[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




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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,


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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



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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).



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       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



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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


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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



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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.
