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Filing # 40301 / 21CV000660 / CONDON, PATRICK J.
Lake Co Common Pleas Court, Clerk Faith Andrews 09/09/2021 09:09 AM
IN THE COURT OF COMMON PLEAS
LAKE COUNTY, OHIO
MARK MOLK, CASE NO. 21CV000660
Plaintiff, JUDGE PATRICK J. CONDON
VS.
DEFENDANT CITY OF MENTOR’S
PERRAM ELECTRIC, INC., et al., REPLY IN SUPPORT OF MOTION TO
DISMISS
Defendants.
Plaintiff in his response to the City of Mentor’s (“Mentor”) Motion to Dismiss fails to
show how the facts pleaded in his Complaint establish any cognizable claim for relief. The
Complaint does allege facts that, if taken as true, create an exception to Mentor’s political
subdivision immunity under R.C. §2744 et. seq. Notwithstanding, even if Plaintiff pleaded
sufficient facts to establish an exception, the facts alleged in the Complaint do not dispute that
Mentor’s decision to contract with Perram, an independent third-party, was a discretionary act,
reasserting Mentor’s immunity under R.C. §2744.03(A)(3) and (5).
For the same reasons, Plaintiffs “takings clause” claims under both the U.S. and Ohio
Constitutions fail because these claims are only seeking relief under a tort theory of recovery; it
is well established law that loss of sewage access cannot be considered a taking under both the
U.S. and Ohio Constitutions.
Finally, Plaintiff's brother had a duty to maintain his property, regardless of his choice to
be an absentee property owner, and, even with the discovery rule, Plaintiff is barred from
recovery under the applicable statute of limitations.
A. The only negligent act alleged against Mentor in the Complaint is that Mentor
contracted with Perram to install a school zone sign, a governmental function.
First and foremost, the only negligent act alleged against Mentor is that Mentor was
negligent in contracting with Perram to install a traffic control device. (Complaint at 4931-32).
Any negligence alleged against Perram, the party Plaintiff alleges negligently installed the
concrete base of the school zone sign, cannot be imputed to Mentor under a theory of vicarious
liability as Plaintiff has not alleged Perram was an employee of Mentor. McKee v. McCann, 8th
Dist. No. 104956, 2017-Ohio-4072, 102 N.E.3d 38, ] 46; Trotwood vy. S. Cent. Constr., LLC,
2nd Dist. No. 23689, 192 Ohio App.3d 69, 2011-Ohio-237, 947 N.E.2d 1291, § 29. Therefore,
the only conceivable allegation against Mentor in the Complaint is that Mentor was negligent in
its decision to contract with Perram to install the school zone sign.
Plaintiff's argument that the installation of a school zone sign at Hopkins Road is a
proprietary function creating an exception to Mentor’s immunity under R.C. §2744.02(B)(2) is
contrary to clearly established law in Ohio. Plaintiff admits in his Response that the Mentor’s
decision to install the school zone sign is a governmental action. Plaintiffs attempt to break up
the process of the installation of the school zone sign arguing the “digging of the hole” by
Perram is a proprietary function is not supported by any Ohio law. To the contrary, Mentor is the
only party to provide case law which supports the proposition that the installation of the school
zone sign is a governmental function. To the extent the Court entertains Plaintiffs unsupported
argument, the digging of the hole and installation of the concrete base was solely performed
Perram, a third party, and not Mentor. R.C. §2744.02(B)(2)(“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).
Thus, the “proprietary function” exception under R.C. §2744.02(B)(2) does not apply in this
matter.
B. Plaintiff has not alleged the school zone sign is a “public road” and, regardless,
is not alleging his damages were caused by Mentor’s failure to keep public roads
in repair under R.C. §2744.02(B)(3).
The only other exception to immunity Plaintiff argues in his Response is that the property
damage was the result of Mentor’s “negligent failure to keep public roads in repair.” R.C.
2744.02(B)(3). Like Plaintiff's argument regarding R.C. §2744.02(B)(2), Plaintiff has failed to
allege any facts in his Complaint establishing this exception to immunity.
Plaintiff does not allege in his Complaint the school zone sign is a public road. Moreover,
Plaintiffs reference to the Manual of Uniform Traffic Control Devices is not part of the
Complaint and, thus, cannot be used to survive a Motion to Dismiss. Therefore, Plaintiff has not
pled facts that establish the school zone sign qualifies as a public road and, for this reason alone,
the exception to immunity created under R.C. §2744.02(B)(3) does not apply.
Notwithstanding, even if a school zone sign is a public road as defined by R.C. §2744,
the exception to immunity is still not applicable under the facts alleged in the Complaint.
Plaintiff is alleging property damages stemming from Perram’s installation of the sign, but not
damages as a result of Mentor’s failure to keep the school zone sign in repair. R.C. §2744(B)(3).
In fact, taking all of the allegations alleged in the Complaint as true, the state of the school zone
sign itself has no causal relationship to Plaintiff's claimed property damages as there has been no
allegation made that any disrepair of the school zone sign is related to the claimed injury. The
only negligent act alleged in the Complaint is Perram’s alleged negligent installation (not
“repair”) of the school zone sign. Since there are no facts contained in the Complaint alleging
Mentor failed to keep a public road in repair and the failure caused Plaintiffs property damage,
the exception to immunity under R.C. §2744(B)(3) does not apply as a matter of law.
Accordingly, Plaintiff has failed to allege facts in the Complaint that establish an
exception to immunity under R.C. §2744(B) and Mentor is entitled to political subdivision
immunity under Ohio law.
C. Even if an exception to immunity applies, the allegations contained in the
Complaint conclusively establish Mentor’s discretionary defenses under R.C.
§2744.03.
Plaintiff does not address Mentor’s argument that Mentor is entitled to immunity
pursuant to R.C. §2744.03(A)(3) and (5) and by his silence admits that Mentor is still immune
from liability even if one of the exceptions listed in R.C. §2744.02(B) apply. Regardless, the
Complaint conclusively establishes that Mentor’s decision to have a school zone sign installed at
Hopkins Road by a third-party is a discretionary act which would reestablish immunity in favor
of Mentor. The law Mentor points to in its Memorandum in Support clearly shows the decision
by a political subdivision to erect a sign is a discretionary act entitling it to immunity under R.C.
§2744.03(A)(3) and (5). Moreover, Plaintiff failed to allege Mentor’s judgment or discretion in
installing the sign on Hopkins Road was done with a “malicious purpose, in bad faith, or in a
wanton or reckless manner.” R.C. §2744.03(A)(5).
Accordingly, Mentor is still immune from liability as a matter of law even if one of the
exceptions to immunity listed in R.C. §2744.02(B) applies.
D. Since deprivation of sewage access is not, as a matter of law, “taking” under
the Takings Clause of both the U.S. and Ohio Constitutions, Plaintiff's claim
sounds in tort and Mentor is immune from liability as described above.
“Access to government-provided sewer service is not a constitutionally protected interest
subject to the Takings Clause.” State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-
Ohio-1473, 928 N.E.2d 706, | 20; Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104,
106, 98 S.Ct. 2646, 2650, 57 L.Ed.2d 631 (1978); and Front Royal & Warren Cty. Indus. Park
Corp. v. Front Royal (C.A.4, 1998), 135 F.3d 275, 286-287 (holding that the failure to provide
sewer service is not a taking, because there is no constitutionally protected property right to
government-provided sewer service). This also applies for alleged violations of the Takings
Clause under the Ohio Constitution. State ex re. Gilbert, 125 Ohio St.3d at 4 20 and Doud vy.
Cincinnati, 152 Ohio St. 132, 137, 39 0.0. 441, 87 N.E.2d 243 (1949).
Here, Plaintiff alleges that Mentor’s act of blocking sewage access to the property is a
Taking. (See Complaint at Claim One). However, as described above, Plaintiff does not have a
tight to government-provided sewage service in so much as establishing a Takings Clause cause
of action and his claim fails as a matter of law.
Since there is no viable Takings Clause claim pled in the Complaint, this claim is
essentially identical to Plaintiff's negligence claim against Mentor and must fail for the same
reasons his negligence claim fails.
E. Plaintiff’s claims are barred by the applicable statute of limitations.
There is a two-year statute of limitations for tort actions against political subdivisions,
such as Mentor. Moreover, the fact that Plaintiff's brother allowed the property to be vacant at
the time the school zone sign was installed is irrelevant to the application of the discovery rule.
The facts as alleged undisputedly show that the applicable statute of limitations began to accrue
shortly after installation of school zone sign, more than six years prior to the filing of the
Complaint.
There is a two-year statute of limitations in any action sounding in tort against a political
subdivision. Koncsol v. Niles, 105 Ohio App.3d 535, 538, 664 N.E.2d 616, 618 (11th Dist.1995);
and Mauldin v. Youngstown Water, Dept., 7th Dist. No. 19 MA 0010, 2019-Ohio-5065, 150
N.E.3d 433, { 14. Plaintiff, therefore, was required to bring his negligence claim against Mentor
within two-years and his Takings Clause claim within four-years of the claims beginning to
accrue.
Plaintiff does not dispute in his Response that his claims could have begun to accrue prior
to his purchase of the property. Plaintiffs sole argument that his claims were filed before the
expiration of the statute of limitations is based upon his misapplication of the discovery rule.
However, the discovery rule does not apply to Plaintiff's claims because the blocking of sewage
access to the property would manifest itself to a property owner immediately. Harris v. Liston,
86 Ohio St.3d 203, 207, 1999-Ohio-159, 714 N.E.3d 377. Notwithstanding, the fact that
Plaintiff's brother was absent from the property prior to Plaintiffs purchase is irrelevant because
a property owner has a duty to maintain his property pursuant to the City of Mentor’s property
maintenance code. Mentor Codified Ordinances 1367.01 (“The owner shall be responsible for
ensuring that premises, including drainage facilities, are maintained in good repair and
appearance in compliance with this code”) and Mentor Codified Ordinances 1373.03 (“The
owner shall register with the Department of Planning and Development not later than ninety (90)
days after a dwelling located in an area zoned for residential use in the City becomes vacant”). A
reasonable owner of the property abiding by Mentor’s city ordinances should have discovered, as
a matter of law, that the property was cut-off from sewage access shortly after the school zone
sign was installed in June 2015.
Accordingly, both of Plaintiff's claims are barred by the applicable statute of limitations.
Plaintiff's negligence claim became time barred in 2017 and his Takings Clause claim in 2019.
F, Conclusion.
Plaintiff failed to allege facts in his Complaint establishing a viable negligence or takings
clause claim against Mentor. Accordingly, for the above-mentioned reasons as well as those
contained in Mentor’s Memorandum in Support, Mentor respectfully requests this Honorable
Court grant its Motion to Dismiss on all of Plaintiff's claims.
Respectfully submitted,
JOSEY J. SANTORO (0068294)
MATTHEW A. SMARTNICK (0096932)
GALLAGHER SHARP LLP
1215 Superior Avenue, 7" Floor
Cleveland, Ohio 44114
(216) 241-5310 (phone)
(216) 241-1608 (fax)
jsantoro@gallaghersharp.com
msmartnick@gallaghersharp.com
Counsel for Defendant, The City of Mentor
CERTIFICATE OF SERVICE
A copy of the foregoing Reply in Support of Motion to Dismiss has been served by
electronic mail, only, this 9th day of September 2021 upon the following:
Matthew C. Rambo, Esq.
matthew@freeburglaw.com
David A. Freeburg, Esq.
david@freeburglaw.com
Freeburg & Freeburg LLC
6690 Beta Drive, Suite 320
Mayfield Village, OH 44143
Counsel for Plaintiff
L. Terrence Ufholz, Esq.
tufholz@rlbllp.com
50S. Main Street, 10" Floor
Akron, OH 44308
Counsel for Defendant,
Perram Electric, Inc.
John T. McLandrich, Esq.
jtm@mrrlaw.com
Mazanec, Raskin & Ryder Co., L.P.A.
100 Franklin’s Row
34305 Solon Road
De
Lon fe
Cleveland, OH 44139
Counsel for Defendant,
Lake County
JOSEWH J. SANTORO (0068294)
MATTHEW A. SMARTNICK (0096932)
GALLAGHER SHARP LLP
Counsel for Defendant, The City of Mentor
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Filing # 40301 / 21CV000660 / CONDON, PATRICK J. Lake Co Common Pleas Court, Clerk Faith Andrews 09/09/2021 09:09 AM IN THE COURT OF COMMON PLEAS LAKE COUNTY, OHIO MARK MOLK, CASE NO. 21CV000660 Plaintiff, JUDGE PATRICK J. CONDON VS. DEFENDANT CITY OF MENTOR’S PERRAM ELECTRIC, INC., et al., REPLY IN SUPPORT OF MOTION TO DISMISS Defendants. Plaintiff in his response to the City of Mentor’s (“Mentor”) Motion to Dismiss fails to show how the facts pleaded in his Complaint establish any cognizable claim for relief. The Complaint does allege facts that, if taken as true, create an exception to Mentor’s political subdivision immunity under R.C. §2744 et. seq. Notwithstanding, even if Plaintiff pleaded sufficient facts to establish an exception, the facts alleged in the Complaint do not dispute that Mentor’s decision to contract with Perram, an independent third-party, was a discretionary act, reasserting Mentor’s immunity under R.C. §2744.03(A)(3) and (5). For the same reasons, Plaintiffs “takings clause” claims under both the U.S. and Ohio Constitutions fail because these claims are only seeking relief under a tort theory of recovery; it is well established law that loss of sewage access cannot be considered a taking under both the U.S. and Ohio Constitutions. Finally, Plaintiff's brother had a duty to maintain his property, regardless of his choice to be an absentee property owner, and, even with the discovery rule, Plaintiff is barred from recovery under the applicable statute of limitations. A. The only negligent act alleged against Mentor in the Complaint is that Mentor contracted with Perram to install a school zone sign, a governmental function. First and foremost, the only negligent act alleged against Mentor is that Mentor was negligent in contracting with Perram to install a traffic control device. (Complaint at 4931-32). Any negligence alleged against Perram, the party Plaintiff alleges negligently installed the concrete base of the school zone sign, cannot be imputed to Mentor under a theory of vicarious liability as Plaintiff has not alleged Perram was an employee of Mentor. McKee v. McCann, 8th Dist. No. 104956, 2017-Ohio-4072, 102 N.E.3d 38, ] 46; Trotwood vy. S. Cent. Constr., LLC, 2nd Dist. No. 23689, 192 Ohio App.3d 69, 2011-Ohio-237, 947 N.E.2d 1291, § 29. Therefore, the only conceivable allegation against Mentor in the Complaint is that Mentor was negligent in its decision to contract with Perram to install the school zone sign. Plaintiff's argument that the installation of a school zone sign at Hopkins Road is a proprietary function creating an exception to Mentor’s immunity under R.C. §2744.02(B)(2) is contrary to clearly established law in Ohio. Plaintiff admits in his Response that the Mentor’s decision to install the school zone sign is a governmental action. Plaintiffs attempt to break up the process of the installation of the school zone sign arguing the “digging of the hole” by Perram is a proprietary function is not supported by any Ohio law. To the contrary, Mentor is the only party to provide case law which supports the proposition that the installation of the school zone sign is a governmental function. To the extent the Court entertains Plaintiffs unsupported argument, the digging of the hole and installation of the concrete base was solely performed Perram, a third party, and not Mentor. R.C. §2744.02(B)(2)(“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). Thus, the “proprietary function” exception under R.C. §2744.02(B)(2) does not apply in this matter. B. Plaintiff has not alleged the school zone sign is a “public road” and, regardless, is not alleging his damages were caused by Mentor’s failure to keep public roads in repair under R.C. §2744.02(B)(3). The only other exception to immunity Plaintiff argues in his Response is that the property damage was the result of Mentor’s “negligent failure to keep public roads in repair.” R.C. 2744.02(B)(3). Like Plaintiff's argument regarding R.C. §2744.02(B)(2), Plaintiff has failed to allege any facts in his Complaint establishing this exception to immunity. Plaintiff does not allege in his Complaint the school zone sign is a public road. Moreover, Plaintiffs reference to the Manual of Uniform Traffic Control Devices is not part of the Complaint and, thus, cannot be used to survive a Motion to Dismiss. Therefore, Plaintiff has not pled facts that establish the school zone sign qualifies as a public road and, for this reason alone, the exception to immunity created under R.C. §2744.02(B)(3) does not apply. Notwithstanding, even if a school zone sign is a public road as defined by R.C. §2744, the exception to immunity is still not applicable under the facts alleged in the Complaint. Plaintiff is alleging property damages stemming from Perram’s installation of the sign, but not damages as a result of Mentor’s failure to keep the school zone sign in repair. R.C. §2744(B)(3). In fact, taking all of the allegations alleged in the Complaint as true, the state of the school zone sign itself has no causal relationship to Plaintiff's claimed property damages as there has been no allegation made that any disrepair of the school zone sign is related to the claimed injury. The only negligent act alleged in the Complaint is Perram’s alleged negligent installation (not “repair”) of the school zone sign. Since there are no facts contained in the Complaint alleging Mentor failed to keep a public road in repair and the failure caused Plaintiffs property damage, the exception to immunity under R.C. §2744(B)(3) does not apply as a matter of law. Accordingly, Plaintiff has failed to allege facts in the Complaint that establish an exception to immunity under R.C. §2744(B) and Mentor is entitled to political subdivision immunity under Ohio law. C. Even if an exception to immunity applies, the allegations contained in the Complaint conclusively establish Mentor’s discretionary defenses under R.C. §2744.03. Plaintiff does not address Mentor’s argument that Mentor is entitled to immunity pursuant to R.C. §2744.03(A)(3) and (5) and by his silence admits that Mentor is still immune from liability even if one of the exceptions listed in R.C. §2744.02(B) apply. Regardless, the Complaint conclusively establishes that Mentor’s decision to have a school zone sign installed at Hopkins Road by a third-party is a discretionary act which would reestablish immunity in favor of Mentor. The law Mentor points to in its Memorandum in Support clearly shows the decision by a political subdivision to erect a sign is a discretionary act entitling it to immunity under R.C. §2744.03(A)(3) and (5). Moreover, Plaintiff failed to allege Mentor’s judgment or discretion in installing the sign on Hopkins Road was done with a “malicious purpose, in bad faith, or in a wanton or reckless manner.” R.C. §2744.03(A)(5). Accordingly, Mentor is still immune from liability as a matter of law even if one of the exceptions to immunity listed in R.C. §2744.02(B) applies. D. Since deprivation of sewage access is not, as a matter of law, “taking” under the Takings Clause of both the U.S. and Ohio Constitutions, Plaintiff's claim sounds in tort and Mentor is immune from liability as described above. “Access to government-provided sewer service is not a constitutionally protected interest subject to the Takings Clause.” State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010- Ohio-1473, 928 N.E.2d 706, | 20; Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 106, 98 S.Ct. 2646, 2650, 57 L.Ed.2d 631 (1978); and Front Royal & Warren Cty. Indus. Park Corp. v. Front Royal (C.A.4, 1998), 135 F.3d 275, 286-287 (holding that the failure to provide sewer service is not a taking, because there is no constitutionally protected property right to government-provided sewer service). This also applies for alleged violations of the Takings Clause under the Ohio Constitution. State ex re. Gilbert, 125 Ohio St.3d at 4 20 and Doud vy. Cincinnati, 152 Ohio St. 132, 137, 39 0.0. 441, 87 N.E.2d 243 (1949). Here, Plaintiff alleges that Mentor’s act of blocking sewage access to the property is a Taking. (See Complaint at Claim One). However, as described above, Plaintiff does not have a tight to government-provided sewage service in so much as establishing a Takings Clause cause of action and his claim fails as a matter of law. Since there is no viable Takings Clause claim pled in the Complaint, this claim is essentially identical to Plaintiff's negligence claim against Mentor and must fail for the same reasons his negligence claim fails. E. Plaintiff’s claims are barred by the applicable statute of limitations. There is a two-year statute of limitations for tort actions against political subdivisions, such as Mentor. Moreover, the fact that Plaintiff's brother allowed the property to be vacant at the time the school zone sign was installed is irrelevant to the application of the discovery rule. The facts as alleged undisputedly show that the applicable statute of limitations began to accrue shortly after installation of school zone sign, more than six years prior to the filing of the Complaint. There is a two-year statute of limitations in any action sounding in tort against a political subdivision. Koncsol v. Niles, 105 Ohio App.3d 535, 538, 664 N.E.2d 616, 618 (11th Dist.1995); and Mauldin v. Youngstown Water, Dept., 7th Dist. No. 19 MA 0010, 2019-Ohio-5065, 150 N.E.3d 433, { 14. Plaintiff, therefore, was required to bring his negligence claim against Mentor within two-years and his Takings Clause claim within four-years of the claims beginning to accrue. Plaintiff does not dispute in his Response that his claims could have begun to accrue prior to his purchase of the property. Plaintiffs sole argument that his claims were filed before the expiration of the statute of limitations is based upon his misapplication of the discovery rule. However, the discovery rule does not apply to Plaintiff's claims because the blocking of sewage access to the property would manifest itself to a property owner immediately. Harris v. Liston, 86 Ohio St.3d 203, 207, 1999-Ohio-159, 714 N.E.3d 377. Notwithstanding, the fact that Plaintiff's brother was absent from the property prior to Plaintiffs purchase is irrelevant because a property owner has a duty to maintain his property pursuant to the City of Mentor’s property maintenance code. Mentor Codified Ordinances 1367.01 (“The owner shall be responsible for ensuring that premises, including drainage facilities, are maintained in good repair and appearance in compliance with this code”) and Mentor Codified Ordinances 1373.03 (“The owner shall register with the Department of Planning and Development not later than ninety (90) days after a dwelling located in an area zoned for residential use in the City becomes vacant”). A reasonable owner of the property abiding by Mentor’s city ordinances should have discovered, as a matter of law, that the property was cut-off from sewage access shortly after the school zone sign was installed in June 2015. Accordingly, both of Plaintiff's claims are barred by the applicable statute of limitations. Plaintiff's negligence claim became time barred in 2017 and his Takings Clause claim in 2019. F, Conclusion. Plaintiff failed to allege facts in his Complaint establishing a viable negligence or takings clause claim against Mentor. Accordingly, for the above-mentioned reasons as well as those contained in Mentor’s Memorandum in Support, Mentor respectfully requests this Honorable Court grant its Motion to Dismiss on all of Plaintiff's claims. Respectfully submitted, JOSEY J. SANTORO (0068294) MATTHEW A. SMARTNICK (0096932) GALLAGHER SHARP LLP 1215 Superior Avenue, 7" Floor Cleveland, Ohio 44114 (216) 241-5310 (phone) (216) 241-1608 (fax) jsantoro@gallaghersharp.com msmartnick@gallaghersharp.com Counsel for Defendant, The City of Mentor CERTIFICATE OF SERVICE A copy of the foregoing Reply in Support of Motion to Dismiss has been served by electronic mail, only, this 9th day of September 2021 upon the following: Matthew C. Rambo, Esq. matthew@freeburglaw.com David A. Freeburg, Esq. david@freeburglaw.com Freeburg & Freeburg LLC 6690 Beta Drive, Suite 320 Mayfield Village, OH 44143 Counsel for Plaintiff L. Terrence Ufholz, Esq. tufholz@rlbllp.com 50S. Main Street, 10" Floor Akron, OH 44308 Counsel for Defendant, Perram Electric, Inc. John T. McLandrich, Esq. jtm@mrrlaw.com Mazanec, Raskin & Ryder Co., L.P.A. 100 Franklin’s Row 34305 Solon Road De Lon fe Cleveland, OH 44139 Counsel for Defendant, Lake County JOSEWH J. SANTORO (0068294) MATTHEW A. SMARTNICK (0096932) GALLAGHER SHARP LLP Counsel for Defendant, The City of Mentor