JOHN P. MCKIEL, et al. Appellees
CITY OF LORAIN, OHIO Appellant
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 16CV190113
KENNETH R. RESAR, Attorney at Law, for Appellant.
J. GARGASZ, Attorney at Law, for Appellees.
DECISION AND JOURNAL ENTRY
A. SCHAFER JUDGE.
Defendant-Appellant, City of Lorain, Ohio
("Lorain") appeals the judgment of the Lorain
County Court of Common Pleas denying its motion for summary
judgment on the basis of statutory immunity. For the reasons
that follow, this Court reverses.
Plaintiffs-Appellees, John P. McKiel and Elinor R. McKiel
(collectively, the "McKiels") are the owners of
certain parcels of real property located in the city of
Lorain. The McKiels claim to have experienced an increase in
flooding to their property, which they attribute to
Lorain's approval of plans for the construction of
retention ponds and storm water drainage for a commercial
On July 29, 2016, the McKiels filed a complaint against
Lorain. In the complaint, the McKiels allege that the
flooding has damaged their property and constitutes a taking
of the property. The McKiels seek a writ of mandamus
compelling Lorain to institute eminent domain proceedings for
the involuntary taking of the McKiels' private property
as a result of the flooding and consequent damages. The
complaint also seeks relief in the form of a declaratory
judgment, compensatory damages for the alleged taking in the
amount of $500, 000.00, and further relief such as litigation
costs and an award of attorney fees.
After appearing in the action, Lorain moved for summary
judgment on four separate grounds: (1) the McKiels'
claims are barred by the statute of limitations, (2) the
McKiels were not entitled to a writ of mandamus because they
have an adequate remedy at law, (3) to the extent that the
McKiels seek to recover damages for injury caused to their
property, Lorain is immune pursuant to R.C. 2744.02, and (4)
there are no genuine issues of material fact, and Lorain is
entitled to judgment as a matter of law. The McKiels opposed
the motion. On July 2, 2018, the trial court issued an order
denying Lorain's motion for summary judgment. Lorain
timely appealed the order, raising a single assignment of
error for our review.
Assignment of Error
The trial court's entry and order issued on July
2, 2018 denying [Lorain]'s motion for summary judgment
was improper and contrary to law because the claims set forth
in the McKiels' complaint against [Lorain] are barred, as
a matter of law, due to the governmental immunity granted to
[Lorain] pursuant to the express provisions of Chapter 2744
of the Ohio Revised Code.
In the assignment of error, Lorain contends that the
McKiels' claims against Lorain are barred by R.C.
2744.02, and that the trial court erred in denying summary
judgment on this basis.
Under Civ.R. 56(C), summary ...