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McKiel v. City of Lorain

Court of Appeals of Ohio, Ninth District, Lorain

June 10, 2019

JOHN P. MCKIEL, et al. Appellees
v.
CITY OF LORAIN, OHIO Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 16CV190113

          KENNETH R. RESAR, Attorney at Law, for Appellant.

          ROBERT J. GARGASZ, Attorney at Law, for Appellees.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER JUDGE.

         {¶1} 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.

         I.

         {¶2} 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 development project.

         {¶3} 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.

         {¶4} 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.

         II.

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.

         {¶5} 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.

         {¶6} Under Civ.R. 56(C), summary ...


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