[Cite as Economus v. Independence,

.]

COURT OF APPEALS OF OHIO

COUNTY OF CUYAHOGA EIGHTH APPELLATE DISTRICT

LINDA ECONOMUS, ET AL., :

Plaintiffs-Appellants, : No. 107713 v. :

CITY OF INDEPENDENCE, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: January 30, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-883646

Appearances:

Paul W. Flowers Co., L.P.A., Paul W. Flowers, and Louis E. Grube; Bevan & Associates, L.P.A., Inc., and Thomas W. Bevan, for appellants.

Gregory J. O’Brien, City of Independence Law Director, and William A. Doyle, Assistant Law Director, for appellees.

SEAN C. GALLAGHER, J.:

Plaintiffs-appellants, Linda and Dale Economus (collectively

“plaintiffs”), appeal the trial court’s order granting summary judgment to defendants-appellees, the city of Independence and Donald J. Ramm (“Ramm”), the

city engineer. Plaintiffs also appeal the trial court’s denial of their claim for punitive

damages and attorney fees. Upon review, we reverse the trial court’s decision to

grant summary judgment in favor of the city of Independence on plaintiffs’ claim for

negligent failure to maintain the city’s storm sewer system; we affirm the decision

to grant summary judgment in favor of Ramm on plaintiffs’ claim of individual

liability for recklessness and bad faith; we affirm the denial of the claim for punitive

damages and attorney fees; and we remand the case to the trial court.

I. Factual Background and Procedural History

In 1989, plaintiffs bought two empty sublots (sublot Nos. 5 and 6) in

the Valley Woods subdivision in Independence, Ohio, from the Valley Woods

Partnership. According to plaintiffs, there were not any houses fully constructed in

the subdivision at the time they purchased the sublots and they were one of the first

occupants in the subdivision. Plaintiffs built a home on sublot No. 6 and sold a

portion of sublot No. 5 to Linda’s parents.

At the time of purchase, plaintiffs were aware of the existence of a

retention basin on their property, over which the city possesses a “retention basin

easement.” They also were aware of the existence of a creek, which flows from points

upstream and also runs through the rear yards of several sublots in the subdivision

and into the retention basin on plaintiffs’ property.

The purchase agreement, which plaintiffs signed and entered into on

April 11, 1989, contains the following clause with respect to the creek: It is understood that if a creek affects the subject property and the property may be subject to erosion and drainage problems as a result and the property owner by the acceptance hereof hereby acknowledges same and assumes the risk thereof and agrees to indemnify and hold the City and Seller harmless from any and all claims for erosion and drainage from said creek.

The deed transferring the property from Valley Woods Limited

Partnership to plaintiffs included a legal description of the sublots as well as a

restriction stating that the property was “subject to a retention basin easement and

a utility easement as shown on the dedicated plat.” The plat map contains a “Creek

Acceptance” provision, which states as follows:

It is understood that a creek traverses this subdivision and these properties may be subject to erosion and drainage problems as a result, and all property owners, their successors, and assigns by the acceptance hereof hereby acknowledges the same, and assumes the risk thereof, and agree to indemnify and hold the city of Independence harmless from any and all claims for erosion and drainage from said creek.

The plat map also contains the following note:

There is a retention basin-lake for the subdivision on Sublot No. 6 as shown hereon and the primary maintenance responsibility is hereby placed on the owner of Sublot No. 6. In the event that the owner fails to properly maintain the retention basin-lake the city of Independence is hereby granted easement right to come upon said property to perform same.

Both the deed and plat map were recorded with the Cuyahoga County Recorder’s

office on May 16, 1989, and May 17, 1989.

During his deposition, Dale Economus stated that he did not see the

plat map before purchasing the property, but he admitted that he did not ask to see it either. He stated that he received a copy of the deed after purchasing the property

and after it was recorded.

The city possesses a “storm sewer-drainage ditch easement” over the

area the creek traverses in the subdivision. Additionally, there is a storm sewer in

the subdivision that runs from southwest to northeast under Valley Woods Drive.

The storm sewer outlets at a headwall, and storm water is directed into the retention

basin through a storm sewer pipe from the city’s right-of-way. Thus, the retention

basin accepts storm water from two sources — the waterway flowing through the

storm-sewer drainage ditch easement, as well as from the storm sewer on Valley

Woods Drive. The retention basin has an inflow pipe coming from the storm sewer

on Valley Woods Drive, and there is an outflow pipe that allows water to flow out of

the retention basin when the water level gets too high. The retention basin needs to

be dredged whenever it becomes obvious that it is filling with sediment and debris.

Between June 1993 and September 1996, Dale Economus sent

numerous letters to the city regarding the retention basin and the debris

accumulating in the basin. In many of those letters, he indicated that the retention

basin would need to be dredged and stated that he believed it was the city’s

responsibility to pay for the dredging.

The city has dredged the retention basin more than once, and as many

as three times, in the past. In June 1996 and March 1999, Independence Excavating

issued a “pond-cleaning proposal” for work required to clean “the pond located off

Valley Woods Drive.” In May 2007, Geotech Services performed work on the retention basin. The proposal for the work stated that Geotech was to “clean out

debris and restore eroded embankment caused by storm damage[,] * * * remov[e]

washed in sediment and plac[e] it on the embankment[, and] remov[e] trees and

brush that fell into stream.” In June 2007, Geotech Services sent the city an invoice

for $5,600 for “Emergency storm repair Economus retention basin,” which the city

paid on July 5, 2007.

On May 12, 2014, a severe rainstorm occurred. According to the

plaintiffs’ complaint, “the ability of the retention basin to hold storm water had been

severely compromised” and “the force of the water entering the retention basin was

so great, damage was done to Plaintiff’s property.”

Shortly after the rainstorm, Ramm and Dave Snyderburn, on behalf

of the city, went out to the property to inspect the basin and the damage to plaintiffs’

property. Snyderburn said that there were obstructions in the storm sewer-drainage

ditch easement area, but that the obstructions were typical to any creek. After

walking around the property, Snyderburn and Ramm met with plaintiffs about the

sediment buildup in the retention basin. During that meeting, Snyderburn told

plaintiffs that it was a “bad time” to request help from the city. Snyderburn said

Ramm and he relayed information from the meeting to the mayor and his

administration.

On June 4, 2014, Dale Economus sent a letter to Ramm, stating that

his property was damaged as a result of “significant additional sediment deposits”

and the undermining of the basin’s retaining wall. He stated that the basin would need to be dredged again and that he was contacting Independence Excavating after

failing to receive a response from the city.

Plaintiffs ultimately hired Independence Excavating to replace the

retaining wall. According to plaintiffs, Independence Excavating charged them

$18,500 for the work.1

In September 2015, plaintiffs filed a complaint in Cuyahoga C.P. No.

CV-15-851761. Plaintiffs voluntarily dismissed that complaint without prejudice on

September 1, 2016. In July 2017, plaintiffs refiled their complaint. Plaintiffs

asserted claims for negligence against both the city of Independence and Ramm, and

a claim of trespass against the city. Among other allegations, plaintiffs asserted as

follows:

Plaintiffs have informed the City about the damage and sediment accumulation on their property and the City has refused to fulfill its duties to maintain and keep up the storm sewer drainage ditch and retention basin all causing damage to the Plaintiffs. The storm sewer drainage ditch that is controlled by the City and the storm sewers on Valley Wood Drive are sources of silt, sediment and debris which has caused damages to Plaintiffs because of huge amounts of sediment, silt, and debris which have accumulated over time in the retention basin on Plaintiffs’ property all causing flooding and destruction.

Plaintiffs sought damages in excess of $25,000, and their complaint included a

demand for punitive damages and attorney fees.

In response, the city and Ramm filed a partial motion to dismiss for

failure to state a claim upon which relief can be granted as to plaintiffs’ claim for

1 The record does not contain a receipt or invoice for that alleged service. trespass, and a motion to strike plaintiffs’ demand for punitive damages and

attorney fees. The trial court granted defendants’ motion, dismissing plaintiffs’

trespass claim against the city pursuant to Ohio’s political subdivision immunity

statute, R.C. 2744.01 et seq. The trial court also denied plaintiffs’ claim for punitive

damages and attorney fees and struck that claim from the complaint. On

December 27, 2017, defendants filed an answer.

In July 2018, defendants filed a motion for summary judgment,

arguing that plaintiffs’ claims for negligence (1) fail as a matter of law because they

“purchased their property with notice that the [c]ity bears no responsibility for the

creek in the Valley Woods Subdivision or the lake into which that creek empties”;

(2) fail as a matter of law because “the [c]ity is immune from Plaintiffs’ claims under

R.C. 2744, et seq.”; and (3) are barred by the statute of limitations. Plaintiffs

opposed defendants’ motion for summary judgment and argued there was evidence

establishing that the storm water system is part of the municipal storm sewer system

that the city is legally obligated to service and maintain.

In September 2018, the trial court summarily granted defendants’

motion for summary judgment. This appeal followed.

II. Assignments of Error

Plaintiffs raise three assignments of error for our review:

1. The trial court erred, as a matter of law, by granting summary judgment upon plaintiff[s’]-appellants’ claim against defendant- appellee, city of Independence, for negligent failure to maintain the municipal storm sewer system. 2. The trial court erroneously granted summary judgment in favor of defendant-appellee, Donald J. Ramm, upon plaintiff[s’]-appellants’ claim of individual liability for recklessness and bad faith.

3. The trial court’s determination that punitive damages and legal fees cannot be recovered from employees of political subdivisions is erroneous as a matter of law.

III. Law and Argument

A. Plaintiffs’ Negligence Claim Against the city of Independence

Under their first assignment of error, plaintiffs argue that the trial

court erred in granting summary judgment to the city of Independence on their

claim for negligent failure to maintain the city’s storm sewer system.

Appellate review of summary judgment is de novo, governed by the

standard set forth in Civ.R. 56. Argabrite v. Neer,

, 2016-Ohio-

8374,

. Summary judgment is appropriate only 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] viewing the evidence most strongly in favor

of the nonmoving party, reasonable minds can reach a conclusion only in favor of

the moving party.”

citing M.H. v. Cuyahoga Falls,

,

,

. Also, the interpretation of a written

contract presents a question of law that an appellate court reviews de novo. Boone

Coleman Constr., Inc. v. Piketon,

,

,

.

Pursuant to R.C. 2744.02(B)(2), a political subdivision is liable for

loss to property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivision. R.C. 2744.01(G)(2)(d)

defines a “proprietary function” to include “[t]he maintenance, destruction,

operation, and upkeep of a sewer system[.]” Ohio courts have held that the decision

to provide maintenance and repair to a sewer system does not involve the exercise

of discretion that would reinstate immunity under R.C. 2744.03(A)(5). Harris

Farms, L.L.C. v. Madison Twp. Trustees, 4th Dist. Scioto No. 17CA3817, 2018-Ohio-

4123, ¶ 34; Nelson v. Cleveland, 8th Dist. Cuyahoga No. 98548,

. As

this court stated in Nelson, “[d]ecisions involving the proper maintenance of [the

city’s] sewer or drainage system is a proprietary act, which is mandatory and not

discretionary.” Id. at ¶ 30.

Plaintiffs argue that the city is not entitled to summary judgment

upon the negligence claim because the city failed to maintain and repair its storm

sewer system. Plaintiffs assert that the written instruments concern only a natural

“creek” that existed when the land was developed, that the city may not evade its

legal responsibility to maintain its storm sewer system, and that no immunity is

available pursuant to R.C. 2744.01(G)(2)(d) and 2744.02(B)(2). On the other hand,

the city argues that the language included in the purchase agreement and the plat

map establish that plaintiffs purchased the property subject to the “creek,” that

plaintiffs are solely responsible for the “lake,” and that plaintiffs agreed to indemnify

and hold the city harmless. The city also asserts that it is immune from liability

under R.C. 2744.01 et seq., because the creek is “a natural creek,” the “lake” benefits

only a few Valley Woods residents, the “creek” and the “lake” are not part of the city’s storm sewer system, and the proprietary-function exception for negligent

maintenance of a sewer system does not apply. The city alternatively asserts that

even if plaintiffs could prove the “creek” and “lake” are part of the city’s storm sewer

system, that plaintiffs’ claim is really a claim for negligent design, construction, or

reconstruction and that the discretionary defense under R.C. 2744.03(A)(5) applies.

The central dispute in this matter hinges on whether the city’s storm

sewer system is involved. Under the clear language of the purchase agreement and

the plat map, plaintiffs acknowledged and assumed the risk of erosion and drainage

problems caused by the “creek,” and they agreed to hold the city harmless and

indemnify it against “any and all claims for erosion and drainage from said creek.”

However, plaintiffs never agreed under these instruments to be responsible for the

city’s storm sewer system.

It is well settled that a municipality can be liable for the negligent

maintenance of its sewers and that when a municipality does construct or maintain

them, “‘it becomes its duty to keep them in repair and free from conditions which

will cause damage to private property.’” Nelson, 8th Dist. Cuyahoga No. 98548,

, quoting Doud v. Cincinnati,

,

(1949); see also Smith v. Euclid, 8th Dist. Cuyahoga No. 107771, 2019-Ohio-

3099, ¶ 20. Similarly, Ohio courts have held that a city has no duty to maintain a

private drainage system on private property unless it has been established or used

for public purposes. Bibbs v. Cinergy Corp., 1st Dist. Hamilton No. C-010390,

; see also State ex rel. Stamper v. Richmond Hts., 8th Dist. Cuyahoga No. 94721,

, ¶ 31; Caldwell v. Goldberg,

,

(1975), paragraph one of the syllabus. The city cites no authority

to establish that a city can evade its mandatory duty to maintain a municipal storm

sewer system.

Further, insofar as the city attempts to recast the claim as one for

negligent design, construction, or reconstruction, and to invoke the “discretionary”

defense, there is no merit to this argument. Plaintiffs’ claim is for the city’s negligent

failure to maintain the city’s storm sewer system, which they assert includes the area

of the storm sewer-drainage ditch easement and the retention basin. According to

plaintiffs, “the City has refused to fulfill its duties to maintain and keep up the storm

sewer drainage ditch and retention basin” which has led to “sediment, silt, and

debris which have accumulated over time in the retention basin on Plaintiffs’

property all causing flooding and destruction.” Further, there is evidence in the

record indicating that dredging the retention basin is required for proper

maintenance. Plaintiffs are seeking damages arising from the city’s alleged refusal

to fulfill its legal duty to maintain and repair its storm sewer system. Therefore, the

defense outlined in R.C. 2744.03(A)(5) is not available to the city.

The record in this case presents genuine issues of material fact

concerning whether the storm sewer-drainage ditch easement area and/or the

retention basin are part of the city’s storm sewer system and, if so, as to whether the

city exercised ordinary care in maintaining and repairing the storm sewer system.

There is evidence upon which it could be determined that the storm sewer-drainage ditch easement area, storm sewer pipes, and retention basin in the subdivision are

all part of the city’s storm sewer system.

The evidence reflects that the city possesses a storm sewer-drainage

ditch easement over the channel that runs into the retention basin on plaintiffs’

property. A drainage ditch can be part of a city’s storm sewer system. See, e.g., State

ex rel. Levin v. Schremp,

,

(1995).

Additionally, storm water is directed into the retention basin from the storm sewer

that runs under Valley Woods Drive in the city’s right-of-way and stops at the

headwall on plaintiffs’ property. Don Elewski, the former city engineer, testified in

his deposition that the retention basin is part of the drainage system and that it

serves “to accept the storm water from the subdivision[.]” Elewski Depo., p. 40, 47.

He confirmed there is an inflow pipe into the retention basin from the storm sewer

in the subdivision and an outflow pipe that directs water out of the retention basin

to the other side of the street when the level gets too high. Id. at p. 39-40. He also

agreed that the retention basin needs to be dredged “when it becomes obvious that

it’s filling up with debris.” Id. at p. 41.

Dave Snyderburn, the city’s technical service director, testified in his

deposition that if there was any problem with the retention basin that impeded

water flow, it could affect the storm water drainage in the city in general.

Snyderburn Depo., p. 24. He recognized that the storm sewer-drainage ditch and

the retention basin are part of the storm system that is in the city of Independence.

Id. at p. 51-52. He stated that the city has done work in the storm sewer-drainage ditch easement area to remove trees and debris impeding the flow of water. Id. at

p. 39. He also indicated that the city had dredged the retention basin more than

once. Id. at p. 52. Donald Ramm, the current city engineer, testified that the city

would be responsible to maintain the headwall in the retention basin because it

protects the city’s storm sewer pipe. Ramm Depo., p. 123.

Plaintiffs’ expert, William C. Vondra, Jr., a professional engineer,

opined in his affidavit that “[t]he storm sewer drainage ditch and the creek that flows

through it may have once been a ‘natural channel’ but it ceased being natural when

it became part of the City’s storm sewer drainage system” and that “the proximate

cause of the damage to the Economus property was the negligence on the part of the

City for its lack of inspection, repair and maintenance of the storm sewer drainage

ditch easement area and the basin.” Vondra Aff., ¶ 17, 30.

When construing this evidence in a light most strongly in favor of

plaintiffs, we find there are genuine issues of material fact that prelude summary

judgment on the negligence claim against the city. This court’s prior decisions in

Fink v. Twentieth Century Homes, Inc., 8th Dist. Cuyahoga No. 99550,

, and Stovicek v. Parma, 8th Dist. Cuyahoga No. 102699, 2015-

Ohio-5147, are distinguishable upon their facts. In those cases, there was no

evidence upon which it could be determined that the watercourse at issue was

maintained by the city or used as part of the city’s storm sewer system. In this case,

there is evidence that the storm sewer that runs under Valley Woods Drive stops at

a headwall, which is maintained by the city, and that storm water is directed into the retention basin on plaintiffs’ property through an inflow pipe and exits through an

outflow pipe back to the city’s right-of-way. The city also possesses a “storm sewer-

drainage ditch easement” as well as an easement over the retention basin to make

sure storm water drainage flows unimpeded, and the city has performed

maintenance in these areas in the past. While the circumstances in this case may or

may not rise to the level of a public storm sewer system, viewing the evidence in the

light most favorable to plaintiffs, there is a genuine issue of material fact as to

whether the storm sewer-drainage ditch easement area and retention basin are part

of the city’s storm sewer system. If so, then the trial court will have to consider if the

city is entitled to sovereign immunity as a matter of law.

If the trier of fact determines the city’s storm sewer system is not

involved, then the contractual terms would control. Plaintiffs offer no evidence that

would suggest they did not freely enter into the purchase agreement and have made

no allegations of fraud, duress, or coercion. In fact, in his deposition, Dale

Economus stated that he was aware of the creek and retention basin when he

purchased the property and admitted that he even held off on signing the purchase

agreement because he wanted to take “a better look at” the retention basin. He also

admitted that he was aware of the hold-harmless and indemnity clause in the

purchase agreement. We do not find the clause in the purchase agreement to be

ambiguous.

Nonetheless, plaintiffs argue that the city was not a party to the

purchase agreement and, therefore, cannot enforce the hold-harmless and indemnity clause contained in the purchase agreement. “Courts generally presume

that a contract’s intent resides in the language the parties chose to use in the

agreement.” Huff v. FirstEnergy Corp.,

,

,

, ¶ 12, citing Shifrin v. Forest City Ents., Inc.,

,

(1992). “Ohio law thus requires that for a third party to be an intended

beneficiary under a contract, there must be evidence that the contract was intended

to directly benefit that third party. Generally, the parties’ intention to benefit a third

party will be found in the language of the agreement.”

“The third party need not

be named in the contract, as long as he is contemplated by the parties to the contract

and sufficiently identified. Nor need the third party accept the contract, or even

acknowledge its existence.” Chitlik v. Allstate Ins. Co.,

,

(8th Dist. 1973).

In Huff, the Ohio Supreme Court adopted the “intent to benefit” test

to determine whether a party is an intended beneficiary of a contract. Under that

test,

“if the promisee * * * intends that a third party should benefit from the contract, then that third party is an ‘intended beneficiary’ who has enforceable rights under the contract. If the promisee has no intent to benefit a third party, then any third-party beneficiary to the contract is merely an ‘incidental beneficiary,’ who has no enforceable rights under the contract.”

Huff at ¶ 11, citing Hill v. Sonitrol of Southwestern Ohio, Inc.,

,

(1988), quoting Norfolk & W. Co. v. United States,

(6th Cir. 1980). Here, the city is explicitly named in the purchase agreement, and the

purchase agreement and plat map reflect the parties’ intent to provide a benefit to

the city, namely, to hold the city harmless and indemnify it against any claims based

on erosion or drainage problems from the “creek.” Accordingly, the city is an

intended third-party beneficiary. However, we reiterate that while plaintiffs

acknowledged and assumed the risk associated with the “creek,” nothing in the

language of the instruments obligated them to be responsible for maintaining the

city’s storm sewer system. The city has a mandatory duty to inspect, maintain, and

repair a municipal sewer system.

Finally, we do not find that the claim against the city is barred by the

two-year statute of limitations. R.C. 2744.04(A) provides the following:

An action against a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, whether brought as an original action, cross-claim, counterclaim, third-party claim, or claim for subrogation, shall be brought within two years after the cause of action accrues, or within any applicable shorter period of time for bringing the action provided by the Revised Code. The period of limitation contained in this division shall be tolled pursuant to section 2305.16 of the Revised Code. This division applies to actions brought against political subdivisions by all persons, governmental entities, and the state.

Arguably, the cognizable event that led to the damage to plaintiffs’

property was the heavy rainstorm of May 12, 2014. Therefore, we are unable to

conclude that the action is barred by the statute of limitations.

For the foregoing reasons, we sustain the first assignment of error. B. Plaintiffs’ Negligence Claim Against Ramm

Under their second assignment of error, plaintiffs argue that the trial

court erred in granting summary judgment to Ramm on their claim for individual

liability for recklessness and bad faith.

“‘For the individual employees of political subdivisions, the analysis

of immunity differs.’” Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs.,

,

,

, quoting Cramer v.

Auglaize Acres,

,

,

. Relevant in this

matter, under R.C. 2744.03(A)(6), an employee of a political subdivision is immune

from individual liability unless “the employee’s acts or omissions were with

malicious purpose, in bad faith, or in a wanton or reckless manner[.]”

Here, plaintiffs argue that the exception to immunity under

subsection (A)(6)(b) applies. Accordingly, we must determine “whether, based on

the evidence in the record, reasonable minds could conclude that [the individual

employee of the political subdivision] acted ‘with malicious purpose, in bad faith, or

in a wanton or reckless manner’ so as to preclude immunity.’” Argabrite,

,

,

, quoting R.C. 2744.03(A)(6)(b).

These are “rigorous standards that will in most circumstances be difficult to

establish[.]” Agrabrite at ¶ 8.

“‘Malicious purpose’ is the willful and intentional design to injure or

harm another, generally seriously, through unlawful or unjustified conduct.” Jones

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

. “‘Bad faith’ evinces a ‘dishonest purpose, conscious wrongdoing, the breach of a known duty

through some ulterior motive or ill will, as in the nature of fraud, or an actual intent

to mislead or deceive another.’”

quoting Cook v. Cincinnati,

,

(1st Dist. 1995). “Wanton misconduct” requires “‘the

failure to exercise any care toward those to whom a duty of care is owed in

circumstances in which there is a great probability that harm will result.’”

(Emphasis sic.)

, quoting Anderson v. Massillon,

,

,

, at paragraph three of the syllabus. “Reckless

conduct” is “conduct ‘characterized by the conscious disregard of or indifference to

a known or obvious risk of harm to another that is unreasonable under the

circumstances and is substantially greater than negligent conduct.’”

, quoting Anderson at paragraph four of the syllabus.

Plaintiffs argue that there are genuine issues of material fact as to

whether Ramm acted in a reckless manner or in bad faith, stating that “every

relevant decision that Defendant Ramm made in his capacity as the City Engineer

with regard to the retention pond * * * was calculated and deliberate.” Plaintiffs also

state, “[r]easonable jurors could find that he fully appreciated that the City of

Independence was legally obligated to repair and maintain the municipal storm

sewer system, but decided to defy the law as some sort of misguided cost-saving

scheme.” However, Ramm stated that he did not harbor any personal animosity

toward plaintiffs. He testified that he believed the plaintiffs were responsible for maintaining the retention basin and that the creek was a natural waterway that was

not part of the city’s storm sewer system.

Viewing the evidence in the light most favorable to plaintiffs, no

reasonable juror could conclude that Ramm acted with malicious purpose, in bad

faith, or in a wanton or reckless manner, as those terms are legally defined.

Accordingly, he is entitled to immunity under R.C. 2744.03(A)(6)(b). We overrule

plaintiffs’ second assignment of error.

C. Punitive Damages and Attorney Fees

In their third assignment of error, plaintiffs argue that the trial court

erred in dismissing their claim for punitive damages and attorney fees. We have

already determined that Ramm cannot be held individually liable and is entitled to

summary judgment in this matter. The only remaining claim is against the city.

R.C. 2744.05 provides in relevant part:

Notwithstanding any other provisions of the Revised Code or rules of a court to the contrary, in an action against a political subdivision to recover damages for injury, death, or loss to person or property caused by an act or omission in connection with a governmental or proprietary function:

(A) Punitive or exemplary damages shall not be awarded.

“R.C. 2744.05(A) prohibits the award of punitive damages against a

political subdivision.” Cramer,

,

,

. Accordingly, any error by the trial court in striking the claim for punitive

damages and attorney fees was harmless, and we overrule plaintiffs’ third

assignment of error. Judgment affirmed in part, reversed in part; case remanded.

It is ordered that appellants and appellees share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

___________________________ SEAN C. GALLAGHER, JUDGE

MICHELLE J. SHEEHAN, J., CONCURS; MARY J. BOYLE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION

MARY J. BOYLE, P.J., CONCURRING IN PART AND DISSENTING IN PART WITH SEPARATE OPINION:

I agree with the majority that the trial court properly granted

summary judgment to Ramm on plaintiffs’ claim for negligence and to the city of

Independence and Ramm on plaintiffs’ claim for punitive damages and attorney

fees. I respectfully dissent in part and concur in part, however, because I disagree

with the majority that there are genuine issues of material fact that preclude

awarding the city of Independence summary judgment on plaintiffs’ negligence

claim. It is my view that the record establishes that there are no genuine issues of

material fact and that the moving party, the city of Independence, is entitled to

judgment as a matter of law, and that reasonable minds can come to but one conclusion, and that conclusion is adverse to the Economuses. Thus, I would affirm

the trial court fully.

A. Plaintiffs’ Negligence Claim Against Independence

The majority finds that “[t]he record in this case presents genuine

issues of material fact concerning whether the storm sewer-drainage ditch easement

area and/or the retention basin are part of the city’s storm sewer system and, if so,

as to the whether the city exercised ordinary care in maintaining and repairing the

storm sewer system.” The majority finds that there is evidence that the easement

area and retention basin located on plaintiffs’ property are part of the city’s storm

sewer system. I disagree.

In this case, the plat contained two separate provisions, the “Creek

Acceptance” provision and the note, which stated that the Economuses agreed to

“indemnify and hold the city of Independence harmless from any and all claims for

erosion and drainage from said creek” and that the retention basin on sublot No. 6

was “the primary maintenance responsibility” of the Economuses. Further, the

purchase agreement between the Economuses and Valley Woods Limited

Partnership stated:

It is understood that if a creek affects the subject property and the property may be subject to erosion and drainage problems as a result and the property owner by the acceptance hereof hereby acknowledges same and assumes the risk thereof and agrees to indemnify and hold the City and Seller harmless from any and all claims for erosion and drainage from said creek. The language of both instruments is clear: by purchasing the

property, the Economuses acknowledged and assumed the risk of erosion and

drainage problems posed by the creek and were required to hold the city harmless

and indemnify it from any of such problems. In this case, the Economuses have set

forth claims arising from erosion and drainage. Their complaint alleges that they

suffered damage as a result of debris and sediment coming upstream from the creek

and accumulating in the retention basin on their property and the “shallowness” of

the retention basin.

While plaintiffs acknowledge that “there may have been such a stream

when the property was being developed,” they argue that because the creek is no

longer “natural,” the clauses no longer apply. Plaintiffs argue that due to the

“increased flow rates,” the “creek” became part of the city’s sewer system, for which

they are not responsible under the plat map’s and purchase agreement’s provisions.

I disagree. It is clear that in entering the purchase agreement, the

Economuses understood that they were taking responsibility for the basin on their

property and whatever the effects the creek might have on that basin. The purchase

agreement does not show that the Economuses would not be responsible for it based

on “increased flow rates.” In fact, the Economuses’ argument runs contrary to the

plain language of the plat map and purchase agreement as well as to the clear intent

of the parties to the purchase agreement. Therefore, the clauses are not

“immaterial” as plaintiffs claim and are still enforceable. I agree with the majority that the city is a third-party beneficiary to

the purchase agreement and has the ability to enforce the indemnity clause

contained in that agreement.

I agree with the majority that “plaintiffs offer no evidence that would

suggest they did not freely enter into the purchase agreement and have made no

allegations of fraud, duress, coercion, or overreaching that would support a point

otherwise.” In fact, in his deposition, Dale stated that he was aware of the creek and

retention basin when he purchased the property and admitted that he even held off

on signing the purchase agreement because he wanted to take “a better look at” the

retention basin. He also admitted that he was aware of the hold-harmless and

indemnity clause in the purchase agreement. When asked about the clause

pertaining to the creek in the purchase agreement, Dale stated that he concluded it

“was probably not enforceable” because the “if” rendered the clause ambiguous.

Dale stated that he did not seek legal advice concerning the clause.

While Dale Economus may have honestly believed the clause in the

purchase agreement was ambiguous, I, like the majority, do not. The language is

clear, and under that language, plaintiffs are required to hold the city harmless and

indemnify it on its claims in this case.

Because it finds that summary judgment was improper on the

negligence claim against the city of Independence, the majority does not address

plaintiffs’ argument that defendants failed to cite case law “recognizing that political

subdivisions can indeed evade their statutory obligations to their citizens through such contracts of adhesion” and “anticipatory disclaimers of liability are generally

viewed with disfavor.” However, I believe that plaintiffs waived these arguments by

not raising them below in their motion in opposition to summary judgment. See

Jacubenta v. Ranch, 8th Dist. Cuyahoga No. 98750,

(“CR

Cleveland did not pursue any argument regarding whether the Policy was

ambiguous in the trial court, and so it has waived this argument on appeal.”).

Further, the majority also does not address plaintiffs’ argument that

because Independence “had maintained and dredged the basin for almost 20 years

and never sought assistance, financial or otherwise from the Plaintiffs, the [c]ity is

barred by the doctrine of waiver from denying its ongoing duty imposed by R.C.

2744 et seq. to inspect, maintain, and repair the retention basin and storm sewer

drainage ditch easement area”; however, plaintiffs raised that argument in their

brief in opposition to summary judgment and not on appeal. Therefore, I would find

that they have waived that argument. I would also find that any action that the city

took in order to assist the Economuses was not the result of a legal duty, but instead,

in the nature of good offices. See Johnson v. Wickliffe, 11th Dist. Lake No. 2003-L-

159,

(“It is our view that any involvement between the city

engineer’s office and appellants was in the nature of good offices and not as the

result of any legal duty.”).

B. Plaintiffs’ Remaining Claims

Turning to plaintiffs’ remaining claims — a claim of negligence

against Ramm and a claim for punitive damages and attorney fees against Ramm and the city of Independence — I agree with the majority that the trial court’s grant

of summary judgment to Ramm and the city of Independence on those claims was

proper. I would point out, though, that based on my belief that the city of

Independence was entitled to summary judgment on plaintiffs’ negligence claim,

plaintiffs’ third assignment of error regarding their claim for punitive damages and

attorney fees would be moot. See Jones v. Norfolk S. Ry. Co., 8th Dist. Cuyahoga

No. 84394,

(finding the question of punitive damages moot

because it found that the trial court did not err in awarding summary judgment to

appellees).

Accordingly, I concur in part and dissent in part with the majority’s

opinion. Respectfully, I would affirm the trial court in total.