Riscatti v. Prime Properties Ltd. P'ship
| Citation | 2012 Ohio 2921 |
| Decision Date | 28 June 2012 |
| Docket Number | No. 97274,No. 97270,97270,97274 |
| Parties | ALESSANDRA RISCATTI, ET AL. PLAINTIFFS-APPELLEES v. PRIME PROPERTIES LIMITED PARTNERSHIP, ET AL. DEFENDANTS-APPELLANTS |
| Court | United States Court of Appeals (Ohio) |
2012 Ohio 2921
ALESSANDRA RISCATTI, ET AL. PLAINTIFFS-APPELLEES
v.
PRIME PROPERTIES LIMITED PARTNERSHIP, ET AL. DEFENDANTS-APPELLANTS
No. 97270
No. 97274
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
Dated: June 28, 2012
BEFORE: Boyle, J., Stewart, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: June 28, 2012
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ATTORNEYS FOR APPELLANTS
For Cuyahoga County
William D. Mason
Cuyahoga County Prosecutor
Michael A. Dolan
Assistant County Prosecutor
For Northeast Ohio Regional Sewer District
Regina M. Massetti
Julie Blair
Northeast Ohio Regional Sewer District
ATTORNEYS FOR APPELLEES
For Alessandra Riscatti, et al.
Drew Legando
Jack Landskroner
Landskroner, Grieco, Madden, LLC
Stephanie Brooks
Steve Baughman Jensen
Allen M. Stewart
Allen Stewart, P.C.
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Thomas C. Merriman
Chris Nidel
Nidel Law, P.L.L.C.
2002 Massachusetts Avenue, N.W.
For High Point Marathon, Ltd.
Waheeba Abu-Zahrieh
For City of Parma
Timothy G. Dobeck
Law Director/Chief Prosecutor
For Petroleum Underground Storage Tank
Mike DeWine
Ohio Attorney General
Cheryl R. Hawkinson
Assistant Attorney General
Executive Agencies
For Prime Properties Limited Partnership
Michael R. Blumenthal
David B. Maxman
Waxman Blumenthal, LLC
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For Speedway Superamerica LLC, et al.
Robert B. Casarona
Christine M. Garritano
Roetzel & Andress, LPA
Shane A. Farolino
Roetzel & Andress, LPA
For United Petroleum Marketing LLC, et al.
Charles A. Nemer
McCarthy, Lebit, Crystal & Liffman
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MARY J. BOYLE, J.:
{¶1} This court sua sponte consolidated the appeals by defendants-appellants Cuyahoga County and Northeast Ohio Regional Sewer District ("Sewer District").1
{¶2} Cuyahoga County and the Sewer District (collectively referred to as "defendants") appeal from a trial court's judgment denying their motion for judgment on the pleadings regarding their statute of limitations defense and the trial court's judgment denying their motion for summary judgment with respect to the issue of sovereign immunity. They raise two assignments of error for our review:
"[1.] The trial court erred in denying defendants-appellants' [Civ.R. 12] motions as the statute of limitations set forth in [R.C.] 2744.04 bars plaintiff's [sic] claims.
"[2.] The trial court erred in denying 'in part' defendants-appellants' motion for summary judgment as the appellant [sic] is immune from liability under [R.C.] 2744.02 and the appellee's [sic] failed to meet their evidentiary burden under [Civ.R. 56]."
{¶3} Finding no merit to their arguments, we affirm the decision of the trial court.
{¶4} Plaintiffs-appellees are current and former residents who live or lived on State Road in Parma. On August 29, 2009, an explosion occurred in the basement of the
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home of plaintiffs Alessandra and Elisabetta Riscatti and Laszlo Beres ("Riscattis"). According to the complaint, "flames exploded from the sanitary sewer in the basement." An investigation revealed that the explosion was caused by concentrated gasoline vapors that originated from drain pipes connected to underground storage tanks beneath a Marathon gas station near the Riscattis' home. The drain pipes, built by Marathon in 1982, were connected to the sanitary sewer main and designed to keep the underground tank from floating if the ground-water table rose in response to rain or snow melt. As the water level within the cavity rose, the drain pipes flushed the excess contents of the underground storage cavity into the sanitary sewer main. Thus, groundwater contaminated with gasoline from the storage tanks would repeatedly be discharged into the sewer main, especially during heavy rains.
{¶5} The City owns the public sanitary sewer lines. But as of May 1, 2008, the County agreed to provide mainline cleaning and televising services to the sewer lines, and to provide maintenance of the sewer lines in the public rights of way.
{¶6} The Sewer District provides sewer maintenance to various municipalities in the region, but only if the municipality contracts with the Sewer District. The Sewer District filed a motion to dismiss, asserting that the City never entered into an agreement with the Sewer District, and thus, the Sewer District never had control or maintenance responsibilities over the sewer lines in Parma.2
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{¶7} Several of the plaintiffs allege that they have smelled gasoline over the years, and some claim to have smelled gasoline in their homes since 1982. Plaintiffs assert that they repeatedly complained of the smell to various entities, including the City, the Sewer District, and the County, but claim they were told that the odors in their home were not caused by gasoline from the Marathon gas station. According to plaintiffs, they were told that the odors were caused by "cooking, natural gas, or sewage gas." Despite plaintiffs' complaints, plaintiffs contend that the various entities "made no effort to determine whether * * * toxic substances originating from the [Marathon station] were penetrating plaintiffs' homes." The gas station was ordered to shut down operations on September 1, 2009, and the storage tanks were capped.
{¶8} Plaintiffs brought suit against the owners and operators of the Marathon gas station (including Marathon Oil Company and Prime Properties Limited Partnership), the Sewer District, the City, the County, and various other entities, alleging that "reasonable inspection would have uncovered that the sanitary sewer system was transmitting [gasoline] to dozens of private homes." The various entities filed several motions, including motions to dismiss and/or motions for judgment on the pleading, asserting multiple defenses. Plaintiffs allege in their complaint that defendants' failure to undertake reasonable inspection caused their damages.
{¶9} The County moved for judgment on the pleadings, claiming the statute of limitations had run. It further moved for summary judgment based on sovereign immunity. The Sewer District joined in the County's motions. The trial court denied
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both of the motions. It is from these judgments that defendants appeal, claiming the trial court erred in doing so.
{¶10} In their first assignment of error, defendants argue that the trial court erred when it denied their motion for judgment on the pleadings based on their statute of limitations defense.
{¶11} Before we review the merits of this assignment of error, however, we must first determine whether we have jurisdiction to do so. Appellate courts have jurisdiction to review the final orders of inferior courts within their districts. Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2501.02. If an order is not final and appealable, then an appellate court has no jurisdiction to review the matter and it must be dismissed. See Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). In the event that the parties involved in the appeal do not raise this jurisdictional issue, an appellate court must raise it sua sponte. See Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus; Whitaker-Merrell Co. v. Geupel Constr. Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972).
{¶12} An appellate court has jurisdiction to review, affirm, modify, set aside, or reverse judgments or final orders. R.C. 2501.01. R.C. 2505.02(B) provides that
[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
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(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy * * *;
(5) An order that determines that an action may or may not be maintained as a class action[.]
{¶13} Generally, a denial of a motion to dismiss is not a final appealable order. Pannunizio v. Hubbard, 11th Dist. No. 2003-T-0143, 2004-Ohio-3930, ¶ 5. That is because "the denial of a motion to dismiss does not determine the primary action or prevent a judgment." Huntington Natl. Bank v. Ewing Lumber Co., Inc., 10th Dist. No. 82AP-785, 1983 WL 3450, *1 (Apr. 5, 1983). "A motion for judgment on the pleadings is the same as a motion to dismiss filed after the pleadings are closed." Accelerated Sys. Integration v. Hausser & Taylor, LLP, 8th Dist. No. 88207, 2007-Ohio-2113, ¶ 33.
{¶14} R.C. 2505.02(B)(1) is the only possibility for a final appealable order in this case, as none of the other subsections could apply. Thus,...
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