Municipal Case Law Update January - March 2012 Municipal Case Law Update January - March 2012

Municipal Case Law Update January - March 2012

OHIO CASE LAW

Annexation
 
Berlin Twp. Bd. of Trustees v. Delaware Cty. Bd. of Commrs., 194 Ohio App.3d 109, 2011-Ohio-2020, 954 N.E.2d 1264 (5th Dist.).
Dominion Homes, Inc., entered into an annexation agreement with the City of Delaware regarding a multifaceted residential home development project in Delaware County. A series of annexation petitions were subsequently filed to annex the various parcels from Berlin Township to the city. Berlin Township objected to three of the petitions which had been filed under R.C. 709.023 (expedited Type 2 annexations). Pursuant to these objections, the Delaware County Board of Commissioners then held a hearing to review the Type 2 petitions. The Board approved each petition.
 
In response, Berlin Township filed suit against the Board seeking a writ of mandamus to require the Board to carry out its duties under R.C. 709.023, a temporary restraining order and a preliminary injunction. The trial court, over objection, partially granted the preliminary injunction. Intervener, Dominion Homes, then brought a motion to reconsider and vacate the trial court’s decision in light of the Supreme Court of Ohio’s decision in State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commissioners, 124 Ohio St.3d 390, 2010-Ohio-169, 922 N.E.2d 945 (“Butler II). The trial court granted Dominion Homes’ motions vacating the original judgment entry and dismissed the action. Berlin Township subsequently appealed.
 
On appeal, the 5th District Court of Appeals affirmed the trial court’s vacation of its original judgment entry and the dismissal of the action. Since Butler II determined that a township which files an objection to a Type 2 annexation is not a “party” to the annexation, as that term is used in R.C. 709.023(G), Berlin lacked standing to seek a writ of mandamus to compel the Board to make findings on the conditions set forth in R.C. 709.023(E). The Fifth District noted that Butler II did not announce a new principle of law but merely interpreted R.C. 709.023(G), and that Berlin was in the same position as Butler Township in Butler II.
 
Additionally, the 5th District determined that Berlin did not have a right to bring a declaratory judgment or mandamus action under R.C. Chapters 2721 and 2731 because annexation is a strict statutory process that provides for relief within the statute. Under R.C. 709.023, Berlin’s only available remedy was to pass a resolution objecting to the proposed annexation and forcing the Board of County Commissioners to review the annexation petition under R.C. 709.023(E). Therefore, the trial court did not err by vacating its original judgment entry and dismissing the action.
 
Code Enforcement
 
Parma v. Bambeck, 8th District No. 96533, 2012-Ohio-171.
A property maintenance inspector cited Bambeck for multiple violations of the Parma city code that existed on Bambeck’s property. Specifically, the siding on Bambeck’s residence was deteriorating and appeared to have flakes chipping off of it, and Bambeck’s driveway had fallen into disrepair. After two years had elapsed since the first citation, Bambeck pleaded not guilty to the charges of failure to maintain the exterior of an occupied structure and failure to maintain a driveway. After a jury trial, Bambeck was found guilty on both counts. He subsequently appealed the jury’s verdict.
 
On appeal, Bambeck argued that Parma could not force him to replace his driveway, nor could it force him to repair the exterior of his property on aesthetic grounds alone. The 8th District Court of Appeals disagreed and affirmed the jury’s verdict of guilty on both counts. Regarding the driveway, the 8th District noted that the Parma code gave a property owner the option of repairing or replacing a driveway that violated the code and reserved the authority of the city to inspect the repaired or replaced driveway to determine whether it conformed to code. Since city inspectors determined that Bambeck’s repairs were still in violation of the code, the jury did not err in rendering its guilty verdict.
 
Additionally, the 8th District noted that “maintaining the aesthetics of the community is a legitimate government interest and constitutes a valid exercise of [Parma’s] police power.” Further, the Court recognized that a municipality possesses the power to order a property owner to fix minor problems that render the property unsafe, unclean or unsanitary before the problems become severe. Since Bambeck failed to take any action over a two-year span to bring the exterior of his property into compliance with city code, the 8th District concluded that the jury verdict was reasonable.
 
Elections
 
State ex rel. Ohioans for Fair Dists. v. Husted, 130 Ohio St.3d 240, 2011-Ohio-5333, 957 N.E.2d 277.
Relators brought an original action in mandamus in the Supreme Court of Ohio seeking to compel Husted, the Ohio secretary of state, to treat Sections 1 and 2 of Substitute House Bill 319 (H.B. 319) as being subject to referendum and to carry out his duties under R.C. 3519.01. Sections 1 and 2 of H.B. 319 established new congressional districts for the State based on the 2010 decennial census.
 
Respondents claimed that Article II, Section 1d, of the Ohio Constitution functioned to except the subject provisions of the bill from a referendum vote because the bill contained “appropriations for the current expenses of the state government and institutions.” Specifically, Section 4 of H.B. 319 included certain appropriations that respondents argued excepted the entire bill from referendum.
 
The Supreme Court disagreed with respondents and granted the requested writ, holding that the challenged reapportionment provisions of H.B. 319 were not “appropriations” and the inclusion of the appropriation in Section 4 of H.B. 319 did not change this result. The Supreme Court distinguished State ex rel. Taft v. Franklin Cty. Court of Common Pleas, 81 Ohio St.3d 480, 692 N.E.2d 560 (1998), from the reapportionment case noting that the proposed taxes (which were the subject provisions of Taft), were already subject to referendum. By contrast, the reapportionment provisions of H.B. 319 were not already subject to voter approval.
 
First Amendment
 
Ohio Citizen Action v. Englewood, 6th Cir. Nos. 10-3265/3293, 2012 WL 310816 (Feb. 2, 2012).
The City of Englewood enacted an ordinance in 2004 that, among other things, prohibited canvassing within the city between the hours of 9 a.m. and 6 p.m. but allowed the city manager to approve a later hour for good cause. In 2005, Ohio Citizen Action (OCA) notified the city of its intention to canvass from 4 p.m. until 9 p.m. The city’s police chief advised OCA that it was in violation of city code but that he would permit OCA to canvass until 8 p.m. that evening. The city subsequently made clear that it intended to strictly enforce the canvassing curfew provision in the future, and OCA hinted at challenging the ordinance in court.
 
Later in 2005, the city amended the 2004 canvassing ordinance to remove the city manager’s discretionary power to waive the curfew for good cause and added a provision that required all canvassers to obtain a copy of a do-not-solicit list of property owners from the city manager. OCA then brought suit against the city in federal court under 42 U.S.C. § 1983 alleging that the 2004 and 2005 ordinances violated the First and 14th Amendments to the U.S. Constitution. Specifically, OCA challenged the 6 p.m. curfew established by the ordinances, the city manager’s discretionary power under the 2004 ordinance, the licensing requirements of both ordinances and the do-not-solicit provision of the 2005 ordinance.
 
After both sides moved for summary judgment, the trial court issued its ruling striking down the licensing requirement of the ordinances as unconstitutional but upheld the 6 p.m. curfew and the requirement that canvassers obtain a copy of the do-not-solicit list before canvassing. Both sides timely appealed.
 
On appeal, the 6th Circuit Court of Appeals reversed the trial court’s decision upholding the 6 p.m. curfew finding that curfew was not narrowly tailored to meet the city’s interest in preventing crime. The 6th Circuit determined that the evidence submitted by the city related entirely to other jurisdictions and not the city itself and that the city failed to present evidence of the preventive effect the canvassing curfew had on crimes by door-to-door canvassers. Additionally, the 6th Circuit affirmed in part the trial court’s decision striking down the licensing requirements of the ordinances as unconstitutional. The Court further affirmed that part of the trial court’s decision upholding the do-not-solicit list requirement and the discretionary authority granted to the city manager by the 2004 ordinance. The 6th Circuit declined to rule on the facial validity of the ordinances because the ordinances were found to be partially unconstitutional as applied to OCA.
 
 
Mayor’s Courts
 
Bailey v. Broadview Heights, 6th Cir. No. 10-3853 (Mar. 19, 2012).
Bailey was issued a traffic citation for failing to maintain an assured clear distance after he was involved in a rear-end collision with another vehicle. The citation summoned Bailey to appear before the Broadview Heights Mayor’s Court on Nov. 20, 2008. Unrepresented, Bailey appeared in court and entered a voluntary plea of no contest. The mayor of Broadview Heights, who was presiding, accepted Bailey’s plea, found Bailey guilty and imposed a $100 fine plus court costs. Bailey was subsequently cited for criminal contempt after he left court without notifying the clerk. He later pled guilty to the contempt charge and paid all of fines and costs.
 
Approximately five months after Bailey pled guilty to the criminal contempt charge, Bailey filed a Section 1983 class-action suit in federal district court alleging violation of his due process rights. Bailey claimed that the mayor’s conduct was unconstitutional under DePiero v. Macedonia, 180 F.3d 770 (6th Cir. 1999). The city argued that DePiero was irrelevant and asserted immunity for both itself and the mayor. The district court agreed with the city and entered summary judgment in its favor holding that the case law addressing Ohio’s Mayor’s Courts did not hold that it was unconstitutional for a mayor to preside over a case like Bailey’s. Finding that no due process was violated, the court did not address the immunity issue. Bailey appealed.
 
The 6th Circuit Court of Appeals affirmed the judgment of the district court. Construing Ohio law, the 6th Circuit determined that the act of accepting a guilty verdict to a no contest plea in a traffic case is a ministerial act that does not require a mayor to find facts or weigh evidence. Applying this determination to the holding of Ward v. Monroeville, 409 U.S. 57, 62 n.2 (1972) (holding that a mayor presiding over a Mayor’s Court does not violate due process when he acts in a purely ministerial capacity), the 6th Circuit concluded that there was no violation of Bailey’s due process rights. Further, the 6th Circuit distinguished the DePiero case Bailey placed heavy reliance on because the DePiero case involved contested traffic and criminal contempt charges, not a plea of no contest.
 
 
Public Office
 
State ex rel. Johnson v. Richardson, 131 Ohio St.3d 120, 2012-Ohio-57.
A vacancy on the Carlisle Village Council was left after a member of council voluntarily resigned from his position. The remaining six council members then voted to fill the vacancy. Richardson received three of the six votes and was sworn into office. The following day, the village mayor appointed Johnson to fill the vacancy caused by the resignation, and an original action in quo warranto was filed.
 
The Village of Carlisle filed a motion to intervene, and Johnson moved to strike Richardson’s motion for judgment on the pleadings. Finding that the village’s interests were not adequately represented, the Court granted the motion to intervene. The Court further granted Johnson’s motion to strike since Richardson did not file his motion until 24 days after he filed his answer.
 
The Supreme Court concluded that Johnson was entitled to the writ of quo warranto because Richardson did not receive a majority of the votes of council, which was required by the village charter to fill a council vacancy. The three votes out of six Richardson received did not constitute a majority of the members present, and as a result, the mayor was vested with the authority under the charter to appoint a successor to fill the vacancy. The mayor appointed Johnson to council. Therefore, Johnson was entitled to the requested writ to oust Richardson from office and declare Johnson entitled to said office.
 
 
Public Records
 
State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19.
Striker filed a pro se complaint in the Richland County Court of Appeals for a writ of mandamus to compel the clerk of the Shelby Municipal Court to make certain records available for inspection and copying under R.C. 149.43. In response, a private law firm filed a “notice of delivery of public records” on behalf of the City of Shelby, and a different private law firm subsequently entered an appearance on behalf of the clerk and city.
 
Striker brought a motion to strike the documents that were filed on behalf of the clerk and city claiming that, under R.C. 733.51, the Shelby law director had a duty to act as their attorney in the mandamus case and that the private law firm lacked authority to represent the clerk and city. The Court of Appeals denied the motion to strike as Striker had failed to cite any legal authority for the proposition that the clerk is not entitled to choose her own counsel. Striker then filed at least eight separate motions and memoranda regarding the private law firm’s representation of the clerk and city. The Court of Appeals rejected each argument.
 
The Court of Appeals then denied Striker’s mandamus request, and Striker failed to timely appeal the judgment. The clerk and city then filed a motion for sanctions against Striker under R.C. 2323.51 claiming that he had engaged in frivolous conduct in the mandamus case. The Court of Appeals granted the motion and awarded the clerk $3,503 in attorney fees incurred in response to Striker’s frivolous assertions. Striker timely appealed from the award of attorney fees.
 
On appeal, the Supreme Court of Ohio upheld the award of attorney fees concluding that the eight additional motions and memoranda Striker filed after his initial motion to strike was denied did nothing to advance the case or preserve the record for appeal. Instead, Striker’s actions served merely to harass, delay the judicial process, and increase the clerk’s costs because Striker did not provide any authority requiring the law director to represent the clerk. Additionally, the clerk was entitled to the award because $3,503 was the amount of costs incurred in response to Striker’s frivolous actions arising out of the mandamus claim regardless of whether most of this amount had been reimbursed by the city’s insurance carrier.
 
 
State ex rel. Striker v. Frary, 130 Ohio St.3d 81, 2011-Ohio-4705, 955 N.E.2d 981.
The relator, Striker, made two requests upon the clerk of the Mansfield Municipal Court to produce copies of a particular hearing, all evidence introduced at the hearing, a certified copy of the case file, and a copy of the entry transferring the case to the common pleas court. The clerk responded by writing on Striker’s request that all files associated with the request had been transferred to the county. Striker then brought this action seeking a writ of mandamus to compel the clerk to produce the requested records under R.C. 149.43.
 
The 5th District Court of Appeals denied the writ, holding that the clerk had no duty to provide records that he or the Court did not possess or that did not exist. The facts demonstrated that the official court reporter, not the clerk, was the party in possession of all recordings of court hearings and that the case file was not in the Mansfield Municipal Court’s possession. Further, there was no evidence that an entry had been made that transferred the case to common pleas court. Striker appealed the denial to the Supreme Court of Ohio.
 
On appeal, the Supreme Court affirmed the 5th District’s denial, summarily affirming the proposition that the clerk and court have no duty to provide records that are not in its possession.
 
 
State ex rel. Bell v. Brooks, 130 Ohio St.3d 87, 2011-Ohio-4897, 955 N.E.2d 987.
By letter, Bell made a public records request upon the County Risk Sharing Authority, Inc. (CORSA) seeking the production of certain financial records relating to contracts between CORSA and Madison County. On behalf of CORSA, Brooks provided some of the requested records but refused to provide others. Bell then made a second and third request for copies of the minutes of certain CORSA Board of Trustee meetings and for compensation records for CORSA executive and administrative staff respectively. CORSA denied these requests, and Bell instituted this action in the 10th District Court of Appeals seeking a writ of mandamus to compel the production of the requested records.
 
The case was referred to a magistrate who ordered the parties to file briefs and evidence solely on the issue of whether CORSA was a public office for purposes of the Public Records Act. Based on the information adduced, the magistrate recommended that the Court deny the writ because Bell could not establish by clear and convincing evidence that CORSA was the functional equivalent of a public office. Over Bell’s objections, the 10th District adopted the magistrate’s decision and denied the writ of mandamus. Bell timely appealed.
 
On appeal, the Supreme Court of Ohio affirmed the 10th District’s decision that CORSA was not the functional equivalent of a public office for purposes of R.C. 149.43. Analyzing CORSA under the functional equivalency test first espoused in State ex rel. Oriana House v. Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, the Court concluded that CORSA did not perform a historically governmental function, was controlled by its own independent board of directors, and was not created by government to circumvent duties under the Public Records Act. While CORSA was significantly funded by government funding, that fact alone does not function to subject a private corporation to R.C. 149.43.
 
The Supreme Court reversed and remanded, however, that portion of the 10th District’s decision that failed to consider whether CORSA was subject to R.C. 149.431. The 10th District improperly limited its review to whether CORSA was the functional equivalent of a public office and did not consider Bell’s claims for certain financial records under R.C. 149.431. Thus, the Court remanded the case ordering that evidence and briefs be submitted regarding this issue.
 
 
Takings
 
Cook Road Invests., L.L.C. v. Bd. of Cuyahoga Cty. Commrs., 194 Ohio App.3d 562, 2011-Ohio-2151, 957 N.E.2d 330 (8th Dist.).
Cook Road Investments, LLC (Cook) purchased a 14-acre property located in the City of North Olmsted upon which Cook intended to build a 120-unit apartment complex. North Olmsted had an agreement in place with Cuyahoga County regarding the provision of sewer services in the area that encompassed the property. After the property was rezoned to accommodate the 120 apartment units, Cook paid $260,180 to North Olmsted for the privilege of connecting the complex to the city’s sewer system.
 
Cuyahoga County then informed Cook that it would charge connection fees in addition to the fees paid to North Olmsted and that Cook could not construct its project without sewer access. Cook paid an additional $254,380.29 in connection fees to the county and indicated on the checks that this amount was “paid under protest” because payment had previously been made to North Olmsted. Cook subsequently filed suit to recover the connection fees it paid to the county. The trial court held that the connection fees charged by Cuyahoga County did not constitute an unconstitutional taking of Cook’s property, and Cook appealed.
 
On appeal before the 8th District Court of Appeals, Cook renewed his argument for an unconstitutional taking, claiming that its property would receive no benefit from the county’s system. The 8th District concluded that although the county may allocate the cost of a sewer system among all residents in a sewer district, the fees charged to Cook by the county in this situation constituted an unconstitutional taking. The agreement between North Olmsted and Cuyahoga County provided that North Olmsted would collect the connection fees from users in the service area as the agent of the county. Thus, the county was not entitled to collect sewer connection fees because Cook already paid the required fees to North Olmsted, and the county’s taking of an additional $254,380.29 was arbitrary and unreasonable. Consequently, the additional charge was an unconstitutional taking of Cooks property, and the trial court’s judgment was reversed.
 
 
Clifton v. Blanchester, Slip Op. No. 2012-Ohio-780.
Clifton owned property zoned for agricultural and residential use adjacent to J&M Precision Machining, Inc. (J&M). J&M’s property was zoned differently than Clifton’s so that J&M could conduct its machinery business on its property. In 2002, the Village of Blanchester annexed the 23 acres that J&M owned and rezoned the property “general industrial.” The 97 acres owned by Clifton were not annexed by the village.
 
After the annexation, and in response to the rezoning, Clifton filed a complaint and an administrative appeal alleging that the rezoning of J&M’s property was unconstitutional and resulted in a taking of his property. The Court dismissed Clifton’s administrative appeal, and Clifton voluntarily dismissed his complaint after the village moved for summary judgment. Clifton refiled a complaint in 2006 alleging that the rezoning of J&M’s property resulted in a regulatory taking of his property without just compensation because the rezoning interfered with the enjoyment of his property, i.e. it caused a diminution in value. The trial court granted summary judgment to the village because Clifton’s property retained economic value.
 
The Court of Appeals affirmed the trial court’s decision relative to a complete taking but found that the trial court failed to inquire as to whether the rezoning resulted in a partial taking. While the case was pending on remand, the village filed a motion for reconsideration alleging that Clifton lacked standing to bring a takings claim in the first place. The Court of Appeals granted the motion in part, and the trial court concluded on remand that Clifton lacked standing and even if he had standing, the rezoning did not result in a partial taking. The court of appeals affirmed the trial court’s judgment, and Clifton appealed.
 
Accepting Clifton’s appeal, the Supreme Court of Ohio affirmed the judgment of the lower courts finding that Clifton had no standing to bring his takings claim. The Supreme Court opined that when a government’s taking or regulation of property causes incidental damage to an adjacent but unregulated property, the damage is not attributable to the government for purposes of a takings claim. The rezoning did not regulate Clifton’s property, and it did not deprive him of possession or use of his land or buildings. Further, the Supreme Court held that the village did not have the authority to initiate appropriation proceedings for an alleged regulatory taking when the affected property lies outside the village’s limits. As a result, a property owner such as Clifton has no redressable regulatory taking claim against a municipality where the affected property lies outside of the municipality’s corporate limits.
 
 
Tort Immunity
 
Johnson v. Cleveland, 194 Ohio App.3d 355, 2011-Ohio-2152, 956 N.E.2d 355 (8th Dist.).
The City of Cleveland’s Emergency Medical Service (EMS) responded to a call initiated by Plaintiff Johnson’s girlfriend after Johnson had smoked a cigarette laced with phencyclidine (PCP). After EMS arrived, Johnson refused medical treatment or evaluation and appeared to be suffering no visible impairment. EMS technicians remained at Johnson’s residence for approximately 20 minutes before being released by the lead technician. After leaving the residence, EMS placed a call to Johnson’s residence approximately 10 minutes later, and Johnson appeared to be fine.
 
Shortly after the call was made to Johnson’s residence, EMS was called back to the same scene for a “psychiatric/suicide” attempt after Johnson had jumped off of the second story of the residence. Johnson seriously injured himself as a result of the leap. EMS arrived quickly, immobilized Johnson, and assessed Johnson while transporting him to a nearby hospital. Johnson was treated for multiple fractures and became permanently paralyzed from the waist down. He subsequently filed this action against the City of Cleveland and the EMS personnel who responded to the calls.
 
The trial court denied the city’s motion for summary judgment based on R.C. Chapter 2744 finding that there were genuine issues of material fact as to whether the facts alleged by Johnson constituted willful or wanton conduct. Cleveland timely appealed the trial court’s denial pursuant to R.C. 2744.02(C).
 
On appeal, the 8th District reversed the trial court’s decision holding that reasonable minds could not find that the actions of the EMS personnel rose to the level of willful or wanton conduct. Noting that willful or wanton conduct requires a showing of more than mere negligence, the 8th District stated that there was nothing in the record to suggest that the EMS personnel engaged in any misconduct with the intent to injure Johnson. Specifically, the paramedics timely responded to the scene, visually assessed Johnson, continued to wait on the scene, and informed Johnson’s girlfriend to call if anything changed. Neither was there any evidence that the EMS personnel should have been aware that there was any great probability that harm would result or that they perversely disregarded a known risk. Thus, Cleveland was entitled to summary judgment under R.C. Chapter 2744.
 
 
Long v. Hanging Rock, 4th District Case No. 09CA30, 2011-Ohio-5137.
The chief of police of the Village of Hanging Rock had his position terminated because he was unable to run and perform a fitness and agility test due to an injury he sustained in the course of his employment. He subsequently filed a complaint against the village and other village officials alleging, amongst other things, that the village wrongfully discharged him from his employment in retaliation for filing a workers’ compensation claim. Both sides moved for summary judgment with the village arguing that it was immune from suit under R.C. Chapter 2744. The trial court denied the motions with respect to immunity and wrongful discharge.
 
Chief appealed the partial denial of summary judgment to the 4th District Court of Appeals. After the parties had the chance to brief the issue of political subdivision immunity, the 4th District affirmed the trial court’s decision to deny the village immunity with respect to the wrongful discharge claim. Specifically, the 4th District determined that the Political Subdivision Tort Liability Act does not apply to the chief’s claim for wrongful discharge in violation of public policy.
 
Also, genuine issues of material fact existed as to whether the village’s acting police chief acted with a malicious purpose, in bad faith, or in a wanton or reckless manner when he posted a mocking picture of chief at the police station. According to the court, reasonable minds could conclude that this conduct demonstrates malice, bad faith, or wanton or reckless conduct.
 
 
Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954.
A Clinton Township police officer was responding to a call made by a county sheriff in a neighboring jurisdiction when his cruiser collided with another motorist while proceeding through an intersection in the city of Columbus. The officer was traveling through the intersection at approximately 64 mph while in a 45 mph speed zone. The motorist and his passenger were injured as a result of the collision, and the passenger, Smith filed suit seeking to recover her damages.
 
After filing depositions in the case, Clinton Township moved for summary judgment asserting that it was immune under R.C. Chapter 2744. The trial court granted the township’s motion finding that the township officer had a professional obligation to respond to the dispatch, he was on an emergency call for purposes of R.C. 2744.01(A) and 2744.02(B)(1)(a), and had not engaged in willful or wanton misconduct or reckless behavior.
 
Before the 10th District Court of Appeals, Smith argued that the township was not entitled to immunity because the record did not establish that there was a mutual-aid agreement between the township and Franklin County. She stated that in the absence of such an agreement, the officer did not have a professional obligation to respond to a dispatch outside of its jurisdiction and, therefore, was not responding to an “emergency call” for purposes of R.C. 2744.01(A) and 2744.02(B)(1)(a).
 
The 10th District disagreed with Smith holding that the absence of a mutual-aid agreement between two jurisdictions is not determinative of whether an officer who leaves his jurisdiction is on an emergency call for purposes of R.C. 2744.01(A) and 2744.02(B)(1)(a). According to the court, a mutual-aid agreement establishes authority but does not relate to an officer’s duties or professional obligations. Therefore, the trial court did not err in granting the Township’s motion. 
 
 
Greene v. Seal Twp. Bd. of Trustees, 194 Ohio App.3d 45, 2011-Ohio-1392, 954 N.E.2d 1216 (4th Dist.).
Greene purchased a plot in a cemetery owned by Seal Township for the burial of her husband. Unbeknownst to Greene, Seal Township had previously sold and deeded the same plot to another individual. Once this was discovered, the parties agreed to resolve the matter in a written agreement that was approved as a township resolution in which Greene and other similarly affected parties accepted free plots as compensation for the township’s error.
 
Despite the resolution, Greene brought suit against the township alleging that Seal Township had improperly buried her husband, which cost her $7,000 and caused her emotional distress. Construing this cause of action as a claim for negligence, the township moved for summary judgment pursuant to R.C. Chapter 2744. The trial court denied the township’s motion without explanation, and the township subsequently appealed pursuant to R.C. 2744.02(C).
 
While Greene failed to file her brief on appeal, the 4th District Court of Appeals nevertheless proceeded under the facts alleged by the township in its brief. Analyzing the case under R.C. Chapter 2744, the 4th District reversed the trial court’s denial of summary judgment concluding that Seal Township was entitled to immunity from Greene’s tort claim. Since the operation of a township cemetery is a governmental function under R.C. 2744.01(A)(1), Seal Township would be immune unless an exception to immunity under R.C. 2744.02(B) applied. None of the exceptions to R.C. 2744.02(B) applied, as the 4th District noted that R.C. 2744.02(B)(3) only applied to proprietary functions; therefore, the township was entitled to immunity, and the trial court erred by denying the township’s motion for summary judgment.
 
 
Moore v. Honican, 194 Ohio App.3d 135, 2011-Ohio-2109, 954 N.E.2d 1283 (1st Dist.).
While on patrol near midnight in Miami Township, Honican, a Hamilton County deputy sheriff observed a van driving erratically in the left lane on Interstate 275. Honican pulled behind the van and noticed that its rear license plate was out, at which time he instituted a check on the license plate number. While this was occurring, a pickup truck driven by Moore had broken down on Interstate 275 and was positioned on the left side of the road near the median. Honican did not see the stopped truck and collided with it at a speed of approximately 60 to 65 mph. Moore sustained injuries as a result and subsequently instituted this action.
 
In response to Moore’s complaint, Honican, Hamilton County and Miami Township moved for summary judgment claiming they were entitled to immunity under R.C. Chapter 2744 since Honican was responding to an “emergency call” for purposes of the statute. The trial court granted this motion, and Moore appealed.
 
On appeal, the 1st District Court of Appeals concluded that Honican was responding to an “emergency call” for purposes of R.C. 2744.01(A) and 2744.02(B)(1)(a) because the van’s rear license plate light was out, which gave rise to a violation of R.C. 4513.05. The court determined, however, that genuine issues of fact remained as to whether Honican’s conduct rose to the level of willful or wanton misconduct since Honican’s deposition testimony was contradicted by four other witnesses to the accident. For this reason, the 1st District held that summary judgment for Honican and Hamilton County was inappropriate and reversed this portion of the trial court’s decision. The 1st District affirmed the trial court’s decision granting summary judgment in favor of Miami Township because Honican was an independent contractor, not an employee, of the township, meaning the township could not be liable for his alleged misconduct.
 
 
Brady v. Bucyrus Police Dept., 194 Ohio App.3d 574, 2011-Ohio-2460 (3rd Dist.).
After being dispatched to investigate a suspected drunk driver, Officer Wert arrested Randall for OVI and transported him to the police station. Randall was held at the station for questioning until his mother, Brady, arrived to pick him up. Randall appeared upset but indicated that he did not intend to harm himself, only to hire an attorney and challenge the OVI. Brady dropped Randall off at his house and returned to her residence. Approximately an hour later, paramedics were dispatched to Randall’s house where they found him dead of an apparent overdose.
 
The death was ruled a suicide, and Brady then filed a complaint against the City of Bucyrus, the police department and three unnamed individuals alleging negligence and that the defendants acted in a willful and wanton manner. The complaint did not allege that Brady could not discover the names of the fictitious parties and the summons did not state “name unknown.” Brady subsequently dismissed her complaint, later refiled and then filed an amended complaint adding Officer Wert and the Bucyrus chief of police as defendants. Defendants moved for summary judgment alleging political subdivision immunity and failure to state a claim upon which relief could be granted. The trial court granted the motion, and Brady appealed.
 
On appeal, the 3rd District Court of Appeals affirmed the trial court’s decision holding that Brady had failed to comply with the requirements of Civ.R. 15(D) and 3(A) regarding fictitious parties. Brady had failed to allege that she could not obtain the identities of Officer Wert and the Bucyrus chief of police, and she had not properly served the two within the applicable time period. Thus, the court lacked jurisdiction over the officers.
 
Additionally, the 3rd District concluded that the City of Bucyrus was entitled to political subdivision immunity under R.C. Chapter 2744. The Court noted that the provision of police services or protection is a government function, and that the city was generally immune from liability in tort. Further, no exception to immunity under R.C. 2744.02(B) applied to the case at bar to remove the general grant of immunity. Therefore, the city was entitled to immunity, and the trial court properly granted defendants’ motion for summary judgment.
 
 
Barge v. St. Bernard, 195 Ohio App.3d 28, 2011-Ohio-3573 (1st Dist.).
Until 1985, the City of St. Bernard operated a landfill in the vicinity of the plaintiffs’ residences. The landfill site was later converted to Lytle Park. Plaintiffs instituted this class action alleging that the city was liable for certain emanations from the park because it had accepted domestic, commercial, industrial, and demolition waste and allowed, or failed to prevent, industrial liquid waste to be deposited at the landfill. The city moved to dismiss asserting immunity under R.C. Chapter 2744. The trial court denied the motion, and the city appealed.
 
On appeal, the 1st District Court of Appeals dismissed the Plaintiffs’ claims for trespass and nuisance, claiming R.C. 2744.02 does not impose liability on a municipality for nuisance. On the claim for negligence, the Plaintiffs’ alleged that the City accepted three types of waste (demolition, liquid industrial, and hazardous waste) that are not classified as “solid waste” under R.C. 2744.01(C)(2)(k). Thus, the operation of the landfill with respect to the non-solid waste places it within the definition of a proprietary function. Accordingly, plaintiffs’ had sufficiently alleged that an exception to immunity existed under R.C. 2744.02(B)(2), and the trial court did not err by denying the city’s motion to dismiss.
 
 
Brown v. Lincoln Hts., 195 Ohio App.3d 149, 2011-Ohio-3551 (1st Dist.).
While attending the Lincoln Heights Day Festival (Festival), Brown tripped and fell on a grounding rod and attached wire that was used to deliver electricity to the festival. The rod and wire were located in a parking lot on the outskirts of the festival. Brown injured her wrist as a result and filed suit against the village asserting that the village failed to provide warning or otherwise indicate that a hidden danger existed in an area of the festival that was held open to the public.
 
Before the trial court, the village moved for summary judgment claiming that it was entitled to immunity under R.C. Chapter 2744 and R.C. 1533.181, the Recreational User Statute. The trial court ruled that genuine issues of material fact existed as to whether the village was entitled to immunity under R.C. Chapter 2744 but granted the village’s motion with respect to R.C. 1533.181. Brown appealed the trial court’s decision asserting that the village had failed to timely raise the affirmative defense of recreational user immunity under Civ.R. 8(C). The village cross-appealed the trial court’s denial of summary judgment under R.C. Chapter 2744.
 
The 1st District Court of Appeals agreed with Brown because the village failed to raise the affirmative defense of recreational user immunity in its answer. The Court concluded that the village’s blanket reservation of “all other applicable statutory immunity” in its answer was insufficient under Civ.R. 8(C) to raise the recreational user defense under R.C. 1533.181 as no reference was made to the applicable statute or the terms recreational or user.
 
Regarding the village’s cross-appeal, the 1st District determined that the coordination and operation of the festival was a proprietary function and that R.C. 2744.02(B)(2) applied to remove the village’s general entitlement to immunity if the village committed negligence. The record contained conflicting evidence whether Brown was injured in an area of the festival held open to the public or whether the injury occurred off of festival grounds. Since this distinction would determine whether Brown was a licensee or invitee under a premises-liability analysis, genuine issues of fact existed as to whether the village was negligent. Consequently, the 1st District affirmed the trial court’s denial of summary judgment with respect to immunity under R.C. Chapter 2744.
 
 
Riotte v. Cleveland, 195 Ohio App.3d 387, 2011-Ohio-4507 (8th Dist.).
While travelling in winter weather conditions, Azzam lost control of his vehicle and ended up coming to rest on the roadway median. After an off-duty police officer called 911 but before help was able to arrive, Azzam’s stationary vehicle was struck by another motorist. An officer arrived shortly thereafter and observed that the driver’s side airbag had deployed. Without conducting any further investigation, the officer returned to his cruiser and called for a tow-truck. The tow-truck then arrived and towed Azzam’s vehicle to an impound lot with Azzam in the vehicle. Azzam’s body was discovered in the vehicle two days later.
 
The administrator of Azzam’s estate then filed suit against the City of Cleveland and the responding officer alleging that Azzam’s death was caused by the officer’s negligent, willful, wanton and reckless conduct. The city and officer responded by filing a Civ.R. 12(B)(6) motion to dismiss citing governmental immunity under R.C. Chapter 2744. The trial court denied the motion, and the city and officer timely appealed.
 
Analyzing the case under R.C. Chapter 2744, the 8th District Court of Appeals held that sufficient facts had been alleged to survive a motion to dismiss.
 
 
Sampson v. Cuyahoga Metropolitan Housing Auth., Slip Op. No. 2012-Ohio-570.
While employed as a Serviceman V plumber for the Cuyahoga Metropolitan Housing Authority (CMHA), Sampson was arrested at a special CMHA meeting for allegedly misusing CMHA gasoline credit cards to fuel personal vehicles. Sampson was then indicted for felony theft in office and felony misuse of credit cards, causing CMHA to terminate Sampson’s employment. The charges against Sampson were later dismissed for lack of evidence.
 
Sampson filed a grievance against CMHA pursuant to the terms of his union contract, and an arbitrator sustained the grievance ordering that Sampson be reinstated to his former position with full restitution. After returning to work for a short period of time, Sampson resigned claiming that the atmosphere at work was no longer tolerable. Sampson then filed suit against CMHA in which he raised various intentional tort claims arising out of his arrest by CMHA.
 
After CMHA filed a motion for judgment on the pleadings, the trial court granted the motion in part, dismissing only the claim for negligent infliction of emotional distress. CMHA also moved for summary judgment alleging immunity under R.C. Chapter 2744, but the trial court found that genuine issues of material fact still existed as to whether CMHA’s conduct was wanton or reckless. The trial court expressly determined that R.C. 2744.09(B) did not apply because Sampson’s claims did not arise out of the employment relationship. The 8th District Court of Appeals affirmed the trial court’s decision but concluded that the express exception to immunity pursuant to R.C. 2744.09(B) prevented CMHA from raising political subdivision immunity.
 
The Supreme Court of Ohio accepted CMHA’s discretionary appeal and affirmed the judgment of the lower Courts. The Supreme Court expressly rejected CMHA’s argument that the worker’s compensation principle first announced in Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982) applied to R.C. Chapter 2744 because the plain language of the statute provides no indication that the legislature intended the principle to apply to political subdivision immunity. Dismissing the application of Blankenship, the Supreme Court concluded that R.C. 2744.09(B) requires only a causal connection between the subject matter of the civil action and the employment relationship. Accordingly, a civil action by an employee against its employer for an alleged intentional tort may arise out of the employment relationship.
 
In the case at bar, the evidence showed that the alleged tort arose from employer accusations that plaintiff misused a CMHA credit card; the investigation was conducted solely by CMHA police based on CMHA documents; Sampson was arrested during a mandatory CMHA employee meeting; Sampson’s arrest was publicized by CMHA; and Sampson was terminated by CMHA and later reinstated after he grieved the termination through his CMHA and union arbitration agreement. These facts persuaded the Supreme Court to conclude that reasonable minds could find that Sampson’s civil action against CMHA arose from the employment relationship, which would except the action from immunity under R.C. 2744.09(B).
 
 
Kravetz v. Streetsboro Bd. of Educ., 2012-Ohio-1455.
Kravetz, an employee of the Streetsboro City School District (District), resigned from her position as a teacher after being accused of engaging in inappropriate conduct against/towards students. She filed suit against the District, the Board of Education, and the Treasurer and Superintendent (collectively Board) alleging various intentional torts that arose out of alleged conduct occurring after Kravetz’ resignation. In her complaint, Kravetz alleged that the Board improperly disseminated confidential information to the public regarding the allegations and discipline of Kravetz. She claimed that the Board was legally and contractually obligated to keep all facts and information obtained during the investigation of her alleged accusations confidential.
 
The Board moved for judgment on the pleadings in response to the complaint alleging immunity pursuant to R.C. Chapter 2744. The trial court denied the Board’s motion, and appeal was taken to the Eleventh District Court of Appeals.
 
Citing the Supreme Court of Ohio’s recent decision in Sampson v. Cuyahoga Metropolitan Housing Auth., Slip Op. No. 2012-Ohio-570, the 11th District affirmed the trial court’s decision. The 11th District echoed Sampson stating that an intentional tort claim does not automatically arise outside of the employment relationship for purposes of R.C. 2744.09(B). The Court further cited the Sampson Court’s discussion of the differences between the underlying policies of workers compensation laws and political subdivision immunity. As a result, the 11th District concluded that construing the facts in the light most favorable to Kravetz could lead a reasonable person to conclude that the alleged intentional torts occurred during the course and scope of the employment relationship under R.C. 2744.09(B).
 
 
Farinacci v. Garfield Heights, 6th Cir. No. 10-3516 (Feb. 7, 2012).
Plaintiff, Farinacci was a longtime resident of the City of Garfield Heights. She owned a residential property within the city that fell into foreclosure in 2006 as a result of her mortgage default. Farinacci was forced to leave her property in early 2007 due to poverty and illness, but she left behind most of her personal belongings, which included a number of cats. Farinacci’s daughter was not living in the property but would frequently stop by to care for the cats.
 
Invoking the property preservation clause contained in the mortgage, the bank hired a property preservation services company who contacted the city requesting that the cats be removed from the house. City employees then entered the Farinacci house unbeknownst to Farinacci or her daughter, and placed cat traps throughout the structure. When Farinacci’s daughter returned and observed the traps, she removed the traps from the house. On the same day, the city’s building commissioner sent a letter to the Cuyahoga County Court of Common Pleas stating that the Farinacci home was vacant and abandoned, which was negatively impacting the neighborhood.
 
In response to the city’s actions, the Farinaccis brought a Section 1983 claim against the city and its employees alleging that the city committed constitutional violations and certain intentional torts. The city and individual defendants filed a motion for summary judgment based on qualified and statutory immunity, which the district court granted in its entirety. The Farinaccis appealed on both federal and state claims.
 
Addressing the federal claims, the 6th Circuit Court of Appeals affirmed the district court’s decision concluding that the property preservation services company possessed the authority to give third-party consent to city employees to enter the house. The mortgage document gave the bank the authority to preserve the property, which the bank invoked once foreclosure proceedings commenced. Since the property preservation services company had been hired at the request of the bank pursuant to the mortgage provision, the company properly gave city employees third-party consent to enter the Farinacci house, which entitled the city and its employees to qualified immunity because no constitutional violation occurred. Regarding the state intentional tort claims, the 6th Circuit determined that the city employees’ failure to confirm the company’s authority cannot be deemed reckless sufficient to remove immunity under R.C. 2744.03(A)(6), since such an inquiry would have merely delayed the search not prevented it.
 
 
Zoning
 
State ex rel. Fair v. Canton, 2012-Ohio-779 (5th Dist.).
Fair purchased a residential property with the intention of rezoning the property to operate a beauty salon and spa. She applied for a “planned” district zoning change and received approval from Canton City Council. The property was then used as a salon and spa for the next eight years until early 2009 when the spa closed its doors.
 
Prior to the 2009 closing, Fair had entered into a contract for the sale of the property with a Walgreen’s drugstore on two separate occasions in 2005 and 2008 respectively. Each time the contract was contingent on the property being rezoned to a general business district. Fair first applied for rezoning in 2006 but was denied. She was subsequently denied in 2008 and brought this action in the Stark County Court of Common Pleas claiming Canton’s zoning ordinance was unconstitutional and that the city had unconstitutionally “taken” her property without just compensation.
 
After motion was made, the trial court granted the city’s motion for summary judgment finding that the subject ordinance was constitutional as it bears a rational relationship to a legitimate regulatory purpose. Fair appealed.
 
On appeal, the 5th District Court of Appeals affirmed the trial court’s grant of summary judgment. The 5th District determined that the “planned” designation guaranteed that properties that apply for a zoning change use the property in accordance with the zoning change, and such an ordinance was rationally related to the city’s policy of encouraging economic stability and growth while protecting the stability and preservation of residential neighborhoods. Further, the property had been used as a salon for nearly eight years, which demonstrated that the ordinance did not render the property economically non-viable. Therefore, the ordinance was not unconstitutional and did not constitute a taking since economically viable use could be made of the property.

 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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