Mauldin v. Youngstown Water Dept.

[Cite as Mauldin v. Youngstown Water Dept., 2019-Ohio-5065.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

MAHONING COUNTY

DOROTHY MAULDIN,

Plaintiff-Appellant,

v.

YOUNGSTOWN WATER, DEPARTMENT, et al.

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY

Case No. 19 MA 0010

Civil Appeal from the

Court of Common Pleas of Mahoning County, Ohio

Case No. 17 CV 1274

BEFORE:

Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.

JUDGMENT:

Affirmed.

Atty. Matthew C. Giannini, 1040 S. Commons Place, Suite 200, Youngstown, Ohio

44514 for Plaintiff-Appellant and

Atty. Jeffrey Limbian, City of Youngstown, Law Director, 26 South Phelps Street, 4th

Floor, Youngstown, Ohio. 44503, Atty. Kathleen Thompson, Sr. Asst. Law Director, 9

W. Front Street, 3rd Floor, Youngstown, Ohio 44503, for Defendants-Appellees.

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Dated: December 5, 2019

Robb, J.

{¶1} Plaintiff-Appellant Dorothy Mauldin appeals the decision of the Mahoning

County Common Pleas Court granting summary judgment in favor of Defendant-Appellee

Youngstown Water Department et al. The court found the action was untimely filed

outside of the two-year statute of limitations in R.C. 2744.04(A) which applies to an action

to recover damages against a political subdivision for injury to person or property

allegedly caused by any act or omission in connection with a governmental or proprietary

function. Appellant’s argument that the court should apply the general four-year statute

of limitations in R.C. 2305.09(D) is overruled. Appellant also argues the political

subdivision was not immune due to the exception to immunity for negligent performance

of a proprietary function. However, that issue was not before the trial court, and the court

did not issue a ruling on immunity. For the following reasons, the trial court’s judgment is

affirmed.

STATEMENT OF THE CASE

{¶2} On May 22, 2017, Appellant filed suit alleging the water department was to

turn off the water to a house she owned as she requested on July 10, 2013, but the water

department negligently or recklessly performed this function which caused flooding. She

sought to recover for the damages to the house. In addition to the city water department,

the complaint named as defendants the mayor and the water commissioner in their

representative capacities1 (hereinafter collectively referred to as “the city”). The city filed

an answer for itself and the named defendants raising affirmative defenses such as

statute of limitations and immunity.

1 See Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, ¶ 21 (naming an

officeholder in his official capacity as a defendant can be considered “the equivalent of suing the political

subdivision” for purposes of applying political subdivision immunity test rather than the employee immunity

test). See also Parmelee v. Schnader, 7th Dist. Mahoning No. 17 MA 0026, 2018-Ohio-707, ¶ 39

(discussing legal capacity of a department inability to be sued as non sui juris). Compare R.C. 715.08; R.C.

743.01 et seq. (governing a city’s operation of a waterworks) with R.C. 6119.06(D) (a regional water district

can sue or be sued).

Case No. 19 MA 0010

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{¶3} In a motion for summary judgment, the city argued the action was barred by

the two-year statute of limitations in R.C. 2744.04(A) applicable to an action against a

political subdivision for injury to person or property caused by an act or omission in

connection with a governmental or proprietary function. It was urged that this special

provision prevailed over any general statute of limitations. The city attached answers to

interrogatories, wherein Appellant attested that the date she discovered the flood and

damage was November 28, 2013; also attached was a document Appellant produced in

discovery representing the claim she submitted to the city on December 8, 2013. Using

the date Appellant discovered the event to begin the limitations period, the city concluded

the action should have been filed by November 28, 2015.

{¶4} Appellant’s response to the city’s summary judgment motion reviewed the

statutory test for political subdivision immunity and applied the exception to immunity in

R.C. 2744.02(B)(2) for the negligent performance of acts by employees with respect to

proprietary functions. Citing R.C. 2744.01(G)(2)(c) (defining a proprietary function as

including the maintenance and operation of a utility such as a “municipal water supply

system”) and Matter v. Athens, 2014-Ohio-4451, 21 N.E.3d 595 (4th Dist.) (the city’s

negligent maintenance of water lines servicing a house involves a proprietary function).

Appellant said the city was not relieved of liability if the proprietary function (of turning off

the water to the house as instructed in July 2013) was negligently performed, urging

negligence remained a genuine issue for trial.

{¶5} In support of her argument on negligence, she submitted a work order

showing the city received a request for water shut off on July 9, 2013 and arrived at the

property the next day. After reporting the meter reading, an employee wrote, “Need

w/order Notify shop to repair rod for final.” Appellant relied on the contents of her written

claim submitted to the city to establish: water flooded the house from the upstairs

bathroom causing damages; a city employee arrived within an hour of her call; the

employee told her something was wrong with the shut-off valve at the street; and he

turned off the water from the basement.

{¶6} Although Appellant’s response to summary judgment admitted she

discovered the injury on November 28, 2013, the city’s statute of limitations argument

was not countered. A heading in the response stated, “O.R.C. 2744.02(B) provides an

Case No. 19 MA 0010

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exception to the applicable statute of limitations.” The content under the heading did not

address the statute of limitations and recited how R.C. 2744.02(B) provided an exception

to immunity (for negligence in a proprietary function).

{¶7} On December 17, 2018, the court granted the motion for summary judgment

finding the tort action for damages was barred by the two-year statute of limitations.

Pointing to November 28, 2013 as the date the damages were admittedly discovered, the

court concluded the May 22, 2017 complaint was filed well outside the two-year statutory

time frame for filing the action. Appellant filed a timely notice of appeal.

ASSIGNMENT OF ERROR ONE: STATUTE OF LIMITATIONS

{¶8} Appellant sets forth two assignments of error, the first of which contends:

“THE TRIAL COURT ERRED WHEN IT GRANTED DISMISSAL OF PLAINTIFF’S

COMPLAINT UNDER CIVIL RULE OF PROCEDURE 56(C) AGAINST THE CITY OF

YOUNGSTOWN AND THE YOUNGSTOWN WATER DEPARTMENT BASED ON THE

STATUTE OF LIMITATIONS.”

{¶9} Pursuant to the statute of limitations applied by the trial court, “An action

against a political subdivision to recover damages for injury, death, or loss to person or

property allegedly caused by any act or omission in connection with a governmental or

proprietary function * * * shall be brought within two years after the cause of action

accrues, or within any applicable shorter period of time for bringing the action provided

by the Revised Code.” R.C. 2744.04(A) (this “applies to actions brought against political

subdivisions by all persons”). The trial court found and the parties agree the cause of

action accrued on November 28, 2013, when Appellant discovered the water issue.2 The

complaint was filed on May 22, 2017, more than two years from this agreed accrual date.

{¶10} R.C. 2305.09 provides four years to sue after a cause of action accrues for:

(A) trespassing on real property; (B) recovery of personal property (or for detaining or

2 See Cohen v. Bedford Heights, 8th Dist. Cuyahoga No. 101739, 2015-Ohio-1308, ¶ 10-15 (finding the

discovery rule applies to the two-year statute of limitations in R.C. 2744.04(A), and the cause of action did

not arise until the plaintiff knew, or by the exercise of reasonable diligence should have known, he was

injured by the defendant’s conduct). See also Abdalla v. Olexia, 113 Ohio App.3d 756, 759, 682 N.E.2d 18

(7th Dist.1996). We note application of the delayed damages rule, instead of a discovery rule, would not

change the analysis here; using the date the negligent act occurred would also not change the result in this

case.

Case No. 19 MA 0010

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taking it); (C) fraud; (D) injury to the rights of the plaintiff not arising on contract nor

enumerated in certain listed sections (such as the statute of limitations for bodily injury or

injury to personal property); and (E) for relief on the grounds of a physical or regulatory

taking of real property. The general limitations period in division (D) of R.C. 2305.09

would include a claim for tortious damage to real property. Harris v. Liston, 86 Ohio St.3d

203, 205, 714 N.E.2d 377 (1999); Commonwealth Real Estate Investors v. Paolone, 7th

Dist. Mahoning No. 09 MA 51, 2010-Ohio-751, ¶ 17. Without discussing the ramifications

of the statute of limitations in R.C. 2744.04(A), Appellant states her complaint set forth an

action for negligently causing damages to real property and would not be time barred if

the statute of limitations in R.C. 2305.09(D) was applied.

{¶11} Firstly, Appellant did not cite R.C. 2305.09 or raise a four-year statute of

limitations to the trial court in response to the city’s motion for summary judgment. A

failure to preserve an issue in the trial court waives the issue for purposes of appeal.

Wynn v. Waynesburg Rd LLC, 7th Dist. Carroll No. 17 CA 0921, 2018-Ohio-3858, ¶ 11;

Stanton v. Marc's Store, 7th Dist. Mahoning No. 15 MA 49, 2015-Ohio-5551, ¶ 35

(alternate theory not raised in opposition to summary judgment was waived), citing

Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001 (1982) (“the

fundamental rule is that an appellate court will not consider any error which could have

been brought to the trial court's attention”). Furthermore, Appellant’s contention, raised

for the first time on appeal, is without merit.

{¶12} The specific language in R.C. 2744.04(A) provides a plaintiff two years to

file an action seeking to recover damages against a political subdivision for injury to

property caused by acts or omissions in connection with a governmental or a proprietary

function. Appellant does not dispute her cause of action is the type described by this

provision. The statute requires the action to be brought “within two years after the cause

of action accrues, or within any applicable shorter period of time for bringing the action

provided by the Revised Code.” (Emphasis added.) R.C. 2744.04(A). It does not state

“or within any applicable longer period.” Moreover, another statute provides, “unless a

different limitation is prescribed by statute, a civil action may be commenced only within

the period prescribed in sections 2305.04 to 2305.22 of the Revised Code.” (Emphasis

added.) R.C. 2305.03(A). A different limitation period is prescribed by R.C. 2744.04(A).

Case No. 19 MA 0010

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{¶13} In concluding the four-year limitations period should apply even where the

plaintiff is suing a political subdivision for damages caused by negligence, Appellant relies

solely on a Fifth District case where a city engineer advised the city planning commission

to approve a subdivision plat for a developer whom the city engineer represented through

his private firm while allegedly knowing of an undisclosed threat from the high water table.

Luthy v. Dover, 5th Dist. Tuscarawas No. 2011AP030011, 2011-Ohio-4604. In a section

dealing with the city engineer, who was alleged to have acted outside of his official duties

and committed an intentional tort, the appellate court agreed with the trial court’s

alternative findings that the claims would be barred under various statutes of limitations,

including the four-year period in R.C. 2305.09(D). Id. at ¶ 15-21, 23. However, in the

section dealing with the claim against the city, the Fifth District agreed with the trial court’s

application of the two-year statute of limitations in R.C. 2744.04 to bar the claim for

recovery of damages against the city for the conduct of its city engineer while he acted

for the city. Id. at ¶ 22-23. As the Luthy court applied the two-year statute of limitations

in R.C. 2744.04 to the claim against the city, the case does not support Appellant’s

contention that the action against the city and its water department was timely.

{¶14} This court has previously concluded that where the special two-year

statute of limitations in R.C. 2744.04(A) applies to an action against a political subdivision,

it prevails over an arguably applicable general statute of limitations including the four-year

period in R.C. 2305.09(C) for fraud. Abdalla v. Olexia, 113 Ohio App.3d 756, 759, 682

N.E.2d 18 (7th Dist.1996). We pointed out that if a conflict between a general and a

special provision is irreconcilable, then the special provision prevails as an exception to

the general provision, unless the manifest intent is for the general provision to prevail and

the general provision is the later adoption. Id., citing R.C. 1.51. We found no such

manifest intent and held the action against the county prosecutor and commissioners was

subject to the two-year political subdivision statute of limitations rather than the general

four-year statute of limitations in R.C. 2305.09(C) for fraud actions. Id.

{¶15} There is similar law holding that a claim seeking damages against a political

subdivision for trespass is subject to the special two-year statute of limitations in R.C.

2744.04(A), rather than the more general provision in R.C. 2305.09(A), which applies to

an action against any defendant. See, e.g., Davis v. Clark Cty. Bd. of Commrs., 2013-

Case No. 19 MA 0010

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Ohio-2758, 994 N.E.2d 905, ¶ 23 (2d. Dist.); Dominion Resources Servs. v. Cleveland

Div. of Water, 8th Dist. Cuyahoga No. 90641, 2008-Ohio-4855, ¶ 6, 9. Regardless, this

case is not dependent on the validity of holdings that R.C. 2744.04(A) is more specific

than the four-year statute of limitations in division (A) of R.C. 2305.09 for trespass or

division (C) of R.C. 2305.09 for fraud.

{¶16} In the case at bar, Appellant is relying on an even less specific division in

R.C. 2305.09. She seeks to apply division (D) of R.C. 2305.09, involving “an injury to the

rights of the plaintiff not arising on contract nor enumerated in [listed sections].” This

provision is more general than the other divisions of this section. Compare R.C

2305.09(A) (trespassing), (B) (recovery of personal property or for taking or detaining it),

(C) (fraud), (E) (physical or regulatory taking of real property). Division (D) of R.C.

2305.09 contains a catch-all or residual statute of limitations. Corpman v. Boyer, 171

Ohio St. 233, 234, 169 N.E. 14 (1960) (stating this “catchall clause” applies to actions that

are not otherwise limited); Laipply v. Bates, 166 Ohio App.3d 132, 2006-Ohio-1766, 849

N.E.2d 308, ¶ 10 (7th Dist.). See also Hardale Inv. Co. v. Department of Nat. Res., 7th

Dist. Belmont No. 98-BA-40 (Apr. 14, 2000) (describing R.C. 2305.09(D) as a “residual

clause”). This general provision does not demonstrate a manifest intent to prevail over

the statute of limitations particularly applicable to actions seeking to recover damages for

injury to person or property against a political subdivision under R.C. 2744.04(A). See

R.C. 1.51.

{¶17} In addition, R.C. 2744.04(A) is the later enactment. See R.C. 1.51 (if a

general provision irreconcilably conflicts with special provision, then the special provision

prevails as an exception to the general provision, unless the general provision is the later

enactment and the manifest intent is that the general provision prevails). See also R.C.

1.52(A) (if statutes are irreconcilable, then the statute latest in date of enactment prevails).

The statute relied upon by the city is part of the Political Subdivision Tort Liability Act

which was enacted in 1985 to reinstate common law immunity for tort claims in certain

circumstances and to provide a special limitations period. See generally Cramer v.

Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 13 (Chapter 2744

was enacted in response to the judicial abolishment of common-law sovereign immunity).

The catch-all provision in R.C. 2305.09(D) has existed far longer. See State ex rel. Lien

Case No. 19 MA 0010

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v. House, 144 Ohio St. 238, 242, 244 58 N.E.2d 675, 677 (1944) (“the four-year statute,

now Section 11224, General Code, was first enacted as a catchall limitation statute in

1831” through “its predecessor, Section 4982, Revised Statutes”); Carpenter v. Cincinnati

& Whitewater Canal Co., 35 Ohio St. 307, 316 (1880), citing Rev. Stat., Section 4982,

Civil Code, Section 12, 15 (the plaintiff has four years after the cause of action accrued

to bring “An action for injury to the rights of the plaintiff, not arising on contract, and not

hereinafter enumerated.”).

{¶18} Amendments to R.C. 2305.09(D) after the enactment of R.C. 2744.04(A)

did not make R.C. 2305.09(D) more specific or evince a manifest intent that the catch-all

provision would prevail over the political subdivision statute of limitations. (The two-year

statute was last amended in 2002 to change “arose” to “accrues” and to add a discovery

provision for minors; the only substantive changes to division (D) of the four-year statute

since 1985 dealt with an unauthorized signature in 1994 and negligence of a registered

surveyor in 2014). The pertinent provisions in division (D) of R.C. 2305.09 pre-dated the

enactment of R.C. 2744.04(A). See Corpman, 171 Ohio St. 233 at fn. 1 (quoting R.C.

2305.09(D) from the 1950’s as requiring a cause of action to be brought within four years

“For an injury to the rights of the plaintiff not arising on contract nor enumerated in sections

2305.10 to 2305.12 * * * of the Revised Code.”).

{¶19} As concluded by other courts, Appellant cannot avoid the specific and

recent statute applying to actions seeking to recover damages from the political

subdivision for injury to property from acts or omissions in governmental or proprietary

functions by citing to the catch-all clause of a statute of limitations generally covering “an

injury to the rights of the plaintiff not arising on contract.” See Fifth Third Bank v. Cope,

162 Ohio App.3d 838, 2005-Ohio-4626, 835 N.E.2d 779, ¶ 38 (12th Dist.) (rejecting the

four-year statute of limitations in R.C. 2305.09(D) for damage to real property because

the specific two-year statute of limitations in R.C. 2744.04(A) applied to the claim

stemming from actions of the city manager); Davis v. Allen, 1st Dist. Hamilton No. C-

010165 (Jan. 18, 2002) (applying two-year statute of limitations asserting claim for

damages to real property against city, even though the four-year statute of limitations

applied to private defendants). See also Read v. Fairview Park, 146 Ohio App.3d 15, 18-

20, 764 N.E.2d 1079 (8th Dist.2001) (abuse of process claim was subject to the two-year

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statute of limitations rather than the general four-year provision in division (D) of R.C.

2305.09).

{¶20} Additionally, as stated supra, the four-year statute of limitations was not

raised to the trial court as prevailing over the two-year statute of limitations. The trial court

correctly applied the two-year statute of limitations in R.C. 2744.04(A) to an action

seeking to recover damages from a political subdivision for an injury to property allegedly

caused by any act or omission in connection with a governmental or proprietary function

(the failure to ensure the water was shut off). As the complaint was not filed within two

years of the undisputed accrual date, summary judgment was proper. This assignment

of error is overruled, and the trial court’s decision is affirmed.

ASSIGNMENT OF ERROR TWO: IMMUNITY

{¶21} Appellant’s second assignment of error alleges:

“THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY

JUDGMENT FOR THE APPELLEE AS THERE ARE GENUINE ISSUES OF MATERIAL

FACT AS TO WHETHER THE CITY OF YOUNGSTOWN WATER DEPARTMENT WAS

NEGLIGENT IN THE PERFORMANCE OF PROPRIETARY FUNCTIONS THAT

RESULTED IN $16,900.00 OF DAMAGE TO APPELLANT’S PROPERTY * * *.”

{¶22} Reiterating her response to the city’s summary judgment motion,

Appellant’s argument under this assignment of error reviews the statutory test for political

subdivision immunity and cites the exception to immunity in R.C. 2744.02(B)(2), which

subjects the political subdivision to liability for the negligent performance of acts by

employees with respect to proprietary functions. Appellant says a proprietary function

includes the maintenance and operation of a utility such as a municipal water supply

system, citing R.C. 2744.01(G)(2)(c) and Matter v. City of Athens, 2014-Ohio-4451, 21

N.E.3d 595 (4th Dist.) (where the court concluded the negligent failure to replace or

upgrade the water lines involved a governmental function while the negligent

maintenance of the lines servicing a house involved a proprietary function and found an

issue as to whether there was a discretionary decision under the third tier reinstating

immunity). Appellant concludes the city would not be immune from liability if a water

department employee negligently performed the propriety function of turning off the water

Case No. 19 MA 0010

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to the house as requested in July 2013, and she argues negligence remained a genuine

issue for trial.

{¶23} However, as the city responds, the trial court did not grant summary

judgment on the issue of immunity or negligence in the performance of a proprietary

function. As set forth in our Statement of the Case, the city’s motion for summary

judgment was wholly based on R.C. 2744.04(A) and the expiration of its two-year statute

of limitations. “R.C. 2744.04(A) sets forth the statute-of-limitations defense for actions

against subdivisions, but it has nothing to do with the immunity of subdivisions.” Riscatti

v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d

437, ¶ 20.

{¶24} Since the city did not make an immunity argument in the summary judgment

motion, the trial court did not address immunity. The trial court’s judgment entry clearly

rendered judgment solely on statute of limitations grounds. An issue is moot if it is “no

longer live or the parties lack a legally cognizable interest in the outcome.” State ex rel.

Gaylor, Inc. v. Goodenow, 125 Ohio St.3d 407, 2010-Ohio-1844, ¶ 10. Here, the issue

of immunity was not addressed by or presented to the trial court as the city’s motion was

focused on the statute of limitations defense. Since summary judgment was granted for

the city only because the two-year statute of limitations expired before the complaint was

filed, this assignment of error on immunity is not properly before this court and is moot.

See Harsh v. City of Columbus, 10th Dist. Franklin No. 01AP-54 (Aug. 2, 2001) (holding

the two-year statute of limitations applied in action against a political subdivision for a

claim alleging damage to real property, the untimely action was barred, and the immunity

issue alternatively addressed by the trial court was moot).

{¶25} For the foregoing reasons, the trial court’s judgment is affirmed.

Donofrio, J., concurs.

Waite, P.J., concurs.

Case No. 19 MA 0010

[Cite as Mauldin v. Youngstown Water Dept., 2019-Ohio-5065.]

For the reasons stated in the Opinion rendered herein, the assignments of

error are overruled and it is the final judgment and order of this Court that the

judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed.

Costs to be taxed against the Appellant.

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.