Lottridge v. Gahanna-Creekside Invs., LLC

• Decision Date: 04 June 2015
• Docket Number: No. 14AP–600.,14AP–600.
• Citation: Lottridge v. Gahanna-Creekside Invs., LLC, 36 N.E.3d 744 (Ohio App. 2015)
• Parties: Rebecca LOTTRIDGE, Plaintiff–Appellant, v. GAHANNA–CREEKSIDE INVESTMENTS, LLC, et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

36 N.E.3d 744

Rebecca LOTTRIDGE, Plaintiff–Appellant

v.GAHANNA–CREEKSIDE INVESTMENTS, LLC, et al., Defendants–Appellees.

No. 14AP–600.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 4, 2015.

Schermer Law, LLC, and Amy K. Schermer ; Worley Law, LLC, and Caroline Z. Worley, Columbus, for appellant.

Isaac Wiles Burkholder & Teetor, LLC, and Brian M. Zets, Columbus, for appellee City of Gahanna.

Isaac Wiles Burkholder & Teetor, LLC, William Benson, Columbus, and Brandon Abshier, for appellee Dugan & Meyers Construction Services; Dickie, McCamey & Chilcote, PC, Mary Barley–McBride and Mary McWilliams Dengler, Columbus, for appellee BBC & M Engineering, Inc. (nka S & ME Inc.); Reminger Co., L.P.A., and Gregory D. Brunton, Columbus, for appellee GEO Solutions, Inc.; Mazza and Associates, LLC, John Mazza, Columbus, and CNA Staff Counsel, Steven K. Kelley, for appellee George Igel & Co., Inc.; John Nemeth & Associates, Columbus, and David A. Herd, for appellees Gahanna–Creekside Investments, LLC, and Stonehenge Company; Allen, Kuhnle, Stovall & Neuman, LLP, Rick Ashton, Columbus, and Steven Vanslyck, for appellee Stonehenge Company; Weston Hurd, LLP, David T. Patterson and Frederick T. Bills, Columbus, for appellee Bird Houk.

Steptoe & Johnson, PLLC, and James C. Carpenter, for appellee GGC Engineers, Inc.

Opinion

BROGAN, J.

{¶ 1} Appellant, Rebecca Lottridge, appeals from the judgment of the Franklin County Court of Common Pleas in favor of various appellees identified in the complaint and in the trial court's summary judgment decision. The facts underlying this appeal are not essentially in dispute and are set out in the trial court's decision as follows:

This case arises from damages to the plaintiff's property allegedly caused by construction performed by the defendants. The construction at issue, which is referred to as the “Creekside Project”, began in 2005 and was completed in 2006. Aff. Of Mo Dioun, ¶ 4. Part of the project required the installation of a “slurry wall” which was intended to eliminate or reduce subsurface water drainage in the construction area, and an Earth Retention System (“ERS”) to temporarily stabilize the perimeter of the project site until the concrete foundation was complete. The slurry wall and ERS were adjacent to the property owned by the plaintiff. Apparently, at some point during the construction, the slurry wall failed. However, with some minor adjustments and remedial work to the slurry wall and ERS, the project was completed in January of 2006 without further incident. According to a timeline prepared by the plaintiff herself and discussed by the plaintiff during her deposition, she began noticing the effects of the construction near her property as early as 2005. Def. Ex. 21, p. 1. The plaintiff states on her timeline that, at that time, “loud noises began and the building started physically shaking repeatedly ... The shaking cracked the pipes.... drywall cracked and front awnings shook loose.” Id. In the fall of 2005, the plaintiff noted that she “had numerous conversations with GGC about the construction trucks and other heavy equipment coming into our parking lot” and that she “asked them to stop out of concern that it was causing damage” to the parking lot. In spring and summer of 2005, the plaintiff began noticing “minor” horizontal, vertical and stair step cracking all over her building. Id. In August of 2008, the plaintiff was told by engineer Stephen Metz from Shelley, Metz, Bauman, and Hawk that the foundation of the building had “clearly been compromised.” Id. In March of 2009, the plaintiff filed with the Franklin County Board of Revision a “Complaint Against the Valuation of Real Property” explaining that, due to the construction, the building's foundation has been compromised which drastically affected its marketability. Def. Ex. 29. In April of 2009, the plaintiff met with Sadika White, the Deputy Director of Economic Development with the City of Gahanna to discuss the damage cause by the construction and specifically asked her why the City was not protecting neighboring business owners and helping with the financial burden of repairing damage caused to her building caused by the construction. Id., p. 4. Finally, in August of 2011, the plaintiff was informed by Brian Winkler of GGC that BBC & M performed the subsurface investigation and her building's damage was caused by Pile 19 and that the engineer who was drilling had had [sic] hit a boulder close to her building. Id., p. 7.

The plaintiff filed her original complaint in September of 2011 against Gahanna Creekside Investment, LLC, The Stonehenge Company, Inc., and the City of Gahanna. In January of 2013, the plaintiff filed a third amended complaint adding as defendants GGC Engineers, Inc., S & ME, Inc., George J. Igel & Co., Inc., McKinney Drilling Company, LLC, Bird Houk, Geo Solutions, Inc., and Dugan and Meyers Construction Services. In her Complaint, the plaintiff asserts claims for removal of support, negligence, and qualified and absolute nuisance against all defendants. She also asserts claims for negligent hiring and trespass against the City of Gahanna, GCI, and Stonehenge.

The defendants each filed motions for summary judgment arguing that, even assuming the defendants' actions did damage the plaintiff's property, the plaintiff's claims are barred by the statute of limitations. Because they all contain significantly similar arguments, they will be discussed together. The plaintiff contends that, because the injury causing conditions are latent as they arise from the movement of underground soil, the earliest time she realized the full extent of the damage to her property was August of 2011.

(Trial Court June 30, 2014 Decision, at 1–3; R. 292.)

{¶ 2} The trial court determined that Ms. Lottridge's claims against the City of Gahanna were subject to a two-year statute of limitations pursuant to R.C. 2744.04(A) and the claims against the remaining defendants to a four-year statute of limitations under R.C. 2305.09. The court noted, however, that under the discovery rule, the statute of limitations is delayed until the plaintiff discovers or, in the exercise of reasonable care, should have discovered, that he or she was injured by the defendant. Citing Rosendale v. Ohio Dept. of Transp., 10th Dist. No. 08AP–378, 2008-Ohio-4899, 2008 WL 4368580, the court further noted that Ohio courts have routinely applied the discovery rule to cases involving latent property damage, and it is not necessary for the plaintiff to be aware of the full extent of the damages before the cause of action arises.

{¶ 3} The trial court then compared the facts in Rosendale to the facts in the instant matter. There, the plaintiff filed an action against the Ohio Department of Transportation alleging that:

[A] bridge demolition project near his home had damaged his property. The plaintiff had indicated that he noticed “a crack in a wall to his home, layers of dust and dirt, broken windows, and damaged siding,” in May of 2002. Rosendale, 2008-Ohio-4899 [2008 WL 4368580], at ¶ 5. However, the plaintiff did not file his original compliant until February of 2006. Under R.C. 2743.16(A), his claims were subject to a two year statute of limitations. The Court explained that the underlying rationale of the discovery rule fits with latent property-damage actions and, under that rule, it is not necessary for the [ ] plaintiff to be aware of the full extent of the damages before there is a cognizable event that triggers the running of the limitations period. The Court determined that the plaintiff's original action was not timely filed noting that “although appellant may not have known the full extent of the alleged damages to his home, by May 15, 2002, he was aware that his home may have been damaged due to possible negligence of appellee in connection with the construction project near his home.” Id. at ¶ 10.

(Trial Court June 30, 2014 Decision, at 5; R. 292.)

{¶ 4} In holding that there was no genuine issue of material fact that the plaintiff's claims were barred by the statute of limitations, the trial court noted as follows:

Here, the plaintiff's own timeline clearly states that she began noticing problems as early as the summer of 2005. She notes that the shaking from the construction cracked pipes, cracked the drywall, and shook the front awnings loose. She continued noticing cracks in multiple spots all around the building through 2006 and 2007. She spoke with the contractors completing the construction, so she was at least aware that the construction was probably the cause of the damage. Finally, in August of 2008, she was told that the foundation of her building had clearly been compromised.

The plaintiff argues that the statements on her timeline were taken out of context. However, that does not change that fact that she admits in her timeline that she was aware of cracks, she was aware of shaking, she knew who was responsible for the project as she spoke with the contractors, and she was specifically told that the foundation of her building had been compromised. In fact, the plaintiff's timeline indicates that she spoke with representatives of the defendants as early as fall of 2006 and met with them several times. The plaintiff even met with Sadika White from the City of Gahanna to discuss the damage to her property caused by the construction in April of 2009. Consequently, the plaintiff's assertions that she could not have known about the damage until 2011 are not persuasive. As explained in the relevant case law above, the fact that she did not realize the full extent of the damage is immaterial.

Additionally, the plaintiff's claims for trespass and nuisance also fail because the construction activities that make up those claims were completed in the fall of 2006.

In Sexton, the Supreme Court of Ohio upheld the lower Court's grant of summary judgment on the basis that the plaintiff's complaint was not timely, explaining that

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