[Cite as Smith v. Euclid, 2019-Ohio-3099.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

FRANK M. SMITH,                                    :

                 Plaintiff-Appellee,               :
                                                               No. 107771
                 v.                                :

CITY OF EUCLID,                                    :

                 Defendant-Appellant.              :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: August 1, 2019


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-17-887357


                                             Appearances:

                 Henderson & Schmidlin & McGarry Co., L.P.A., Timothy
                 L. McGarry, and Brendan Mewhinney, for appellee.

                 Walter & Haverfield, L.L.P., R. Todd Hunt, Benjamin G.
                 Chojnacki, and Sara J. Fagnilli, for appellant.


MARY EILEEN KILBANE, A.J.:

                   Defendant-appellant, the city of Euclid (“the City”), appeals the trial

court’s decision denying its motion for summary judgment. For the reasons set forth

below, we affirm.
               In October 2017, plaintiff-appellee, Frank Smith (“Smith”) brought a

breach of easement and negligence−nuisance action against the City for damage to

his residential property located at 21731 Edgecliff Drive (“property”) in Euclid, Ohio.

Smith’s property abuts Lake Erie. The prior owner of the property granted an

easement to the City on Smith’s property to allow the City to maintain an overflow

sanitary relief sewer. The sewer line runs through the west side of the property and

through a concrete sewer out into Lake Erie.

               In 2012, a sinkhole developed on the property behind the retaining

wall. The City’s investigation of this sinkhole revealed an approximate 2” by 4”

opening in the top of the sewer pipe just before it connects with the manhole. The

City repaired the opening in the pipe in 2012 by covering the pipe’s hole with cement

and surrounding the outside of the pipe with brick. The City’s former Service

Department Superintendent, Scott Reese (“Reese”), additionally determined that

the wood retaining wall on the property needed to be repaired and the sinkhole

should be filled with a cement-based “flowable fill” material, rather than dirt. Unlike

dirt, flowable fill can enter all open cavities of an erosion hole. The flowable fill then

hardens, thereby providing stability and preventing soil displacement from behind

the retaining wall.

               Then in 2016, a second sinkhole developed on the hillside behind the

retaining wall on the property. Smith alleges that the City’s 2012 repair of the

manhole located on his property subsequently caused the second sinkhole, which

damaged his property, breakwall, boathouse, landscaping, and steps.
               Smith alleges that the City, as the owner of the easement, has

breached its contractual duty to make the repairs necessary to prevent the easement

from damaging his property. Smith further alleges that the City is not immune from

liability under R.C. 2744.01(G)(2)(d) for the damages because the damage was

caused by the negligent performance of the City’s employees for “proprietary

functions,” including the “maintenance, destruction, operation, and upkeep of a

sewer system.” The City responded, arguing immunity under R.C. Chapter 2744.

               After the conclusion of discovery, the City moved for summary

judgment, contending that its operation and upkeep of the sewer system did not

cause damage to the property. The City argued that Smith’s breach of easement

claim is “an attempt to repackage his negligence claim as a breach of contract.” The

City further argued that even if it did damage the property, it is immune from

liability under R.C. Chapter 2744.1 Smith opposed the City’s motion for summary

judgment. In his opposition, Smith argued that as the owner of the easement, the

City was contractually responsible to Smith for making repairs of the use if, using

Smith’s allegation, the “easement” damages his property. According to Smith, the

City’s failure to properly make repairs in 2012 caused the leak in the sewer, which

caused the sinkhole and damage to the property. Smith further argued that City is

not immune from liability because the City failed to maintain the sewer, which is a

proprietary function.


      1  The City also argued that Smith’s claims were barred by the applicable statute of
limitations, but this argument cannot be raised in the interlocutory appeal of the denial
of political subdivision immunity.
              The City responded to Smith’s opposition, arguing that the supplies,

materials, personnel, and resources selected by the City did not cause damage to the

property. Moreover, even if it had caused damage, the City established that it was

immune from liability for such discretionary acts under R.C. 2744.03(A)(5). The

next day, the trial court issued its decision, denying the City’s motion for summary

judgment. The court stated:

      Th[is] court has reviewed [the City’s] motion, [Smith’s] brief in
      opposition, and [the City’s] reply brief. In viewing the facts and
      construing the evidence in the light most favorable to [Smith] as the
      non-moving party, the court finds that there are genuine issues of
      material fact concerning whether [the City] was negligent in
      performing a proprietary function of maintaining and operating its
      storm sewer system under R.C. 2744.02(B)(2) and whether such
      negligence proximately caused damages to plaintiff. Riscatti v. Prime
      Properties Ltd. Partnership, 2012-Ohio-2921. As such, [the City] is not
      entitled to judgment as a matter of law and summary judgment is not
      proper under Civ.R. 56(C). The court further finds that the discovery
      rule applies to this claim. Cohen v. City of Bedford Heights, 2015-ohio-
      1308. Genuine issues of material fact exist as to whether [Smith] knew
      or by the exercise of reasonable diligence should have known that he
      was injured by the conduct of [the City].

      The court further finds that there are genuine issues of material fact
      concerning whether [the City] had a duty under the easement to
      maintain the storm sewer and to prevent damage to the servient estate.
      Market Enterprises v. Summerville, 2002-ohio-3692. See also, 36
      Ohio Jurisprudence 3d (1982) 464, Easements and Licenses, Section
      60.

              It is from this order that the City appeals, raising the following single

assignment of error for review:
                                Assignment of Error

      The trial court erred by denying summary judgment to the [City] which
      denied the City’s defense of statutory immunity pursuant to R.C.
      Chapter 2744.

               The City views Smith’s breach of easement claim as part of his

negligence−nuisance claim and argues its motion for summary judgment

conclusively established that the sewer system itself was not the cause of the alleged

damage to the property. As a result, it contends that the sole issue this court “must

examine is whether the City is immune from liability pursuant to R.C. Chapter 2744

of the Ohio Revised Code for its discretionary decision to use flowable fill in

repairing the First Erosion Hole in 2012.”

               We review an appeal from summary judgment under a de novo

standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-

336, 671 N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d

581, 585, 706 N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio

St.3d 367, 369-370, 1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme Court set

forth the appropriate test as follows:

      Pursuant to Civ.R. 56, summary judgment is appropriate when (1)
      there is no genuine issue of material fact, (2) the moving party is
      entitled to judgment as a matter of law, and (3) reasonable minds can
      come to but one conclusion and that conclusion is adverse to the
      nonmoving party, said party being entitled to have the evidence
      construed most strongly in his favor. Horton v. Harwick Chem. Corp.,
      73 Ohio St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three
      of the syllabus. The party moving for summary judgment bears the
      burden of showing that there is no genuine issue of material fact and
      that it is entitled to judgment as a matter of law. Dresher v. Burt, 75
      Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264.
               Once the moving party satisfies its burden, the nonmoving party “may

not rest upon the mere allegations or denials of the party’s pleadings, but the party’s

response, by affidavit or as otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v.

Eckstein, 76 Ohio St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be

resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d

356, 358-359, 1992-Ohio-95, 604 N.E.2d 138.

                                Breach of Easement

               The City contends that Smith’s breach of easement−contract claim is

really a tort claim for damages. Smith, on the other hand, contends that the

“easement at issue is a contract” and the City has no immunity under

R.C. 2744.09(A). Because Smith’s complaint has separately alleged that “[a]s the

owner of the easement, [the City] has a duty to make such repairs as are necessary

to prevent the easement from damaging the [p]roperty” and further alleges that the

City has breached the easement by failing to prevent the easement from damaging

the property, we will analyze this claim of Smith’s complaint as separate from his

negligence−nuisance claim for purposes of this interlocutory appeal.

               The breach of an easement claim can be analyzed as a breach of

contract claim. Stefanich v. Am. Elec. Power Co., 5th Dist. Licking No. 07 CA 0045,

2007-Ohio-6108, ¶ 27. “To establish a claim for breach of contract, the plaintiff

must show the existence of a contract, performance by the plaintiff under the terms

of that contract, breach by the defendant, and damage or loss to the plaintiff.” Carey
v. Down River Specialties, Inc., 8th Dist. Cuyahoga No. 103595, 2016-Ohio-4864, ¶

14, citing Powell v. Grant Med. Ctr., 148 Ohio App.3d 1, 2002-Ohio-443, 771 N.E.2d

874 (10th Dist.).

               We note, however, that R.C. Chapter 2744 does not apply to contract

claims against a political subdivision.

      “R.C. Chapter 2744 generally shields political subdivisions from tort
      liability in order to preserve their fiscal integrity.” (Emphasis added.)
      Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123,
      2013-Ohio-4530, 998 N.E.2d 437, ¶ 15, 998 N.E.2d 437.
      R.C. 2744.09(A) specifies that R.C. Chapter 2744 “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.” (Emphasis added.) “R.C. 2744.09(A) has been
      consistently interpreted to mean that political subdivisions cannot
      claim governmental immunity for breach of contract claims.” See E.
      Liverpool v. Buckeye Water Dist., 7th Dist. Columbiana App. Nos. 11
      CO 41 and 11 CO 42, 2012-Ohio-2821, ¶ 47, 972 N.E.2d 1090, and cases
      cited there; see also Emergency Med. Transport, Inc. v. Massillon, 5th
      Dist. Stark No. 2010CA00176, 2011-Ohio-446, ¶ 28, (“Ohio Revised
      Code Chapter 2744 grants immunity to political subdivisions and their
      employees from tort claims, but has no application to claims for breach
      of contract”); Cobb v. Mantua Twp. Bd. of Trustees, 11th Dist. Portage
      No. 2003-P-0112, 2004-Ohio-5325, ¶ 33 (“R.C. Chapter 2744 grants
      immunity to political subdivisions and their employees from tort
      claims. However, R.C. Chapter 2744 does not provide immunity from
      claims for breach of contract”).

Today & Tomorrow Heating & Cooling v. Greenfield, 4th Dist. Highland No.

13CA14, 2014-Ohio-239, ¶ 14.

               Smith raised R.C. 2744.09(A) in his motion for summary judgment,

arguing that Euclid is not immune from a breach of easement claim. When denying

the City’s motion for summary judgment, the trial court found genuine issues of

material fact concerning whether the City has a duty under the easement to maintain
the storm sewer and prevent damage to Smith’s property. The court’s disposition of

the breach of easement claim was addressed separately from its disposition of the

negligence−nuisance claim. When addressing the negligence−nuisance claim, the

court specifically referenced R.C. 2744.02(B)(2), and the negligence in performing

a proprietary function.

               Because the alleged breach of easement claim can be construed as a

breach of contract claim, R.C. 2744.09(A) would preclude immunity from applying

to this cause of action. Thus, we lack jurisdiction, in this interlocutory appeal, to

consider the propriety of the trial court’s denial of the City’s motion for summary

judgment with respect to Smith’s breach of easement cause of action. See Riscatti,

137 Ohio St.3d 123, 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.) See also Berdysz v. Boyas

Excavating, Inc., 8th Dist. Cuyahoga No. 107109, 2019-Ohio-1639, ¶ 10-15.

               As a result, we will address solely the applicability of political

subdivision immunity to the negligence−nuisance cause of action because we have

jurisdiction to review this claim.

                           Political Subdivision Immunity

               A determination of whether a political subdivision is immune from

tort liability under R.C. Chapter 2744 involves a three-tiered analysis. Colbert v.

Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7, citing Greene
Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 2000-Ohio-486, 733 N.E.2d

1141.

        The first tier is the general rule that a political subdivision is immune
        from liability incurred in performing either a governmental function or
        proprietary function. [Greene, 89 Ohio St.3d 551, 556-557, 2000-
        Ohio-486, 733 N.E.2d 1141]; R.C. 2744.02(A)(1). However, that
        immunity is not absolute. R.C. 2744.02(B); Cater v. Cleveland, 83
        Ohio St.3d 24, 28, 1998-Ohio-421, 697 N.E.2d 610.

        The second tier of the analysis requires a court to determine whether
        any of the five exceptions to immunity listed in R.C. 2744.02(B) apply
        to expose the political subdivision to liability. Id. at 28, 697 N.E.2d 610.
        ***

        If any of the exceptions to immunity in R.C. 2744.02(B) do apply and
        no defense to that section protects the political subdivision from
        liability, then the third tier of the analysis requires a court to determine
        whether any of the defenses in R.C. 2744.03 apply, thereby providing
        the political subdivision a defense against liability.

Id. at ¶ 7-9.

                                  Negligence−Nuisance

                Here, the parties do not dispute that the City is a political subdivision,

and thus, qualifies for general immunity under R.C. 2744.02(A). The City argues

that none of the exceptions listed in R.C. 2744.02(B) apply to abrogate immunity

because its repairs to the first erosion hole were repairs to the property itself, not the

sewer system. Smith, on the other hand, argues that the City is subject to liability

under the exception listed in R.C. 2744.02(B)(2) because its employees negligently

performed the following proprietary function: “[t]he maintenance, destruction,

operation, and upkeep of a sewer system[.]” R.C. 2744.01(G)(2)(d).
               We note that Ohio courts have long recognized that a city can be liable

for the negligent maintenance of its sewers. Nelson v. Cleveland, 8th Dist. Cuyahoga

No. 98548, 2013-Ohio-493, ¶ 18, citing Portsmouth v. Mitchell Mfg. Co., 113 Ohio

St. 250, 148 N.E. 846 (1925). Indeed, when a municipality does construct or

maintain sewers, “it becomes its duty to keep them in repair and free from

conditions which will cause damage to private property.” Doud v. Cincinnati, 152

Ohio St. 132, 137, 87 N.E.2d 243 (1949). Thus, the municipality becomes liable “in

the same manner and to the same extent as a private person under the same

circumstances.” Id., citing Portsmouth.

               Under the three-tiered analysis, the City is subject to liability under

R.C. 2744.02(B)(2) because its maintenance of the sewer is a proprietary function

under R.C. 2744.01(G)(2)(d). Therefore, we must next address the City’s argument

that it has reinstated immunity from liability because the actions it took to repair

the sewer in 2012 fall within the “exercise of judgment” exception in

R.C. 2744.03(A)(5), which provides that a “political subdivision is immune from

liability if the * * * loss to * * * property resulted from the exercise of judgment or

discretion in determining whether to acquire, or how to use, equipment, supplies,

materials, personnel, facilities, and other resources unless the judgment or

discretion was exercised with malicious purpose, in bad faith, or in a wanton or

reckless manner.”

               The City contends that its attempt to fix the outflow sewer pipe in

2012, including its decision to use flowable fill, is protected from liability as a
reinstatement of immunity because that decision was a use of judgment and

discretion in how to use supplies and resources under R.C. 2744.03(A)(5). The City

relies on Reese’s testimony, who exercised his discretion in determining “whether to

acquire, or how to use, equipment, supplies, materials, personnel, facilities, and

other resources.”

               Reese testified that he believed that the 2012 sinkhole was caused by

a leak in the sewer pipe. He made the decision to repair the first erosion hole with a

cement-based “flowable fill” material, rather than dirt. He made this decision

because he believed the flowable fill would replace the soil that eroded away and

better plug the open cavities in the hole, helping with future erosion. According to

Reese, the flowable fill hardens, provides stability, and prevents soil erosion and

slippage from behind the retaining wall. He further concluded that the use of

flowable fill would provide additional stability for the retaining wall and assist with

preventing additional erosion or slippage. Reese inspected the work after it was

completed and determined it was done correctly and in a workmanlike manner.

               Smith maintains that the City should have done more than just fill the

sinkhole with “flowable fill.” His experts opined that before pouring “flowable fill”

into the sinkhole, the City should have prepared a proper base beneath the “flowable

fill.” The experts opined that by failing to properly prepare the base of the sinkhole

and pouring “flowable fill” on top of eroded and unstable soils, the City only masked

the problem until the sinkhole became visible again years later.
               This court has previously held that “decisions involving the proper

maintenance of the sewer or drainage system [are] a proprietary act, which [are]

mandatory and not discretionary. These decisions do not involve a high degree of

discretion. Rather they involve routine inspection and maintenance.” Nelson at

¶ 30. Here, Reese inspected the sewer, found a hole in the sewer and determined to

use “flowable fill” to repair the sinkhole. Smith’s experts opined the sinkhole on

Smith’s property occurred as a result of the City only masking the problem by using

“flowable fill” without a stable base. As a result, the discretionary acts defense in

2744.03(A)(5) is not available to reinstate immunity to the City for the resulting

damages.

               Based on the foregoing, when construing this evidence in a light most

strongly in favor of Smith, genuine issues of material fact exist as to whether the City

exercised ordinary care in maintaining and repairing the sewer and whether the City

is entitled to political subdivision immunity.

               Therefore, the sole assignment of error is overruled.

               Judgment is affirmed.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent out to said 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.


                                      ______
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

ANITA LASTER MAYS, J., and
RAYMOND C. HEADEN, J., CONCUR
