Sommer v. Ohio Dep't of Transp.

• Decision Date: 23 December 2014
• Docket Number: No. 13AP-848,13AP-848
• Citation: 2014 Ohio 5663
• Court: Ohio Court of Appeals
• Parties: Nick Sommer et al., Plaintiffs-Appellants, v. Ohio Department of Transportation, Defendant-Appellee.

2014 Ohio 5663

Nick Sommer et al., Plaintiffs-Appellants, v. Ohio Department of Transportation, Defendant-Appellee.

No. 13AP-848

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

December 23, 2014

(Ct. of Cl. No. 2012-04715)

(REGULAR CALENDAR)

DECISION

Seeley, Savidge, Ebert & Gourash, Co., LPA, Gary A. Ebert, Thomas Haren, Jazmyn Stover, and Andrew D. Bemer, for appellants.

Michael DeWine, Attorney General, and Velda K. Hofacker, for appellee.

APPEAL from the Court of Claims of Ohio

BROWN, J.

{¶1} This is an appeal by plaintiffs-appellants, Nick Sommer and Alyssa Birge, from an entry of the Court of Claims of Ohio granting summary judgment in favor of defendant-appellee, Ohio Department of Transportation ("ODOT"), on appellants' claims for inverse condemnation and nuisance arising out of a bridge construction project undertaken by ODOT.

{¶2} The following background facts regarding ODOT's bridge construction project, which are essentially not in dispute, are taken primarily from the affidavit of David Lastovka, ODOT's project manager for the "Cleveland Innerbelt Project" (hereafter "the bridge project"). In 2007, appellants purchased a home in the Tremont neighborhood of Cleveland, located at 1107 University Road. In 2010, ODOT beganconstruction of the bridge project to replace the existing "Innerbelt Central Viaduct truss bridge." (Lastovka Affidavit, ¶ 4.)

{¶ 3} The first phase of the bridge project involved "the Walworth Run Sewer Realignment Project" ("the sewer realignment project"), which began in September 2010 and was completed in July 2011. (Lastovka Affidavit, ¶ 5.) ODOT coordinated with the Northeast Ohio Regional Sewer District ("NEORSD") to relocate a section of the "Walworth Run sanitary inceptor sewer that was in conflict with the Innerbelt bridge project." (Lastovka Affidavit, ¶ 5.) NEORSD managed the work, "and contracted directly with a contractor to complete that project." (Lastovka Affidavit, ¶ 5.) The sewer realignment project required construction around appellants' home, resulting in "construction noise," and requiring lanes of traffic around appellants' home to be closed. (Lastovka Affidavit, ¶ 5.)

{¶ 4} The construction of new west-bound lanes of the bridge project "required the driving of steel beams, called piles, down 180-200 feet to bedrock" to support the new bridge. (Lastovka Affidavit, ¶ 6.) The pounding of piles into the ground "creates a loud banging sound." (Lastovka Affidavit, ¶ 6.) The construction of the west-bound bridge is set to conclude in 2014. The design and construction of the bridge project will cost $293 million.

{¶ 5} On June 12, 2012, appellants filed a complaint against ODOT, alleging that the work on the bridge project resulted in "extreme noise, pounding and vibrations * * * separate and distinct from that experienced by other affected properties," and causing appellants' home to be uninhabitable. The complaint alleged causes of action for inverse condemnation, as well as public and private nuisance.

{¶ 6} On July 9, 2013, ODOT filed a motion for summary judgment. On July 26, 2013, appellants filed a memorandum contra ODOT's motion for summary judgment. On August 30, 2013, the Court of Claims filed an entry granting ODOT's motion for summary judgment.

{¶ 7} On appeal, appellants set forth the following four assignments of error for this court's review:

I. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE ON PLAINTIFF-APPELLANTS' TAKINGS CLAIM AFTER APPLYING INCORRECT LEGAL STANDARDS WHEN ANALYZING THE CLAIM.

II. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE ON PLAINTIFF-APPELLANTS' TAKINGS CLAIM BECAUSE GENUINE ISSUES OF FACT REMAIN REGADING WHETHER PLAINTIFF-APPELLANTS' INTANGIBLE PROPERTY INTERESTS WERE TAKEN BY THE GOVERNMENT WITHOUT JUST COMPENSATION.

III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE ON PLAINTIFF-APPELLANTS' NUISANCE CLAIM BECAUSE GENUINE ISSUES OF MATERIAL FACT REMAIN REGARDING WHETHER THE HARM SUFFERED BY PLAINTIFF-APPELLANTS WAS DIFFERENT IN KIND THAN THAT EXPERIENCED BY NEIGHBORING HOME OWNERS.

IV. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON PLAINTIFF-APPELLANTS' NUISANCE CLAIM BECAUSE THE NUISANCE CLAIM IS NOT BARRED BY THE DOCTRINE OF DISCRETIONARY IMMUNITY.

{¶ 8} Appellants' first and second assignments of error are interrelated and will be considered together. Under these assignments of error, appellants contend the Court of Claims erred (1) in failing to examine their inverse condemnation (takings) claim under the proper legal standard, and (2) by granting summary judgment in favor of ODOT on their takings claim.

{¶ 9} Pursuant to Civ.R. 56(C), a trial court shall grant summary judgment if the filings in the action, including the pleadings and affidavits, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." This court's review of a trial court's decision on summary judgment is de novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24.

{¶ 10} We initially address appellants' contention that the Court of Claims erred in failing to analyze their takings claim under the three-part test for regulatory takings as set forth in Penn Cent. Transp. Co. v. New York, 438 U.S. 104, 124 (1978). Under this test, "[w]here a regulation places limitations on land that falls short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex list of factors including [1] the regulation's economic effect on the landowner, [2] the extent to which the regulation interferes with reasonable investment-backedexpectations, and [3] the character of the government action." Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001), citing Penn Cent. at 124. Appellants cite a decision of the Sixth District Court of Appeals, Boice v. Ottawa Hills, 6th Dist. No. L-06-1208, 2007-Ohio-4471, ¶ 35, for the proposition that it is error for a trial court to grant summary judgment on a takings claim without evaluating the case in light of the Penn Cent. factors.

{¶ 11} In response, ODOT argues that appellants raise for the first time on appeal the contention that the Court of Claims employed the wrong standard. ODOT contends that, unlike the decisions in Penn Cent. and Boice,¹ relied on by appellants, the instant case does not involve a regulatory takings claim, nor did appellants argue before the Court of Claims that it should apply the Penn Cent. standard for regulatory takings.

{¶ 12} A claim "for inverse condemnation * * * is 'a cause of action against the government to recover the value of property taken by the government without formal exercise of the power of eminent domain.' " State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 62, quoting Moden v. United States, 404 F.3d 1335, 1342 (2005). A "taking" is " '[a]ny direct encroachment upon land, which subjects it to a public use that excludes or restricts the dominion and control of the owner over it * * * for which he is guaranteed a right of compensation by section 19 [Article I of the Ohio Constitution].' " Id. at ¶ 59, quoting Norwood v. Sheen, 126 Ohio St. 482 (1933), paragraph one of the syllabus.

{¶ 13} Under Ohio law, "a 'taking' may occur even where the state has not physically dispossessed the owner." Hurst v. N. Seventh Street Church of Christ of Hamilton, Ohio, 12th Dist. No. CA90-10-204 (July 1, 1991). Rather, "[c]ertain acts by the state which substantially interfere with the elemental rights growing out of ownership of the private property constitute a 'taking' within the meaning of the Ohio Constitution." Id., citing Smith v. Erie RR. Co., 134 Ohio St. 135 (1938.) Thus, a governmental taking involves a "substantial interference with the owner's property rights." Id. In the absence of a showing of physical displacement, a plaintiff "might recover by showing that the damage was directed at his particular property * * * or by showing that the damage was so extreme as to amount to a substantial deprivation of all the rights of ownership." McKeev. Akron, 176 Ohio St. 282, 285 (1964), overruled on other grounds, Haverlack v. Portage Homes, Inc., 2 Ohio St.3d 26 (1982). However, the mere fact that the "property is rendered less desirable as a result of the governmental activity does not in and of itself constitute a taking so as to entitle the owner thereof to compensation." Id.

{¶ 14} As noted, appellants argue that the Court of Claims should have analyzed their takings claim under the test for regulatory takings as set forth in Penn Cent. However, on review of the summary judgment filings, we agree with ODOT that appellants did not raise this issue before the Court of Claims. Specifically, appellants' response to ODOT's motion for summary judgment contains no citation to either Penn Cent. or to its three-part test for evaluating a regulatory takings claim. In general, if "the nonmoving party fails to raise an issue when responding to the moving party's motion for summary judgment, the nonmoving party has waived that issue on appeal." Great Lakes Window, Inc. v. Resash, Inc., 11th Dist. No. 2006-T-0114, 2007-Ohio-5378, ¶ 24.

{¶ 15} We note that, in their brief in opposition to ODOT's motion for summary judgment, appellants argued before the Court of Claims that ODOT had "substantially and materially" interfered with the use of their property, including "physical trespasses" onto their property. Further, appellants' brief cited Norwood in support of their argument that: "In a proper case, damages may be awarded for the temporary taking of a property for public use, where the land is encroached upon and the owner's dominion and control are restricted for a period of time."

{¶ 16} The Court of Claims, in addressing appellants' inverse condemnation claim, applied the general principles argued by appellants in their response to the...