Nemeth v. Vill. of Tiltonsville

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GREG L. NEMETH, Plaintiff, v. VILLAGE OF TILTONSVILLE, et al., Defendants.

No. 2:21-cv-01460

United States District Court, S.D. Ohio, Eastern Division

March 29, 2023

Chelsey M. Vascura Magistrate Judge

OPINION & ORDER

ALGENON L. MARBLEY CHIEF UNITED STATES DISTRICT JUDGE

This matter is before this Court on the Jefferson County Defendants'^[1] Motion for Judgment on the Pleadings on Plaintiff's Second Amended Complaint (ECF No. 70); the Jefferson County Defendants' Motion for Judgment on The Pleadings on Defendant Village of Tiltonsville's Cross-Claims (ECF No. 80); and Plaintiff's Motion for Partial Summary Judgment (ECF No. 74).

Following careful consideration and the benefit of oral argument, this Court GRANTS IN PART AND DENIES IN PART the Jefferson County Defendants' Motion for Judgment on the Pleadings on Plaintiff's Second Amended Complaint (ECF No. 70); DENIES Plaintiff's Motion for Partial Summary Judgment (ECF No. 74); and GRANTS IN PART AND DENIES IN PART the Jefferson County Defendants' Motion for Judgment on the Pleadings on Defendant Village of Tiltonsville's Cross-Claims (ECF No 80).

I. BACKGROUND

A. FACTUAL BACKGROUND

The parties in this case are Plaintiff Gregory Nemeth and Defendants Village of Tiltonsville, the City Council of Tiltonsville, and Mayor Jason Staskey in his capacity as the Village's Mayor (collectively, the “Village Defendants”) as well as Defendants Jefferson County, Ohio, Jefferson County Water & Sewer District, Board of County Commissioners of Jefferson County, Ohio, and Michael Erosevich in his capacity as Director of the Jefferson County Water and Sewer District^[2](collectively, the “Jefferson County Defendants”).

The facts alleged in Nemeth's Second Amended Complaint-the operative complaint- are as follows. At some unidentified point in time, “Defendants” accessed the upper portion of Nemeth's property to access a water tank located somewhere therein. (ECF No. 53 ¶ 13). Nemeth never opened his property to the public in this matter; as such, “Defendants” accessed his property without his consent. (Id. ¶¶ 11-12). Defendants did not stop at merely accessing the property. Once there, “Defendants” either constructed or modified the gravel road and culvert on or near Nemeth's property. (Id. ¶ 13). Defendants' construction activities caused a diversion of surface water and heavy erosion downstream from the upper portion of Nemeth's property, destabilizing the hillside on the lower portion. (Id.). Namely, the destabilization was caused by the diversion of surface water on or near the property from its natural flow resulting from Defendants' construction activities. (Id. ¶ 14). The destabilization damaged Nemeth's “structure” located on the lower portion of his property. (Id. ¶ 13). Nemeth made these allegations against the Defendants as a collective unit.

On April 3, 2019, Defendant Village of Tiltonsville mailed Nemeth a notice ordering him to repair or demolish the very structure that Defendants rendered unusable from their construction activities. (Id. ¶ 14). After Nemeth filed the initial Complaint, the Village's counsel forwarded correspondence acknowledging an incident that occurred “six or seven years ago.” (Id. ¶ 15).

According to the letter, “[p]ersonnel from the Jefferson County Water and Sewer Department” at that time cleaned out the existing culverts because they were clogged and making the adjacent road “impassible.” (Id.). This adjacent road was used by both Defendants Jefferson County and Village of Tiltonsville so that they could “access the tank for purposes of conducting mandatory water quality testing.” (Id.). The unclogging was conducted so that the “drainage pattern [would] return to its prior status.” (Id.).

B. PROCEDURAL BACKGROUND

On April 1, 2021, Nemeth filed his Complaint before this Court.^[3] (ECF No. 1). Nemeth soon thereafter filed his First Amended Complaint. (ECF No. 16).

On September 14, 2021, the Village Defendants filed a crossclaim against the Jefferson County Defendants for indemnification and contribution concerning Nemeth's lawsuit. (ECF No. 18). In the crossclaim, the Village Defendants disavowed any responsibility for Nemeth's damages and demanded that Jefferson County Defendants either fully indemnify them or contribute their proportionate share of liability if the Village Defendants are ordered to pay damages. (Id. ¶¶ 2, 45). The Village Defendants attached to their crossclaim a water purchase agreement (the “water contract” or the “contract”) executed between the Village of Tiltonsville and Jefferson County. (ECF No. 18-1). The contract “provides for the circumstances under which Jefferson County will purchase water stored in the water tank referenced in the Complaint, for its residents, from the Village of Tiltonsville.” (ECF No. 18 ¶ 3).

On May 16, 2022, Nemeth submitted his Second Amended Complaint (the “Complaint”). (ECF No. 53). Nemeth's Complaint asserted three causes of action against all Defendants: violations of the Takings Clause of the Fifth Amendment pursuant to 42 U.S.C. § 1983 and statelaw claims for trespass and nuisance/negligence. With respect to his Fifth Amendment claim, Nemeth alleged that Defendants' unlawful entry into and construction upon his property caused damage thereupon constituting a governmental taking without just compensation. (Id. ¶¶ 15-20). With respect to his claim for trespass, Nemeth alleged that Defendants' nonconsensual entrances unto his property via their construction work constitute continuing and permanent trespasses which continue proximately to cause him damage. (Id. ¶¶ 21-25). Finally, Nemeth's nuisance claim alleged that Defendants' damage of his (and others') property resulted from behavior of a continuing and permanent nature which was “intentional and unreasonable or unintentional but caused by negligence.” (Id. ¶¶ 26-30).

On August 12, 2022, the Jefferson County Defendants filed their Motion for Judgment on the Pleadings concerning Nemeth's claims for trespass and nuisance. (ECF No. 70). On August 22, 2022, Nemeth submitted his Motion for Partial Summary Judgment also relating to his claims for trespass and nuisance. (ECF No. 74). On September 12, 2022, the Jefferson County Defendants filed their Motion for Judgment on the Pleadings relating to the Village Defendants' cross-claims for indemnification and contribution. (ECF No. 80).

These motions are ripe for this Court's review.

II. STANDARD OF REVIEW

A. JUDGMENT ON THE PLEADINGS

A motion for judgment on the pleadings under Rule 12(c) attacks the sufficiency of the pleadings and is reviewed under the same standard applicable to a Rule 12(b)(6) motion to dismiss. Ziegler v. IBP HogMkt., 249 F.3d 509, 511-12 (6th Cir. 2001). In the Court's review of the motion, it “must construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claim that would entitle him to relief.” Id. at 512.

The Court is not required, however, to accept as true mere legal conclusions unsupported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Instead, the complaint must “‘give the defendant fair notice of what the claim is, and the grounds upon which it rests.'” Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). While a complaint need not contain “detailed factual allegations,” its “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A complaint that suggests “the mere possibility of misconduct” is insufficient; rather, the complaint must state “a plausible claim for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). In other words, “[t]o withstand a Rule 12(c) motion for judgment on the pleadings, a complaint must contain direct or inferential allegations respecting all the material elements under some viable legal theory.” Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (internal quotation marks omitted).

B. SUMMARY JUDGMENT

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 716-17 (6th Cir. 2012). The issue of governmental immunity on Ohio state-law claims is a question of law. Coterel v. Reed, 2nd Dist. No. 2015-CA-69, 2016-Ohio-7411, 72 N.E.3d 1159, ¶ 11 (citing Conley v. Shearer, 64 Ohio St.3d 284, 595 N.E.2d 862 (1992)).

The Court's purpose in considering a summary judgment motion is not “to weigh the evidence and determine the truth of the matter” but to “determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists if the Court finds a jury could return a verdict, based on “sufficient evidence,” in favor of the nonmoving party; evidence that is “merely colorable” or “not significantly probative,” however, is not enough to defeat summary judgment. Id. at 249-50.

The party seeking summary judgment shoulders the initial burden of presenting the Court with law and argument in support of its motion as well as identifying the relevant portions of “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56). If this initial burden is satisfied, the burden then shifts to the...