[Cite as Shirk v. Alger, 2009-Ohio-6028.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY




RICHARD SHIRK,

        PLAINTIFF-APPELLANT,                              CASE NO. 6-09-10

        v.

VILLAGE OF ALGER,                                         OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Hardin County Common Pleas Court
                          Trial Court No. 20081085CVH

                                      Judgment Affirmed

                          Date of Decision: November 16, 2009




APPEARANCES:

        Richard Shirk, Appellant

        Jamey T. Pregon for Appellee
Case No. 6-09-10


ROGERS, J.

        {¶1} Plaintiff-Appellant, Richard Shirk, appeals the judgment of the

Court of Common Pleas of Hardin County denying his motion for summary

judgment and granting summary judgment to the Village of Alger (“Alger”). On

appeal, Shirk argues that the trial court erred in granting summary judgment to

Alger on the basis that he failed to demonstrate a proximate cause between Alger’s

actions and his damages; that the trial court erred in granting summary judgment

to Alger where there was no genuine issue of material fact to defeat his claims;

that the trial court erred in applying a two-year statute of limitations to his claims,

pursuant to R.C. 2744.04(A); and, that the trial court erred in granting summary

judgment to Alger on the basis that it was protected by governmental immunity.

Based on the following, we affirm the judgment of the trial court.

        {¶2} In March 2008, Shirk filed a complaint against Alger1 alleging an

unconstitutional taking of his private property without just compensation pursuant

to Sections 16 and 19, Article I of the Ohio Constitution, continuing trespass, and

negligence on the basis that Alger’s failure to maintain and repair drainage

systems, its decision to build up a nearby street higher than the existing curb, and

its alteration of water flow resulted in water flowing onto his property and causing



1
  We note that other parties were also named as Plaintiffs in the complaint, including Billy and Rosa
Phillips, and Shirk’s wife, Angela. However, the Phillips’ voluntarily dismissed their complaint during the
proceedings, and only Shirk appeals the trial court’s judgment.


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damage to his residence. In his complaint, Shirk alleged that the first instance of

water damage to his property occurred in May 2004.

       {¶3} In April 2008, Shirk requested leave to amend his complaint to

include a negligence claim that Alger failed to reconstruct a retaining wall to

maintain the storm drainage system, and that it failed to properly maintain village

streets, also resulting in water damage to his property.

       {¶4} In May 2008, the trial court granted Shirk leave to amend the

complaint.

       {¶5} In December 2008, Alger filed its answer to the complaint, denying

any negligence and asserting multiple defenses, including that Shirk’s claims were

barred by the statute of limitations and governmental immunity, and that the

damages sustained on Shirk’s property were the proximate result of an act of God

and of independent acts of the plaintiffs and other third parties over whom Alger

had no control.

       {¶6} In March 2009, Shirk filed a motion for summary judgment.

Contained in the motion were multiple excerpts from various statutes, cases, and

answered interrogatories, with little discussion or argument.

       {¶7} In April 2009, Alger filed a motion for summary judgment and

response to Shirk’s motion for summary judgment, arguing that it was entitled to

summary judgment because Shirk’s claims were barred by the statute of



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limitations and its governmental immunity, and because Shirk failed to produce

evidence establishing proximate cause between its actions and the flooding on his

property.

       {¶8} Subsequently, Shirk filed a memorandum in opposition to Alger’s

motion for summary judgment, copying additional cases into the motion and again

asserting that Alger’s negligence caused flooding on his property.

       {¶9} Shortly thereafter, Alger filed a reply brief in support of its summary

judgment motion, asserting that Shirk failed to respond to the authorities listed in

its summary judgment motion; that, according to Shirk’s admissions as to when he

discovered the flooding, no genuine issue of material fact existed to establish that

his claim would not be barred by the statute of limitations; that it was entitled to

summary judgment because Shirk had failed to establish negligence on the part of

Alger, or a proximate cause between the claimed negligence and the flooding of

his property; and, that it was entitled to summary judgment because it was

protected by governmental immunity.

       {¶10} In June 2009, the trial court overruled Shirk’s motion for summary

judgment and granted Alger’s motion for summary judgment, stating the

following in its judgment entry:

       The Plaintiffs’ amended complaint appears to allege the
       following claims: (1) negligence in maintaining a storm sewer
       system, (2) negligence in “building a road higher than the curb,”
       (3) a “constitutional taking” under Article 1 and 19 of the Ohio


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      Constitution, and (4) a continuing trespass. Summary judgment
      in favor of the Defendant is granted as to all of these claims.

      At the outset, the Court notes that the Plaintiffs have failed to
      meet their burden to establish that the Defendant did, or did not
      do, something to proximately cause their claimed damages in
      this case. * * * The Plaintiffs have no experts to establish what,
      if anything, Alger has done wrong with respect to the storm
      sewer system in Alger. There is no competent evidence in the
      record to demonstrate that the Defendants have proximately
      caused any of the Plaintiffs’ claimed damages. Accordingly,
      there are no genuine issues of material fact, and the Defendant is
      entitled to judgment on all claims as a matter of law.

      There are other alternative grounds to grant Defendant
      summary judgment in this case.             The Court finds the
      Defendant’s arguments at Section II(A) of the Defendant’s
      motion for summary judgment persuasive as to the statute of
      limitations defense. The Plaintiffs admit that they first observed
      surface water damage that caused property damage to their
      property in August of 2003. The Plaintiffs further concede that
      in May of 2004, they knew they had a “serious” problem. As
      such, the two year statute of limitations on the Plaintiffs’ claims,
      as set forth in O.R.C. §2744.04, started running on either of
      these two dates, which makes the Plaintiffs’ filing of their
      complaint untimely. * * *

      The Court further rejects the Plaintiffs’ reliance on the
      continuing trespass doctrine, given the Supreme Court’s
      decision in Sexton v. Mason, 117 Ohio St.3d 275 (2008). There is
      no evidence of ongoing tortuous [sic] conduct of the Defendant in
      the record. The Plaintiffs’ only allegations of tortuous [sic]
      conduct by the Defendant involve alleged actions taken long
      before March 4, 2006, which is two years before the Plaintiffs
      filed this action.

      The Court also finds persuasive the arguments set forth by the
      Defendant at Section II(B) of its motion for summary judgment.
      Those arguments are adopted by the Court, and the Court finds
      that the Defendant is immune from Plaintiffs’ claims. The Court


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      also finds the Defendant’s arguments at Section II(D) of the
      Defendant’s motion for summary judgment, and adopts those
      arguments with respect to the Constitutional takings claim made
      by the Plaintiffs.

      The Plaintiffs, in their motion for summary judgment, failed to
      establish that they are entitled to judgment as a matter of law.
      The Plaintiffs’ motion fails for the reasons the Defendant’s
      motion succeeds, as set forth above.

(Decision and Entry on Pending Motions for Summary Judgment, pp. 2-3).

      {¶11} It is from this judgment that Shirk appeals, presenting the following

pro se assignments of error for our review.

                            Assignment of Error No. I

      TRIAL COURT ERRED IN GRANTING SUMMARY
      JUDGMENT IN FAVOR OF DEFENDANT BASED UPON NO
      COMPETENT EVIDENCE IN THE RECORD TO
      DEMONSTRATE PROXIMATE CAUSE.

                           Assignment of Error No. II

      TRIAL COURT ERRED IN OVERRULING MOTION FOR
      SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF, BASED
      UPON THE FACTS OF THE CASE IN THE RECORD AND
      THAT THERE WAS [SIC] NO MATERIAL QUESTIONS OF
      FACT THAT THE DEFENDANTS WERE ENTITLED TO
      SUMMARY JUDGMENT ON ALL CLAIMS.

                           Assignment of Error No. III

      TRIAL COURT ERRED IN APPLYING THE TWO YEAR
      STATUTE OF LIMITATIONS FOR CONTINUOS [SIC]
      TRESPASS.




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                           Assignment of Error No. IV

       TRIAL COURT ERRED IN GRANTING SUMMARY
       JUDGMENT IN FAVOR OF DEFENDANT BASED UPON
       IMMUNITY UNDER O.R.C. 2744.04(A) [SIC].

       {¶12} We initially note that, although Shirk asserts four assignments of

error, his brief contains only one argument for all assignments. App.R. 16(A)(7)

and Loc.R. 11(A) require an appellant’s brief to contain a separate argument for

each assignment of error unless the same argument pertains to more than one

assignment of error, and, where arguments have not been adequately set forth for

review, we need not address them. App.R. 12(A)(2); Bellefontaine v. Miller, 3d

Dist. No. 8-08-32, 2009-Ohio-2818, ¶34. However, in the interest of justice, we

will address the merits of Shirk’s appeal. Furthermore, due to the nature of

Shirk’s arguments, we elect to address assignments of error numbers one and two

together, and three and four together.

                        Assignments of Error Nos. I and II

       {¶13} In his first assignment of error, Shirk argues that the trial court erred

in denying his motion for summary judgment and granting Alger’s motion for

summary judgment on the basis that he failed to establish proximate cause

between Alger’s actions and the flooding on his property.            Specifically, he

contends that Alger’s change in the flow of the storm sewer and its negligence in

maintaining the drainage system proximately caused flood damage to his property.



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      {¶14} In his second assignment of error, Shirk argues that the trial court

erred in denying his motion for summary judgment and granting summary

judgment to Alger where there was no genuine issue of material fact to defeat his

claims.

      {¶15} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.

Accordingly, a reviewing court will not reverse an otherwise correct judgment

merely because the lower court utilized different or erroneous reasons as the basis

for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr.

Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶25, citing State ex rel. Cassels v.

Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92.

Summary judgment is appropriate when, looking at the evidence as a whole: (1)

there is no genuine issue as to any material fact; (2) reasonable minds can come to

but one conclusion and that conclusion is adverse to the party against whom the

motion for summary judgment is made; and, therefore, (3) the moving party is

entitled to judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick

Chemical Corp., 73 Ohio St.3d 679, 686-687, 1995-Ohio-286. If any doubts exist,

the issue must be resolved in favor of the nonmoving party. Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95.




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       {¶16} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. In doing

so, the moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument. Id.

at 292. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; he may not rest on the mere allegations or

denials of his pleadings. Id.; Civ.R. 56(E).

       {¶17} In order to establish a claim for negligence, a party must show four

things: that a duty was owed, that there was a breach of that duty, proximate

causation, and injury resulting therefrom. Turner v. Cent. Local School Dist., 3d

Dist. No. 4-95-8, 1995 WL 442498, citing Mussivand v. David (1989), 45 Ohio

St.3d 314.

       {¶18} In the case at bar, Shirk contends that Alger’s negligence in

maintaining a drainage system and its alteration of the flow of the storm sewer

resulted in flood damage to his property. In his motion for summary judgment,

Shirk cited and extensively quoted case law and statutes, but he included very little

argument or proof of the claimed negligence. Shirk did not present any evidence

in his motion of the duty owed by Alger, how it breached that duty, or how the

breach of that duty proximately caused flood damage to his property, other than



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his own opinion on the matter. Shirk continually claimed throughout his various

filings in this case that he had evidence of Alger’s failure to adequately maintain

the drainage system, but the only proof he offered on the matter was video and

photographs of flooding on his property and work being done by Alger on various

drainage areas. At no point did he present evidence establishing a proximate cause

link between Alger’s actions and the flooding on his property. Consequently, we

find that Shirk has failed to establish an actionable claim for damage to his

property, and, as such, we find that the trial court did not err in overruling his

motion for summary judgment and in granting summary judgment to Alger.

         {¶19} Accordingly, we overrule Shirk’s first and second assignments of

error.

                         Assignments of Error Nos. III and IV

         {¶20} In his third assignment of error, Shirk argues that the trial court erred

in granting summary judgment to Alger on the basis that he failed to bring his

claim within the two-year statute of limitations pursuant to R.C. 2744.04(A).

         {¶21} In his fourth assignment of error, Shirk argues that the trial court

erred in granting summary judgment to Alger on the basis that Alger was

protected by governmental immunity.

         {¶22} Due to our disposition of Shirk’s first and second assignments of

error, finding that summary judgment was appropriate because Shirk failed to



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establish proximate causation between Alger’s actions and the flood damage to his

property, Shirk’s further claims on the trial court’s granting of summary judgment

are rendered moot, and we decline to address them. App.R. 12(A)(1)(c).

       {¶23} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

PRESTON, P.J. and SHAW, J., concur.

/jlr




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