[Cite as Mueller v. N. Canton, 2012-Ohio-3561.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

HILLARY MUELLER                                           JUDGES:
                                                  :       Hon. Patricia A. Delaney, P. J.
                        Plaintiff-Appellant       :       Hon. W. Scott Gwin, J.
                                                  :       Hon. William B. Hoffman, J.
-vs-                                              :
                                                  :
CITY OF NORTH CANTON                              :       Case No. 2012-CA-82
                                                  :
                     Defendant-Appellee           :
                                                  :       OPINION




CHARACTER OF PROCEEDING:                              Civil appeal from the Canton Municipal
                                                      Court, Case No. 2012CVF01330

JUDGMENT:                                             Affirmed




DATE OF JUDGMENT ENTRY:                               August 6, 2012



APPEARANCES:

For Plaintiff-Appellant                               For Defendant-Appellee

HILLARY MUELLER PRO SE                                HANS NILGES
                                                      Buckingham Doolittle & Burroughs
                                                      3281 Whitewood St. N.W.
                                                      North Canton, OH 44720-5650

                                                      SHANNON DRAHER
                                                      2455 Wilmont St. N.W.
                                                      Uniontown, OH 44685
[Cite as Mueller v. N. Canton, 2012-Ohio-3561.]


Gwin, J.

        {¶1}    Plaintiffs-appellant Hillary A. Mueller (“Mueller”) appeals a judgment of the

Canton Municipal Court, Stark County, Ohio, entered in favor of defendant-appellee the

City of North Canton (the “City”).

                                 FACTS AND PROCEDURAL HISTORY

        {¶2}    Mueller filed a complaint alleging that the City is responsible for flooding

damage she allegedly suffered at her personal residence as a result of rainwater

overflow from Fairways Golf Course (the "Fairways"), a City-owned golf course. Mueller

alleged that the City is responsible for the flooding because the City has known about

the flooding since 1992, but has been unable to fix the problem despite multiple

attempts. Mueller further alleged that because the problem is not fixed, the City acted in

"bad faith."

        {¶3}    The City filed a Motion to Dismiss pursuant to Civ. R. 12(B)(1) and

12(B)(6) and Alternative Motion for Summary Judgment pursuant to Rule 56. In the

motion, the City argued: (1) the trial court lacked jurisdiction over the case because the

amount of damages claimed exceeded $15,000; (2) Mueller failed to state a claim

because the allegations, when accepted as true, made clear that the City is statutorily

immune from Mueller's claim; and (3) the undisputed facts also establish that the City is

statutorily immune from Mueller's claim.

        {¶4}    The trial court agreed and granted the City's Motion to Dismiss. Following

this order, Mueller filed a motion for reconsideration, which the trial court denied.

        {¶5}    Mueller filed her notice of appeal on April 27, 2012.
Stark County, Case No. 2012-CA-82                                                       3


      {¶6}   On May 17, 2012 the City filed a Motion to strike Mueller’s brief or in the

alternative to strike exhibits and references contained in Mueller’s brief that were not

presented in the trial court. Mueller filed a response on May 29, 2012. We took the

matter under advisement pending oral argument.

                                     MOTION TO STRIKE

      {¶7}   In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528

(2001), the Court noted: "a reviewing court cannot add matter to the record before it that

was not a part of the trial court's proceedings, and then decide the appeal on the basis

of the new matter. See, State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377

N.E.2d 500.” It is also a longstanding rule "that the record cannot be enlarged by factual

assertions in the brief." Dissolution of Doty v. Doty (Feb. 28, 1980), Pickaway App. No.

411, citing Scioto Bank v. Columbus Union Stock Yards (1963), 120 Ohio App. 55, 59,

201 N.E.2d 227.

      {¶8}   “The determination of a motion to strike is vested within the broad

discretion of the court.” State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33,

2006-Ohio-6365, 857 N.E.2d 1208, ¶ 26. In exercising this discretion here, we grant the

City’s motion to strike, in part. We hold that Mueller’s new material may not be

considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d

386, ¶ 7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843

N.E.2d 1202, ¶ 16.

                                          ANALYSIS

      {¶9}   Mueller claims the trial court erred in granting the City’s motion for

judgment on the pleadings. Because the trial court did not specify in its Judgment Entry
Stark County, Case No. 2012-CA-82                                                          4


whether the dismissal was for lack of jurisdiction over the subject matter pursuant to

Civ. R. 12(B)(1) or for failure to state a claim upon which relief can be granted pursuant

to Civ. R. 12(B)(6), we shall address both grounds.

                                           Civ. R. 12(B)(1)

        {¶10} Civ. R. 12 B(1) states, in part,

               Every defense, in law or fact, to a claim for relief in any pleading,

        whether a claim, counterclaim, cross-claim, or third-party claim, shall be

        asserted in the responsive pleading thereto if one is required, except that

        the following defenses may at the option of the pleader be made by

        motion: (1) lack of jurisdiction over the subject matter...

        {¶11} A municipal court has jurisdiction in cases in which the "amount claimed"

by the party does not exceed fifteen thousand dollars. R.C. 1901.17. Dismissal of a

complaint is required when the amount claimed is beyond the statutory amount. The

State, ex. rel. National Employee Benefit Services, Inc. v. Court of Common Pleas of

Cuyahoga County, 49 Ohio St.3d 49, 50, 550 N.E.2d 941 (1990).

        {¶12} In the case at bar, Mueller’s complaint was filed using a pre-printed form

provided by the Canton Municipal Court. On the line provided for “Plaintiff’s Statement

of Claim” is the handwritten notation “$15,000.00.” Although Mueller indicated various

other amounts while presenting the allegations within her complaint, she was clearly

requesting only damages of $15,000.00.

        {¶13} Accordingly, the trial court had jurisdiction to decide the merits of Mueller’s

case.
Stark County, Case No. 2012-CA-82                                                          5


                                         Civ.R. 12 (B)(6)

       {¶14} A motion for judgment on the pleadings is governed by Civ.R. 12.

Subsection (C) states, “After the pleadings are closed but within such time as not to

delay the trial, any party may move for judgment on the pleadings.” Our standard of

review on a Civ.R. 12 motion is de novo. Peterson v. Teodosio, 34 Ohio St.2d 161, 297

N.E.2d 113(1973).

       {¶15} When reviewing a matter de novo, this Court does not give deference to

the trial court's decision. Eagle v. Fred Martin Motor Co., 157 Ohio App.3d 150, 809

N.E.2d 1161, 2004-Ohio-829, ¶11(9th Dist.). “Under Civ.R. 12(C), dismissal is

appropriate where a court (1) construes the material allegations in the complaint, with all

reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true,

and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his

claim that would entitle him to relief.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75

Ohio St.3d 565, 570, 664 N.E.2d 931 (1996).

       {¶16} The City is a political subdivision and therefore falls under the immunity

provisions of R.C. 2744.02(A)(1). Whether a political subdivision is entitled to immunity

is analyzed using a three-tiered process. Green Cty. Agricultural Soc. v. Liming, 89 Ohio

St.3d 551, 556, 2000-Ohio-486, 733 N.E.2d 1141(2000).

       {¶17} Under the first tier, subject to a few exceptions, R.C. 2744.02(A)(1)

provides that political subdivisions are “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.” Likewise, immunity is extended, with several
Stark County, Case No. 2012-CA-82                                                         6

exceptions, to employees of political subdivisions under R.C. 2744.03(A)(6). O’Toole v.

Denihan, 118 Ohio St.3d 374, 381, 2008-Ohio-2547, 889 N.E.2d 505, 512-513, ¶ 47.

      {¶18} Under the second tier, the court must determine whether any of the

exceptions to immunity set out in R.C. 2744.02(B) apply. Green Cty. Agricultural Soc. v.

Liming, 89 Ohio St.3d at 557, 733 N.E.2d 1141. The second tier contains five

exceptions to immunity described in R.C. 2744.02(B),

             (B) Subject to sections 2744.03 and 2744.05 of the Revised Code,

      a political subdivision is liable in damages in a civil action for injury, death,

      or loss to person or property allegedly caused by an act or omission of the

      political subdivision or of any of its employees in connection with a

      governmental or proprietary function, as follows:

             (1) Except as otherwise provided in this division, political

      subdivisions are liable for injury, death, or loss to person or property

      caused by the negligent operation of any motor vehicle by their employees

      when the employees are engaged within the scope of their employment

      and authority. The following are full defenses to that liability:

             (a) A member of a municipal corporation police department or any

      other police agency was operating a motor vehicle while responding to an

      emergency call and the operation of the vehicle did not constitute willful or

      wanton misconduct;

             (b) A member of a municipal corporation fire department or any

      other firefighting agency was operating a motor vehicle while engaged in

      duty at a fire, proceeding toward a place where a fire is in progress or is
Stark County, Case No. 2012-CA-82                                                       7


      believed to be in progress, or answering any other emergency alarm and

      the operation of the vehicle did not constitute willful or wanton misconduct;

             (c) A member of an emergency medical service owned or operated

      by a political subdivision was operating a motor vehicle while responding

      to or completing a call for emergency medical care or treatment, the

      member was holding a valid commercial driver's license issued pursuant

      to Chapter 4506. or a driver's license issued pursuant to Chapter 4507. of

      the Revised Code, the operation of the vehicle did not constitute willful or

      wanton misconduct, and the operation complies with the precautions

      of section 4511.03 of the Revised Code.

             (2) Except as otherwise provided in sections 3314.07 and 3746.24

      of the Revised Code, 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.

             (3) Except as otherwise provided in section 3746.24 of the Revised

      Code, political subdivisions are liable for injury, death, or loss to person or

      property caused by their negligent failure to keep public roads in repair

      and other negligent failure to remove obstructions from public roads,

      except that it is a full defense to that liability, when a bridge within a

      municipal corporation is involved, that the municipal corporation does not

      have the responsibility for maintaining or inspecting the bridge.
Stark County, Case No. 2012-CA-82                                                            8


             (4) Except as otherwise provided in section 3746.24 of the Revised

      Code, political subdivisions are liable for injury, death, or loss to person or

      property that is caused by the negligence of their employees and that

      occurs within or on the grounds of, and is due to physical defects within or

      on the grounds of, buildings that are used in connection with the

      performance of a governmental function, including, but not limited to,

      office buildings and courthouses, but not including jails, places of juvenile

      detention, workhouses, or any other detention facility, as defined

      in section 2921.01 of the Revised Code.

             (5) In addition to the circumstances described in divisions (B)(1) to

      (4) of this section, a political subdivision is liable for injury, death, or loss to

      person or property when civil liability is expressly imposed upon the

      political subdivision by a section of the Revised Code, including, but not

      limited to, sections 2743.02 and 5591.37 of the Revised Code. Civil

      liability shall not be construed to exist under another section of the

      Revised Code merely because that section imposes a responsibility or

      mandatory duty upon a political subdivision, because that section provides

      for a criminal penalty, because of a general authorization in that section

      that a political subdivision may sue and be sued, or because that section

      uses the term “shall” in a provision pertaining to a political subdivision.

      {¶19} In the case at bar, Mueller’s complaint alleged that the City is responsible

for the flooding because the City has known about the flooding since 1992; the City has

been unable to correct the problem despite multiple attempts; and the City has in the
Stark County, Case No. 2012-CA-82                                                     9


past paid residents damage claims. Mueller asserted in her complaint that these actions

equate with “bad faith.”

       {¶20} Mueller asserts R.C. 2744.02(B)(2) applies as an exception to the City's

sovereign immunity because the City was engaged in a proprietary function in relation

to the city property. Mueller contends that because the City has entered into a lease

with a private entity for the operation of the golf course, the City is engaged in a

proprietary function. The City argued that the trial court was correct in granting its

motion for judgment on the pleadings because Mueller’s complaint failed to assert

specific facts to establish any of the five exceptions of R.C. 2744.02(B) thereby

exempting the City’s immunity.

       {¶21} We begin by noting that there is no heightened pleading requirement upon

a plaintiff when bringing suit against a political subdivision. Miller v. Thyssenkrup

Elevator Corp., 8th Dist. No. 94352, 2010-Ohio-5011, ¶34. Importantly, we recognize

that Mueller attempted to commence her action in the Small Claims Division of Canton

Municipal Court. The Ohio Legislature established the Small Claims Court “to serve a

need to the people of Ohio, save the expenditure of money by litigants, save time of the

courts and provide a means of settling disputes quickly between citizens who feel

aggrieved but think they have no place of redress.” Heffelfinger v. Rock, 9th Dist. No.

593, 1975 WL 180763(Nov. 13, 1975); Wilson v. Riders Gear, Ltd., 5th Dist. No. 2004

CA 00119, 2005-Ohio-2844, ¶11.

       {¶22} Civ.R. 1(C)(4) provides that the Ohio Rules of Civil Procedure do not

govern the proceedings in small claims court when the civil rule is inconsistent with a

special statutory provision. See, also, Price v. Westinghouse Elec. Corp., 70 Ohio St.2d
Stark County, Case No. 2012-CA-82                                                           10


131, 435 N.E.2d 1114(1982). R.C. 1925.04(A) is the statutory provision that supersedes

the civil pleading rules. Wagner v. Dambrosio, 8th Dist. No. 52142, 1986 WL

12648(Nov. 6, 1986). Thus,

              (A) An action is commenced in the small claims division when the

      plaintiff, or the plaintiff's attorney, states the amount and nature of the

      plaintiff's   claim to   the   court as      provided    in   this   section.   The

      commencement constitutes a waiver of any right of the plaintiff to trial by

      jury upon such action. At the time of the commencement of an action, the

      plaintiff, or the plaintiff's attorney, shall pay both of the following:

              (1) A filing fee as determined by the court;

              (2) The sum required by division (C) of section 1901.26 or division

      (C) of section 1907.24 of the Revised Code.

              (B) The plaintiff, or the plaintiff's attorney, shall state to the

      administrative assistant or other official designated by the court, the

      plaintiff's and the defendant's place of residence, the military status of the

      defendant, and the nature and amount of the plaintiff's claim. The claim

      shall be reduced to writing in concise, nontechnical form. Such writing

      shall be signed by the plaintiff, or the plaintiff's attorney, under oath.

              A memorandum of the time and place set for trial shall be given to

      the person signing the writing. The time set for such trial shall be not less

      than fifteen or more than forty days after the commencement of the action.

R.C. 1925.04 (Emphasis added).
Stark County, Case No. 2012-CA-82                                                    11


      {¶23} “The legislative intent in establishing the small claims court division was

clearly not to require plaintiffs to file complaints similar to those filed by licensed

attorneys.” Wagner v. Dambrosio 8th Dist. No. No. 52142, 1986 WL 12648(Nov. 6,

1986). The pleader is not required to allege every fact that he intends to prove because

such facts may not be available until after discovery. State ex rel. Hanson v. Guernsey

Cty. Bd. of Commrs., 65 Ohio St.3d 545, 549, 605 N.E.2d 378, 381(1992).

      {¶24} If a municipality negligently causes damage while engaging in a

governmental function its immunity remains intact, but if it does so while engaging in a

proprietary function its immunity falters. The political subdivision then may seek to

reestablish its immunity by asserting one of the defenses to liability set forth in R.C.

2744.03(A). Mueller’s complaint is premised upon the belief that the City was engaging

in a proprietary function because it leased the golf course to a private entity. The

legislature, however, has specifically included a golf course as a “governmental

function” R.C. 2744.01(C)(2)(v); Horwitz v. Cleveland, 8th Dist. No. 67140, 1995 WL

116959(Mar. 16, 1995). In Horwitz the court observed,

             The City further notes that § 2744.01(G)(1)(e) originally included

      the operation and control of public golf courses as a proprietary function,

      but that this section was specifically amended in 1987 to convert this

      function from a proprietary to a governmental function. (H.B. 295, 1987

      Sessions Laws) As the City points out, this evidences the clear intent of

      the General Assembly that the operation of a public golf course is to be

      considered as a governmental function.
Stark County, Case No. 2012-CA-82                                                         12


1995 WL 116959. (Emphasis sic.) When the legislature is specific, sovereign immunity

is not abrogated. Nagorski v. Valley View, 87 Ohio App.3d 605, 622 N.E.2d 1088(8th

Dist. 1993); Amborski v. Toledo (1990), 67 Ohio App.3d 47, 585 N.E.2d 974(6th Dist.

1990).

         {¶25} Upon our de novo review, we find the character of the city property and

the conduct alleged in Mueller’s complaint demonstrate the City is engaged in a

governmental function in relation to a golf course as specifically defined in R.C.

2744.01(C)(2)(v). As such, we find there is no set of facts to support Mueller’s claims of

negligence so as to become an exception to the City’s immunity under R.C.

2744.02(B)(2).

         {¶26} It is therefore unnecessary for this court to reach the third tier of immunity

analysis to determine whether immunity can be restored to the City under R.C.

2744.03(A)(1) through (5).
Stark County, Case No. 2012-CA-82                                                   13


      {¶27} Upon review, we conclude the trial court was correct in granting the City’s

motion for judgment on the pleadings. Mueller’s assignment of error is overruled in its

entirety and the judgment of the Canton Municipal Court is affirmed.

By Gwin, J.,

Delaney, P.J., and

Hoffman, J., concur

                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. PATRICIA A. DELANEY


                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN



WSG:clw 0718
[Cite as Mueller v. N. Canton, 2012-Ohio-3561.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


HILLARY MUELLER                                   :
                                                  :
                           Plaintiff-Appellant    :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
                                                  :
CITY OF NORTH CANTON                              :
                                                  :
                        Defendant-Appellee        :       CASE NO. 2012-CA-82




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Canton Municipal Court is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN
