[Cite as Jochum v. Jackson Twp., 2013-Ohio-3592.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


RICHARD T. JOCHUM                                   :   JUDGES:
                                                    :
                                                    :   Hon. Sheila G. Farmer, P.J.
        Plaintiff - Appellant                       :   Hon. John W. Wise, J.
                                                    :   Hon. Craig R. Baldwin, J.
                                                    :
-vs-                                                :
                                                    :
JACKSON TOWNSHIP                                    :   Case No. 2013CA00013
                                                    :
                                                    :
        Defendant - Appellee                        :   OPINION



CHARACTER OF PROCEEDING:                                Appeal from the Stark County Court
                                                        of Common Pleas, Case No.
                                                        2012CV02341




JUDGMENT:                                               Affirmed




DATE OF JUDGMENT:                                       August 19, 2013




APPEARANCES:

For Plaintiff-Appellant                                 For Defendant-Appellee

DAVID M. WATSON                                         MEL L. LUTE, JR.
137 South Main Street, Suite 300                        Baker, Dublikar, Beck
Akron, OH 44308                                         Wiley & Mathews
                                                        400 South Main Street
                                                        North Canton, OH 44720
Stark County, Case No. 2013CA00013                                                        2

Baldwin, J.

      {¶1}    Plaintiff-appellant Richard T. Jochum appeals from the December 20,

2012 Judgment Entry of the Stark County Court of Common Pleas granting the Motion

for Summary Judgment filed by defendant-appellee Jackson Township.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Appellant Richard T. Jochum is the owner of real property located on

Marshall Drive in Jackson Township. He has lived at the Marshall Road address in

excess of 32 years.

      {¶3}    In 1978, appellant brought an action against appellee, seeking to compel

the township to construct a storm water pipe line to alleviate flooding at his house. As

memorialized in a Judgment Entry filed in June of 1979, the Stark County Court of

Common Pleas ordered the Jackson Township Trustees to furnish all pipes necessary

to construct a storm water sewer pipeline along Marshall Drive and to maintain the

same. A pipeline was installed in accordance with the court’s order.

      {¶4}    Appellant alleges that because appellee issued an excessive number of

building permits for the construction of residential homes between 1979 and the

present, the natural flow and absorption of natural surface water was disrupted. He

further alleges that as a result, the storm water pipe located in the public right-of-way in

front of his home could no longer adequately handle water flow, causing flooding of his

property. Appellant installed a number of sump pumps to pump water out of his

basement. Appellee eventually installed a small pipeline in appellant’s front yard and

connected it to the Marshall Road pipeline to allow appellant to attach his hose from the

sump pumps directly into the pipeline.
Stark County, Case No. 2013CA00013                                                       3


      {¶5}    On July 25, 2012, appellant filed a verified complaint for mandamus,

trespass, nuisance and negligence against appellee.         Appellant, in his complaint,

alleged that appellee had failed to maintain the storm water pipeline by not replacing the

Marshall Drive storm water pipes to accommodate the increase in water flow. Appellant

also alleged that the resultant flooding occurring on his property constituted a taking of

his property for public use. In response, appellee, on November 19, 2012, filed a Motion

for Summary Judgment. Appellee, in its motion, argued, in part, that it was immune

from liability under R.C. Chapter 2744.      Appellant filed a response in opposition to

appellee’s Motion for Summary Judgment on December 6, 2012 and appellee filed a

reply brief on December 18, 2012.

      {¶6}    Pursuant to a Judgment Entry filed on December 20, 2012, the trial court

sustained appellee’s Motion for Summary Judgment. The trial court, in its Judgment

Entry, found that appellee was immune from liability and also that appellant’s takings

(mandamus) claim failed as a matter of law.

      {¶7}    Appellant now raises the following assignment of error on appeal:

      {¶8}    THE TRIAL COURT ERRED BY DETERMINING THERE WAS NO

GENUINE ISSUE OF MATERIAL FACT AND THAT DEFENDANTS WERE ENTITLED

TO JUDGMENT AS A MATTER OF LAW.

                                                 I

      {¶9}    Appellant, in his sole assignment of error, argues that the trial court erred

in sustaining appellee’s Motion for Summary Judgment. We disagree.

      {¶10}   Civ.R. 56 states, in pertinent part:
Stark County, Case No. 2013CA00013                                                     4


        {¶11}   “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action, show that

there is no genuine issue of material fact and that the moving party is entitled to

judgment as a matter of law. No evidence or stipulation may be considered except as

stated in this rule. A summary judgment shall not be rendered unless it appears from

the evidence or stipulation, and only from the evidence or stipulation, that 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, that party being entitled to

have the evidence or stipulation construed mostly strongly in the party's favor. A

summary judgment, interlocutory in character, may be rendered on the issue of liability

alone although there is a genuine issue as to the amount of damages.”

        {¶12}   When reviewing a trial court's decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review

the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000–Ohio–186, 738 N.E.2d

1243.

        {¶13}   The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrates absence of a genuine issue of fact on a material element of

the non-moving party's claim. Drescher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107, 662

N.E.2d 264. Once the moving party meets its initial burden, the burden shifts to the non-

moving party to set forth specific facts demonstrating a genuine issue of material fact
Stark County, Case No. 2013CA00013                                                           5

does exist. Id. The non-moving party may not rest upon the allegations and denials in

the pleadings, but instead must submit some evidentiary materials showing a genuine

dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791

(12th Dist.1991).

      {¶14}    At issue in the case sub judice is whether or not appellee is immune from

liability. The Political Subdivision Tort Liability Act affords political subdivisions immunity

from certain types of actions. Determining whether a political subdivision is immune

from liability involves a three-tiered analysis. Cater v. Cleveland, 83 Ohio St.3d 24,1998-

Ohio-421, 697 N.E.2d 610. In the first tier, R.C. 2744.02(A) provides broad immunity to

political subdivisions and states that, a “political subdivision is 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.” In the second tier of the

analysis, R.C. 2744.02(B) provides five exceptions that may lift the broad immunity

provided for in R.C. 2744.02(A). Of relevance is R.C. 2744.02(B)(2) which            provides

that “[e]xcept 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.” (Emphasis added).

      {¶15}    In the third tier, immunity may be reinstated if the political subdivision can

demonstrate the applicability of one of the defenses found in R.C. 2744.03(A)(1)

through (5).
Stark County, Case No. 2013CA00013                                                       6


      {¶16}   There is no dispute that appellee, a township, is a political subdivision.

The parties disagree as to whether or not a proprietary or governmental function is at

issue in this case. R.C. 2744.01(C)(2)(l) states that a “governmental function” includes

“(l) The provision or nonprovision, planning or design, construction, or reconstruction of

a public improvement, including, but not limited to, a sewer system.” In turn, R.C.

2744.01(G)(2(d) states that a “proprietary function” includes “[t]he maintenance,

destruction, operation, and upkeep of a sewer system.”

      {¶17}   The Ohio Supreme Court, in Coleman v. Portage Cty. Engineer, 133 Ohio

St.3d 28, 2012–Ohio–3881, 975 N.E.2d 952, recently addressed the issue of what

constituted a governmental function as opposed to a proprietary function in relation to a

sewer system.      In Coleman, the plaintiffs alleged that the existing storm drainage

system was unable to accommodate all of the drainage water it collected and thus

overflowed, causing flooding and damage to their property. After the plaintiffs filed a

complaint against the Portage County Engineer, alleging that the engineer negligently

designed, constructed, and maintained the drainage system, the trial court granted the

engineer’s motion to dismiss the complaint on the basis of political-subdivision

immunity. The court of appeals affirmed the dismissal to the extent the claims were

based on negligent design and construction, but reversed to the extent the claims were

based on negligent maintenance of the sewer system.

      {¶18}   The homeowners then appealed and the engineer cross-appealed. The

Ohio Supreme Court accepted the engineer’s discretionary appeal which asserted the

following proposition of law: “A political subdivision's failure to upgrade the capacity of

an inadequate sewer system is not a proprietary function within the meaning of R.C.
Stark County, Case No. 2013CA00013                                                        7


2744.01(G)(2)(d) so as to subject a political subdivision to liability under R.C.

2744.02(B)(2). The upgrade of sewer system capacity is an immune governmental

function under R.C. 2744.01(C)(2)(i) [sic].”

      {¶19}   In reversing the judgment of the court of appeals, the Ohio Supreme Court

held that “failure to upgrade is different from the failure to maintain or upkeep.” Id. at ¶

24. The Court stated that to “upgrade means ‘[t]o exchange a possession for one of

greater value or quality; trade up.” Id, citing American Heritage Unabridged Dictionary

1890 (4th Ed,. 2000).        In its decision, the Ohio Supreme Court further stated, in

relevant part, as follows:

      {¶20}   “’A complaint is properly characterized as a maintenance, operation, or

upkeep issue when ‘remedying the sewer problem would involve little discretion but,

instead, would be a matter of routine maintenance, inspection, repair, removal of

obstructions, or general repair of deterioration.’ Essman [v. Portsmouth, 4th Dist. No.

09CA3325, 2010–Ohio–4837, 2010 WL 3852247] at ¶ 32. But the complaint presents a

design or construction issue if ‘remedying a problem would require a [political

subdivision] to, in essence, redesign or reconstruct the sewer system.’ Essman at ¶ 32–

33.’ (Brackets sic.)” Coleman, 133 Ohio St.3d 28, 2012–Ohio–3881, 975 N.E.2d 952, at

¶ 30, quoting Guenther v. Springfield Twp. Trustees, 2012–Ohio–203, 970 N.E.2d 1058,

¶ 18 (2d Dist.).

      {¶21}   The Ohio Supreme Court, in Coleman, further held that “[a]lthough

creative, [appellees’] attempt to characterize their claims as ones based on

maintenance fails.” Id at paragraph 31. The Court held that, for purposes of R.C.
Stark County, Case No. 2013CA00013                                                          8


Chapter 2744, a claim of failure to upgrade is a claim based on negligent design and

construction, not negligent maintenance.

      {¶22}   In the case sub judice, appellant, in his complaint, alleged that appellee

failed to maintain the pipeline by replacing individual pipes “to a size appropriate to

manage the increased water flow.” During his deposition, appellant agreed that the

allegation in his complaint was that appellee had not maintained the existing pipe

because appellee had not upgraded it and has not put in a bigger pipe. Appellant

further indicated that he wanted appellee to install a pipe “to a size appropriate to

manage the increased water flow” and, when asked how big of a pipe should be

installed, stated that “[t]hat is for the hydraulics engineer to figure out.” Appellant’s

Deposition at 30, 31. As noted by the trial court in its decision, “[w]hile Plaintiff uses the

term “maintain” it is clear that Plaintiff seeks an upgrade in the form of a larger capacity

pipe.” Appellee is thus immune from liability with respect to appellant’s claims alleging

trespass, nuisance and negligence.

      {¶23}   Appellant further argues that the trial court erred in granting summary

judgment in favor of appellee on appellant’s mandamus claim. Appellant, in such claim,

alleged that appellee’s actions constituted a taking of appellee’s property for public

purposes and that appellant was entitled to compensation.           According to appellant,

appellee’s failure to maintain the sewer system caused flooding to his property and such

flooding amounts to a taking.

      {¶24}   We note that claims invoking the protections of the takings clause of the

United States and Ohio Constitutions “are not subject to the limitations of the Political
Stark County, Case No. 2013CA00013                                                      9

Subdivision Tort Liability Act.” Seiler v. Norwalk, 192 Ohio App.3d 331, 2011–Ohio–548,

949 N.E.2d 63, ¶ 41 (6th Dist. Huron).

      {¶25}   Appellant claims entitlement to the requested relief in mandamus pursuant

to the Takings Clause of the Ohio and United States Constitutions. Both Section 19,

Article I of the Ohio Constitution and the Fourteenth and Fifteenth Amendments of the

United States Constitution prohibit the government from taking private property for

public use without just compensation.

      {¶26}   In State ex rel. Blank v. Beasley 121 Ohio St.3d 301, 2009-Ohio-835, 903

N.E.2d 1196, the Ohio Supreme Court explained:

      {¶27}   “We have acknowledged that Section 19, Article I of the Ohio Constitution

limits compensation to those situations where private property is taken for public use, in

contrast to the constitutions of some states, which guarantee compensation for private

property that is taken for or damaged by public use. State ex rel. Fejes v. Akron (1966),

5 Ohio St.2d 47, 50, 34 O.O.2d 58, 213 N.E.2d 353, citing McKee v. Akron (1964), 176

Ohio St. 282, 284, 27 O.O.2d 197, 199 N.E.2d 592, overruled on other grounds by

Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749.

Accordingly, we have construed this constitutional provision to require a property owner

to prove something more than damage to his property in order to demonstrate a

compensable taking. Fejes, at 52, 213 N.E.2d 353, 34 O.O.2d 58, 213 N.E.2d 353.” Id

at paragraph 17.
Stark County, Case No. 2013CA00013                                                                  10


      {¶28}    In a more recent case, the Ohio Supreme Court set forth the following two-

part test for inverse-condemnation1 claims:

      {¶29}    “[N]ot every ‘invasion’ of private property resulting from government

activity amounts to an appropriation. The line distinguishing potential physical takings

from possible torts is drawn by a two-part inquiry. First, a property loss compensable as

a taking only results when the government intends to invade a protected property

interest or the asserted invasion is the ‘direct, natural, or probable result of an

authorized activity and not the incidental or consequential injury inflicted by the action.’

Columbia Basin Orchard v. United States (Ct.Cl.1955), 132 F.Supp. 707, 709 * * *.* * *

Second, the nature and magnitude of the government action must be considered. Even

where the effects of the government action are predictable, to constitute a taking, an

invasion must appropriate a benefit to the government at the expense of the property

owner, or at least preempt the owner's right to enjoy his property for an extended period

of time, rather than merely inflict an injury that reduces its value.” State ex rel. Doner v.

Zody 130 Ohio St.3d 446, 2011-Ohio- 6117, 958 N.E.2d 1235, citing Ridge Line, Inc. v.

United States, 346 F.3d 1346 (Fed. Cir. 2003).

      {¶30}    There is no evidence that appellee intended the flooding on appellant’s

property. Moreover, we agree that there is no evidence that any encroachment of water

onto appellant’s property was foreseeable from the mere issuance of lawful building

permits of from the failure to upgrade the storm sewer pipe.

      {¶31}    Appellant’s sole assignment of error is, therefore, overruled.



1
 An “inverse condemnation” is a cause of action against a governmental entity to recover the value of
property taken by the same without the exercise of the power of eminent domain. See State ex rel. Doner
v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, paragraph 62.
Stark County, Case No. 2013CA00013                                               11


      {¶32}   Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.


By: Baldwin, J.

Farmer, P. J. and

Wise, J. concur.




                                      HON. CRAIG R. BALDWIN



                                      HON. SHEILA G. FARMER



                                      HON. JOHN W. WISE




CRB/dr
[Cite as Jochum v. Jackson Twp., 2013-Ohio-3592.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


RICHARD T. JOCHUM                                   :
                                                    :
        Plaintiff - Appellant                       :
                                                    :
-vs-                                                :     JUDGMENT ENTRY
                                                    :
JACKSON TOWNSHIP                                    :
                                                    :
        Defendant -Appellee                         :     CASE NO. 2013CA00013


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

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

assessed to appellant.




                                                HON. CRAIG R. BALDWIN



                                                HON. SHEILA G. FARMER



                                                HON. JOHN W. WISE
