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Jochum v. Jackson Township

Court of Appeals of Ohio, Fifth District

August 19, 2013

RICHARD T. JOCHUM Plaintiff – Appellant,
v.
JACKSON TOWNSHIP Defendant-Appellee v.

Appeal from the Stark County Court of Common Pleas, Case No. 2012CV02341

For Plaintiff-Appellant: DAVID M. WATSON

For Defendant-Appellee: MEL L. LUTE, JR.

Hon. Sheila G. Farmer, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

OPINION

Baldwin, J.

(¶1} Plaintiff-appellant Richard T. Jochum appeals from the December 20, 2012 Judgment Entry of the Stark County Court of Common Pleas granting the Motion for Summary Judgment filed by defendant-appellee Jackson Township.

STATEMENT OF THE FACTS AND CASE

(¶2} Appellant Richard T. Jochum is the owner of real property located on Marshall Drive in Jackson Township. He has lived at the Marshall Road address in excess of 32 years.

(¶3} In 1978, appellant brought an action against appellee, seeking to compel the township to construct a storm water pipe line to alleviate flooding at his house. As memorialized in a Judgment Entry filed in June of 1979, the Stark County Court of Common Pleas ordered the Jackson Township Trustees to furnish all pipes necessary to construct a storm water sewer pipeline along Marshall Drive and to maintain the same. A pipeline was installed in accordance with the court's order.

(¶4} Appellant alleges that because appellee issued an excessive number of building permits for the construction of residential homes between 1979 and the present, the natural flow and absorption of natural surface water was disrupted. He further alleges that as a result, the storm water pipe located in the public right-of-way in front of his home could no longer adequately handle water flow, causing flooding of his property. Appellant installed a number of sump pumps to pump water out of his basement. Appellee eventually installed a small pipeline in appellant's front yard and connected it to the Marshall Road pipeline to allow appellant to attach his hose from the sump pumps directly into the pipeline.

(¶5} On July 25, 2012, appellant filed a verified complaint for mandamus, trespass, nuisance and negligence against appellee. Appellant, in his complaint, alleged that appellee had failed to maintain the storm water pipeline by not replacing the Marshall Drive storm water pipes to accommodate the increase in water flow. Appellant also alleged that the resultant flooding occurring on his property constituted a taking of his property for public use. In response, appellee, on November 19, 2012, filed a Motion for Summary Judgment. Appellee, in its motion, argued, in part, that it was immune from liability under R.C. Chapter 2744. Appellant filed a response in opposition to appellee's Motion for Summary Judgment on December 6, 2012 and appellee filed a reply brief on December 18, 2012.

(¶6} Pursuant to a Judgment Entry filed on December 20, 2012, the trial court sustained appellee's Motion for Summary Judgment. The trial court, in its Judgment Entry, found that appellee was immune from liability and also that appellant's takings (mandamus) claim failed as a matter of law.

(¶7} Appellant now raises the following assignment of error on appeal:

(ΒΆ8} THE TRIAL COURT ERRED BY DETERMINING THERE WAS NO GENUINE ISSUE OF MATERIAL FACT AND THAT DEFENDANTS WERE ...


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