[Cite as Mauldin v. Youngstown Water Dept., 2019-Ohio-5065.]




            IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                MAHONING COUNTY

                                     DOROTHY MAULDIN,

                                        Plaintiff-Appellant,

                                                   v.

                   YOUNGSTOWN WATER, DEPARTMENT, et al.

                                     Defendants-Appellees.


                       OPINION AND JUDGMENT ENTRY
                                       Case No. 19 MA 0010


                                   Civil Appeal from the
                      Court of Common Pleas of Mahoning County, Ohio
                                   Case No. 17 CV 1274

                                       BEFORE:
                  Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.


                                             JUDGMENT:
                                               Affirmed.


 Atty. Matthew C. Giannini, 1040 S. Commons Place, Suite 200, Youngstown, Ohio
 44514 for Plaintiff-Appellant and

 Atty. Jeffrey Limbian, City of Youngstown, Law Director, 26 South Phelps Street, 4th
 Floor, Youngstown, Ohio. 44503, Atty. Kathleen Thompson, Sr. Asst. Law Director, 9
 W. Front Street, 3rd Floor, Youngstown, Ohio 44503, for Defendants-Appellees.
                                                                                                       –2–


                                      Dated: December 5, 2019


    Robb, J.

         {¶1}   Plaintiff-Appellant Dorothy Mauldin appeals the decision of the Mahoning
County Common Pleas Court granting summary judgment in favor of Defendant-Appellee
Youngstown Water Department et al. The court found the action was untimely filed
outside of the two-year statute of limitations in R.C. 2744.04(A) which applies to an action
to recover damages against a political subdivision for injury to person or property
allegedly caused by any act or omission in connection with a governmental or proprietary
function. Appellant’s argument that the court should apply the general four-year statute
of limitations in R.C. 2305.09(D) is overruled.                Appellant also argues the political
subdivision was not immune due to the exception to immunity for negligent performance
of a proprietary function. However, that issue was not before the trial court, and the court
did not issue a ruling on immunity. For the following reasons, the trial court’s judgment is
affirmed.
                                        STATEMENT OF THE CASE
         {¶2}   On May 22, 2017, Appellant filed suit alleging the water department was to
turn off the water to a house she owned as she requested on July 10, 2013, but the water
department negligently or recklessly performed this function which caused flooding. She
sought to recover for the damages to the house. In addition to the city water department,
the complaint named as defendants the mayor and the water commissioner in their
representative capacities1 (hereinafter collectively referred to as “the city”). The city filed
an answer for itself and the named defendants raising affirmative defenses such as
statute of limitations and immunity.




1 See Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, ¶ 21 (naming an
officeholder in his official capacity as a defendant can be considered “the equivalent of suing the political
subdivision” for purposes of applying political subdivision immunity test rather than the employee immunity
test). See also Parmelee v. Schnader, 7th Dist. Mahoning No. 17 MA 0026, 2018-Ohio-707, ¶ 39
(discussing legal capacity of a department inability to be sued as non sui juris). Compare R.C. 715.08; R.C.
743.01 et seq. (governing a city’s operation of a waterworks) with R.C. 6119.06(D) (a regional water district
can sue or be sued).



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       {¶3}   In a motion for summary judgment, the city argued the action was barred by
the two-year statute of limitations in R.C. 2744.04(A) applicable to an action against a
political subdivision for injury to person or property caused by an act or omission in
connection with a governmental or proprietary function. It was urged that this special
provision prevailed over any general statute of limitations. The city attached answers to
interrogatories, wherein Appellant attested that the date she discovered the flood and
damage was November 28, 2013; also attached was a document Appellant produced in
discovery representing the claim she submitted to the city on December 8, 2013. Using
the date Appellant discovered the event to begin the limitations period, the city concluded
the action should have been filed by November 28, 2015.
       {¶4}   Appellant’s response to the city’s summary judgment motion reviewed the
statutory test for political subdivision immunity and applied the exception to immunity in
R.C. 2744.02(B)(2) for the negligent performance of acts by employees with respect to
proprietary functions. Citing R.C. 2744.01(G)(2)(c) (defining a proprietary function as
including the maintenance and operation of a utility such as a “municipal water supply
system”) and Matter v. Athens, 2014-Ohio-4451, 21 N.E.3d 595 (4th Dist.) (the city’s
negligent maintenance of water lines servicing a house involves a proprietary function).
Appellant said the city was not relieved of liability if the proprietary function (of turning off
the water to the house as instructed in July 2013) was negligently performed, urging
negligence remained a genuine issue for trial.
       {¶5}   In support of her argument on negligence, she submitted a work order
showing the city received a request for water shut off on July 9, 2013 and arrived at the
property the next day. After reporting the meter reading, an employee wrote, “Need
w/order Notify shop to repair rod for final.” Appellant relied on the contents of her written
claim submitted to the city to establish: water flooded the house from the upstairs
bathroom causing damages; a city employee arrived within an hour of her call; the
employee told her something was wrong with the shut-off valve at the street; and he
turned off the water from the basement.
       {¶6}   Although Appellant’s response to summary judgment admitted she
discovered the injury on November 28, 2013, the city’s statute of limitations argument
was not countered. A heading in the response stated, “O.R.C. 2744.02(B) provides an



Case No. 19 MA 0010
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exception to the applicable statute of limitations.” The content under the heading did not
address the statute of limitations and recited how R.C. 2744.02(B) provided an exception
to immunity (for negligence in a proprietary function).
        {¶7}    On December 17, 2018, the court granted the motion for summary judgment
finding the tort action for damages was barred by the two-year statute of limitations.
Pointing to November 28, 2013 as the date the damages were admittedly discovered, the
court concluded the May 22, 2017 complaint was filed well outside the two-year statutory
time frame for filing the action. Appellant filed a timely notice of appeal.
                   ASSIGNMENT OF ERROR ONE: STATUTE OF LIMITATIONS
        {¶8}    Appellant sets forth two assignments of error, the first of which contends:
        “THE TRIAL COURT ERRED WHEN IT GRANTED DISMISSAL OF PLAINTIFF’S
COMPLAINT UNDER CIVIL RULE OF PROCEDURE 56(C) AGAINST THE CITY OF
YOUNGSTOWN AND THE YOUNGSTOWN WATER DEPARTMENT BASED ON THE
STATUTE OF LIMITATIONS.”
        {¶9}    Pursuant to the statute of limitations applied by the trial court, “An action
against a political subdivision to recover damages for injury, death, or loss to person or
property allegedly caused by any act or omission in connection with a governmental or
proprietary function * * * shall be brought within two years after the cause of action
accrues, or within any applicable shorter period of time for bringing the action provided
by the Revised Code.” R.C. 2744.04(A) (this “applies to actions brought against political
subdivisions by all persons”). The trial court found and the parties agree the cause of
action accrued on November 28, 2013, when Appellant discovered the water issue.2 The
complaint was filed on May 22, 2017, more than two years from this agreed accrual date.
        {¶10} R.C. 2305.09 provides four years to sue after a cause of action accrues for:
(A) trespassing on real property; (B) recovery of personal property (or for detaining or


2 See Cohen v. Bedford Heights, 8th Dist. Cuyahoga No. 101739, 2015-Ohio-1308, ¶ 10-15 (finding the
discovery rule applies to the two-year statute of limitations in R.C. 2744.04(A), and the cause of action did
not arise until the plaintiff knew, or by the exercise of reasonable diligence should have known, he was
injured by the defendant’s conduct). See also Abdalla v. Olexia, 113 Ohio App.3d 756, 759, 682 N.E.2d 18
(7th Dist.1996). We note application of the delayed damages rule, instead of a discovery rule, would not
change the analysis here; using the date the negligent act occurred would also not change the result in this
case.



Case No. 19 MA 0010
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taking it); (C) fraud; (D) injury to the rights of the plaintiff not arising on contract nor
enumerated in certain listed sections (such as the statute of limitations for bodily injury or
injury to personal property); and (E) for relief on the grounds of a physical or regulatory
taking of real property. The general limitations period in division (D) of R.C. 2305.09
would include a claim for tortious damage to real property. Harris v. Liston, 86 Ohio St.3d
203, 205, 714 N.E.2d 377 (1999); Commonwealth Real Estate Investors v. Paolone, 7th
Dist. Mahoning No. 09 MA 51, 2010-Ohio-751, ¶ 17. Without discussing the ramifications
of the statute of limitations in R.C. 2744.04(A), Appellant states her complaint set forth an
action for negligently causing damages to real property and would not be time barred if
the statute of limitations in R.C. 2305.09(D) was applied.
       {¶11} Firstly, Appellant did not cite R.C. 2305.09 or raise a four-year statute of
limitations to the trial court in response to the city’s motion for summary judgment. A
failure to preserve an issue in the trial court waives the issue for purposes of appeal.
Wynn v. Waynesburg Rd LLC, 7th Dist. Carroll No. 17 CA 0921, 2018-Ohio-3858, ¶ 11;
Stanton v. Marc's Store, 7th Dist. Mahoning No. 15 MA 49, 2015-Ohio-5551, ¶ 35
(alternate theory not raised in opposition to summary judgment was waived), citing
Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001 (1982) (“the
fundamental rule is that an appellate court will not consider any error which could have
been brought to the trial court's attention”). Furthermore, Appellant’s contention, raised
for the first time on appeal, is without merit.
       {¶12} The specific language in R.C. 2744.04(A) provides a plaintiff two years to
file an action seeking to recover damages against a political subdivision for injury to
property caused by acts or omissions in connection with a governmental or a proprietary
function. Appellant does not dispute her cause of action is the type described by this
provision. The statute requires the action to be brought “within two years after the cause
of action accrues, or within any applicable shorter period of time for bringing the action
provided by the Revised Code.” (Emphasis added.) R.C. 2744.04(A). It does not state
“or within any applicable longer period.” Moreover, another statute provides, “unless a
different limitation is prescribed by statute, a civil action may be commenced only within
the period prescribed in sections 2305.04 to 2305.22 of the Revised Code.” (Emphasis
added.) R.C. 2305.03(A). A different limitation period is prescribed by R.C. 2744.04(A).



Case No. 19 MA 0010
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       {¶13} In concluding the four-year limitations period should apply even where the
plaintiff is suing a political subdivision for damages caused by negligence, Appellant relies
solely on a Fifth District case where a city engineer advised the city planning commission
to approve a subdivision plat for a developer whom the city engineer represented through
his private firm while allegedly knowing of an undisclosed threat from the high water table.
Luthy v. Dover, 5th Dist. Tuscarawas No. 2011AP030011, 2011-Ohio-4604. In a section
dealing with the city engineer, who was alleged to have acted outside of his official duties
and committed an intentional tort, the appellate court agreed with the trial court’s
alternative findings that the claims would be barred under various statutes of limitations,
including the four-year period in R.C. 2305.09(D). Id. at ¶ 15-21, 23. However, in the
section dealing with the claim against the city, the Fifth District agreed with the trial court’s
application of the two-year statute of limitations in R.C. 2744.04 to bar the claim for
recovery of damages against the city for the conduct of its city engineer while he acted
for the city. Id. at ¶ 22-23. As the Luthy court applied the two-year statute of limitations
in R.C. 2744.04 to the claim against the city, the case does not support Appellant’s
contention that the action against the city and its water department was timely.
       {¶14}    This court has previously concluded that where the special two-year
statute of limitations in R.C. 2744.04(A) applies to an action against a political subdivision,
it prevails over an arguably applicable general statute of limitations including the four-year
period in R.C. 2305.09(C) for fraud. Abdalla v. Olexia, 113 Ohio App.3d 756, 759, 682
N.E.2d 18 (7th Dist.1996).      We pointed out that if a conflict between a general and a
special provision is irreconcilable, then the special provision prevails as an exception to
the general provision, unless the manifest intent is for the general provision to prevail and
the general provision is the later adoption. Id., citing R.C. 1.51. We found no such
manifest intent and held the action against the county prosecutor and commissioners was
subject to the two-year political subdivision statute of limitations rather than the general
four-year statute of limitations in R.C. 2305.09(C) for fraud actions. Id.
       {¶15} There is similar law holding that a claim seeking damages against a political
subdivision for trespass is subject to the special two-year statute of limitations in R.C.
2744.04(A), rather than the more general provision in R.C. 2305.09(A), which applies to
an action against any defendant. See, e.g., Davis v. Clark Cty. Bd. of Commrs., 2013-



Case No. 19 MA 0010
                                                                                          –7–


Ohio-2758, 994 N.E.2d 905, ¶ 23 (2d. Dist.); Dominion Resources Servs. v. Cleveland
Div. of Water, 8th Dist. Cuyahoga No. 90641, 2008-Ohio-4855, ¶ 6, 9. Regardless, this
case is not dependent on the validity of holdings that R.C. 2744.04(A) is more specific
than the four-year statute of limitations in division (A) of R.C. 2305.09 for trespass or
division (C) of R.C. 2305.09 for fraud.
       {¶16}    In the case at bar, Appellant is relying on an even less specific division in
R.C. 2305.09. She seeks to apply division (D) of R.C. 2305.09, involving “an injury to the
rights of the plaintiff not arising on contract nor enumerated in [listed sections].” This
provision is more general than the other divisions of this section.             Compare R.C
2305.09(A) (trespassing), (B) (recovery of personal property or for taking or detaining it),
(C) (fraud), (E) (physical or regulatory taking of real property). Division (D) of R.C.
2305.09 contains a catch-all or residual statute of limitations. Corpman v. Boyer, 171
Ohio St. 233, 234, 169 N.E. 14 (1960) (stating this “catchall clause” applies to actions that
are not otherwise limited); Laipply v. Bates, 166 Ohio App.3d 132, 2006-Ohio-1766, 849
N.E.2d 308, ¶ 10 (7th Dist.). See also Hardale Inv. Co. v. Department of Nat. Res., 7th
Dist. Belmont No. 98-BA-40 (Apr. 14, 2000) (describing R.C. 2305.09(D) as a “residual
clause”). This general provision does not demonstrate a manifest intent to prevail over
the statute of limitations particularly applicable to actions seeking to recover damages for
injury to person or property against a political subdivision under R.C. 2744.04(A). See
R.C. 1.51.
       {¶17} In addition, R.C. 2744.04(A) is the later enactment. See R.C. 1.51 (if a
general provision irreconcilably conflicts with special provision, then the special provision
prevails as an exception to the general provision, unless the general provision is the later
enactment and the manifest intent is that the general provision prevails). See also R.C.
1.52(A) (if statutes are irreconcilable, then the statute latest in date of enactment prevails).
The statute relied upon by the city is part of the Political Subdivision Tort Liability Act
which was enacted in 1985 to reinstate common law immunity for tort claims in certain
circumstances and to provide a special limitations period. See generally Cramer v.
Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 13 (Chapter 2744
was enacted in response to the judicial abolishment of common-law sovereign immunity).
The catch-all provision in R.C. 2305.09(D) has existed far longer. See State ex rel. Lien



Case No. 19 MA 0010
                                                                                          –8–


v. House, 144 Ohio St. 238, 242, 244 58 N.E.2d 675, 677 (1944) (“the four-year statute,
now Section 11224, General Code, was first enacted as a catchall limitation statute in
1831” through “its predecessor, Section 4982, Revised Statutes”); Carpenter v. Cincinnati
& Whitewater Canal Co., 35 Ohio St. 307, 316 (1880), citing Rev. Stat., Section 4982,
Civil Code, Section 12, 15 (the plaintiff has four years after the cause of action accrued
to bring “An action for injury to the rights of the plaintiff, not arising on contract, and not
hereinafter enumerated.”).
       {¶18} Amendments to R.C. 2305.09(D) after the enactment of R.C. 2744.04(A)
did not make R.C. 2305.09(D) more specific or evince a manifest intent that the catch-all
provision would prevail over the political subdivision statute of limitations. (The two-year
statute was last amended in 2002 to change “arose” to “accrues” and to add a discovery
provision for minors; the only substantive changes to division (D) of the four-year statute
since 1985 dealt with an unauthorized signature in 1994 and negligence of a registered
surveyor in 2014). The pertinent provisions in division (D) of R.C. 2305.09 pre-dated the
enactment of R.C. 2744.04(A). See Corpman, 171 Ohio St. 233 at fn. 1 (quoting R.C.
2305.09(D) from the 1950’s as requiring a cause of action to be brought within four years
“For an injury to the rights of the plaintiff not arising on contract nor enumerated in sections
2305.10 to 2305.12 * * * of the Revised Code.”).
       {¶19} As concluded by other courts, Appellant cannot avoid the specific and
recent statute applying to actions seeking to recover damages from the political
subdivision for injury to property from acts or omissions in governmental or proprietary
functions by citing to the catch-all clause of a statute of limitations generally covering “an
injury to the rights of the plaintiff not arising on contract.” See Fifth Third Bank v. Cope,
162 Ohio App.3d 838, 2005-Ohio-4626, 835 N.E.2d 779, ¶ 38 (12th Dist.) (rejecting the
four-year statute of limitations in R.C. 2305.09(D) for damage to real property because
the specific two-year statute of limitations in R.C. 2744.04(A) applied to the claim
stemming from actions of the city manager); Davis v. Allen, 1st Dist. Hamilton No. C-
010165 (Jan. 18, 2002) (applying two-year statute of limitations asserting claim for
damages to real property against city, even though the four-year statute of limitations
applied to private defendants). See also Read v. Fairview Park, 146 Ohio App.3d 15, 18-
20, 764 N.E.2d 1079 (8th Dist.2001) (abuse of process claim was subject to the two-year



Case No. 19 MA 0010
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statute of limitations rather than the general four-year provision in division (D) of R.C.
2305.09).
       {¶20} Additionally, as stated supra, the four-year statute of limitations was not
raised to the trial court as prevailing over the two-year statute of limitations. The trial court
correctly applied the two-year statute of limitations in R.C. 2744.04(A) to an action
seeking to recover damages from a political subdivision for an injury to property allegedly
caused by any act or omission in connection with a governmental or proprietary function
(the failure to ensure the water was shut off). As the complaint was not filed within two
years of the undisputed accrual date, summary judgment was proper. This assignment
of error is overruled, and the trial court’s decision is affirmed.
                          ASSIGNMENT OF ERROR TWO: IMMUNITY
       {¶21} Appellant’s second assignment of error alleges:
       “THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY
JUDGMENT FOR THE APPELLEE AS THERE ARE GENUINE ISSUES OF MATERIAL
FACT AS TO WHETHER THE CITY OF YOUNGSTOWN WATER DEPARTMENT WAS
NEGLIGENT IN THE PERFORMANCE OF PROPRIETARY FUNCTIONS THAT
RESULTED IN $16,900.00 OF DAMAGE TO APPELLANT’S PROPERTY * * *.”
       {¶22} Reiterating her response to the city’s summary judgment motion,
Appellant’s argument under this assignment of error reviews the statutory test for political
subdivision immunity and cites the exception to immunity in R.C. 2744.02(B)(2), which
subjects the political subdivision to liability for the negligent performance of acts by
employees with respect to proprietary functions. Appellant says a proprietary function
includes the maintenance and operation of a utility such as a municipal water supply
system, citing R.C. 2744.01(G)(2)(c) and Matter v. City of Athens, 2014-Ohio-4451, 21
N.E.3d 595 (4th Dist.) (where the court concluded the negligent failure to replace or
upgrade the water lines involved a governmental function while the negligent
maintenance of the lines servicing a house involved a proprietary function and found an
issue as to whether there was a discretionary decision under the third tier reinstating
immunity). Appellant concludes the city would not be immune from liability if a water
department employee negligently performed the propriety function of turning off the water




Case No. 19 MA 0010
                                                                                     – 10 –


to the house as requested in July 2013, and she argues negligence remained a genuine
issue for trial.
        {¶23} However, as the city responds, the trial court did not grant summary
judgment on the issue of immunity or negligence in the performance of a proprietary
function. As set forth in our Statement of the Case, the city’s motion for summary
judgment was wholly based on R.C. 2744.04(A) and the expiration of its two-year statute
of limitations. “R.C. 2744.04(A) sets forth the statute-of-limitations defense for actions
against subdivisions, but it has nothing to do with the immunity of subdivisions.” Riscatti
v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d
437, ¶ 20.
        {¶24} Since the city did not make an immunity argument in the summary judgment
motion, the trial court did not address immunity. The trial court’s judgment entry clearly
rendered judgment solely on statute of limitations grounds. An issue is moot if it is “no
longer live or the parties lack a legally cognizable interest in the outcome.” State ex rel.
Gaylor, Inc. v. Goodenow, 125 Ohio St.3d 407, 2010-Ohio-1844, ¶ 10. Here, the issue
of immunity was not addressed by or presented to the trial court as the city’s motion was
focused on the statute of limitations defense. Since summary judgment was granted for
the city only because the two-year statute of limitations expired before the complaint was
filed, this assignment of error on immunity is not properly before this court and is moot.
See Harsh v. City of Columbus, 10th Dist. Franklin No. 01AP-54 (Aug. 2, 2001) (holding
the two-year statute of limitations applied in action against a political subdivision for a
claim alleging damage to real property, the untimely action was barred, and the immunity
issue alternatively addressed by the trial court was moot).
        {¶25} For the foregoing reasons, the trial court’s judgment is affirmed.



Donofrio, J., concurs.

Waite, P.J., concurs.




Case No. 19 MA 0010
[Cite as Mauldin v. Youngstown Water Dept., 2019-Ohio-5065.]




         For the reasons stated in the Opinion rendered herein, the assignments of
 error are overruled and it is the final judgment and order of this Court that the
 judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed.
 Costs to be taxed against the Appellant.
         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.
