[Cite as Berdysz v. Boyas Excavating, Inc., 2019-Ohio-1639.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

JOHN C. BERDYSZ, ET AL.,                               :

                 Plaintiffs-Appellees,                 :
                                                               No. 107109
                 v.                                    :

BOYAS EXCAVATING, INC., ET AL.,                        :

                 Defendants-Appellants.                :



                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED AND REMANDED
                 RELEASED AND JOURNALIZED: May 2, 2019


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                     Case Nos. CV-09-712005 and CV-14-826410


                                            Appearances:

        David Mack, Garfield Heights Law Director; Reminger Co., L.P.A.,
        Holly M. Wilson, Gregory G. Guice, Brian D. Sullivan, for appellants.

        Cochran & Cochran, Edward W. Cochran; Weltman Weinberg & Reis
        Co., L.P.A., David Mullen; Connick Law, L.L.C., Thomas J. Connick;
        Weyls Peters, L.L.C., Timothy J. Weyls; Bisgaard, & Smith L.L.P., Ryan
        K. Rubin, Lewis Brisbois; Kushner & Hamed Co., L.P.A., Christian J.
        Grostic; and Gray, P.L.L.C., Anthony J. Trzaska, for appellees.


ANITA LASTER MAYS, J.:

                   Defendant-appellant the city of Garfield Heights (“Garfield Heights”)

appeals the trial court’s decision to deny its claim that they are statutorily immune
from plaintiffs-appellees’ claim. For the reasons set forth below, this matter is

affirmed and remanded.

I.    Procedural History and Facts

               The facts of this case can be found in Berdysz v. Boyas Excavating,

Inc., 2017-Ohio-530, 85 N.E.3d 288 (8th Dist.), where Garfield Heights appealed

the trial court’s December 2015 judgment granting the plaintiffs-appellees’ motion

to certify this case as a class action. We affirmed the trial court’s decision in Berdysz.

               The facts are as follows:

      The plaintiffs-appellees in this action are John Berdysz, Colette
      Berdysz, John Drab, Marianne Eckhoff, Patricia Masa, Alberta Krupp,
      and Kathleen Tucciarelli. They are all residents of Garfield Heights and
      the gravamen of their complaint is that noxious odors in their
      neighborhood affected the use and enjoyment of their properties.

      In addition to Garfield Heights, numerous other defendants were
      named in the suit. The plaintiffs’ claims against the defendants revolve
      around the development of property in Garfield Heights that previously
      was the site of two landfills from the 1960s through the 1980s. In 2002,
      the waste materials on the property were disturbed as developers
      explored ideas for using the property. In 2005, the property was
      developed into the City View Center Shopping Center (“City View”).

      Residents in the neighborhood immediately surrounding the City View
      property complained of odors, and as a result, the Ohio Environmental
      Protection Agency (“EPA”) issued orders in March 2005 obligating
      Garfield Heights to take actions necessary for full compliance with
      environmental regulations. As of November 2014, most of the tenants
      in the shopping center had vacated; for example, Walmart closed in
      2009 because of “landfill gas intrusion.”

      The plaintiffs originally filed suit in 2009; there were over 85 named
      plaintiffs in the action. See Baczowksi v. Boyas Excavating, Inc.,
      Cuyahoga C.P. No. CV-09-712005. By 2013, only two plaintiffs
      remained in the action, and they voluntarily dismissed the case. The
      action was refiled in 2014 and is the case at hand. Five plaintiffs filed
the action, and an amended complaint was filed adding two more
plaintiffs.

The plaintiffs filed a motion to certify the case as a class action, and the
trial court held a hearing on the motion. The issue was also extensively
briefed by the parties. At the time of the hearing, all of the defendants
except Garfield Heights were in settlement negotiations with the
plaintiffs, and the city therefore was the only defendant who argued
against class-action certification.

The neighborhood that the plaintiffs sought to be included in the class
action suit was the neighborhood immediately surrounding the City
View property, and was defined as follows:

      The intersection of Transportation Boulevard and
      Antenucci Boulevard as the northwest point to the
      intersection of Antenucci Boulevard and Turney Road as
      the northeast point, south down the center line of Turney
      Road, and bounded on the south by the full length of
      Maple Leaf Drive.

Further, the borders were defined as follows:

      to the west, the City View property itself; (2) to the north,
      an east-west section of Interstate 480, bounded by hills
      and barrier and walls; (3) to the west, Turney Road, a
      major north-south thoroughfare; and (4) to the south, an
      area of land, south of Maple Leaf Drive.

As to the members of the class, the plaintiffs sought to have it include
“all persons and entities (including trustees) that own or reside in a
home within the class area which home was purchased by the class
member prior to December 31, 2002.” There were approximately 220
homes in the proposed class area that were purchased prior to
December 31, 2002. The plaintiffs presented a list of the homeowners
to the trial court.

The plaintiffs also submitted an expert’s report from Golder Associates
(“Golder”) for the trial court’s consideration. The report indicates that
a primary source of odors from the [landfill] facility is likely from the
direct discharge of collected gas from the blower units located near the
fuel station, the unfinished building in the northwest corner of the site
and the blowers used to extract and vent gas from beneath the shopping
center buildings.

The report further indicates that “[w]ind direction information * * *
indicates a normal southwesterly wind that would potentially carry
odors from these discharge locations towards the residences located
northeast of the property,” and that the “landfill odors would be
expected to constitute a nuisance to the surrounding area and the
homeowners.”

Additionally, the plaintiffs submitted the affidavit of Craig Cantrell, a
licensed Ohio real estate agent and broker and owner of Chestnut Hill
Realty. For the purpose of the averments in his affidavit, Cantrell
assumed the plaintiffs’ claim of noxious odors in their proposed class
area to be true. Cantrell averred as follows:

      If in a residential neighborhood, there are noxious odors
      which have continued for a long period of time, a
      reasonable buyer will be willing to pay only a diminished
      price. Consequently, it is my opinion, to a reasonable
      degree of certainty, that the homes in the “class area” can
      be sold by a reasonable seller to a reasonable buyer only at
      a price of 30-35% below what these homes would sell for
      in the open market if there were no noxious odors; and
      that diminution in price will apply to the entire class area.

The plaintiffs also submitted the affidavit of Lance Traves (“Traves”),
an expert on prevailing winds and odor migration. Traves averred that
“because the class area is so small and in such close proximity to the
subject landfill, the odors emitted from the landfill that are subject to
the prevailing winds would be expected to be distributed over the entire
class area and detectable to all those in the class area.”

Another expert report, prepared by GC Environmental, Inc. (“GCE”),
was submitted by the city for the trial court’s consideration. In its
report, GCE contradicted the findings of Golder, the plaintiffs’ expert,
and found any odors on the City View property to be “de minimis,” did
not detect any odors in the proposed class area, and concluded that it
is “unreasonable to suggest that landfill gas would have been able to
migrate to the [class] neighborhood.”

At the hearing, testimony was taken from one of the plaintiffs’ attorneys
about how he determined the potential class members. Further, one of
       the plaintiffs and class representatives, Kathleen Tucciarelli, testified
       about her experience living in the neighborhood with the alleged
       noxious odors. After the hearing, the trial court granted the plaintiffs’
       motion and issued findings of fact and conclusions of law.

Id. at ¶ 2-14.

                  After this court affirmed the trial court’s decision to certify the class,

Garfield Heights then filed a motion for judgment on the pleadings. The trial court

denied the motion, and Garfield Heights filed this appeal assigning one error for our

review:

       I.        The trial court erred in failing to dismiss the Plaintiffs’ nuisance
                 cause of action as the City of Garfield Heights is statutorily
                 immune from such a claim.

II.    Motion for Judgment on the Pleadings

                  As such,

       [a] motion for judgment on the pleadings presents only questions of
       law, which this court reviews de novo. Dearth v. Stanley, 2d Dist.
       No. 22180, 2008-Ohio-487, ¶ 24. Determination of a motion for
       judgment on the pleadings is restricted solely to the allegations in the
       pleadings and any writings attached to the complaint. Peterson v.
       Teodosio, 34 Ohio St.2d 161, 165, 297 N.E.2d 113 (1973). Dismissal is
       appropriate under Civ.R. 12(C) when, after construing all material
       allegations in the complaint, along with all reasonable inferences
       drawn therefrom in favor of the nonmoving party, the court finds that
       the plaintiff can prove no set of facts in support of its claim that would
       entitle it to relief. State ex rel Midwest Pride IV, Inc. v. Pontious, 75
       Ohio St.3d 565, 570, 664 N.E.2d 931 (1996).

Riscatti v. Prime Properties Ltd. Partnership, 8th Dist. Cuyahoga No. 97254, 2012-

Ohio-2941, ¶ 9.

                  Garfield Heights assert that they have political subdivision immunity

against the appellees’ common law nuisance claim. The appellees, however, allege
that Garfield Heights breached the contract with them. As a result, the appellees

make two assertions that (1) Garfield Heights does not have a final, appealable order,

and (2) Garfield Heights’ claim is barred by res judicata.

      A.     Final Appealable Order and Political Subdivision Immunity

              We must first constitute whether Garfield Heights has a final,

appealable order. An appellate court has jurisdiction to review, affirm, modify, set

aside, or reverse judgments or final orders.          Ohio Constitution, Article IV,

Section 3(B)(2); R.C. 2501.01.

      It is well-established that an order must be final before it can be
      reviewed by an appellate court. If an order is not final, then an
      appellate court has no jurisdiction. “Courts of appeals shall have such
      jurisdiction as may be provided by law to review and affirm, modify, or
      reverse judgments or final orders of the courts of record inferior to the
      court of appeals within the district and shall have such appellate
      jurisdiction as may be provided by law to review and affirm, modify, or
      reverse final orders or actions of administrative officers or agencies.”
      Section 3(B)(2), Article IV of the Ohio Constitution. See also,
      R.C. 2505.03.

Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 540 N.E.2d 266 (1989).

              R.C. 2505.02(B) provides,

      An order is a final order that may be reviewed, affirmed, modified, or
      reversed, with or without retrial, when it is one of the following:

      (1)    An order that affects a substantial right in an action that in effect
             determines the action and prevents a judgment;

      (2)    An order that affects a substantial right made in a special
             proceeding or upon a summary application in an action after
             judgment;

      (3)    An order that vacates or sets aside a judgment or grants a new
             trial;
      (4)   An order that grants or denies a provisional remedy and to which
            both of the following apply:

            (a)     The order in effect determines the action with
                    respect to the provisional remedy and prevents a
                    judgment in the action in favor of the appealing
                    party with respect to the provisional remedy.

            (b)     The appealing party would not be afforded a
                    meaningful or effective remedy by an appeal
                    following final judgment as to all proceedings,
                    issues, claims, and parties in the action.

      (5)   An order that determines that an action may or may not be
            maintained as a class action;

      (6)   An order determining the constitutionality of any changes to the
            Revised Code made by Am. Sub. S.B. 281 of the 124th general
            assembly, including the amendment of sections 1751.67, 2117.06,
            2305.11, 2305.15, 2305.234, 2317.02, 2317.54, 2323.56, 2711.21,
            2711.22, 2711.23, 2711.24, 2743.02, 2743.43, 2919.16, 3923.63,
            3923.64, 4705.15, and 5111.018 (renumbered as 5164.07 by H.B.
            59 of the 130th general assembly), and the enactment of sections
            2305.113, 2323.41, 2323.43, and 2323.55 of the Revised Code or
            any changes made by Sub. S.B. 80 of the 125th general assembly,
            including the amendment of sections 2125.02, 2305.10,
            2305.131, 2315.18, 2315.19, and 2315.21 of the Revised Code;

      (7)   An order in an appropriation proceeding that may be appealed
            pursuant to division (B)(3) of section 163.09 of the Revised Code.

              The trial court’s denial of Garfield Heights’ motion for judgment on

the pleadings does not constitute a final appealable order for the reasons set forth

below. Generally,

      [a]n appellate court can review only final, appealable orders. Without
      a final, appealable order, an appellate court has no jurisdiction. See
      Hubbell v. Xenia, 115 Ohio St. 3d 77, 2007-Ohio-4839, 873 N.E.2d 878,
      ¶ 9; Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2501.02. An
      order denying a motion to dismiss is generally not a final, appealable
      order. See, e.g., Maclin v. Cleveland, 8th Dist. Cuyahoga No. 102417,
      2015-Ohio-2956, ¶ 9; DiGiorgio v. Cleveland, 196 Ohio App. 3d 575,
      2011-Ohio-5824, 964 N.E.2d 495, ¶ 4 (8th Dist.), citing Polikoff v.
      Adam, 67 Ohio St.3d 100, 103, 616 N.E.2d 213 (1993). However,
      R.C. 2744.02(C) provides that “[a]n order that denies a political
      subdivision or an employee of a political subdivision the benefit of an
      alleged immunity from liability as provided in this chapter or any other
      provision of the law is a final order.” Thus, R.C. 2744.02(C) grants
      appellate courts jurisdiction to review the denial of a motion to dismiss
      based upon immunity. Hubbell at ¶ 27 (“[W]hen 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 thus is a final, appealable order pursuant to
      R.C. 2744.02(C).”); Maclin at ¶ 9 (“While ordinarily we do not have
      appellate jurisdiction over the denial of a Civ.R. 12(B)(6) motion to
      dismiss because such orders are interlocutory in nature, the denial of a
      motion to dismiss based on political subdivision immunity is a final and
      appealable order subject to appellate court review.”); DiGiorgio at ¶ 11,
      15 (trial court’s order denying municipal defendants’ motion to dismiss
      is a final, appealable order under R.C. 2744.02(C), even if the order
      does not explain the basis for the court’s decision).

Windsor Realty & Mgt., Inc. v. Northeast Ohio Regional Sewer Dist., 2016-Ohio-

4865, 68 N.E.3d 327, ¶ 14 (8th Dist.).

              However, appellate review is limited under R.C. 2744.02(C) to the

review of the appellant’s alleged errors involving the denial of immunity.

      [I]t does not authorize the appellate court to otherwise review the
      merits of a trial court’s decision to deny a motion to dismiss. See, e.g.,
      Owens v. Haynes, 9th Dist. Summit No. 27027, 2014-Ohio-1503, ¶ 8-
      9; see also Reinhold v. Univ. Heights, 8th Dist. Cuyahoga No. 100270,
      2014-Ohio-1837, ¶ 21 (“An appeal from a denial of summary judgment
      based on sovereign immunity is limited to the review of alleged errors
      in the portion of the trial court’s decision that denied the political
      subdivision the benefit of immunity.”), citing Riscatti v. Prime Props.
      Ltd. Partnership, 137 Ohio St. 3d 123, 2013-Ohio-4530, 998 N.E.2d
      437, ¶ 20; CAC Bldg. Props., LLC v. Cleveland, 8th Dist. Cuyahoga
      No. 91991, 2009-Ohio-1786, ¶ 9, fn. 1 (appellate court had jurisdiction
      to review city’s appeal only with respect to issues that were based on
      the trial court’s denial of summary judgment on immunity grounds;
       other issues city raised on appeal with respect to the denial of its
       summary judgment motion were not reviewable). Thus, when
       appealing a denial of a motion to dismiss based on immunity under
       R.C. 2744.02(C), a party cannot raise other alleged errors concerning
       the denial of its motion to dismiss that are based upon other alleged
       defenses or pleading deficiencies. See, e.g., Riscatti at ¶ 20 (“Although
       our prior decisions have interpreted R.C. 2744.02(C) broadly in favor
       of early appeal, they have always been tethered directly to the defense
       of immunity, not to other defenses”) * * *.

Id. at ¶ 15.

               The appellees filed a breach of contract claim against Garfield

Heights.

       The immunity set forth in R.C. Chapter 2744 does not apply to contract
       claims against a political subdivision. R.C. 2744.09(A) expressly
       provides: “This chapter does not apply to, and shall not be construed
       to apply to * * * [c]ivil actions that seek to recover damages from a
       political subdivision or any of its employees for contractual liability[.]”

Id. at ¶ 17.

               Therefore, based on the plain language of R.C. Chapter 2744.09(A),

immunity does not apply to Garfield Heights on the appellees’ claims for breach of

contract. See Duncan v. Cuyahoga Community College, 2012-Ohio-1949, 970

N.E.2d 1092, ¶ 29 (8th Dist.) (denial of political subdivision’s motion for judgment

on pleadings on plaintiff’s breach of contract claim not final and appealable under

R.C. 2744.02(C) and 2744.09(A)).

               Garfield Heights, similarly to the issue the appellants in Windsor

contended, argues that the appellees are attempting to fashion a simple common

nuisance claim into a breach of contract claim. Garfield Heights may be correct that,
on the facts here, the appellees cannot establish, as a matter of law, the existence of

an enforceable contract.

      However, pursuant to R.C. 2744.02(C), we have jurisdiction to consider
      only whether the trial court properly denied appellants’ motion to
      dismiss on immunity grounds, i.e., whether the trial court’s denial of
      appellants’ motion to dismiss denied appellants “the benefit of an
      alleged immunity from liability” — not whether the trial court correctly
      concluded that the allegations of the amended complaint were
      sufficient to state a claim for breach of contract as a matter of law * * *.

Windsor at ¶ 19.

               This assignment of error is based “upon alleged defenses that are

unrelated to immunity and the trial court’s denial of appellants’ motion to dismiss

those claims is not otherwise a final, appealable order.” Id. at ¶ 20.

               Therefore Garfield Heights’ sole assignment of error is overruled.

      B.     Res Judicata

               The appellees claim that Garfield Heights is barred from appealing

this action because of res judicata.

      The issue of whether res judicata *** applies in a particular situation is
      a question of law that is reviewed under a de novo standard. Gilchrist v.
      Gonsor, 8th Dist. Cuyahoga No. 88609, 2007-Ohio-3903, at ¶ 18,
      citing Nationwide Ins. Co. v. Davey Tree Expert Co., 166 Ohio App.3d
      268, 2006-Ohio-2018, 850 N.E.2d 127. A de novo standard of review
      affords no deference to the trial court’s decision, and we independently
      review the record to determine whether res judicata applies. Id. at ¶ 16.
      Res judicata makes a final judgment between parties conclusive as to
      all claims that were litigated or that could have been litigated in that
      action. Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d
      226 (1995).

Hempstead v. Cleveland Bd. of Edn., 8th Dist. Cuyahoga No. 90955, 2008-Ohio-

5350, ¶ 6.
                 As such,

         Res judicata requires a plaintiff to “present every ground for relief in
         the first action, or be forever barred from asserting it.” Grava. Res
         judicata applies to any claim meeting the following three elements:
         1) the plaintiff brought a previous action against the same defendant;
         2) there was a final judgment on the merits of the previous action; and
         3) the new claim was pursued in the first action, or it arises out of the
         same transaction that was the subject matter of the first action.
         Smith v. Bd. of Cuyahoga Cty. Commrs., Cuyahoga No. 86482, 2006-
         Ohio-1073, at ¶ 16-18.

Id. at ¶ 7.

                 Garfield Heights is not barred from asserting immunity because of res

judicata. Garfield Heights could not have appealed an issue that they did not raise

to the trial court. In their first appeal, Garfield Heights questioned the trial court’s

decision of certifying the class. At that time, the trial court had not denied Garfield

Heights’ motion for judgment on the pleadings because the motion had yet to be

filed.    Although Garfield Heights brought a previous action against the same

defendant, and there was a final judgment on the merits of the previous action, the

new claim was not pursued in the first action. Therefore, res judicata is not at issue

here.

                 The trial court’s order denying Garfield Heights’ motion for judgment

on the pleadings is affirmed. This matter is remanded to the trial court for further

proceedings.

         It is ordered that the appellee recover from appellant costs herein taxed.

         It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




ANITA LASTER MAYS, PRESIDING JUDGE

MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
