[Cite as Cincinnati v. Harrison,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

CITY OF CINCINNATI, OHIO, : APPEAL NO. C-130195 TRIAL NO. A-0900755 Plaintiff-Appellee, :

vs. : O P I N I O N.

CITY OF HARRISON, OHIO, :

Defendant-Appellant, :

and :

BOARD OF COUNTY : COMMISSIONERS OF HAMILTON COUNTY, OHIO,

Defendant. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: June 30, 2014

Terrance Nestor, Interim City Solicitor, and Frost Brown Todd LLC, Stephen N. Haughey, Matthew C. Blickensderfer and Christopher S. Habel, for Plaintiff- Appellee,

Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere and Michael E. Maundrell, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

C UNNINGHAM , Judge.

{¶1} Defendant-appellant, the city of Harrison, Ohio, appeals from the trial

court’s summary judgment entry denying it the benefit of immunity from suit by the

plaintiff-appellee, the city of Cincinnati. Cincinnati sought declaratory and injunctive

relief to prevent Harrison from providing water service to customers in disputed areas

of western Hamilton County, Ohio. Because sovereign immunity under R.C. Chapter

2744 is not a defense to claims seeking injunctive relief, we affirm the trial court’s entry

of summary judgment, in part. But because the trial court erred in denying Harrison

the protections of the sovereign immunity statutes when it awarded money damages

for lost revenues and attorney fees, we reverse the trial court’s judgment, in part.

Because the other portions of the trial court’s summary-judgment entry that Harrison

seeks review of are not otherwise final, we cannot reach any conclusion on the merits of

these other arguments.

{¶2} Harrison’s sole assignment of error is overruled in part and sustained in

part. Because Harrison was not immune under R.C. Chapter 2744 from the injunctive

and declaratory relief ordered by the trial court, we affirm that portion of the trial

court’s March 27, 2012 judgment. But since Harrison was immune from the damages

awarded under claims sounding in intentional tort, and from the attorney-fees award,

we reverse that portion of the trial court’s judgment

Cincinnati and Harrison Compete for Water Customers

{¶3} We summarized the background of this dispute in our 2010 decision

affirming the trial court’s denial of Cincinnati’s motion for a temporary restraining

order:

The Greater Cincinnati Water Works (GCWW) is a department

of Cincinnati that provides water to the city and a majority of

2 OHIO FIRST DISTRICT COURT OF APPEALS

Hamilton County. Pursuant to [the 1987] contract with [the] Board of

Commissioners of Hamilton County, Ohio, GCWW began to develop a

project called “Water West.” The project was designed to provide for

the water needs of much of the western portion of Hamilton County.

GCWW expended a great deal of capital during the implementation of

the project, constructing water mains and lines throughout the area.

Assumptions were made, based upon projected usage and other

factors, that justified the expenditure and development.

Harrison was offered an opportunity to receive water service

from GCWW by purchasing water wholesale from GCWW, but

Harrison declined. Instead, Harrison decided to provide water to its

own citizens. Additionally, Harrison planned to provide water to two

additional areas: an area that had been annexed by Harrison and

another area of Harrison Township that had not. These two areas

were within the area that GCWW had planned to serve as part of

Water West. In fact, GCWW had already begun construction of its

own water mains in the two areas.

When Cincinnati learned that Harrison had begun the process

of spending public funds to install water mains and to otherwise

prepare to provide competing service, Cincinnati filed suit.

Cincinnati v. Harrison, 1st Dist. Hamilton No. C-090702,

, ¶ 2-4. The

additional “disputed areas” included portions of Crosby Township and northern

Harrison Township including some areas annexed by Harrison.

3 OHIO FIRST DISTRICT COURT OF APPEALS

Cincinnati’s Amended Complaint

{¶4} In February 2011, Cincinnati filed an amended complaint raising seven

claims for relief. Six of the counts alleged intentional conduct by Harrison. In count

one, Cincinnati alleged that Harrison’s encroachment into the disputed areas had

violated Cincinnati’s exclusive right to provide service in those areas. In enacting R.C.

Chapter 6103, Cincinnati argued, the General Assembly had authorized the county and

Cincinnati to enter into intergovernmental agreements for public water systems. See

R.C. 715.02 and 6103.02. Pursuant to those agreements, Cincinnati could “exercise any

power, perform any function, or render any service, on behalf of” the county. R.C.

307.15.

{¶5} Cincinnati contended that those functions included the ability to

enforce its exclusive rights under its 1987 contract with the county. Section 3 of the

contract provided that the county

will not furnish or contract with others to furnish during the term of

this contract, water to anyone within [the disputed areas], except

where [Cincinnati] is incapable of doing so * * *. [And that the county]

shall take no action, nor in any manner aid or assist others in taking

any action * * * to effect the construction or operation of any public

water system in the [County Water Area or in the supplemental Area]

or to secure a source of water supply for any other customers in [those

areas].

{¶6} Section 17 also stated that Cincinnati “is authorized to enforce in the

[disputed areas] all ordinances, laws, standards, specifications, rules and regulations

now or hereafter lawfully in effect in Cincinnati and/or the [County Water Area, the

area outside of Cincinnati consisting of the certain unincorporated territory of

4 OHIO FIRST DISTRICT COURT OF APPEALS

Hamilton County].” Cincinnati alleged that the disputed areas are within the

supplemental County Water Area covered under the contract.

{¶7} In count two, Cincinnati alleged that Harrison’s official legislative acts

authorizing encroachment had unlawfully impaired the county contract. In count five,

it alleged that Harrison had deliberately waited while Cincinnati and the county spent

tens of millions of dollars to develop infrastructure to serve the disputed areas and only

then had engaged in a “line laying contest” with Cincinnati in violation of the doctrines

of waiver, laches, and equitable estoppel. In count seven, Cincinnati asserted that

Harrison had tortiously interfered with the 1987 county contract and its amendments.

{¶8} Cincinnati sought declaratory and injunctive relief. It sought to enjoin

Harrison from taking further steps to encroach into the disputed areas, interfere with

Cincinnati’s ability to pay its existing debts used for improvements, or impair

Cincinnati’s ability to operate under the Water West plan. It also sought a declaration

that the 1987 contract and its amendments precluded Harrison from extending its

water system into the disputed area. Cincinnati’s prayer for relief included an award of

monetary damages, attorney fees, costs, and any other relief to which it was entitled.

{¶9} Harrison answered Cincinnati’s petition and raised, inter alia, the

defense that it was immune from Cincinnati’s claims under R.C. Chapter 2744, the Ohio

sovereign-immunity statute.

{¶10} In September 2011, the trial court granted Cincinnati’s motion to

bifurcate from this case the issues raised in counts three and four of the amended

complaint, alleging that Harrison’s encroachment into the disputed areas was an

unlawful regulatory taking. In April 2012, Cincinnati voluntarily dismissed the Board

of County Commissioners without prejudice under Civ.R. 41(A). Count six of the

5 OHIO FIRST DISTRICT COURT OF APPEALS

amended complaint had alleged that the county had breached the Water Area Contract

with Cincinnati.

{¶11} By mid-2012, the parties had amassed copious amounts of material in

support of their positions, including deposition testimony and numerous documents

from consulting engineers; Cincinnati, county, and Harrison officials; and GCWW

employees. The documentary evidence included emails, letters between city and county

officials, and engineering diagrams of the disputed areas.

{¶12} In July 2012, Harrison moved for summary judgment, asserting that

Cincinnati did not have exclusive authority to provide water to the disputed areas, that

Cincinnati lacked the standing to enforce its claims, that Cincinnati had acted in

conformity with Harrison’s contention that Cincinnati lacked exclusive authority, and

that in the absence of exclusive authority for either municipality to serve water to the

disputed areas, Harrison was entitled to “equal dignity” to provide water service.

Harrison also expressly argued that it was entitled to judgment as a matter of law on its

defense of sovereign immunity. Cincinnati filed a cross-motion for summary judgment

on the remaining counts of its amended complaint: counts one, two, five, and seven.

{¶13} In acknowledgement of the complex issues to be resolved, and with the

consent of the parties, the trial court received testimony from two “clarifying” expert

witnesses—one from each side—before ruling on the motions. See Loukinas v. Roto-

Rooter Servs. Co.,

,

,

(1st

Dist.) (a trial court may consider evidence other than that specified in Civ.R. 56 when

there has been no objection to its use).

The Trial Court’s Summary-Judgment Decisions

{¶14} On March 1, 2013, in a five-page written decision and judgment entry,

the trial court granted Cincinnati’s cross-motion for summary judgment. While the

6 OHIO FIRST DISTRICT COURT OF APPEALS

court’s judgment failed to mention Harrison’s sovereign-immunity defense, we

conclude that the trial court denied it, as it overruled Harrison’s motion for summary

judgment. The court also made specific “hold[ings]” regarding the four counts of the

amended complaint on which Cincinnati had moved for summary judgment:

1. Regarding Count One [alleging a violation of state law],

Cincinnati shall maintain exclusive jurisdiction over water service to

the disputed areas. Further, Harrison is hereby enjoined from any

further acts intended to encroach upon Cincinnati’s water service

rights to these areas.

2. Regarding Count Two [alleging impairment of contract],

Harrison’s legislative actions unlawfully impaired Cincinnati’s

contractual obligations and rights under the * * * contract. Harrison

is hereby enjoined from any further acts that will impair or interfere

with the fulfillment of said contract. Further, Cincinnati is entitled to

damages in the amount of lost revenues from customers that

Harrison began to serve in the disputed areas as well as legal fees,

costs, and expenses incurred by Cincinnati to defend its rights and

obligations under the contract (to be determined at a later date).

3. Regarding Count [Seven, alleging tortious interference with

the 1987 county contract and its amendments]1 Harrison’s actions

unlawfully and [tortiously] interfered with Cincinnati’s rights under

the * * * contract and Harrison is hereby enjoined from any further

1 In its March summary-judgment decisions, the trial court incorrectly referred to count five as alleging tortious interference. That claim was raised in count seven of the amended complaint. The court also referred to count seven as alleging claims for waiver, laches, and equitable estoppel. Those claims were raised in count five. Throughout this opinion, we will refer to the counts by their proper number as found in Cincinnati’s amended complaint.

7 OHIO FIRST DISTRICT COURT OF APPEALS

acts intended to interfere with Cincinnati’s rights under the contract.

Further, Cincinnati is entitled to damages in the amount of lost

revenues from customers that Harrison began to serve in the disputed

areas as well as legal fees, costs, and expenses incurred by Cincinnati

to defend its rights and obligations under the contract (to be

determined at a later date).

4. Regarding Count [Five, arguing laches, waiver, and

estoppel], Harrison’s actions (or lack thereof) (i) constituted a waiver

on its part of any right that it may have had to serve County customers

in the disputed areas; (ii) constituted actionable laches on its part

with respect to any right it may have had to serve County customers in

the disputed area; and (iii) caused Cincinnati to justifiably rely upon

said course of action by expending millions of dollars to provide water

service to the disputed areas, thus equitably stopping Harrison from

encroaching upon Cincinnati’s current service rights. In addition,

Harrison is enjoined from taking any further actions inconsistent with

the court’s declarations regarding waiver, laches, and equitable

estoppel.

{¶15} The trial court’s decision and judgment entry thus: (1) enjoined

Harrison from encroaching and interfering in the disputed areas, (2) awarded damages,

in an amount to be determined later, for the “amount of lost revenues” resulting from

the encroachment, and (3) awarded fees, costs, and expenses, in an amount to be

determined later, for the costs of litigation. Each of these orders effectively denied

Harrison the benefit of its alleged immunity from suit.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶16} In addition to deferring the determination of the amount of lost

revenue, fees, costs, and expenses due to Cincinnati, the court also reserved “the right

to provide further relief as it deems appropriate.” Despite awarding Cincinnati an as

yet undetermined sum for attorney fees, the court did not make any finding that

Harrison had acted maliciously or in bad faith.

{¶17} On March 27, 2013, the trial court issued an amended decision and

judgment. The amended judgment repeated the resolution of the summary-judgment

motions announced on March 1. It also included, at Harrison’s request, the trial court’s

certification that there was no just reason for delay under Civ.R. 54(B). Harrison then

brought this appeal. In a single assignment of error, Harrison contends that the trial

court erred in denying its motion for summary judgment and in granting Cincinnati’s

cross-motion.

An Order Denying Sovereign Immunity Is Immediately Appealable

{¶18} Because an appellate court’s jurisdiction is limited to review of

judgments or final orders, it must determine its own jurisdiction to proceed before

reaching the merits of any appeal. See State ex rel. White v. Cuyahoga Metro. Hous.

Auth.,

,

(1997).

{¶19} Thus, while the denial of a motion for summary judgment is generally

not a final, appealable order, “[w]hen a trial court denies a motion in which a political

subdivision * * * seeks immunity under R.C. Chapter 2744, that order denies the benefit

of an alleged immunity and is therefore a final, appealable order pursuant to R.C.

2744.02(C).” Hubbell v. Xenia,

,

,

,

syllabus and ¶ 9; see Sullivan v. Anderson Twp.,

,

,

, syllabus (the statute permits an immediate appeal, in a multiple-claim

action, of an order denying alleged immunity, even when the order makes no

9 OHIO FIRST DISTRICT COURT OF APPEALS

determination pursuant to Civ.R. 54[B]). Since Harrison is appealing from an order

which denies it the benefit of an alleged immunity, we have jurisdiction to resolve that

issue. See Jones v. Norwood, 1st Dist. Hamilton No. C-120237,

.

The Summary-Judgment Standard

{¶20} The function of summary judgment is to determine from the evidentiary

materials whether triable factual issues exist, regardless of whether the facts of the case

are complex. A court is not precluded from granting summary judgment merely

because of the complexity or length of the factual record. See Gross v. Western-

Southern Life Ins. Co.,

,

, (1st Dist. 1993).

{¶21} Summary judgment is proper under Civ.R. 56(C) when (1) no genuine

issue of material fact remains to be litigated; (2) the moving party is entitled to

judgment as a matter of law; and (3) it appears from the evidence that reasonable

minds can come to but one conclusion, and with the evidence viewed most strongly in

favor of the party against whom the motion for summary judgment is made, that

conclusion is adverse to that party. See Dresher v. Burt,

,

(1996).

{¶22} Harrison’s immunity defense was resolved by the trial court on cross-

motions for summary judgment. We have in the past questioned the wisdom of

resolving matters seeking declaratory judgment by summary judgment, particularly

where the trial court has yet to fully declare the rights, status, and other legal

relations of the parties. E.g., Cincinnati v. Ohio Council 8, Am. Fedn. of State, Cty. &

Mun. Emp., AFL-CIO,

,

(1st Dist. 1994).

Nonetheless, the parties’ election to address the issues by cross-motions for summary

judgment demonstrates that both sides believed that there was no genuine issue of

material fact in dispute and that the court was free to render a decision as to Harrison’s

10 OHIO FIRST DISTRICT COURT OF APPEALS

immunity as a matter of law. See Costanzo v. Nationwide Mut. Ins. Co.,

,

,

(1st Dist.). We review summary-

judgment determinations de novo, without deference to the trial court’s ruling. See

Polen v. Baker,

,

(2001).

{¶23} Harrison asserts that it is immune from liability for discretionary

decisions that its legislative and executive officials made in the exercise of governmental

functions to expand its municipal water system. See, e.g., R.C. 2744.03(A). Since

Cincinnati’s claims sound in intentional tort, Harrison argues, inter alia, that the trial

court erred in denying its motion for summary judgment in which it asserted that it was

entitled to immunity under R.C. Chapter 2744.

The Three-Tiered Sovereign-Immunity Scheme

{¶24} R.C. Chapter 2744 provides a three-tiered scheme that grants broad

immunity to political subdivisions. See Colbert v. Cleveland,

, 2003-

Ohio-3319,

. The first tier of the scheme provides a general grant of

immunity: “[A] political subdivision is not liable in damages in a civil action for injury,

death, or loss to person or property allegedly caused by any act or omission of the

political subdivision or an employee of the political subdivision in connection with a

governmental or proprietary function.” R.C. 2744.02(A)(1).

{¶25} Once immunity is established, the next tier of the analysis carves out

certain exceptions to immunity listed in R.C. 2744.02(B) which re-establish the liability

of a political subdivision where there is negligence with respect to the exercise of

proprietary functions.

{¶26} Finally, if any exception applies to re-impose liability, the third tier of

the analysis focuses on whether any of the defenses contained in R.C. 2744.03 apply to

reinstate immunity. See Munday v. Lincoln Hts., 1st Dist. Hamilton No. C-120431,

11 OHIO FIRST DISTRICT COURT OF APPEALS

; see also R.K. v. Little Miami Golf Ctr.,

,

, ¶ 8 (1st Dist.).

{¶27} Here, Harrison argues that since Cincinnati’s claims sound in

intentional tort, it was entitled to immunity under R.C. Chapter 2744. Cincinnati

claimed that Harrison had tortiously interfered with and impaired its contract with the

county to provide water to the disputed areas. Cincinnati did not assert damages

arising from Harrison’s negligent establishment, expansion, or operation of its water

system in the disputed areas. Rather, Cincinnati argued that Harrison had taken

actions “both as a governmental entity and through its elected officials, deliberately

intended to solicit the County to enter into an agreement with Harrison giving it service

rights in the Disputed Areas despite the County Contract, and deliberately intended to

impair Cincinnati’s rights and duties under the County Contract.” Harrison argues that

these claims are barred by R.C. Chapter 2744, whether it had been engaged in a

governmental function, as it asserts, or in a proprietary function as Cincinnati argues.

See R.C. 2744.01(G)(2)(C) (classifying as a proprietary function “[t]he establishment,

maintenance, and operation of a utility, including but not limited to * * * a municipal

corporation water supply system.”).

{¶28} Harrison is correct that R.C. 2744.02(B) includes no specific exceptions

for intentional torts which would re-establish any liability granted under the first tier.

“[P]olitical subdivisions are immune under R.C. 2744.02 from intentional tort claims.”

Williams v. McFarland Properties, LLC,

,

,

(12th Dist.); see Hubbard v. Canton City School Bd. of Edn.,

,

(2002); R.K. at ¶ 49.

12 OHIO FIRST DISTRICT COURT OF APPEALS

Harrison Is Not Immune to Claims for Injunctive and Declaratory Relief

{¶29} But the resolution of Harrison’s immunity as to the first, or injunctive,

relief ordered by the trial court lies in the General Assembly’s intent in enacting R.C.

Chapter 2744: “[t]o limit the exposure of political subdivisions to money damages.”

Engleman v. Cincinnati Bd. of Edn., 1st Dist. Hamilton No. C-000597,

, *6 (June 22, 2001); see Wilson v. Stark Cty. Dept. of Human Serv.,

,

(1994). Where a political subdivision is not being

subjected to a claim for money damages, the near absolute immunity of R.C.

2744.02(A)—the first tier of the scheme—is not available.

{¶30} R.C. 2744.02(A)(1) extends immunity to political subdivisions against

claims for “damages in a civil action for * * * loss to person or property” but not to

those claims seeking equitable relief. “By its very language and title, [R.C. Chapter

2744] applies to tort actions for damages.” (Emphasis added.) Big Springs Golf Club v.

Donofrio,

,

(9th Dist. 1991). Ohio courts have

uniformly held that while sovereign immunity bars tort claims for money damages, it

has no application in actions for equitable relief. See Portage Cty. Bd. of Commrs. v.

Akron,

,

,

(11th Dist.); see

also Mega Outdoor, LLC v. Dayton,

,

,

(2d Dist.); State ex rel. Johnny Appleseed Metro. Park Dist. v.

Delphos,

,

(3d Dist. 2001); Rocky River v.

Lakewood, 8th Dist. Cuyahoga No. 90908,

; Parker v. Upper

Arlington, 10th Dist. Franklin No. 05AP-695,

(sovereign

immunity is only a defense to tort claims seeking monetary damages, and not to claims

seeking declaratory relief); State ex rel. Fatur v. Eastlake, 11th Dist. Lake No. 2009-L-

037,

, ¶ 41.

13 OHIO FIRST DISTRICT COURT OF APPEALS

{¶31} For example, R.C. Chapter 2744 does not provide immunity to a

political subdivision against a claim of unconstitutional taking of property damaged

during a drug raid. That claim is “constitutional in nature,” and statutory immunity is

not a proper defense to claims that “d[o] not sound in tort.” See Brkic v. Cleveland,

,

(8th Dist. 1997).

{¶32} Where a sign company had sued the city of Dayton for a declaration that

it was entitled to a sign permit outside the right-of-way, for mandamus requiring the

city to prove the sign was installed on property zoned for billboards, for an injunction

restraining the enforcement of a stop-work order, and for compensatory damages, the

trial court granted the city summary judgment on each count of the complaint because

Dayton was “entitled to immunity.” Mega Outdoor, LLC,

, 2007-

Ohio-5666,

. Because “[s]overeign immunity applies to money

damages, not to claims for equitable relief, such as injunctive relief,” the Second District

Court of Appeals held that the trial court had erred in granting summary judgment on

the sign company’s claims for declaratory judgment, mandamus, and injunctive relief.

But the trial court had properly granted summary judgment to the city on the

company’s claim for compensatory damages. See id. at ¶ 53.

{¶33} The established rule that sovereign immunity is not a bar to claims

seeking injunctive relief is not limited to situations where the plaintiff is a private

citizen. Where one municipality had filed a nuisance complaint against another

municipality, seeking an injunction against the operation of its dog park, the trial

court’s dismissal of the claim on the basis of sovereign immunity was reversed because

sovereign immunity under R.C. Chapter 2744 “applies only to an action for damages.”

Rocky River, 8th Dist. Cuyahoga No. 90908,

.

14 OHIO FIRST DISTRICT COURT OF APPEALS

{¶34} In its July 2012 motion for cross-summary judgment, Cincinnati moved

for summary judgment against Harrison on the four remaining counts of its amended

complaint: count one (violation of state law), count two (impairment of contract), count

five (waiver, laches, and equitable estoppel), and count seven (tortious interference).

As to each count, Cincinnati claimed that it was entitled to “injunctive and declaratory

relief” to enjoin Harrison from further acts of interference with its contract with the

county to provide water to the disputed areas. Cincinnati did not assert any claim in

the motion for monetary damages, though it had in its amended complaint.

{¶35} In its March 2013 judgment granting summary judgment to Cincinnati,

the trial court expressly enjoined Harrison from further acts intended to encroach on

Cincinnati’s water-service rights (count one), to impair or interfere with Cincinnati’s

contract with the county (count two), to violate its decision that Harrison’s actions were

barred by the doctrines of waiver, laches, and equitable estoppel (count five), and to

interfere with Cincinnati’s rights under the contract.

{¶36} Sovereign immunity under R.C. Chapter 2744 is not a defense to claims

seeking injunctive relief. See Portage Cty. Bd. of Commrs.,

,

,

, at ¶ 186. Thus Cincinnati is entitled to judgment as

a matter of law, and the trial court did not err in overruling that portion of Harrison’s

motion for summary judgment asserting that it was entitled to immunity from the

injunctions ordered by the trial court. See Civ.R. 56(C). We overrule that portion of

Harrison’s assignment of error.

Harrison Is Immune From Damages Awarded in Intentional-Tort Claims

{¶37} Unlike the situation where a trial court has awarded declaratory or

injunctive relief, where the court awards money damages as relief for claims sounding

15 OHIO FIRST DISTRICT COURT OF APPEALS

in intentional tort, the political subdivision is immune. See Williams,

,

,

.

{¶38} In its March 2013 judgment the trial court awarded Cincinnati damages

for two counts, the second and the seventh. In both counts, Cincinnati had alleged that

deliberate, intentional conduct by Harrison had impaired and tortiously interfered with

Cincinnati’s county water contract. The trial court awarded Cincinnati “damages in the

amount of lost revenues from customers that Harrison [had begun] to serve in the

disputed areas.”

{¶39} This relief constituted an award of money damages under the first tier

of the sovereign-immunity scheme. See R.C. 2744.02(A)(1). None of the exceptions to

immunity listed in R.C. 2744.02(B) have application to re-establish liability for

intentional torts. Therefore, Harrison is immune from the trial court’s award of

damages for lost revenues. Since the trial court erred in awarding lost-revenues

damages, we sustain that portion of Harrison’s assignment of error.

Harrison Is Immune from the March 27, 2013 Award of Attorney Fees

{¶40} Harrison also argues that in awarding attorney fees to Cincinnati, under

counts two and seven, the trial court denied it the benefit of an alleged immunity under

R.C. Chapter 2477. It maintains that because R.C. 2744.05(A) prevents the trial court

from awarding punitive damages, its award of attorney fees was also barred. See R.K.,

,

, at ¶ 47.

{¶41} This is true where an award of attorney fees is predicated on punitive or

exemplary damages. E.g., Henry v. Akron,

,

(9th Dist. 1985) (since punitive damages were not available against a political

subdivision, “it follows that attorney fees also may not be awarded”). Here the trial

court did not award punitive damages.

16 OHIO FIRST DISTRICT COURT OF APPEALS

{¶42} But there are other grounds to support an award of attorney fees. This

court and the Ohio Supreme Court have held that an independent basis to award fees

against a municipal corporation exists when the award is supported by an express

finding of bad-faith conduct. See Thomas v. Cincinnati, 1st Dist. Hamilton No. C-

050643,

, discretionary appeal not allowed,

,

,

; see also State ex rel. Durkin v. Ungaro,

,

(1988); compare Hunsche v. Loveland,

,

(1st Dist. 1999) (relying on the rule announced in

, but holding that despite a finding of bad-faith conduct, “neither punitive

damages nor attorney fees can be awarded against a municipal corporation”).

{¶43} But in the absence of a finding of bad faith, a trial court errs in awarding

attorney fees not supported by other statutory authority. See Wright v. Fleming, 1st

Dist. Hamilton No. C-070121,

; see also KGM Capital, LLC v.

Jackson, 1st Dist. Hamilton No. C-130438,

. Here the trial court

has made no finding that Harrison acted in bad faith. In the absence of that finding, or

other statutory authority to impose attorney fees, Harrison is entitled to the protection

of R.C. Chapter 2744 and thus is immune from the award of attorney fees ordered by

the court in its March 27 judgment.

{¶44} Since the trial court erred in awarding attorney fees against Harrison,

we sustain that portion of Harrison’s assignment of error.

The Trial Court’s Remaining Orders Not Implicating Immunity Are Not Final

{¶45} Less than two months after Harrison had filed its notice of appeal,

Cincinnati moved to dismiss the appeal in part. Cincinnati did not dispute that the

resolution of Harrison’s immunity was immediately appealable. It argued, however,

that those aspects of the trial court’s summary judgment entry not touching on

17 OHIO FIRST DISTRICT COURT OF APPEALS

immunity, including the measure of restitution and fees, the proper timing and scope of

the injunctive relief, and the award of other relief sought under count one of the

amended complaint, were not yet final orders and thus were not yet appealable, despite

the trial court’s determination that there was no just reason for delay. This was

particularly so where the trial court had expressly reserved the right to provide further

relief. For orders not immediately appealable under R.C. 2744.02(C) to be reviewable,

the orders must be final within the meaning of R.C. 2505.02 and meet the requirements

of Civ.R. 54(B), if applicable. See Gen. Acc. Ins. Co. v. Ins. Co. of N. Am.,

,

(1989). On June 12, 2013, a three-judge panel of this court

overruled the motion. See 1st Dist. Loc.R. 15.1(C).

{¶46} Cincinnati has renewed its argument in the required jurisdictional

statement contained in its appellate brief. See 1st Dist. Loc.R. 16.1(A)(2)(a). Because a

challenge to subject-matter jurisdiction is never waived, we may re-evaluate our

jurisdiction to proceed at any time, even on the consideration of a direct appeal. See

Internatl. Lottery v. Kerouac,

,

(1st

Dist. 1995); see also Civ.R. 12(H)(3); State ex rel. White,

,

. This subsequent decision is guided by a thorough review of the record and,

as here, by the written and oral arguments of counsel.

{¶47} Harrison argues that since the trial court denied its summary-judgment

motion in its entirety and added Civ.R. 54(B) certification to its March 27, 2013

judgment entry, for purposes of conserving judicial resources it is entitled to an

immediate appeal of all the orders contained within the trial court’s amended

judgment. In addition to the damages and fees issues, Harrison argues that the

interpretation of the county water contract, Cincinnati’s rights to enforce it, and the

18 OHIO FIRST DISTRICT COURT OF APPEALS

interpretation of Cincinnati’s rights under R.C. Chapter 6103 are also ready for review.

We now disagree.

{¶48} Orders entered in an action for declaratory judgment, which is a special

proceeding, are final when they affect a substantial right. See R.C. 2505.02(B)(2); see

also Walburn v. Dunlap,

,

,

. It

is beyond cavil that the trial court’s orders implicate Harrison’s substantial rights. See

R.C. 2505.01(A)(1). But here the trial court’s orders not touching immunity are

“tentative, informal, or incomplete” and are subject to change or reconsideration upon

the trial court’s own motion. Cohen v. Beneficial Indus. Loan Corp.,

,

,

(1949). Because the trial court’s orders, even though

entered in a declaratory judgment action, “contemplate further action,” they are not

final. State ex rel. New Concept Hous., Inc. v. Metz,

, 2009-Ohio-

5862,

, ¶ 3; see State ex rel. A & D Ltd. Partnership v. Keefe,

,

(1996); State ex rel. Dewine v. Big Sky Energy, 11th Dist.

Ashtabula No. 2012-A-0042,

. Only after the trial court has

resolved these matters and has entered a final judgment will they be ready for appellate

review.

{¶49} Because the other orders Harrison seeks review of are not otherwise

final, “this court’s jurisdiction in this appeal, arising under R.C. 2744.02(C), is limited

to the review of the trial court’s denial of the benefit of immunity.” Jones, 1st Dist.

Hamilton No. C-120237,

; see Todd v. Cleveland, 8th Dist.

Cuyahoga No. 98333,

(appellate review under R.C. 2744.02(C) is

limited to the denial of immunity); Mortensen v. Bd. of Cty. Commrs., 12th Dist. Butler

No. CA2007-04-088,

. When appealing a denial of immunity

under R.C. 2744.02(C), and where the order is not otherwise final and appealable, a

19 OHIO FIRST DISTRICT COURT OF APPEALS

party may not raise other alleged errors concerning the denial of summary judgment.

See Leasure v. Adena Local School Dist.,

,

, 822 (4th

Dist.); see also Inwood Village, Ltd. v. Cincinnati, 1st Dist. Hamilton No. C-110117,

.

Conclusion

{¶50} Harrison’s sole assignment of error is overruled in part and sustained in

part. Because Harrison was not immune under R.C. Chapter 2744 from the injunctive

and declaratory relief ordered by the trial court, we affirm that portion of the trial

court’s March 27, 2013 judgment. But since Harrison was immune from the damages

awarded under claims sounding in intentional tort, and from the attorney fees awarded

here, we reverse that portion of the trial court’s judgment.

{¶51} Since we have overruled that portion of Harrison’s assignment of error

seeking review of issues not directly reaching its immunity, we do not reach any

conclusion on the merits of these other arguments.

Judgment affirmed in part, reversed in part, and cause remanded.

H ENDON , P.J., and F ISCHER , J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

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