Larry G. Davis and Cora L. Davis v. Henri Mae Allen, Nick Williams, Dba Nick's Bobcat Service, Scott Bohnert, Ed Cunningham, City of Cincinnati, and Allgeier & Son, Inc.
| Decision Date | 18 January 2002 |
| Docket Number | C-010260,C-010202,02-LW-0048,C-010165 |
| Citation | 2002 Ohio 193 |
| Parties | LARRY G. DAVIS and CORA L. DAVIS, Plaintiffs-Appellants v. HENRI MAE ALLEN, NICK WILLIAMS, dba NICK'S BOBCAT SERVICE, SCOTT BOHNERT, ED CUNNINGHAM, CITY OF CINCINNATI, and ALLGEIER & SON, INC., Defendants-Appellees, and JOHN DOE, et al., Defendants APPEAL |
| Court | Ohio Court of Appeals |
Geoffrey P. Damon, for Plaintiffs-Appellants,
David S. Mann, for Defendant-Appellee Henri Mae Allen,
Faulkner & Tepe, LLP, and John C. Scott and Ann E. Schneider, for Defendant-Appellee Nick Williams, dba Nick's Bobcat Service,
Fay D. Dupuis, Cincinnati City Solicitor, and Richard Ganulin, Assistant City Solicitor, for Defendants-Appellees City of Cincinnati, Scott Bohnert and Ed Cunningham,
Eugene M. Gelfand, for Defendant-Appellee Allgeier & Son, Inc.
Plaintiffs-appellants, Larry G. Davis and Cora L. Davis, own property located at 3670 Vine Street in Cincinnati, Ohio. On March 17, 2001, they filed a complaint against defendants-appellees, Henri Mae Allen, Nick Williams, dba Nick's Bobcat Service, Scott Bohnert and Ed Cunningham, building inspectors for the city of Cincinnati, and the city of Cincinnati. They later amended their complaint to add defendant-appellee, Allgeier & Son, Inc.
In their complaint, the Davises alleged that, in May 1995, Williams negligently dumped an excessive quantity of fill dirt on Allen's property at 3565 Lossing Street, which adjoins the Davises' property; that Allen recklessly and unlawfully permitted the dumping and took no remedial action to remedy the problem; and that the dumping caused a landslide on the Davises' property on May 15, 1995, which caused substantial damage.
Subsequently, the city of Cincinnati supervised the removal of the debris from the Davises' property and the erection of a fence designed to prevent further landslides. The city entered into a contract with Allgeier & Sons to demolish and haul away debris from 3565 Lossing Street, to remove debris from a damaged garage and retaining walls, to remove excessive fill dirt, and to grade and seed the property.
Nevertheless, a second landslide occurred in January 1996, and the Davises notified the city. Bohnert and Cunningham, in their capacity as city building inspectors, directed and supervised the removal of debris and a damaged retaining wall, the cutting down of trees, and the erection of fences at the top of the hill on the Lossing Street property and on the Davises' property. Despite the city's efforts, more landslides occurred in 1997, 1998 and 1999.
The Davises pleaded causes of action for negligence, trespass, private and qualified private nuisance and tortious interference with property rights. They also sought a declaratory judgment and injunctive relief. Appellees all filed motions to dismiss the complaint pursuant to Civ.R. 12(B)(6), primarily contending that the applicable statute of limitations had expired. The city, Bohnert and Cunningham also contended that they were immune from liability under R.C. Chapter 2744. The trial court granted appellees' motions to dismiss, without stating its reasons for doing so. This appeal followed.
The Davises present six assignments of error for review. In their first assignment of error, they contend that the trial court erred in granting appellees' motion to dismiss their complaint. They contend that they sufficiently alleged a continuing nuisance and trespass upon their lands, and, therefore, that their complaint was not barred by the statute of limitations. We find this assignment of error to be well taken.
A Civ.R. 12(B)(6) motion tests the sufficiency of the complaint, and the trial court, in ruling on such a motion, must take all the allegations in the complaint as true, drawing all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756; Pollock v. Rashid (1996), 117 Ohio App.3d 361, 367, 690 N.E.2d 903, 908. A court may dismiss a complaint on a Civ.R. 12(B)(6) motion only when it appears beyond doubt that the plaintiff can prove no set of facts that would entitle the plaintiff to relief. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 327 N.E.2d 753, syllabus; Pollock, supra, at 367-368, 690 N.E.2d at 908.
Ordinarily, the defense that an action is barred by the statute of limitations cannot be raised by a motion to dismiss, as that defense usually relies upon facts outside the complaint and must be addressed by summary judgment. Steiner v. Steiner (1993), 85 Ohio App.3d 513, 518-519, 620 N.E.2d 152, 156; Burkhalter v. Ohio State Hwy. Patrol (July 19, 2001), Franklin App. No. 00AP-1310, unreported. A court may not dismiss a complaint on statute-of-limitations grounds where the statute's bar is not clearly evident from the wording of the complaint. Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, 433 N.E.2d 147, paragraph three of the syllabus; Boll v. Griffith (1987), 41 Ohio App.3d 356, 357, 535 N.E.2d 1375, 1376.
Actions for damages, whether based on a nuisance or a tort theory, are governed by the four-year statute of limitations set forth in R.C. 2305.09(D). Velotta, supra, at 378-379, 433 N.E.2d at 150; Wood v. American Aggregates Corp. (1990), 67 Ohio App.3d 41, 44-45, 585 N.E.2d 970, 972-973. The complaint here was not filed within four years of the original landslide in 1995. The Davises contend, however, that this case involved a continuing nuisance and trespass, and that they suffered continuing damages from 1995 until 1999.
A continuing trespass or nuisance occurs when the defendant's tortious activity is ongoing, perpetually creating fresh violations of the plaintiff's property rights. The damage caused by each fresh violation is an additional cause of action. Valley Ry. Co. v. Franz (1885), 43 Ohio St. 623, 627, 4 N.E. 88, 91; Haas v. Sunset Ramblers Motorcycle Club, Inc. (1999), 132 Ohio App.3d 875, 878, 726 N.E.2d 612, 613-614; Frisch v. Monfort Supply Co. (Nov. 21, 1997), Hamilton App. No. C-960522, unreported.
Appellees contend that this case involved a permanent trespass or nuisance, for which but one action lay. A permanent trespass occurs when the defendant's tortious act has been fully accomplished, but injury to the plaintiff's estate from that act persists in the absence of further conduct by the defendant. Franz, supra, at 625, 4 N.E. at 88; Haas, supra, at 878, 726 N.E.2d at 614; Frisch, supra.
Our review of the complaint convinces us that the Davises pleaded sufficient facts to show a continuing trespass. This case is distinguishable from Frisch, supra, where the entire injury was caused by one act of the defendants: in that case, the improper installation of a home-aeration system. In this case, the continuing failure of the appellees to remedy the problem on the Lossing Street property and the landslides caused by that failure were fresh injuries and caused continuing damages to the Davises. See Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 718, 622 N.E.2d 1153, 1162-1163; Boll, supra, at 358, 535 N.E.2d at 1377; West 11th St. Partnership v. Cleveland (Feb. 8, 2001), Cuyahoga App. No. 77327, unreported. Consequently, the Davises may recover for damages incurred during the four years prior to the filing of the complaint on March 17, 2000, as to all appellees but the city, Bohnert and Cunningham. See Haas, supra, at 878, 726 N.E.2d at 614; Wood, supra, at 45, 585 N.E.2d at 973.
A different statute of limitations applies to the city appellees. R.C. 2744.04(A) provides for a two-year statute of limitations in "[a]n action against a political subdivision to recover damages for injury, death or loss to persons or property allegedly caused by an action or omission in connection with a governmental or proprietary function[.]"[1] Because specific statutory provisions prevail over conflicting general statutes, the two-year statute of limitations applies in any action against a political subdivision. Abdall v. Olexia (1996), 113 Ohio App.3d 756, 758-759, 682 N.E.2d 18, 19; Koncsol v. Niles (1995), 105 Ohio App.3d 535, 538-539, 664 N.E.2d 616, 618. Consequently, the Davises could only have had the potential to recover against the city appellees for damages sustained within two years of the filing of the complaint. See Pope v. Ohio Dept. of Transp. (Ct.Cl.1998), 91 Ohio Misc.2d 230, 233-234, 698 N.E.2d 536, 537-538; Brown v. Southern Ohio Corr. Facility (Ct.Cl.1991), 62 Ohio Misc.2d 337, 340-341, 598 N.E.2d 909, 911; West 11t h St., supra. But, see, Analysis of Fifth Assignment of Error, infra.
We hold that the bar of the applicable statutes of limitation was not evident from the face of the complaint. Accordingly, the trial court erred in granting appellees' Civ.R.12(B)(6) motions to dismiss on the basis that the statute of limitations had run, and we sustain the Davises' first assignment of error.
In their second assignment of error, the Davises contend that the statute of limitations was subject to equitable tolling and, therefore, that the statute of limitations had not expired against any of the named appellees. In their third assignment of error, they contend that when the city and its employees were aware of illegal conduct and began to remedy the nuisance created by the illegal conduct, the statute of limitations was subject to equitable tolling. However, the Davises failed to raise the issue of equitable tolling in the trial court. Issues that are not raised in the trial court are waived and may not be raised on appeal. Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 43, 322 N.E.2d 629, 630; Hatfield v. Wray (2000), 140 Ohio App.3d 623, 632, ...
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