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Carter v. Complete General Construction Co.

December 4, 2008


APPEAL from the Franklin County Municipal Court. (M.C. No. 2007 CVE 039311).

The opinion of the court was delivered by: Grey, J.



{¶1} Plaintiff-appellee Patrick J. Carter sued defendant-appellee Complete General Construction Company and defendant-appellant City of Columbus for damage caused to his sewer line during road construction. The city filed a cross-claim against Complete General claiming breach of contract and a contractual duty for Complete General to indemnify the city for any liability incurred by the city toward Carter. Complete General cross-claimed against the city asserting claims in negligence and indemnification, both based on allegations that the utility diagrams provided for the project failed to disclose the existence and location of private sewer laterals and that this and other actions by the city breached the city's contractual and statutory duties relating to protection of buried utilities. The city moved for summary judgment on Carter's claims, asserting that it was statutorily immune from tort liability. The trial court denied the city's motion, as well as cross-motions for summary judgment filed by Complete General. The city has appealed the trial court's finding of non-immunity, and Complete General has cross-appealed from the trial court's denial of summary judgment in its favor. Although the trial court's judgment does not resolve all claims as to all parties and would under most circumstances not constitute a final appealable order, the denial of immunity to the city is immediately appealable under R.C. 2744.02(C).

{¶2} The city brings the following sole assignment of error:

The trial court erred by misinterpreting and failing to apply R.C. 2744 et seq, when it denied the City of Columbus' motion for summary judgment despite the fact that the City is entitled to immunity for plaintiff-appellee Patrick Carter's claims.

{¶3} Complete General brings the following assignment of error:

The Trial Court erred when it denied Complete General's motion for summary judgment on its claims for indemnification against the City of Columbus.

{¶4} The pertinent facts of this case are largely uncontested. The city contracted with Complete General for construction services arising from the widening and improvement of Morse Road in Columbus. Part of the work required installation of new lighting standards. The city provided plans and specifications to help locate underground utilities, including the main sanitary sewer. These plans did not, however, depict the sanitary sewer laterals leading to properties along Morse Road.

{¶5} Carter owns a property at 1410 Morse Road, and an attendant sewer lateral connected to the main sewer in the Morse Road right-of-way. While placing foundations for new lighting standards with a 24-inch auger, Complete General unintentionally bored directly above Carter's sewer lateral and severed or crushed it. The cost of repairs to the sewer lateral and damage to Carter's premises from the resulting sewer back-up led to the present lawsuit.

{¶6} We initially note this matter was decided in the trial court by summary judgment, which under Civ.R. 56(C) may be granted only when there remains no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, that conclusion being adverse to the party opposing the motion. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 629, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64.

{¶7} An appellate court's review of summary judgment is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588; Patsy Bard v. Soc. Natl. Bank, nka KeyBank (Sept. 10, 1998), Franklin App. No. 97APE11-1497. Thus, we conduct an independent review of the record and stand in the shoes of the trial court. Jones v. Shelly Co. (1995), 106 Ohio App.3d 440, 445. As such, we have the authority to overrule a trial court's judgment if the record does not support any of the grounds raised by the movant, even if the trial court failed to consider those grounds. Patsy Bard.

{¶8} We further note that a denial of summary judgment is generally not a final appealable order. Celebrezze v. Netzley (1990), 51 Ohio St.3d 89. We therefore may not consider in this appeal any purported error arising from such a denial, with the exception of a grant or denial of statutory immunity for the city. All other questions presented in the case and argued by the parties in this appeal are premature, including Complete General's possible cross-claims for contractual remedies against the city and the city's cross-claims against Complete General.

{ΒΆ9} We will first address the city's contention that it has immunity from all claims stated in Carter's complaint. The city asserts that it is immune from tort liability under R.C. 2744.02, which covers the ...

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