[Cite as Luthy v. Dover, 2011-Ohio-4604.]


                                         COURT OF APPEALS
                                    TUSCARAWAS COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                           JUDGES:
L. EDWARD LUTHY, ET AL                            :        Hon. W. Scott Gwin, P.J.
                                                  :        Hon. Sheila G. Farmer, J.
                            Plaintiff-Appellant   :        Hon. Julie A. Edwards, J.
                                                  :
-vs-                                              :
                                                  :        Case No. 2011AP030011
CITY OF DOVER, ET AL                              :
                                                  :
                          Defendant-Appellee      :        OPINION




CHARACTER OF PROCEEDING:                              Civil appeal from the Tuscarawas County
                                                      Court of Common Pleas, Case No.
                                                      2010CV080890

JUDGMENT:                                             Affirmed

DATE OF JUDGMENT ENTRY:                               September 12, 2011

APPEARANCES:

For Plaintiff-Appellant                               For Defendant-Appellee

ARTHUR B. CUNNINGHAM                                  JOHN MCLANDRICH
Box 511                                               JAMES CLIMER
Hopkinton, NH                                         FRANK H. SCIALDONE
                                                      TAMI Z. HANNON
                                                      100 Franklin’s Row
                                                      34305 Solon Road
                                                      Cleveland, OH 44139

                                                      STEVEN K. KELLY
                                                      CORNELIUS J. O’SULLIVAN
                                                      6480 Rockside Woods Blvd., Ste. 145
                                                      Independence, OH 44131
[Cite as Luthy v. Dover, 2011-Ohio-4604.]


Gwin, P.J.

        {¶1}    Plaintiffs-appellants L. Edward Luthy and Beverly Luthy appeal a judgment

of the Court of Common Pleas of Tuscarawas County, Ohio, entered in favor of

defendants-appellees the City of Dover and Donald R. Dummermuth, Dover’s City

Engineer. Appellant assigns four errors to the trial court:

        {¶2}    “I. THE TRIAL COURT ERRED WHEN IT GRANTED DISMISSAL OF

PLAINTIFFS’ COMPLAINT UNDER CIVIL RULE 12 (C) AGAINST THE CITY OF

DOVER AND CITY ENGINEER DONALD R. DUMMERMUTH BASED UPON THE

STATUTE OF LIMITATIONS.

        {¶3}    “II. WHILE THE TRIAL COURT CORRECTLY ARTICULATED THE

DISTINCTION BETWEEN THE CONCEPT OF AN ONGOING, CONTINUING

TRESPASS          AND       A    PERMANENT    TRESPASS        AND   THE     DOCTRINES

APPLICABILITY TO THE STATUTE OF LIMITATIONS, IT ERRED IN ITS

APPLICATION OF THE DOCTRINE TO DEFENDANT CITY ENGINEER DONALD R.

DUMMERMUTH WHO WAS SUED AS AN EMPLOYEE OF THE DEFENDANT CITY

OF DOVER, NOT AS AN INDIVIDUAL OWING A SEPARATE DUTY TO PLAINTIFFS.

        {¶4}    “III. THE TRIAL COURT ERRED BECAUSE ITS RELIANCE ON THE

STATUTE OF LIMITATIONS LED THE TRIAL COURT TO MAKE A DETERMINATION

OF FACTS OUTSIDE OF THE PLEADINGS REGARDING THE NATURE OF THE

DEFENDANTS’ TRESPASS ON PLAINTIFFS’ RESIDENCE.

        {¶5}    “IV. THE TRIAL COURT ERRED WHEN IT GRANTED DISMISSAL OF

PLAINTIFFS’ COMPLAINT UNDER CIVIL RULE 12 (C) AGAINST THE CITY OF
Tuscarawas County, Case No. 2011AP030011                                              3


DOVER ON THE GROUND THAT THE CITY OF DOVER IS IMMUNE FROM

LIABILITY UNDER SECTION 2744.02 (B)(5) OHIO REVISED CODE.”

      {¶6}     The trial court entered judgment on the pleadings pursuant to Civ. R. 12

(C). Appellants filed the complaint on August 5, 2010. It alleged that on November 25,

1986, the City of Dover through its Planning Commission approved the subdivision plat

known as Calico Square, Sixth Addition, for the construction and sale of personal

residences.    The Planning Commission was advised to approve the subdivision for

residential development by the City Engineer, Dummermuth. Dummermuth was also a

principal in George A. Fiedler & Associates, a consulting engineering firm, representing

private developers. Appellants alleged Dummermuth had a conflict of interest, because

at the time Dummermuth, as City Engineer, advised the Planning Commission to

approve the Calico Square Subdivision, he was also representing the developer of the

subdivision.

      {¶7}     Appellants alleged they purchased a residence in the Calico Square Sixth

Addition on April 1, 1988. On January 18, 2005, their newly remodeled basement was

flooded by rising ground water. Appellants were forced to install three sump pumps,

which ran continuously for four to five weeks. On or about March 15, 2008, two of the

sump pumps started pumping again and ran continuously for six weeks. Appellants

estimated the pumps removed 6.9 million gallons of water from the foundation area of

their home.

      {¶8}     Appellants alleged the flooding caused damage to their property, and

would continue to do so, because of the height of the water table underlying the

allotment. Appellants alleged their damages included the expense of repairing their
Tuscarawas County, Case No. 2011AP030011                                                  4


newly remodeled basement and the cost of the installation of the pumps. Appellants

also alleged the value of their home had diminished because of the flooding and threat

of future flooding, and had impaired their right of quiet enjoyment of their residence.

       {¶9}   Appellants alleged Dummermuth breached his duty to residents, including

appellants, in simultaneously representing the City of Dover and the private developer.

Appellants alleged Dummermuth’s actions were manifestly outside the scope of his

official responsibilities as City Engineer, were reckless, and done in bad faith.

Appellants alleged that the time Dummermuth advised the Planning Commission to

approve the subdivision, he knew that the ground water elevation underlying the

subdivision posed a threat of flooding during storms.

       {¶10} Appellants alleged the City of Dover, acting through the Planning

Commission, knew that Dummermuth represented the developer of the subdivision, and

therefore, the City is responsible for the acts and omissions of Dummermuth.

       {¶11} The City’s answer raised several defenses, including statute of limitations

and immunity. Dummermuth’s answer also included several affirmative defenses,

including statute of limitations and immunity.

       {¶12} The trial court granted judgment on the pleadings in favor of both the City

and Dummermuth. The court found appellants’ claims against the City were barred by

the statute of limitations and immunity. The court found as to Dummermuth, the statute

of limitations had run on all of appellants’ claims.

       {¶13} A motion for judgment on the pleadings presents only questions of law.

Dearth v. Stanley, Montgomery App. No. 22180, 2008–Ohio–487. Pursuant to Civ. R.

12(C), the trial court is required to construe the allegations in the complaint, and all
Tuscarawas County, Case No. 2011AP030011                                                 5


reasonable inferences to be drawn from the allegations, in favor of the non-moving

party. Whaley v. Franklin County Board of Commissioners, 92 Ohio St.3d 574, 2001–

Ohio–1287, 752 N.E.2d 267, citing Peterson v. Teodosio (1973), 34 Ohio St.2d 161,

297 N.E.2d 113. The court may grant judgment on the pleadings only if it is clear that

the plaintiff could prove no set of facts in support of the claim that would entitle him or

her to relief. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 1996–

Ohio–459, 664 N.E.2d 931. Our review of a court's decision granting judgment on the

pleadings is de novo. See, e.g., State v. Sufronko (1995), 105 Ohio App.3d 504, 644

N.E.2d 596.

                                                I

       {¶14} Appellants’ first assignment of error addresses both the City and

Dummermuth. For clarity sake, we will address the issues as to each defendant

separately.

                                 Claims against Dummermuth

       {¶15} The trial court correctly found appellants’ claims against Dummermuth

sound in negligence, negligent misrepresentation, and intentional tort. As to appellants’

claims against Dummermuth, the trial court first cited R.C. 2305.131. The statute

provides in pertinent part:

       {¶16} “(A)(1) Notwithstanding an otherwise applicable period of limitations

specified in this chapter or in section 2125.02 of the Revised Code and except as

otherwise provided in divisions (A)(2), (A)(3), (C), and (D) of this section, no cause of

action to recover damages for bodily injury, an injury to real or personal property, or

wrongful death that arises out of a defective and unsafe condition of an improvement to
Tuscarawas County, Case No. 2011AP030011                                                  6


real property and no cause of action for contribution or indemnity for damages sustained

as a result of bodily injury, an injury to real or personal property, or wrongful death that

arises out of a defective and unsafe condition of an improvement to real property shall

accrue against a person who performed services for the improvement to real property or

a person who furnished the design, planning, supervision of construction, or

construction of the improvement to real property later than ten years from the date of

substantial completion of such improvement.

       {¶17} “(2) Notwithstanding an otherwise applicable period of limitations specified

in this chapter or in section 2125.02 of the Revised Code, a claimant who discovers a

defective and unsafe condition of an improvement to real property during the ten-year

period specified in division (A)(1) of this section but less than two years prior to the

expiration of that period may commence a civil action to recover damages as described

in that division within two years from the date of the discovery of that defective and

unsafe condition.”

       {¶18} The court found the improvements to the property in Calico Square were

completed on April 1, 1988, when the appellant’s purchased their home. If R.C.

2305.131 is applied, the statute of limitations would have run on April 1, 1998.

       {¶19} The court also found RC. 2305.09(D) provides for a four-year statute of

limitations for tort actions involving injury or damage to real property.      The statute

begins to run when the plaintiff discovers or should have discovered there is damage to

the property.   The court found appellants discovered or with reasonable diligence

should have discovered the damage to the property when the property flooded on
Tuscarawas County, Case No. 2011AP030011                                                    7


January 18, 2005. The court found if it applied R.C. 2305.09 (D), the statute of

limitations had run.

       {¶20} The trial court also found pursuant to R.C. 2305.09 (C), an action for fraud

must be brought within five years after the cause of action accrued.

       {¶21} The trial court found in the alternative, the statute of limitations contained

in R.C. 2305.09 barred appellants’ recovery. R.C. 2305.09 provides for a four-year

statute of limitations for, inter alia, trespass upon real property. The statute further

states the cause of action does not accrue until the wrongdoer is discovered or, if there

is fraud, until the fraud is discovered. The issue of trespass is considered in II infra.

                                         The City of Dover

       {¶22} Appellants argue the City of Dover is liable on a respondeat superior

theory because Dummermuth was acting for the City of Dover. The City argues there

are four different time periods from which plaintiffs’ claims could accrue. On November

25, 1986, the plans for the subdivision were approved. In the alternative, appellants’

claims could have accrued when they purchased their home on April 1, 1988. The

claims could have accrued when the home was flooded on January 18, 2005, or on

March 5, 2008, when they alleged a second incident occurred. The City argues even

assuming that March 5, 2008 is considered as the date appellants’ claims accrued, the

two year statute of limitations pursuant R.C. 2744.04 would bar appellants’ claim.

       {¶23} We agree with the trial court construing appellants’ claims under any

available theory of recovery, any applicable statute of limitations barred appellants’

recovery.
Tuscarawas County, Case No. 2011AP030011                                                  8


      {¶24} The first assignment of error is overruled as to both the City of Dover and

Dummermuth.

                                               II

      {¶25} The trial court also applied the doctrine of permanent trespass to

Dummermuth’s actions, and found appellants’ claims were time barred. See paragraph

24 supra.

      {¶26} Appellants argued the trial court and to us that the statute of limitations

has not run on their claim for trespass. All parties cite Sexton v. City of Mason (2008),

117 Ohio St. 3d 275, 2008-Ohio-858, 883 N.E.2d 1013 in support of their positions.

      {¶27} In Sexton, the Supreme Court explained the difference between a

continuing trespass and a permanent trespass. The court found:

      {¶28} “The defendants’ on-going conduct or retention of control is the key to

distinguishing a continuing trespass from a permanent trespass.         We hold that a

continuing trespass in this context occurs when there is some continuing or on-going

allegedly tortuous activity attributable to the defendant. A permanent trespass occurs

when the defendant’s allegedly tortuous act has been fully accomplished.” Sexton at

paragraph 45.

      {¶29} Appellants assert the damage to their home is on-going, and thus,

constitutes a continuing trespass. The trial court found while the complaint alleged on-

going damage, it did not allege continuing or on-going tortuous activity attributable to

Dummermuth. The court found any trespass was permanent.

      {¶30} We find the trial court was correct. In Sexton, the plaintiffs allege their

property experienced repeated flooding and erosion because of the developer and the
Tuscarawas County, Case No. 2011AP030011                                                9


engineer who designed the storm water drainage system for a sub-division adjacent to

their home had changed the drainage and directed water onto their property.

       {¶31} The Supreme Court noted if a defendant committed only one tortuous act

and did not retain control over the property, the trespass was not continuous. The

tortious act was completed and there was no on-going conduct by the defendants, even

though the damage to the property continued.         Sexton at paragraph 44, citations

deleted. The Supreme Court concluded that the developer and the subcontractor had

completed their work and exercised no control over the property, and thus the alleged

trespass was complete.

       {¶32} We find any trespass which may have occurred on appellants’ property

was a permanent trespass.      Appellants do not allege that their flooding problem is

attributable to anything other than the naturally occurring water table. We find the trial

court did not err in finding it was a permanent trespass, and the statute of limitations

was four years pursuant to R.C. 2305.09.

       {¶33} However, appellant argues the trial court should not have applied the

theory of permanent trespass to Dummermuth’s action because he was sued as an

employee of the City of Dover, and not as an individual.

       {¶34} Appellants cite us to R.C.2744.03(A)(6), which provides an employee is

not immune from liability if he acts with malicious purpose, and bad faith or in a wanton

or reckless manner.      Appellants’ complaint alleged recklessness and a conflict of

interest.

       {¶35} We find the court did not find Dummermuth was immune from liability and

its finding the statutes of limitations had run makes the question of immunity moot.
Tuscarawas County, Case No. 2011AP030011                                                  10


       {¶36} The second assignment of error is overruled.

                                                III.

       {¶37} In their third assignment of error, appellants argue the court made a

determination of facts outside the pleadings regarding the nature of the trespass on the

appellants’ residence. We do not agree. The issue of statute of limitations was raised

in the answers of both the City of Dover and Dummermuth. The trial court was required

to apply the law to determine whether appellants could prove a set of facts in support of

their claims that would entitle them to relief. The trial court’s determination of the nature

of the trespass was a legal determination based upon the facts set out in the pleadings.

       {¶38} The third assignment of error is overruled.

                                                IV

       {¶39} The trial court also found the City of Dover is immune from liability.

       {¶40} The Supreme Court has developed a three-tiered analysis for determining

whether a political subdivision is immune from liability. Cater v. Cleveland, 83 Ohio St.

3d 24, 1998-Ohio-421, 697 N.E. 2d 610. The first tier is the broad immunity conferred

by R.C. 2744.02(A)(1). However, the second tier contains five exceptions to immunity

as set out in R.C. 2744.02 (B). If an exception exists, the analysis progresses to the

third tier, and immunity can be reinstated if the political subdivision can raise one of the

defenses set out in R.C. 2744.03 (A).

       {¶41} The City of Dover is a political subdivision and is immune from liability

unless one of the five exceptions applies.         Here, the complaint alleges negligent

performance of Dummermuth, and, arguably, R.C. 2744.02(B)(2) applies, because it

provides a political subdivision is liable for lost property caused by the negligent
Tuscarawas County, Case No. 2011AP030011                                                 11


performance of acts by their employees with respect to proprietary functions of the

political subdivision.

       {¶42} However, we find in applying the third tier, R.C.2744.03 (A)(3) applies. It

provides immunity from liability if the action or failure to act by the employee involved

was within the discretion of the employee with respect to policy making, planning, or

enforcement powers by virtue of the duties and responsibilities of the office or position

of the employee. The Ohio Supreme Court has stated that an employee's conduct is

considered to be within the course of his employment when it “can fairly and reasonably

be deemed to be an ordinary and natural incident or attribute of the service to be

rendered or a natural, direct, and logical result of it.” Posin v. A.B.C. Motor Court Hotel,

Inc. (1976), 45 Ohio St.2d 271, 344 N.E.2d 334. An employee's conduct falls within the

scope of his employment when: (1) the conduct is the kind the employee is employed to

perform; (2) occurs substantially within authorized time and space limits; and (3) is

actuated, at least partly, to serve the employer, will the employee's conduct be

considered within the scope of his employment. Id at 278. Additionally, an employee

who departs from his employment to engage in his own affairs is no longer within the

scope of his employment when that departure is “such a divergence from his regular

duties that its very character severs the relationship of master and servant.” Id.

       {¶43} Although appellants claim Dummermuth’s actions were outside the scope

of his employment, we find his actions in advising the Planning Commission were within

the scope of his employment even if we assume, arguendo, that he had a conflict of

interest.
Tuscarawas County, Case No. 2011AP030011                                       12


     {¶44} We conclude the City of Dover is immune from liability based on

respondeat superior for any negligence of Dummermuth.

     {¶45} The fourth assignment of error is overruled.

     {¶46} For the foregoing reasons, the judgment of the Court of Common Pleas of

Tuscarawas County, Ohio, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Edwards, J., concur




                                           _________________________________
                                           HON. W. SCOTT GWIN

                                           _________________________________
                                           HON. SHEILA G. FARMER

                                           _________________________________
WSG:clw 0819                               HON. JULIE A. EDWARDS
[Cite as Luthy v. Dover, 2011-Ohio-4604.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


L. EDWARD LUTHY, ET AL                           :
                                                 :
                           Plaintiff-Appellant   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
CITY OF DOVER, ET AL                             :
                                                 :
                                                 :
                        Defendant-Appellee       :       CASE NO. 2011AP030011




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

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

 Costs to appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN

                                                     _________________________________
                                                     HON. SHEILA G. FARMER

                                                     _________________________________
                                                     HON. JULIE A. EDWARDS
