Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mezger v. Horton

Court of Appeals of Ohio, Twelfth District

July 8, 2013

STEVE MEZGER, Plaintiff-Appellant,
v.
JOSEPH HORTON, et al., Defendants-Appellees.

CIVIL APPEAL FROM BROWN COUNTY MUNICIPAL COURT Case No. CVF1200255

Donald K. Swartz, for plaintiff-appellant

Jeffrey C. Turner, David B. Shaver, One Prestige Place, for defendants-appellees, Joseph Horton, Barbara Watson & Hank Dingus

OPINION

PIPER, J.

{¶ 1} Plaintiff-appellant, Steve Mezger appeals a decision of the Brown County Court of Common Pleas, awarding summary judgment in favor of defendants-appellees, Joseph Horton, Barbara Watson, and Hank Dingus.

{¶ 2} Mezger farms land located in Sterling Township. In order for Mezger to access the farmland, Mezger drives his farm equipment on Steward Harbough Road. In October 2011, Mezger felt that he could not drive his new and wider combine down Steward Harbough Road because the trees and brush had become overgrown during the summer. Mezger contacted Horton, Watson, and Dingus, who are Trustees for Sterling Township (the Trustees). Mezger asked the Trustees to trim the overgrowth and to have the residents on Steward Harbough Road move their mailboxes away from the road to accommodate his larger combine. When the Trustees had not trimmed the brush, Mezger took it upon himself to cut the trees and vegetation along the road. He then submitted an invoice for $1, 863 to the township for payment. When the Trustees did not pay the invoice, Mezger filed suit.

{¶ 3} Mezger alleged in his complaint that (1) the Trustees had a statutory duty to keep the road free from obstructions according to R.C. 5571.02 and R.C 5579.08, (2) he was owed punitive damages because the Trustees had failed to investigate and eliminate a known safety hazard, and (3) the Trustees should be removed from office for their neglect to perform official duties. The Trustees moved for summary judgment, arguing that Mezger did not have a private right of action regarding the Trustees' duty to maintain the roadways. The magistrate agreed, and granted summary judgment in favor of the Trustees. Mezger filed objections to the magistrate's opinion, which were overruled. The trial court then adopted the magistrate's opinion, and entered summary judgment in favor of the Trustees. Mezger now appeals the trial court's ruling, raising the following assignment of error.

{¶ 4} THE TRIAL COURT ERRED IN GRANTING DEFENDANTS/APPELLEES SUMMARY JUDGMENT IN THAT PLAINTIFF/APPELLANT FAILED TO ALLEGE A CAUSE OF ACTION AND/OR THAT DEFENDANTS/APPELLEES WERE IMMUNE FROM LIABILITY.

{¶ 5} Mezger argues in his assignment of error that the trial court erred in granting summary judgment in favor of the Trustees. However, Mezger does not challenge the trial court's grant of summary judgment specific to the punitive damages or removal from office. Therefore, this court will analyze the summary judgment claim as it relates to the statutory duty to maintain the township's roadways.

{¶ 6} This court's review of a trial court's ruling on a summary judgment motion is de novo. Grizinski v. American Express Financial Advisors, Inc., 187 Ohio App.3d 393, 2010-Ohio-1945 (12th Dist.). Civ.R.56 sets forth the summary judgment standard and requires that there be no genuine issues of material fact to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion being adverse to the nonmoving party. Slowey v. Midland Acres, Inc., 12th Dist. No. CA2007-08-030, 2008-Ohio-3077, ¶ 8. The moving party has the burden of demonstrating that there is no genuine issue of material fact. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978).

{¶ 7} The nonmoving party "may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing the existence of a genuine triable issue." Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996). A dispute of fact can be considered "material" if it affects the outcome of the litigation. Myers v. Jamar Enterprises, 12th Dist. No. CA2001-06-056, 2001 WL 1567352, *2 (Dec.10, 2001). A dispute of fact can be considered "genuine" if it is supported by substantial evidence that exceeds the allegations in the complaint. Id.

{¶ 8} According to R.C. 5571.02,

The board of township trustees shall have control of the township roads of its township and, except for those township roads the board places on nonmaintained status pursuant to section 5571.20 of the Revised Code, shall keep them in good repair. The board of township trustees, with the approval of the board of county commissioners or the director of transportation, may maintain or ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.