State ex rel. Rohrs v. Germann

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-2497

Case Date: 06/17/2013

Plaintiff: State ex rel. Rohrs

Defendant: Germann

Preview:[Cite as State ex rel. Rohrs v. Germann, 2013-Ohio-2497.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO, EX REL.
RICHARD ROHRS, ET AL.,
PLAINTIFFS-APPELLANTS,                                      CASE NO.   7-12-21
v.
RANDOLF GERMANN, ET AL.,                                    O P I N I O N
DEFENDANTS-APPELLEES.
Appeal from Henry County Common Pleas Court
Trial Court No. 05CV103
Judgment Affirmed
Date of Decision:      June 17, 2013
APPEARANCES:
David S. Pennington for Appellants
Donald E. Theis  for Appellees

Case No. 7-12-21
SHAW, J.
{¶1} Plaintiffs-appellants, Richard and Rodney Rohrs (the “Rohrs”), appeal
the October  22,  2012 judgment of the Henry County Court of Common Pleas
granting summary judgment in favor of defendants-appellees, the Henry County
Engineer,  Randolph  Germann  et  al.,  (collectively  referred  to  as  the                             “County
Engineer”).
Statement of the Facts
{¶2} In the late 1990’s, Gerald Westhoven approached the County Engineer
about an open ditch on the east side of County Road  3 between U.S.  24 and
County Road 3S in Washington Township.   Westhoven wanted the ditch cleaned
out to help alleviate the drainage and flooding problems he was experiencing in
his field bordering County Road 3.
{¶3} The County Engineer completed an inspection of the ditch and the
immediate surrounding area which showed “most or all of Mr. Westhoven’s field
tile to be below and under water in the ditch.”   The County Engineer determined
that deepening and widening the ditch was not an available option from a safe
engineering or a regulatory standpoint due to the close proximity of the ditch to
County Road 3 and the amount of erosion detected in the ditch.1
1 According to the County Engineer, there was only a foot of berm or shoulder between the road and the
sloping of the ditch.
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Case No. 7-12-21
{¶4} In order to remedy both the drainage/flooding issues and to maintain
road safety, the County Engineer devised a plan to install a new wide plastic
drainage pipe in place of the open ditch and then fill the ditch.   This course of
action would also allow the berm to be widened and eliminate the “ditch fall-off”
as a possible hazard to motorists.    The project would not require the County
Engineer to do any work beyond the County’s established right of way on County
Road 3.
{¶5} For economic reasons, the County Engineer decided to categorize the
project as a “road safety improvement project.”   This meant that the project would
be handled “in house” with the County Engineer incurring all the cost from his
budget.   Handling the project in this manner, rather than as a ditch petition project,
also spared Westhoven and the other adjoining landowners from being assessed
any fees and costs associated with the project.   As the property owner with the
largest amount of property in the project area, Westhoven would benefit the most
from the County Engineer’s decision to handle the project in this manner.
{¶6} In an affidavit filed as part of this litigation, the County Engineer
summarized the planned execution of the project as follows:
The project plans called for any working field tile entering the
ditch from the east to be tied in to the drainage pipe system that
was replacing the ditch.   All County metal corrugated crossover
pipes coming from underneath County Road  3 from the west
into the ditch were to be inspected—and those not closed or
blocked but working and draining and still in use were also to be
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connected  to  the  new  pipe  system.    Those  County  crossover
culvert  pipes  determined  to  be  no  longer  in  use,  filled  with
debris, dirt, etc. would be filled with LSM 50, a watery, slurry
cement-like  material.    Taking  this  action  prevents  such  pipe
from becoming a potential impairment to the efficiency of the
new drainage system and is good engineering practice for the
safety of the traveling public as it precludes and prevents any
road hazard  that  could result from the  collapse  of any  such
corrugated pipe.
(Germann Affidavit at ¶ 6).
{¶7} The work done by the County Engineer at issue in this case occurred
during the execution of Phase III in the fall of  2002.   While in the process of
carrying  out  Phase  III,  county  employees,  Rick  Murray  and  Paul  Walker,
encountered a County metal crossover pipe which was marked as “unknown tile”
on the County Engineer’s plans.    This particular pipe ran perpendicular to the
neighboring Saul Farm field and ran approximately 45 feet south of Westhoven’s
field.   Murray and Walker observed “sufficient debris” where the pipe emptied
into the open ditch, which indicated a lack of drainage.   Murray and Walker were
aware that the Saul Farm had recently been retiled with the drainage of that field
flowing west toward the river and away from County Road 3.   Walker reported the
situation regarding this crossover pipe to Ron Wentling, the County Engineer’s
surveyor, and the decision was made to not tie this crossover pipe into the new
drainage system, but to fill it with LSM 50.
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Case No. 7-12-21
{¶8} As  Murray and  Walker’s  crew  began  the  procedure  of  filling  the
crossover pipe with LSM 50 by digging down in the ditch to expose the pipe, they
discovered a buried catch basin that was not on the plans.   This catch basin also
contained a fair amount of debris and berm material.   Both the crossover pipe and
the catch basin were filled with LSM 50.
{¶9} In the following May of 2003, the Plaintiffs in this case, the Rohrs,
entered into a one-year lease with Westhoven to rent his 81 acre field bordering
County Road 3 for $275.00 per acre.   Prior to signing the lease, the Rohrs were
assured that the field was tiled and had adequate drainage to plant a tomato crop as
they intended.   The assurance of proper drainage was factored into the lease price.
(See Richard Rohrs Affidavit).
{¶10} In July 2003, the Rohrs began experiencing drainage and flooding
issues in the southeast corner of the Westhoven field.   The Rohrs were aware that
the  County  Engineer  had  recently  completed  a  project  in  the  vicinity  of  the
flooding and contacted the County Engineer.   The County Engineer arrived at the
property and observed one to five acres with standing water.
{¶11} After the 2003 harvest, the County Engineer worked with Westhoven
to locate a drainage exit or a field tile in this area of Westhoven’s field.   According
to the County Engineer, “Westhoven did not know where the tile came out of this
field, where in the field there was tile, and he was not sure which way the field
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Case No. 7-12-21
drained.”                                                                                                      (Germann Affidavit at ¶ 14).   At Westhoven’s direction and with his
approval, the County Engineer attempted to locate the field tile in the area with
poor drainage, which included trenching 40-50 feet into the Saul Farm/Westhoven
fields along the boundary line and digging in areas where Westhoven told the
County Engineer to dig.   Despite these efforts, no field tile was found.
{¶12} The County Engineer, at its own cost, installed a new catch basin
with an open grate for surface water drainage on the west side of County Road 3
near  the  southeast  corner  of  Westhoven’s  field.    The  County  Engineer  also
installed a new crossover pipe underneath County Road 3 to connect this catch
basin  to  the  drainage  pipe  system  installed  in  the  fall  of                                           2002.                                                                  These
improvements were made so that a connecting tile could be eventually run from
the Westhoven field to this new catch basin if and when any field tile is found or
the field is retiled and is drained toward County Road 3.2
{¶13} At this time, the County Engineer also noticed that the top of the
catch basin located at the northeast end of the Westhoven field had been damaged
due to farm machinery running over it when entering and exiting the field.   The
County Engineer fixed and reinforced the catch basin so that it could properly
drain  surface  water  runoff  and  made  it  less  susceptible  to  damage  by  farm
machinery.
2 The record indicates that Westhoven subsequently had the farm tile in his field rerouted to this new catch
basin to provide for subsurface draining of his field.
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Case No. 7-12-21
{¶14} The Rohrs verbally renewed their one-year lease with Westhoven
through 2006 and planted soybeans and popcorn.
{¶15} In March of 2007, the Rohrs hired an independent engineering firm
to perform an excavation on the south end of  the Westhoven property.    The
County Engineer and his employees were also present.   During the excavation, a
functioning field tile was located approximately 15 feet northwest of the catch
basin filled with LSM  50 by county employees during completion of the  2002
project.   A seed bag was also found stuffed into the field tile at the interface with
the catch basin.     The catch basin was alleged to be the only outlet for this field
tile.   Murray and Walker, the county employees who worked on the project in
2002, denied that they intentionally placed the seed bag into the field tile and
provided the following explanation:
The most likely explanation for finding and pulling out a seed
bag among the debris pulled out of this catch basin during the
recent excavation from my vantage point and experience is that
the bag was used to make sure as much as the LSM  50 went
where it was supposed to go—into the crossover pipe—with a
minimum of waste.   The bag would have been placed on top of
the debris in the catch basin as a combination funnel/effective
plastic barrier, so that all of the LSM 50 would flow down and
into the crossover pipe and not seep down into the debris or
catch basin.   Once done with filling the crossover pipe with LSM
50, the bag was simply left in the catch basin since it would not
be going anywhere in any event, but remained buried in the
catch basin.
(Walker Affidavit at ¶ 8, Murray Affidavit at ¶ 9).
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Case No. 7-12-21
{¶16} Murray and Walker also stated in affidavits that if Westhoven or
anyone else had reported the existence of this field tile or had it been found, the
crossover pipe and catch basin would not have been filled with LSM 50.
Statement of the Case
{¶17} On August 1, 2005, the Rohrs initiated this action against the County
Engineer by alleging that the work performed during the fall of 2002 caused poor
drainage of surface water on the property they leased from Westhoven.   The Rohrs
claimed that they sustained major losses to their tomato crop in 2003 and suffered
in excess of  $70,500.00 in damages as a result of the drainage problems.   The
Rohrs twice amended their complaint to include as defendants the Henry County
Commissioners and several county employees who assisted in the project.   The
Rohrs also expanded their initial complaint to include several additional causes of
action, including various state tort claims, federal claims based on deprivation of
their substantive and procedural due process rights under 42 U.S.C. § 1983, and a
motion for an issuance of a writ of mandamus to compel the County Engineer to
initiate appropriation proceedings.
{¶18} On April 23, 2007, defense counsel filed two motions for summary
judgment.   The first motion alleged that five of the county employees named as
defendants were entitled to summary judgment as a matter of law because they
had  no  involvement  in  the  2002  project.    The  second  motion  for  summary
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Case No. 7-12-21
judgment maintained that the County Engineer and the remaining defendants were
entitled to judgment as a matter of law because the Rohrs’ state tort claims were
barred by governmental immunity set forth in Chapter 2744, and the Rohrs lacked
standing to bring their federal constitutional claims or to seek a writ of mandamus.
{¶19} On February 28, 2012, after a hearing, the trial court ruled on the
defendants’ motions for summary judgment.    The trial court granted the first
motion for summary judgment finding that the five county employees lacked any
actionable involvement in the 2002 project and dismissed them as parties from the
suit.   The trial court granted in part the defendants’ second motion for summary
judgment against the County Engineer and the remaining defendants.   Specifically,
as it relates to the issues raised in this appeal, the trial court found that the
defendants were entitled to governmental immunity under Chapter 2744.   The trial
court also found that the Rohrs failed to prove that they suffered a deprivation of
their  substantive  and/or  procedural  due  process  rights  under  the  federal
constitution.
{¶20} However, the trial court also found that a genuine issue of material
fact remained as to whether the Rohrs were entitled to a writ of mandamus to
compel the County Engineer to initiate appropriation proceedings.   Accordingly,
the  trial  court  denied  the  defendants’  motion  for  summary  judgment  on  this
ground.
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Case No. 7-12-21
{¶21} On  August                                                                                                        8,                                                                                  2012,  the  County  Engineer  and  the  remaining
                                                                                                                        defendants in the suit filed another motion for summary judgment arguing that the
Rohrs lacked standing to bring a mandamus action.
{¶22} On October  4,  2012, the trial court filed an opinion granting the
defendants’ motion for summary judgment on the mandamus issue.3   The Rohrs
subsequently filed a motion for reconsideration, which was overruled by the trial
court.     The  trial  court  then  issued  its  October                                                                22,                                                                                 2012  Judgment  Entry
journalizing its decision.
{¶23} The Rohrs now appeal asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT
SOVEREIGN   IMMUNITY   EXTENDED   TO   A   NON-
DISCRETIONARY  REQUIREMENT TO  “FIELD TAP  ALL
EXIST[ING]    FIELD    TILE”    SET    OUT    IN    THE
ENGINEERING PLANS FOR THE ROAD PROJECT.
ASSIGNMENT OF ERROR NO. II
THE   TRIAL   COURT   ERRED   WHEN   IT   DENIED
PLAINTIFFS’  MOTION  FOR  ISSUANCE  OF  A  WRIT  OF
MANDAMUS  FOLLOWING  ITS  DETERMINATION  THAT
PLAINTIFFS  HAD  NO  REMEDY  IN  THE  ORDINARY
COURSE   OF   LAW   BY   REASON   OF   SOVEREIGN
IMMUNITY.
3   The first summary judgment rulings were issued by Judge Muehlfeld on February 28, 2012.   The second
summary judgment ruling disposing of the case was issued by Judge Collier on October 22, 2012.   There is
not  a  clear  explanation  in  the  record  for  why  two  different  trial  judges  were  involved  in  this  case.
However, we note that Judge Collier took the bench in May of 2011 and the record indicates that Judge
Muehlfeld was sitting on the case by assignment.
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Case No. 7-12-21
ASSIGNMENT OF ERROR NO. III
THE   TRIAL   COURT   ERRED   WHEN   IT   DENIED
PLAINTIFFS  RELIEF  UNDER  42  USC  1983  FOR  THE
COUNTY’S  DEPRIVATION  OF  A  PROPETY  INTEREST
UNDER COLOR OF STATE LAW.
Standard of Review
{¶24} On appeal, the Rohrs argue that the trial court erred when it granted
summary judgment in favor of the County Engineer.
{¶25} This Court reviews a grant of summary judgment de novo, without
any  deference  to  the  trial  court.    Conley-Slowinski  v.  Superior  Spinning  &
Stamping Co., 128 Ohio App.3d 360, 363 (1998).   A grant of summary judgment
will be affirmed only when the  requirements of  Civ.R.  56(C) are  met.    This
requires the moving party to establish:  (1) that there are no genuine issues of
material fact, (2) that the moving party is entitled to judgment as a matter of law,
and (3) that reasonable minds can come to but one conclusion and that conclusion
is adverse to the non-moving party, said party being entitled to have the evidence
construed most strongly in his favor.   Civ.R. 56(C); see Horton v. Harwick Chem.
Corp., 73 Ohio St.3d 679, 1995-Ohio-286, paragraph three of the syllabus.
{¶26} The party moving for summary judgment bears the initial burden of
identifying  the  basis  for  its  motion  in  order  to  allow  the  opposing  party  a
“meaningful opportunity to respond.”    Mitseff v. Wheeler,  38 Ohio St.3d  112,
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Case No. 7-12-21
syllabus (1988).   The moving party also bears the burden of demonstrating the
absence of a genuine issue of material fact as to an essential element of the case.
Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107.   Once the moving party
demonstrates that he is entitled to summary judgment, the burden shifts to the non-
moving party to produce evidence on any issue which that party bears the burden
of production at trial.   See Civ.R. 56(E).
First Assignment of Error
{¶27} In their first assignment of error, the Rohrs claim that the trial court
erred when it granted summary judgment in favor of the County Engineer on the
basis that governmental immunity barred their state tort claims.
{¶28} Under Ohio’s Political Subdivision Tort Liability Act, codified under
R.C. Chapter 2744, it is well-established that a reviewing court must engage in a
three-tiered analysis to determine whether a political subdivision is entitled to
immunity from civil liability.   Hubbard v. Canton Cty. Sch. Bd. of Edn., 97 Ohio
St.3d 451, 2002-Ohio-6718, ¶ 10, citing Cater v. Cleveland, 83 Ohio St.3d 24, 28
(1998).
{¶29} First, is the general rule set forth under R.C.  2744.02(A)(1)  that
political subdivisions qualify for immunity.   Hubbard at ¶ 10.   Generally, political
subdivisions are not liable for damages in civil actions for the “injury, death, or
loss to a person or property allegedly caused by any act or omission of the political
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Case No. 7-12-21
subdivision  or  an  employee  of  the  political  subdivision  in  connection  with  a
governmental or proprietary function.”   R.C. 2744.02(A)(1).
{¶30} However, the immunity established under R.C. 2744.02(A)(1) is not
absolute; and the political subdivision’s immunity is subject to a list of exceptions
under R.C. 2744.02(B)(1)-(5).   Once general immunity has been established by the
political subdivision, the burden lies with the plaintiff to show that one of the five
exceptions under R.C. 2744.02(B) apply.   Brady v. Bucyrus Police Dept., 3d Dist.
No. 3-10-21, 2011-Ohio-2460, ¶ 47.   Thus, if the political subdivision is entitled
to immunity under the first tier of the analysis, then the court must go to the
second tier of the analysis and determine whether any of the exceptions to liability
enumerated in R.C. 2744.02(B) apply.   Hubbard at ¶ 12, citing Cater, 83 Ohio
St.3d at 28.
{¶31} If any of the exceptions to immunity are found to be applicable, then
the political subdivision will lose its immunity.   If this occurs, then the court must
move on to the third tier of the analysis, where it must determine whether the
political  subdivision’s  immunity  can  be  reinstated  as  long  as  the  political
subdivision  proves  one  of  the  defenses  to  liability under  R.C.  2744.03.    See
Contreraz v. Bettsville, 3d Dist. 13-10-48, 2011-Ohio-4178, ¶ 23.
{¶32} Here,  the  parties  do  not  dispute  that  the  County  is  a  political
subdivision  within  the  meaning  of  R.C.                                               2744.01(F).    Therefore,  the  County
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Engineer is immune from liability under R.C. 2744.02(A)(1) unless one of the five
exceptions under R.C. 2744.02(B) applies.   In their appellate brief, the Rohrs fail
assert that any of the exceptions listed R.C. 2744.02(B) are applicable in this case
to abrogate the County Engineer’s immunity.   Instead, the Rohrs attempt to bypass
the second tier of the analysis to essentially argue that the County Engineer is
liable for the loss of their tomato crop under R.C.  2744.03(A)(5), which is a
defense to be considered if the third tier of the analysis is invoked.4   See Cater, 83
Ohio St.3d at 32 (stating R.C. 2744.03(A)(5) “is a defense to liability; it cannot be
used to establish liability”).   It is only when the County Engineer points out in his
appellate brief that the Rohrs have incorrectly applied the sequence of the three-
tiered analysis, that the Rohrs then argue in their reply brief that the exception in
R.C.                                                                                                         2744.02(B)(2)   is   applicable.   Notwithstanding   the   Rohrs   initial
misapplication of the statute, we will address whether the County is subject to
liability under R.C. 2744.02(B)(2).
4   The defense to liability in R.C. 2744.03(A)(5) states:
The political subdivision is immune from liability if the injury, death, or loss to person or
property resulted from the exercise of judgment or discretion in determining whether to
acquire,  or  how  to  use,  equipment,  supplies,  materials,  personnel,  facilities,  and  other
resources unless the judgment or discretion was exercised with malicious purpose, in bad
faith, or in a wanton or reckless manner.
On appeal, the Rohrs maintain that the County Engineer’s negligent implementation of the project was
done with reckless disregard for the project plans.   However, as previously discussed, the court does not
even get to consider the defenses in R.C.  2744.03 until the plaintiff has demonstrated an exception to
governmental immunity exists under R.C. 2744.02(B).
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{¶33} R.C. 2744.02(B)(2) provides that a political subdivision is “liable for
injury, death, or loss to person or property caused by the negligent performance of
acts  by their  employees  with  respect  to  proprietary functions  of  the  political
subdivisions.”    Thus, the applicability of this exception hinges on whether the
County Engineer was engaged in a proprietary function at the time the public
project was carried out.
                                                                                          {¶34} The statute recognizes that political subdivisions act in two defined
capacities—“governmental   functions”   and                                                                                                                                        “proprietary   functions.”   R.C.
2744.01(C)(1)  defines  a                                                                 “governmental  function”  as  a  function  of  a  political
                                                                                          subdivision that is specified in division (C)(2) of this section or that satisfies any
of the following:
(a)   A function that is imposed upon the state as an obligation of
sovereignty  and  that  is  performed  by  a  political  subdivision
voluntarily or pursuant to legislative requirement;
(b)  A function that is for the common good of all citizens of the
state;
(c)   A function that promotes or preserves the public peace,
health, safety, or welfare; that involves activities that are not
engaged in or not customarily engaged in by nongovernmental
persons; and that is not specified in division (G)(2) of this section
as a proprietary function.
Section 2744.01(C)(2) of the Revised Code specifies the following as examples of
a governmental function which are pertinent to our consideration.
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Case No. 7-12-21
(e)    The  regulation  of  the  use  of,  and  the  maintenance  and
repair of, roads, highways, streets, avenues, alleys, sidewalks,
bridges, aqueducts, viaducts, and public grounds;
(l)   The   provision   or   nonprovision,   planning   or   design,
construction,  or  reconstruction  of  a  public  improvement,
including, but not limited to, a sewer system;
(r) Flood control measures;
Section 2744.01(G)(1) of the Revised Code defines a “proprietary function” as a
function of a political subdivision that is specified in division (G)(2) of this section
or that satisfies both of the following:
(a)   The function is not one described in division (C)(1)(a) or (b)
of this section and is not one specified in division (C)(2) of this
section;
(b)  The function is one that promotes or preserves the public
peace, health, safety, or welfare and that involves activities that
are customarily engaged in by nongovernmental persons.
Section 2744.01(G)(2) provides that a “ ‘proprietary function’ includes, but is not
limited to, the following:”
(a)   The  operation  of  a  hospital  by  one  or  more  political
subdivisions;
(b)  The   design,   construction,   reconstruction,   renovation,
repair, maintenance, and operation of a public cemetery other
than a township cemetery;
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(c)   The establishment, maintenance, and operation of a utility,
including, but not limited to, a light, gas, power, or heat plant, a
railroad, a busline or other transit company, an airport, and a
municipal corporation water supply system;
(d)  The maintenance, destruction, operation, and upkeep of a
sewer system;
(e)   The operation and control of a public stadium, auditorium,
civic or social center, exhibition hall, arts and crafts center, band
or orchestra, or off-street parking facility.
{¶35} In the instant case, the record reveals the following regarding the
nature of the project at issue.   Even though the project was initiated by Westhoven,
the Rohrs’ landlord, to address the drainage and flooding issues on his property,
the County Engineer made an economic decision to handle the project “in house”
as a “road safety improvement project” rather than as a ditch petition project.   This
meant that the County Engineer assumed the cost of the project instead of having
the adjoining landowners pay assessments to fund the project.
{¶36} The record also reflects that the purpose of this project was to not
only redesign and reconstruct the existing drainage system in the roadside ditch,
but to also improve the public safety of County Road 3 by filling in the ditch and
eliminating the hazard of the sharp “ditch fall-off.”   Notably, all of the work took
place in the County’s right-of-way on Country Road 3.
{¶37} Based on the applicable definitions enumerated in R.C. 2744.01, we
do not find that this public improvement project constituted a proprietary function.
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Other appellate courts have recognized reconstruction and improvement projects
similar to the one performed in the case sub judice constitutes a governmental
function.    See  e.g.,  Guenther  v.  Springfield  Twp.  Trustees,                       2012  -Ohio-  203
(finding  that  redesign  and  reconstruction  of  a  roadside  drainage  ditch  is  a
governmental function); Engel v. Williams County, 6th Dist. No. F-07-027, 2008-
Ohio-3852 (finding that maintenance of a roadside ditch is flood control measure
and a governmental function).   Therefore, we do not find that the exception in
R.C. 2744.02(B)(2) is applicable in this case to abrogate the County Engineer’s
immunity.   Furthermore, notwithstanding the fact that it is incumbent upon the
Rohrs to demonstrate that one or more of the statutory exceptions apply, we note
that  we  do  not  find  that  any of  the  other  remaining  statutory exceptions  are
applicable to impose liability on the County Engineer.
{¶38} Because  we  have  found  that  none  of  the  exceptions  in  R.C.
2744.02(B) are implicated in this case, our analysis stops here.    Accordingly,
despite the Rohrs’ misplaced arguments pertaining to R.C. 2744.03(A)(5), we do
not need to address whether any of the defenses to liability enumerated in R.C.
2744.03 apply.   See Feitshans v. Darke County et al., 116 Ohio App.3d 14, 22 (2d
Dist. 1996) (stating “the defenses set forth in R.C. 2744.03 are only relevant where
the plaintiff demonstrates that the government function at issue comes under a
specific exception to general immunity”).
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{¶39} We also note that the Rohrs sued several county employees in their
official and individual  capacities.    R.C.                                         2744.03(A)(6) provides  the following
regarding immunity afforded to an employee of a political subdivision:
In addition to any immunity or defense referred to in division
(A)(7) of this section and in circumstances not covered by that
division or sections 3314.07 and 3746.24 of the Revised Code, the
employee  is  immune from  liability  unless  one  of  the  following
applies:
(a)   The employee’s acts or omissions were manifestly outside
the   scope   of   the   employee's   employment   or   official
responsibilities;
(b)  The  employee’s  acts  or  omissions  were  with  malicious
purpose, in bad faith, or in a wanton or reckless manner;
(Emphasis added).
{¶40} There  is  no  evidence  in  the  record  to  establish  that  the  acts  or
omissions of any of these county employees were manifestly outside the scope of
their employment or official responsibilities or that these employees acted with a
malicious purpose or in a wanton or reckless manner in executing the County’s
project plans.   Thus, pursuant to the statute, the county employees named in this
action are also entitled to immunity.
{¶41} For all these reasons, we find there are no genuine issues of material
fact  that  the  County  Engineer  is  entitled  to  immunity  pursuant  to  R.C.
2744.02(A)(1) and that the county employees are entitled to immunity pursuant to
R.C. 2744.03(A)(6).   Therefore, we conclude the trial court did not err when it
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granted summary judgment on the basis that governmental immunity barred the
Rohrs’ state tort claims.   The Rohrs’ first assignment of error is overruled.
Second Assignment of Error
{¶42} In their second assignment of error, the Rohrs claim that the trial
court erred in overruling their motion for an issuance of a writ of mandamus to
compel the County Engineer to institute appropriation proceedings to compensate
them for the loss of their tomato crop and for the interference of their use and
enjoyment  of  their  leasehold  interest.    Specifically,  the  Rohrs  argue  that  the
flooding of their leasehold interest, which caused damage to their tomato crop and
occurred as a result of the County’s public works project, amounted to a pro tanto
(or partial) taking in violation of the United States and Ohio Constitutions.
{¶43} “The United States and Ohio Constitutions guarantee that private
property shall not be taken for public use without just compensation.”   State ex rel.
Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63 (2002), judgment modified in part
on  other  grounds,  96  Ohio  St.3d  379,  2002-Ohio-4905;  Fifth  and  Fourteenth
Amendments  to  the  United  States  Constitution;  Section                                 19,  Article  I,  Ohio
Constitution. “Mandamus is the appropriate action to compel public authorities to
institute appropriation proceedings where an involuntary taking of private property
is alleged.”   Shemo, 95 Ohio St.3d at 63.
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{¶44} To be entitled to the requested writ of mandamus, the Rohrs must
establish  a  clear  legal  right  to  compel  the  County Engineer  to  commence  an
appropriation action, a corresponding clear legal duty on the part of the County
Engineer  to  institute  that  action,  and  the  lack  of  an  adequate  remedy in  the
ordinary course of law.   State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385,
2010-Ohio-1473, ¶ 15.   The Rohrs must prove their entitlement to the writ by clear
and convincing evidence.   State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-
Ohio-6117, ¶ 57.
{¶45} The  Rohrs’  mandamus  action  is  one  for  inverse-condemnation,
which is “a cause of action against the government to recover the value of property
taken  by  the  government  without  formal  exercise  of  the  power  of  eminent
domain.”    Moden v. United States,  404 F.3d  1335,  1342  (Fed.Cir.2005).    The
Rohrs claim that they are entitled to relief in mandamus pursuant to the Takings
Clause of the Ohio Constitution. Section 19, Article I of the Ohio Constitution
provides:
[W]here  private  property  shall  be  taken  for  public  use,  a
compensation  therefor  shall  first  be  made  in  money,  or  first
secured by a deposit of money, and such compensation shall be
assessed  by  a  jury,  without  deduction  for  benefits  to  any
property of the owner.
{¶46} The Supreme Court of Ohio has observed that “Section 19, Article I
of the Ohio Constitution limits compensation to those situations where private
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property is taken for public use, in contrast to the constitutions of some states,
which guarantee compensation for private property that is taken for or damaged by
public use.”   State ex rel. Blank et al. v. Beasley, 121 Ohio St. 3d 301, 2009-Ohio-
835, ¶ 17 citing State ex rel. Fejes v. Akron, 5 Ohio St.2d 47, 50 (1966) (emphasis
sic).   Accordingly, the Supreme Court has “construed this constitutional provision
to require a property owner to prove something more than damage to his property
in order to demonstrate a compensable taking.”  Beasley at ¶ 17.
{¶47} In Beasley, the Supreme Court examined takings claims predicated
on the unintentional damage caused to private property during the completion of a
public project.   Specifically, the Court in Beasley analyzed the public use served
by the damage and the corresponding remedy available to the claimant.   The Court
observed that a number of jurisdictions, including Ohio, have rejected takings
claims when the alleged taking resulted from the negligent acts of public officers
or their agents during the course of completing a public project and found that the
appropriate remedy lies in a state tort action.  See Beasley at ¶¶ 18-28.
{¶48} The rationale underlying these decisions is that when the damage to
private  property  is  foreseeable  as  a  direct  and  necessary  consequence  of  the
construction or operation of the public use—i.e., the consequent damage to the
private property served a public use—then a taking has occurred and the plaintiff
is entitled to just compensation.   However, when the damage claim is based on “
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‘a tort, being caused by the negligence of public officers or their agents, it cannot
be said that property is taken or damaged for public use’ and the  “owner is
relegated in such case to a common-law action for damage.’ ”   Id. at ¶¶ 22-24,
citing Chavez v. Laramie, 389 P.2d 23, 24-25 (Wyo. 1964) (emphasis sic).
{¶49} The Court in Beasley anticipated that plaintiffs may argue that the
term  “for public use” should apply any time that private property is damaged
during the performance of a public purpose.    However, the Court specifically
noted  that                                                                             “                                                    ‘courts  tend  to  interpret   ‘for  public  use’  to  mean                       ‘in  order  to
accomplish a public use.’ ”   Beasley, 121 Ohio St.3d at ¶ 28, quoting 4 TIFFANY
REAL PROPERTY, Section 1254 (1975).
{¶50} In a more recent case, the Supreme Court of Ohio reiterated these
concepts when it discussed the following two-part test for claims of  inverse-
condemnation by flooding:
[N]ot  every                                                                            ‘invasion’  of  private  property  resulting  from
government  activity  amounts  to  an  appropriation.    The  line
distinguishing potential physical takings from possible torts is
drawn by a two-part inquiry.   First, a property loss compensable
as a taking only results when the government intends to invade a
protected  property  interest  or  the  asserted  invasion  is  the
‘direct, natural, or probable result of an authorized activity and
not  the  incidental  or  consequential  injury  inflicted  by  the
action.’                                                                                *                                                    *                              *  Second,  the  nature  and  magnitude  of  the
government action must be considered.   Even where the effects
of the government action are predictable, to constitute a taking,
an invasion must appropriate a benefit to the government at the
expense of the property owner, or at least preempt the owner’s
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right to enjoy his property for an extended period of time, rather
than merely inflict an injury that reduces its value.
                                                                                        State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 64, citing
Ridge  Line,  Inc.  v.  United  States,                                                 346  F.3d  1346  (Fed.Cir.2003).                                                (Internal
citations omitted).
{¶51} With these principles in mind, we turn our attention to the issues
raised in the instant case.
{¶52} The  uncontroverted  evidence  in  the  record  establishes  that  the
County Engineer’s plans called for any working field tile entering into the ditch
from the east to be tied into the new drainage pipe system replacing the ditch.   The
plans also called for any pipes coming from underneath County Road 3 that are
determined to be no longer in use to be filled with LSM  50, a concrete grout
mixture, to ensure the safety and integrity of the road.   The record indicates that
the County Engineer  devised this plan with the assistance of  Westhoven, the
landowner of the Rohrs’ leased parcel.   County employees executed the project
according to the engineering plans in the fall of 2002—several months prior to the
Rohrs entering into their lease with Westhoven.
{¶53} At this time, county employees encountered a metal county crossover
pipe which contained “sufficient debris and did not indicate drainage.”                 (Murray
Affidavit at ¶ 4 and Walker Affidavit at ¶ 4).   County employees also discovered a
buried catch basin, not marked on the plans, which also contained debris and berm
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material.   The presence of berm debris in this area coupled with the fact that the
adjoining Saul farm had recently been retiled with the drainage flowing west,
away from County Road 3, led county employees to the conclusion that the pipe
and the catch basin were part of an obsolete system no longer in use.   As a result,
county employees followed protocol and filled the pipe and catch basin with LSM
50.    According  to  the  record,  neither  Westhoven  nor  the  engineering  plans
indicated that a functioning field tile was situated in the vicinity of this pipe and
catch  basin.    Instead,  evidence  in  the  record  demonstrates  that  had  county
employees been made aware of a field tile’s existence in this area, this pipe and
catch basin would not have been filled with LSM 50.
{¶54} We are simply not persuaded by the Rohrs’ bald assertions that the
mere presence of a seed bag in the field tile establishes that the County Engineer
or his employees had actual knowledge of the field tile’s existence, and therefore
is proof that county employees intentionally blocked the field tile.    Moreover,
there is nothing in the record to even insinuate that the flooding of the southeast
corner of the Westhoven field was an intentional invasion of the Rohrs’ private
property or a direct,  natural, or  probable result of  the County’s improvement
project.    To  the  contrary,  one  of  the  stated  objectives  of  this  project  was  to
improve the drainage and/or flooding issues in the Westhoven field.   We further
find that the record establishes that the County appropriated no benefit from the
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damage  caused  by  the  July  2003  flooding,  for  which  the  Rohrs  are  seeking
compensation.
{¶55} In  short,  we  find  that  the  uncontroverted  evidence  in  the  record
establishes that any action on the part of the County Engineer or his employees in
rendering the field tile inoperable was unintentional and accidental.   Furthermore,
we find that the Rohrs have failed to demonstrate that any injury incurred to their
private  property  was  done  so  by  the  County  Engineer  for  public  use  or  to
accomplish a public use so as to constitute a taking under either the U.S. or Ohio
Constitutions.
{¶56} Finally, notwithstanding the fact that the record does not support the
Rohrs’ claim that a taking has occurred, we note that the Rohrs are not entitled to a
writ of  mandamus because they have  failed to demonstrate that they lack an
adequate remedy in the ordinary course of law.   Specifically, as discussed by the
Supreme Court in Beasley, the appropriate remedy in this case lies in a state tort
action—whether  that  is  an  action  against  the  County  Engineer  or  against
Westhoven, as the lessor who assured them the field contained adequate drainage
for growing tomatoes.   We further note that the Rohrs are not without an adequate
remedy simply because they pursued their state tort claims against the County and
failed  to  receive  a  favorable  decision  due  to  the  application  of  governmental
immunity.                                                                                  “Where a plain and adequate remedy at law has been unsuccessfully
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invoked, the extraordinary writ of mandamus will not lie either to relitigate the
same  question  or  as  a  substitute  for  appeal.”    State  ex  rel.  Zimmerman  v.
Tompkins, 75 Ohio St.3d 447, 449, 1996-Ohio-211, citing State ex rel. Nichols v.
Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities, 72 Ohio St.3d 205,
209, 1995-Ohio-215.
{¶57} Moreover,  allowing  plaintiffs  whose  claims  are  precluded  by
governmental immunity to bring a mandamus action as an alternative remedy
would effectively allow those plaintiffs to circumvent the legislatively prescribed
statutory scheme established in Chapter 2744.   See Beasley, 121 Ohio St.3d at ¶
28, quoting 4 TIFFANY REAL PROPERTY, Section 1254 (1975) (“If we permitted
the theory of plaintiffs to prevail in this case, we would subject the state and city
to actions for damages in all cases involving injuries to or destruction of private
property  resulting  from  the  torts  of  their  agents,  when  acting  in  an  official
capacity.   This would effectually repeal the universal rule that a state exercising
governmental functions cannot be made to respond in damages for tort and is not
liable for the torts of its officers or agents in the discharge of their official duties,
unless it has voluntarily assumed such liability and consented to be liable.”).
{¶58} For  all  these  reasons,  we  conclude  the  trial  court  did  not  err  in
overruling  the  Rohrs’  motion  for a writ  of  mandamus to  compel the County
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Engineer to institute appropriation proceedings.   The Rohrs’ second assignment of
error is overruled.
Third Assignment of Error
{¶59} In their third assignment of error, the Rohrs claim that they have
suffered a violation of their due process rights under 42 U.S.C. § 1983.
{¶60} To establish a violation of Section 1983, two elements are required:
“(1) the conduct in controversy must be committed by a person acting under color
of state law, and (2) the conduct must deprive the plaintiff of rights, privileges or
immunities secured by the Constitution or laws of the United States.”                   1946 St.
Clair Corp. v. Cleveland, 49 Ohio St.3d 33, 34 (1990), citing, Parratt v. Taylor,
451 U.S. 527, 535(1981).
{¶61} The Rohrs predicate their Section 1983 claims on alleged violations
of the Fifth and Fourteenth Amendments to the United States Constitution.
{¶62} The Fifth Amendment states that “[n]o person shall be * * * deprived
of life, liberty, or property, without due process of law; nor shall private property
be taken for public use, without just compensation.”   Fifth Amendment of the U.S.
Constitution.     In  making  their  Fifth  Amendment  argument,  the  Rohrs  are
essentially reasserting their takings claim.    As we determined in the previous
assignment of error, the Rohrs failed to demonstrate that their private property was
taken for public use and therefore failed to establish that a taking occurred.
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{¶63} The Fourteenth Amendments protects against deprivations “without
due  process  of  law.”                                                                    1946  St.  Clair,  49  Ohio  St.3d  at  34,  citing,  Baker  v.
McCollan, 443 U.S. 137 (1979).   In 1946 St. Clair, the Supreme Court of Ohio
noted that, in a Section 1983 claim, “[p]roperty interests are distinguished from
life or liberty interests because property interests are founded on the procedural
aspects of  due  process; they are not substantive rights created by the federal
Constitution.” Id. at 36, citing Cooperman v. Univ. Surgical Assoc., Inc., 32 Ohio
St.3d  191, 200  (1987).   Where the claim asserted rests on the deprivation of a
property interest  alone,  the  constitutional  right  invoked  is  the  procedural  due
process right to notice and hearing.   Cooperman at 200, citing Hudson v. Palmer,
468 U.S. 517, 530-537 (1984); Parratt, supra, at 536-545; Bd. of Regents v. Roth,
408 U.S. 564 (1972).                                                                       “The United States Supreme Court has held that no due
process violation occurs when the state provides an adequate post-deprivation
remedy for a loss of property caused by the negligence of state officials.”   St. Clair
at 34 citing Parratt, supra, 451 U.S. at 535-544.   Moreover, “to assert a claim
under  Section                                                                             1983,  Title                                                      42,  U.S.Code  and  the  Fourteenth  Amendment  for
deprivation without due process of a purely economic interest, a plaintiff must
allege and prove the inadequacy of state remedies.”  Id.
{¶64} As previously discussed, the Rohrs have adequate state remedies at
their  disposal  and  have  failed  to  prove  the  inadequacies  of  those  remedies.
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Therefore, the Rohrs have not demonstrated that they are entitled to relief under
Section 1983 and we find no error in the trial court’s decision to grant summary
judgment on this basis.    Accordingly, the Rohrs’ third assignment of error is
overruled.
{¶65} Based on the foregoing, the judgment of the Henry County Court of
Common Pleas is affirmed.
Judgment Affirmed
PRESTON, P.J. and ROGERS, J., concur.
/jlr
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