Sexton v. Mason

• Decision Date: 06 March 2008
• Docket Number: No. 2007-0305.,2007-0305.
• Citation: 2008 Ohio 858,117 Ohio St.3d 275,883 N.E.2d 1013
• Parties: SEXTON et al., Appellants, v. CITY OF MASON et al., Appellees.
• Court: Ohio Supreme Court

883 N.E.2d 1013

117 Ohio St.3d 275

2008-Ohio-858

SEXTON et al., Appellants, v. CITY OF MASON et al., Appellees.

No. 2007-0305.

Supreme Court of Ohio.

Submitted November 27, 2007.

Decided March 6, 2008.

Whitaker & Shade, L.L.C., and James A. Whitaker, for appellants.

Reminger & Reminger Co., L.P.A., and B. Scott Jones, Cincinnati, for appellee Rishon Enterprises, Inc.

Herfel Law Firm, L.L.C., and Gary L. Herfel, for appellee McGill Smith Punshon, Inc.

Dinsmore & Shohl, L.L.P., Gary E. Becker, and Melissa L. Korfhage, Cincinnati, for appellee city of Mason.

Vorys, Sater, Seymour and Pease, L.L.P., Richard D. Schuster, and Michael J. Hendershot, Columbus, urging affirmance for amicus curiae, Ohio Manufacturers' Association.

O'CONNOR, J.

{¶ 1} This appeal requires us to address issues regarding the statute of limitations that is applicable to claims for damage to real property occasioned by rainwater draining from adjacent land.

{¶ 2} Plaintiffs-appellants, Larry and Peggy Sexton, assert that flooding and erosion on their property was caused by the defendants' negligent acts on the adjoining property. The trial court and the court of appeals determined that the statute of limitations for appellants' claims expired prior to the filing of their suit because their claims were not based on a continuing trespass but on a permanent trespass that had been fully completed more than four years prior to the filing of the suit. A finding of a continuing trespass would have tolled the statute of limitations. For the reasons that follow, we affirm the judgment of the court of appeals.

I

{¶ 3} The Sextons built a home just outside the city limits of Mason and moved into the home in 1988. A creek runs through the Sextons' property, and they built a bridge over the creek in order for their driveway to cross it.

{¶ 4} In the late 1980s, the development of a subdivision, "Trailside Acres," began on adjacent property within the Mason city limits. Appellee, Rishon Enterprises, Inc. ("Rishon"), was the developer of Trailside Acres. Rishon contracted with appellee McGill Smith Punshon, Inc. ("McGill"), an engineering company, to design the stormwater drainage system for the subdivision. McGill completed all of its engineering services on the subdivision in 1994. Rishon's work on the subdivision was completed in 1995.

{¶ 5} As the development of the subdivision progressed, the Sextons began to experience water problems. The problems worsened in 1992, with water rising in the creekbed, going over the bridge, and flooding the Sextons' property in periods of heavy or prolonged rains. There had been no water problems prior to the subdivision construction. Therefore, the Sextons attributed the problems to the development.

{¶ 6} In 1995, Peggy Sexton wrote a letter to a Mason city official expressing the Sextons' concerns. That letter stated that the creek at one time had been dry most of the summer and that water in the creek had never been very deep until approximately one to two years after the Sextons built their home in 1988. The letter further stated:

{¶ 7} "The creek, which is now always running, frequently floods and comes over our [bridge] headers * * *. The force of the flow is eroding our land, and killing trees on the bank. All of this is coming from the * * * Trailside subdivision.

{¶ 8} "* * *

{¶ 9} "During a storm, I cannot even drive over our bridge, as the water comes over walls that are over a foot above the road. If the creek comes another 2-3 inches higher than it does on a regular basis (like during a good spring rain) our basement will be flooded." (Emphasis sic.)

{¶ 10} In the summer of 2001, after an all-day rain, the Sextons' basement filled with water that entered the house with considerable force. The water rose to a depth of five feet in the basement and damaged the contents. Prior to that event, the Sextons had never experienced flooding inside their home. The Sextons' driveway was blocked by flooding so deep that firemen who responded to a 911 call were unable to drive their vehicle up to the house.

{¶ 11} The Sextons worked with city officials and city employees for a number of years in an attempt to address their water issues, but those discussions, according to Peggy Sexton, "broke down" in 2003. On July 14, 2003, the Sextons filed a complaint against the city and its engineering department concerning the water problems. On August 27, 2003, the Sextons filed an amended complaint that added Rishon and McGill as defendants. One of the Sextons' claims was that the negligence of the defendants caused the flooding of their property.

{¶ 12} The city and Rishon separately moved to dismiss the complaint, or alternatively, for summary judgment. McGill also moved for summary judgment. Along with other arguments, the defendants urged that the complaint was time-barred by the four-year statute of limitations of R.C. 2305.09 because the cause of action had accrued in 1992 (or at the latest in 1995) but the complaint was not filed until 2003.

{¶ 13} A magistrate issued decisions overruling the motions of the defendants. The magistrate held that the Sextons' complaint stated a cause of action for a continuing trespass and that "the action may be brought at any time prior to the expiration of the prescriptive period of 21 years, but recovery may be had only for damages sustained within four years prior to the filing of the action."

{¶ 14} After the defendants filed objections to the magistrate's decisions, the trial court initially agreed with the magistrate's reasoning. The trial court stated that "[t]here is no dispute that the Plaintiffs first discovered or became aware of the water problems on their property in 1992," so that the statute of limitations began to run at that time. However, the trial court held that the statute of limitations did not bar all of the claims because the Sextons' complaint stated claims for a continuing trespass.

{¶ 15} The trial court later reconsidered its decision and granted summary judgment to all defendants. In granting summary judgment to Rishon and McGill, the trial court ruled that the Sextons' claims were based on a permanent trespass (rather than a continuing trespass as the court had ruled earlier) and that the four-year statute of limitations in R.C. 2305.09 applied to bar all claims. In granting summary judgment to the city, the trial court held, inter alia, that the city was entitled to sovereign immunity under R.C. Chapter 2744.

{¶ 16} The court of appeals affirmed the judgment of the trial court in all respects. In the part of that decision pertinent to this appeal, the court of appeals held that this case involves a permanent rather than a continuing trespass and that the damage to the Sextons' property occurred when the subdivision was constructed. The court of appeals further held that because McGill completed its work on the project in 1994 and because Rishon completed its work in 1995, and there was no ongoing conduct by either defendant after the work was completed, even though damages continued, the "tortious act" of each was completed in those years and the claims were time-barred.

{¶ 17} This court accepted for review only one of the Sextons' propositions of law in this discretionary appeal: "A claim for a continuing trespass may be supported by proof of continuing damages and need not be based on allegations of continuing conduct."¹ 113 Ohio St.3d 1488, 2007-Ohio-1986, 865 N.E.2d 913.

II

{¶ 18} In Harris v. Liston (1999), 86 Ohio St.3d 203, 714 N.E.2d 377, paragraph one of the syllabus, this court held:

{¶ 19} "Tort actions for injury or damage to real property are subject to the four-year statute of limitations set forth in R.C. 2305.09(D)."

{¶ 20} Pursuant to Harris, which involved facts similar in many respects to those of this case, the four-year statute of limitations of R.C. 2305.09(D) clearly applies to the Sextons' claims.

{¶ 21} In Harris, we held:

{¶ 22} "A negligence action against a developer-vendor of real property for damage to the property accrues and the four-year statute of limitations of R.C. 2305.09(D) commences to run when it is first discovered, or through the exercise of reasonable diligence it should have been discovered, that there is damage to the property." 86 Ohio St.3d 203, 714 N.E.2d 377, paragraph two of the syllabus.

{¶ 23} The record fully supports the trial court's observation that for purposes of the discovery rule stated in Harris's second syllabus paragraph, the Sextons discovered the damage in 1992, so the statute of limitations commenced to run at that time. The record also fully supports that the Sextons were aware that the damage to their property was caused by the development of the subdivision.

{¶ 24} Although Harris is factually very similar to this case, the Sextons argue that Harris is distinguishable and does not control the result here. Conversely, based on the factual similarities of this case and Harris, the defendants argue that Harris fully controls the result and that further inquiry is unnecessary.

{¶ 25} In Harris, the plaintiffs claimed that a property developer "had been negligent in failing to design and construct an adequate water-management system" for the subdivision in which their home was located. 86 Ohio St.3d at 204, 714 N.E.2d 377. The plaintiffs' home had been built by previous owners in 1985, and the water-management system had been completed prior to that time. Id. at 203, 714 N.E.2d 377. The previous owners were aware in 1985 that a "water situation" existed on the property. Id.

{¶ 26} In reversing the trial court's grant of summary judgment to the developer, the court of appeals in Harris had held that the plaintiffs' negligence claims were timely filed and that genuine issues of material fact existed regarding the design and implementation of the water-management system. Id. at 204, 714 N.E.2d 377. This court reversed the judgment of the court of appeals....