapter 2744. Relevant here,

municipalities may not invoke sovereign immunity when a plaintiff alleges civil claims

based upon violations of the constitution or statutes of the United States. R.C.

2744.09(E). At least one Ohio intermediate court has recognized that claims based

Case No. 17 JE 0004

–7–

upon violations of Ohio statutes or the state constitution are not exempt from the

application of Chapter 2744. In Krokey v. Cleveland, 146 Ohio App.3d 179, 185, 765

N.E.2d 889 (8th Dist.2001), the Eighth District opined that “nothing in R.C. Chapter

2744 suggests an exception to political subdivision immunity for intentional torts that

might also be viewed as violations of state constitutional guarantees. R.C. 2744.09

states that the chapter does not apply to employment claims or to claims based on the

federal Constitution, but fails to mention an exception for state constitutional torts.” Id. at

185.

IV. Analysis

{¶18} Appellant advances a single assignment of error:

The trial court erred in denying the Village of Rayland’s motion for

summary judgment as the Village is immune.

{¶19} Appellees contend that Appellant retaliated against them for their refusal

to pay the street light fee by terminating their water service. Retaliation is, by its very

nature, an intentional act. The sovereign immunity statute expressly immunizes political

subdivisions from suits involving intentional bad acts by employees. Cooper v.

Youngstown, 7th Dist. No. 15 MA 0029, 2016-Ohio-7184, ¶ 25, citing Wilson v. Stark

Cty. Dept. of Human Services, 70 Ohio St.3d 450, 452, 639 N.E.2d 105 (1994).

Therefore, the trial court erred in denying Appellant’s motion for summary judgment

based on sovereign immunity to the extent that Appellees seek damages for injury

resulting from intentional conduct.

{¶20} Likewise, the Village is immune from suit on Appellees’ Ohio constitutional

claims. The General Assembly specifically exempted civil claims based upon federal

statutes and the federal constitution from the purview of Chapter 2744. There is no

similar provision for civil claims based upon Ohio statutes or the state constitution.

{¶21} Turning to Appellees’ wrongful termination of water services claim, the

parties do not dispute that Appellant is a political subdivision under R.C. 2744.01(F).

The functions of a political subdivision are classified, for immunity purposes, as either

governmental or proprietary. R.C. 2744.02(A)(1). The establishment, maintenance, and

Case No. 17 JE 0004

–8–

operation of a utility, including a municipal corporation water supply system are

proprietary functions. R.C. 2744.01(G)(2)(c).

{¶22} R.C. 2744.02(B)(2) states:

Except as otherwise provided * * *, 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.

{¶23} Appellant argues that Appellees failed to establish that the termination of

their water service for non-payment of the unified utility bill constitutes negligence under

Ohio law. Appellant argues that in order to establish negligence Appellees must show:

(1) the existence of a duty owed by the Village to Appellees; (2) breach of that duty; (3)

harm to Appellees caused by the breach; and (4) damages. Lagowski v. Shelly &

Sands, Inc., 7th Dist. No. 13 BE 21, 2015-Ohio-2685, 38 N.E.3d 456, ¶ 7, citing

Anderson v. St. Francis-St. George Hosp., Inc., 77 Ohio St.3d 82, 84, 671 N.E.2d 225

(1996).

{¶24} Almost eighty years ago, in State ex rel. Mt. Sinai Hosp. of Cleveland v.

Hickey, 137 Ohio St. 474, 477, 30 N.E.2d 802, 804 (1940), the Ohio Supreme Court

recognized that a municipality operating a waterworks is engaged in a proprietary

undertaking. The Court further observed that the only general restraints imposed on the

distribution of water are that the rates charged be reasonable and that there be no

unjust discrimination among the customers served, taking into account their situation

and classification. Id. at 477.

{¶25} Appellees concede that a municipality may terminate water service to a

citizen who is delinquent on their water bill. Papadelis v. City of Cleveland, 8th Dist. No.

69254, 1996 WL 157350. Appellees further concede that a municipality may terminate

water service when a citizen is in arrears for a closely-related service. In Gatton v. City

of Mansfield, 67 Ohio App. 210, 36 N.E.2d 306 (5th Dist.1940), the Fifth District

recognized that water service and sewer service were related and “rightfully considered

one transaction.” Id. at 212. As a consequence, the Court held that a regulation

permitting the termination of water service to a citizen who is delinquent in the payment

Case No. 17 JE 0004

–9–

of a sewer rental is not unreasonable. In Spofforth v. City of Athens, 4th Dist. No. 1487,

1992 WL 50009, the Fourth District recognized the constitutionality of a municipality’s

decision to terminate water service when a citizen refused to pay the garbage

component of a unified utility bill. The Fourth District observed that courts had recently

begun to view garbage service as being related, like sewer service, to a city’s attempt to

provide “a comprehensive public health and sanitation program.” Id. at *10 (internal

citations omitted.)

{¶26} Based upon the foregoing case law, appellate courts in Ohio recognized a

common-law duty on the part of municipalities to provide water service when a water bill

is paid in full. They have also carved out exceptions to this general duty based upon

the relationship between water service and an unpaid utility to determine whether a

municipality acts reasonably in terminating water service for failure to pay the other

unpaid utility bill. In other words, Ohio appellate courts have recognized the authority

of municipalities to enforce payment of a unified utility bill through the termination of a

related utility.

{¶27} Appellees assert that water and street lights are completely unrelated and

that street lights are not an essential service. Appellees assert that the Village had the

authority to terminate Appellees’ street light service, but that it was unreasonable to

terminate their water service.

{¶28} At first blush, the termination of Appellees’ water service appears to be

unreasonable. The termination of water service to a residence is a severe penalty,

particularly where the water bill for the residence is paid in full. Appellant had another

option, which it pursued several months later in small claims court. However, even

though Appellant may collect past due amounts, the existence of an adequate remedy

at law would prohibit the trial court from issuing an injunction to compel Appellees to pay

their street light utility fee in the future. Based upon the position taken by Appellees, it

appears that the Village would have to repeatedly collect utility fees through the court

system, which would be unreasonable.

{¶29} Therefore, we conclude that the Village did not act unreasonably in

terminating Appellees’ water service. In addition to our unwillingness to impose a

burden upon the Village to pursue the non-payment of Appellees' street light fee bill

Case No. 17 JE 0004

– 10 –

through the court system ad infinitum, several other considerations support our

conclusion that the Village acted reasonably. First, Appellees’ proposed penalty for

their refusal to pay the street light fee would be impossible to effectuate. Appellees’

argument assumes that they only receive the benefit of one street light in the Village,

that is, the street light nearest to their property. Appellees reason that the penalty for

failure to pay their street light fee should have been to terminate service to that single

street light. To the contrary, Appellees derive a general benefit from all of the street

lights in the Village. The street lights facilitate safe passage on the Village streets and

also provide increased security for citizens in their homes.

{¶30} Further, it would have been impossible to fashion a penalty for failure to

pay the street light fee for a single delinquent utility customer without affecting all of the

other customers in the Village. Street light service is not severable like water service.

{¶31} This indivisibility of the service was also present in Spofforth, supra. The

city terminated Spofforth’s water service for his failure to pay his garbage bill. Had the

city terminated Spofforth’s garbage service, the penalty would have been imposed upon

Spofforth and his neighbors alike.

{¶32} Next, Appellees argue that street lights are not an essential service. On

the contrary, street lights provide an important benefit to all of the citizens of the Village.

According to Bibbo, the Village provides street light utility service to promote the health

and safety of its residents. (8/2/2016 Bibbo Aff., ¶10.) The Ordinance reads, in

pertinent part, “Whereas the Council of the Village of Rayland has determined that it is

in the best interest of the residents of the Village of Rayland to continue to operate a

street light system throughout the village in order to promote the general health, safety,

and welfare of its residents and businesses. . . .” Ordinance No. 12-2012. Although

street lights and water service are not so interrelated that they can be “rightfully

considered one transaction,” they are nonetheless part of a program for the safety and

general welfare of the citizens of the Village.

{¶33} Finally, it is important to distinguish this case from cases where a utility

customer contests the validity of a bill. Appellees could have challenged the

constitutionality of the street light fee through the court system, but chose instead to

flout the law. While other Village residents paid their street light fees, Appellees

Case No. 17 JE 0004

– 11 –

continued to receive the benefit of the utility without paying for it. Moreover, Appellees

were twice put on notice that their water service would be terminated for failure to pay

the past due balance on their unified utility bill. They continued to flout the law at their

own risk.

{¶34} Based upon the foregoing analysis, we find that Appellant’s sole

assignment of error has merit. To the extent that Appellees allege intentional acts on

the part of the Village employees, or state constitutional violations, Appellant is

statutorily immune from suit. Further, Appellees have failed to demonstrate the

existence of a duty on the part of the Village to provide water service to a citizen that

refused to pay another utility included on a unified bill. Because Appellant was engaged

in a proprietary function, and Appellees have failed to show that municipal employees

acted negligently in terminating their water service, the Village is immune from suit.

V. Conclusion

{¶35} For the foregoing reasons, the judgment of the trial court is reversed, and

summary judgment is entered in favor of the Village on Appellees’ counterclaim, on the

basis of sovereign immunity. This matter is remanded to the trial court for further

proceedings on the complaint.

Waite, J., concurs.

Robb, P.J., concurs.

Case No. 17 JE 0004

[Cite as Village of Rayland v. Jenkins, 2018-Ohio-3487.]

For the reasons stated in the Opinion rendered herein, the assignment of error is

sustained and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Jefferson County, Ohio, is reversed. We hereby remand this

matter to the trial court for further proceedings according to law and consistent with this

Court’s Opinion. Costs taxed against the Appellees.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.