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CA-29499 Appeals, Court of COURT OF APPEALS
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NINTH APPELLATE DISTRICT
Docketing Statement Appeal No.
A time-stamped copy of the final judgment being appealed must be attached to this statement.
Trial Court Name Summit County Common Pleas Court
Trial Court Caption NORDONIA LANDSCAPE SUPPLIES, LLC Trial Court Case Number CV-2019-01-0254
(Name of first plaintiff)
Trial Court Judge SUSAN BAKER ROSS
versus
CITY OF AKRON July 11, 2019
Date of judgment appealed ___________________
(Name of first defendant) Was the time to appeal extended
by App.R. 4(B)? ___ Yes X
___ No
CALENDAR DESIGNATION
THIS APPEAL SHOULD BE ASSIGNED TO:
X
_____ Regular Calendar.
_____ Accelerated Calendar. See Loc.R. 21.
_____ Expedited Calendar (generally for appeals involving termination of parental rights). See App.R. 11.2.
THE RECORD
Mark the paragraph that applies.
TO THE CLERK OF COURTS: Please immediately assemble and transmit the record in this case. I certify that
the paragraph I marked accurately describes the complete record to be filed:
1. X
_____ The record will consist of ONLY the original papers, exhibits, a certified copy of the docket and
journal entries, and any transcripts of proceedings that were filed in the trial court prior to final judgment.
2. _____ The record will include the original papers and exhibits filed in the trial court, a certified copy of
the docket and journal entries, and a full or partial transcript of proceedings prepared for this appeal by a court
reporter appointed by the trial court, who I served with a praecipe that I also filed with this court. If only a
partial transcript of proceedings is requested, see App.R. 9(B).
3. _____ The record will include the original papers and exhibits filed in the trial court and a certified copy
of the docket and journal entries, and a statement of the evidence or proceedings pursuant to App.R. 9(C) or
an agreed statement of the case pursuant to App.R. 9(D).
4. _____ The record will include the original papers and exhibits filed in the trial court and a certified copy
of the docket and journal entries, and both a transcript of proceedings prepared by a court reporter appointed
by the trial court and a statement of the evidence or case pursuant to App.R. 9(C) or (D). If only a partial
transcript of proceedings is requested, see App.R. 9(B).
If you intend to rely upon a transcript of proceedings filed in an earlier appeal, you must seek permission from
the court to supplement the record in this appeal with the transcript filed in the earlier appeal.
A time-stamped copy of the final judgment being appealed must be attached to this statement.
If the order appealed is not final and appealable under R.C. 2505.02, the Court must dismiss the appeal.
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Appeals, Court of
THE PARTIES DOST
CA-29499 08/09/2019 13:44:26 PM Page 2 of 8
Please provide the following information for all parties to the proceedings in the trial court.
A party who files a notice of appeal is an appellant. A party who would be adversely affected if the judgment below is
reversed should be designated as an appellee. All other parties to the action below should retain their trial court designation
(plaintiff, defendant, third-party plaintiff, third-party defendant, petitioner, respondent, etc). See Local Rule 3.
If a party was not represented by counsel in the proceedings below, please provide the address and phone number of the party. If
there are additional parties and/or attorneys, please copy this page, complete the information for the additional parties, and attach
it to this statement. Appellant must attach a copy of any order that resolved a claim against any of the parties.
Party’s name NORDONIA LANDSCAPE SUPPLIES, LLC Party’s name CITY OF AKRON
Party’s designation Plaintiff - Appellant Party’s designation Defendant - Appellee
Attorney’s name Warner Mendenhall, Logan Trombley Attorney’s name David Honig, Brian D. Bremer
Attorney’s registration number 0070165,0096858 Attorney’s registration number 0079781, 0087363
Address of counsel or party 190 N Union St STE 201 Address of counsel or party 161 S. High St., Suite 202
Akron, OH 44304 Akron, Ohio 44308
Phone 330-535-9160 Fax 330 762 9743 Phone (330) 375-2030: Fax (330) 375-2041
warner@warnermendehall.com,
Email _____________________________________________ dhonig@akronohio.gov, bbremer@akronohio.gov
Email _____________________________________________
logan@warnermendenhall.com
Party’s name Party’s name
Party’s designation Party’s designation
Attorney’s name Attorney’s name
Attorney’s registration number Attorney’s registration number
Address of counsel or party Address of counsel or party
Phone Fax Phone Fax
Email _____________________________________________ Email _____________________________________________
Party’s name Party’s name
Party’s designation Party’s designation
Attorney’s name Attorney’s name
Attorney’s registration number Attorney’s registration number
Address of counsel or party Address of counsel or party
Phone Fax Phone Fax
Email _____________________________________________ Email _____________________________________________
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CA-29499 Appeals, Court of
GENERAL INFORMATION DOST
08/09/2019 13:44:26 PM Page 3 of 8
Was a stay requested in the trial court? _____ Yes X
_____ No
If a stay was requested, how did the trial court rule? _____ Granted _____ Denied _____ Pending
If this case has previously been before this Court, list prior appellate case number(s): ___________________
List case names and numbers of cases pending in this court that involve the same transaction or controversy
involved in this appeal: _____________________________________________________________________
Probable issues for appeal: Is contracting for road salt considered a government function so as to make a municipality immune
_______________________________________________________________________
from promissory estoppal claims?
________________________________________________________________________________________________
________________________________________________________________________________________________
CRIMINAL CASE
_____ Misdemeanor _____ Felony
_____ Trial _____ Guilty/No contest plea
Charges
Sentence
Type of Appeal: _____ Defendant’s Appeal as of Right _____ State’s Appeal as of Right
_____ Defendant’s Appeal by Leave of Court _____ State’s Appeal by Leave of Court
CIVIL CASE
Type of action in trial court? Promissory Estoppal
Did the judgment dispose of all claims by and against all parties? X
_____ Yes _____ No
If not, is there a determination that there is “no just reason for delay?” Civ.R. 54(B). _____ Yes _____ No
Have the parties previously participated in mediation of this dispute? _____ Yes X
_____ No
Would a mediation conference assist in the resolution of this matter? _____ Yes _____ No X
_____ Maybe
Must this case be expedited as being one of the following types of cases? _____ Yes X
_____ No
_____ App.R. 11.2(B) or (C) appeals (abortion without parental consent, adoption, and parental rights)
_____ App.R. 11.2(D) appeals (dependent, abused, neglected, unruly, or delinquent child appeals)
_____ Appeal under determination of local fiscal emergency brought by municipal corporation
_____ Election contests as provided in R.C. 3515.08
I CERTIFY THAT THE ABOVE INFORMATION IS ACCURATE TO THE BEST OF MY KNOWLEDGE AND
THAT I HAVE ATTACHED A COPY OF THE FINAL JUDGMENT FROM WHICH THIS APPEAL IS TAKEN.
/s/ Logan Trombley, 0096858
_________________________________________________
Signature of Counsel (or party if not represented by counsel)
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IN THE COURT OF COMMON PLEAS
COUNTY OF SUMMIT
NORDONIA LANDSCAPE SUPPLIES, ) CASE NO.: CV-2019-01-0254
LLC )
) JUDGE SUSAN BAKER ROSS
Plaintiff )
-vs- )
) ORDER
CITY OF AKRON )
)
Defendant
The complaint in this matter was filed on January 21, 2019 seeking damages from the
City of Akron for an alleged breach of contract and on the theory of promissory estoppel. On
March 15, 2019 the City of Akron filed itsanswer in response to the complaint. Defendant
City of Akron then filed a Motion for Judgment on the Pleadings on May 22, 2019 seeking
dismissal based upon governmental immunity pursuant to R.C. 2744. The court granted
Plaintiff an extension of time to respond to said motion. On June 17, 2019, Plaintiff filed its
Brief in Opposition to Defendant’s Motion for Judgment on the Pleadings. On June 17, 2019,
Defendant also filed a Notice of Partial Voluntary Dismissal dismissing its breach of contract
claim. Consequently, Plaintiff’s sole remaining cause of action is based upon the theory of
promissory estoppel. For the reasons set forth herein the Motion for Judgment on the Pleadings
is granted.
I. STANDARD OF PROOF
Pursuant to Civ.R. 12(C) any party may move for judgment on the pleadings after the
pleadings are closed but within such time as not to delay the trial. The Ohio Supreme Court
has ruled that pursuant to Civ. R. 12(C), “dismissal is appropriate where a court (1) construes
the material allegations in the complaint, with all reasonable inferences to be drawn therefrom,
in favor of the non-moving party as true, and (2) finds beyond doubt that the plaintiff could
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prove no set of facts in support of his claim that would entitle him to relief.’ State ex rel.
Midwest Pride IV, Inc. v. Pontious, (1996) 75 Ohio St.3d 565.
II. GOVERNMENTAL IMMUNITY AND PROMISSORY ESTOPPEL
Plaintiff’s Promissory Estoppel claim is based upon the following facts in its’
Complaint. Plaintiff is in the business of selling road salt in Ohio. Defendant is a municipal
corporation that purchases road salt. Plaintiff alleges it purchased a certain amount of road salt.
Plaintiff alleges this purchase was based upon the representation that Defendant would then
purchase the road salt from Plaintiff. At some point in time, Defendant did not purchase the
salt. Plaintiff claims it suffered monetary damage based upon Defendant not purchasing the
road salt.
In Ohio, the theory of promissory estoppel is defined as follows:
[a] promise which the promisor should reasonably expect to induce action or
forbearance on the part of the promisee or a third person and which does induce
such action or forbearance is binding if injustice can be avoided only by
enforcement of the promise.
Hortman v. Miamisburg, (2006) 110 Ohio St. 3d 194, syllabus. However, the Ohio Supreme
Court went on to hold that a claim under the doctrine of promissory estoppel is “inapplicable
against a political subdivision when itis engaged in a governmental function.” Hortman,
syllabus. Consequently, this court must determine whether the City was engaged in a
governmental function when the facts of this case arose.
Pursuant to R.C. §2744.02(A) “the functions of political subdivisions are … classified
as governmental functions and proprietary functions.” Except as provided in division R.C.
§2744.02(B), “a political subdivision is not liable in damages in a civil action for injury, death,
or loss to person or property allegedly caused by any act or omission of the political
subdivision or an employee of the political subdivision in connection with a governmental or
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proprietary function.” Furthermore, R.C. §2744.01(C)(2)(e) establishes that ‘[t]he regulation of
the use of, and the maintenance and repair of, roads, highways, streets, avenues, alleys,
sidewalks, bridges, aqueducts, viaducts, and public grounds” is a governmental function.
The Court finds and both parties concede that Defendant is a political subdivision as
defined under R.C. §2744 and under Hortman. Defendant argues that its communications with
Plaintiff to procure road salt were an exercise of its governmental function. Conversely,
Plaintiff argues that R.C. §2744.01(C)(2)(e) is interpreted narrowly citing Sullivan v. Anderson
Twp., 2009-Ohio-6646 (1st Dist., 2009), and Kenko Corp v. Cincinnati, 2009-Ohio-4189 (1st.
Dist, 2009). Thus, arguing that Defendant’s procurement of road salt is not a governmental
function under the statute. Defendant further argues that the procurement of road salt is an
activity engaged in by everyone – not just a governmental entity – and thus it was a proprietary
function.
The Court finds Plaintiff’s reliance upon Sullivan misplaced. Neither road widening nor
the installation of a sidewalk are expressly identified under R.C. §2744(C)(2)(e). However, the
Sullivan Court held that the installation of a sidewalk and the widening of a road are
governmental functions. Similarly, the issue in Kenko was the construction of a road, not the
regulation and maintenance of the road and as such, that decision is inapplicable to the issue
before the court herein. ¶ 20. More on point is the 9th District Court of Appeal decision in
Thomas v. Wooster, 2008 Ohio 1464 (9th. Dist., 2008)(¶14), wherein the court addressed and
acknowledged that the removal of snow and ice from the roads is a function of maintaining the
roads and is, therefore, a governmental function pursuant to R.C. §2744.01(C)(2)(e). See also
Seikel v. Akron, 191 Ohio App.3d 362 (9th Dist., 2010) (where a tree fell on a car, the court held
that the maintenance of trees located near a public road was a government function referencing,
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in part, the duty to maintain roads pursuant to 2744.01(C)(2)(e)). When a statute does “not
expressly define a function as a governmental one” a Court must determine what “the political
subdivision was ‘actually doing’ when performing the function.” Kenko at ¶ 27, quoting Allied
Erecting and Dismantling Co. v. Youngstown, 151 Ohio App.3d 16. The Court finds that as a
matter of law a political subdivision’s actions in seeking to procure road salt is a governmental
function as defined under R.C. §2744 because said salt is needed to maintain the roads, which
is a governmental function. Consequently, the Plaintiff’s promissory estoppel claim against
the City of Akron is precluded.
CONCLUSION
Construing the material allegations in the complaint, with all reasonable inferences to
be drawn therefrom, in favor of Plaintiff, the court finds beyond doubt that Plaintiff could
prove no set of facts in support of its claim that would entitle it to relief.
IT IS SO ORDERED.
JUDGE SUSAN BAKER ROSS
The Clerk of the Summit County Common Pleas Court shall serve upon all parties not
in default for failure to appear a notice of this Judgment and its date of entry upon the journal.
CC: ATTORNEY WARNER MENDENHALL
ATTORNEY LOGAN TROMBLEY
ATTORNEY DAVID HONIG
ATTORNEY BRIAN D. BREMER
CMP
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CV-2019-01-0254 BAKER ROSS, SUSAN 08/09/2019 13:44:26 PM DOST Page 1 of 8 Rev. 2/1/17 CA-29499 Appeals, Court of COURT OF APPEALS 08/09/2019 13:44:26 PM OF OHIO DOST Page 1 of 8 NINTH APPELLATE DISTRICT Docketing Statement Appeal No. A time-stamped copy of the final judgment being appealed must be attached to this statement. Trial Court Name Summit County Common Pleas Court Trial Court Caption NORDONIA LANDSCAPE SUPPLIES, LLC Trial Court Case Number CV-2019-01-0254 (Name of first plaintiff) Trial Court Judge SUSAN BAKER ROSS versus CITY OF AKRON July 11, 2019 Date of judgment appealed ___________________ (Name of first defendant) Was the time to appeal extended by App.R. 4(B)? ___ Yes X ___ No CALENDAR DESIGNATION THIS APPEAL SHOULD BE ASSIGNED TO: X _____ Regular Calendar. _____ Accelerated Calendar. See Loc.R. 21. _____ Expedited Calendar (generally for appeals involving termination of parental rights). See App.R. 11.2. THE RECORD Mark the paragraph that applies. TO THE CLERK OF COURTS: Please immediately assemble and transmit the record in this case. I certify that the paragraph I marked accurately describes the complete record to be filed: 1. X _____ The record will consist of ONLY the original papers, exhibits, a certified copy of the docket and journal entries, and any transcripts of proceedings that were filed in the trial court prior to final judgment. 2. _____ The record will include the original papers and exhibits filed in the trial court, a certified copy of the docket and journal entries, and a full or partial transcript of proceedings prepared for this appeal by a court reporter appointed by the trial court, who I served with a praecipe that I also filed with this court. If only a partial transcript of proceedings is requested, see App.R. 9(B). 3. _____ The record will include the original papers and exhibits filed in the trial court and a certified copy of the docket and journal entries, and a statement of the evidence or proceedings pursuant to App.R. 9(C) or an agreed statement of the case pursuant to App.R. 9(D). 4. _____ The record will include the original papers and exhibits filed in the trial court and a certified copy of the docket and journal entries, and both a transcript of proceedings prepared by a court reporter appointed by the trial court and a statement of the evidence or case pursuant to App.R. 9(C) or (D). If only a partial transcript of proceedings is requested, see App.R. 9(B). If you intend to rely upon a transcript of proceedings filed in an earlier appeal, you must seek permission from the court to supplement the record in this appeal with the transcript filed in the earlier appeal. A time-stamped copy of the final judgment being appealed must be attached to this statement. If the order appealed is not final and appealable under R.C. 2505.02, the Court must dismiss the appeal. PAGE 1 OF 3 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 08/09/2019 13:44:26 PM DOST Page 2 of 8 Appeals, Court of THE PARTIES DOST CA-29499 08/09/2019 13:44:26 PM Page 2 of 8 Please provide the following information for all parties to the proceedings in the trial court. A party who files a notice of appeal is an appellant. A party who would be adversely affected if the judgment below is reversed should be designated as an appellee. All other parties to the action below should retain their trial court designation (plaintiff, defendant, third-party plaintiff, third-party defendant, petitioner, respondent, etc). See Local Rule 3. If a party was not represented by counsel in the proceedings below, please provide the address and phone number of the party. If there are additional parties and/or attorneys, please copy this page, complete the information for the additional parties, and attach it to this statement. Appellant must attach a copy of any order that resolved a claim against any of the parties. Party’s name NORDONIA LANDSCAPE SUPPLIES, LLC Party’s name CITY OF AKRON Party’s designation Plaintiff - Appellant Party’s designation Defendant - Appellee Attorney’s name Warner Mendenhall, Logan Trombley Attorney’s name David Honig, Brian D. Bremer Attorney’s registration number 0070165,0096858 Attorney’s registration number 0079781, 0087363 Address of counsel or party 190 N Union St STE 201 Address of counsel or party 161 S. High St., Suite 202 Akron, OH 44304 Akron, Ohio 44308 Phone 330-535-9160 Fax 330 762 9743 Phone (330) 375-2030: Fax (330) 375-2041 warner@warnermendehall.com, Email _____________________________________________ dhonig@akronohio.gov, bbremer@akronohio.gov Email _____________________________________________ logan@warnermendenhall.com Party’s name Party’s name Party’s designation Party’s designation Attorney’s name Attorney’s name Attorney’s registration number Attorney’s registration number Address of counsel or party Address of counsel or party Phone Fax Phone Fax Email _____________________________________________ Email _____________________________________________ Party’s name Party’s name Party’s designation Party’s designation Attorney’s name Attorney’s name Attorney’s registration number Attorney’s registration number Address of counsel or party Address of counsel or party Phone Fax Phone Fax Email _____________________________________________ Email _____________________________________________ PAGE 2 OF 3 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 08/09/2019 13:44:26 PM DOST Page 3 of 8 CA-29499 Appeals, Court of GENERAL INFORMATION DOST 08/09/2019 13:44:26 PM Page 3 of 8 Was a stay requested in the trial court? _____ Yes X _____ No If a stay was requested, how did the trial court rule? _____ Granted _____ Denied _____ Pending If this case has previously been before this Court, list prior appellate case number(s): ___________________ List case names and numbers of cases pending in this court that involve the same transaction or controversy involved in this appeal: _____________________________________________________________________ Probable issues for appeal: Is contracting for road salt considered a government function so as to make a municipality immune _______________________________________________________________________ from promissory estoppal claims? ________________________________________________________________________________________________ ________________________________________________________________________________________________ CRIMINAL CASE _____ Misdemeanor _____ Felony _____ Trial _____ Guilty/No contest plea Charges Sentence Type of Appeal: _____ Defendant’s Appeal as of Right _____ State’s Appeal as of Right _____ Defendant’s Appeal by Leave of Court _____ State’s Appeal by Leave of Court CIVIL CASE Type of action in trial court? Promissory Estoppal Did the judgment dispose of all claims by and against all parties? X _____ Yes _____ No If not, is there a determination that there is “no just reason for delay?” Civ.R. 54(B). _____ Yes _____ No Have the parties previously participated in mediation of this dispute? _____ Yes X _____ No Would a mediation conference assist in the resolution of this matter? _____ Yes _____ No X _____ Maybe Must this case be expedited as being one of the following types of cases? _____ Yes X _____ No _____ App.R. 11.2(B) or (C) appeals (abortion without parental consent, adoption, and parental rights) _____ App.R. 11.2(D) appeals (dependent, abused, neglected, unruly, or delinquent child appeals) _____ Appeal under determination of local fiscal emergency brought by municipal corporation _____ Election contests as provided in R.C. 3515.08 I CERTIFY THAT THE ABOVE INFORMATION IS ACCURATE TO THE BEST OF MY KNOWLEDGE AND THAT I HAVE ATTACHED A COPY OF THE FINAL JUDGMENT FROM WHICH THIS APPEAL IS TAKEN. /s/ Logan Trombley, 0096858 _________________________________________________ Signature of Counsel (or party if not represented by counsel) PAGE 3 OF 3 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 07/11/2019 13:44:26 08/09/2019 12:57:21 PM ORD-ORDE DOST Page 4 1 of 8 5 CA-29499 Appeals, Court of 08/09/2019 13:44:26 PM DOST Page 4 of 8 IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT NORDONIA LANDSCAPE SUPPLIES, ) CASE NO.: CV-2019-01-0254 LLC ) ) JUDGE SUSAN BAKER ROSS Plaintiff ) -vs- ) ) ORDER CITY OF AKRON ) ) Defendant The complaint in this matter was filed on January 21, 2019 seeking damages from the City of Akron for an alleged breach of contract and on the theory of promissory estoppel. On March 15, 2019 the City of Akron filed itsanswer in response to the complaint. Defendant City of Akron then filed a Motion for Judgment on the Pleadings on May 22, 2019 seeking dismissal based upon governmental immunity pursuant to R.C. 2744. The court granted Plaintiff an extension of time to respond to said motion. On June 17, 2019, Plaintiff filed its Brief in Opposition to Defendant’s Motion for Judgment on the Pleadings. On June 17, 2019, Defendant also filed a Notice of Partial Voluntary Dismissal dismissing its breach of contract claim. Consequently, Plaintiff’s sole remaining cause of action is based upon the theory of promissory estoppel. For the reasons set forth herein the Motion for Judgment on the Pleadings is granted. I. STANDARD OF PROOF Pursuant to Civ.R. 12(C) any party may move for judgment on the pleadings after the pleadings are closed but within such time as not to delay the trial. The Ohio Supreme Court has ruled that pursuant to Civ. R. 12(C), “dismissal is appropriate where a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the non-moving party as true, and (2) finds beyond doubt that the plaintiff could 1 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 07/11/2019 13:44:26 08/09/2019 12:57:21 PM ORD-ORDE DOST Page 5 2 of 8 5 CA-29499 Appeals, Court of 08/09/2019 13:44:26 PM DOST Page 5 of 8 prove no set of facts in support of his claim that would entitle him to relief.’ State ex rel. Midwest Pride IV, Inc. v. Pontious, (1996) 75 Ohio St.3d 565. II. GOVERNMENTAL IMMUNITY AND PROMISSORY ESTOPPEL Plaintiff’s Promissory Estoppel claim is based upon the following facts in its’ Complaint. Plaintiff is in the business of selling road salt in Ohio. Defendant is a municipal corporation that purchases road salt. Plaintiff alleges it purchased a certain amount of road salt. Plaintiff alleges this purchase was based upon the representation that Defendant would then purchase the road salt from Plaintiff. At some point in time, Defendant did not purchase the salt. Plaintiff claims it suffered monetary damage based upon Defendant not purchasing the road salt. In Ohio, the theory of promissory estoppel is defined as follows: [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. Hortman v. Miamisburg, (2006) 110 Ohio St. 3d 194, syllabus. However, the Ohio Supreme Court went on to hold that a claim under the doctrine of promissory estoppel is “inapplicable against a political subdivision when itis engaged in a governmental function.” Hortman, syllabus. Consequently, this court must determine whether the City was engaged in a governmental function when the facts of this case arose. Pursuant to R.C. §2744.02(A) “the functions of political subdivisions are … classified as governmental functions and proprietary functions.” Except as provided in division R.C. §2744.02(B), “a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or 2 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 07/11/2019 13:44:26 08/09/2019 12:57:21 PM ORD-ORDE DOST Page 6 3 of 8 5 CA-29499 Appeals, Court of 08/09/2019 13:44:26 PM DOST Page 6 of 8 proprietary function.” Furthermore, R.C. §2744.01(C)(2)(e) establishes that ‘[t]he regulation of the use of, and the maintenance and repair of, roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds” is a governmental function. The Court finds and both parties concede that Defendant is a political subdivision as defined under R.C. §2744 and under Hortman. Defendant argues that its communications with Plaintiff to procure road salt were an exercise of its governmental function. Conversely, Plaintiff argues that R.C. §2744.01(C)(2)(e) is interpreted narrowly citing Sullivan v. Anderson Twp., 2009-Ohio-6646 (1st Dist., 2009), and Kenko Corp v. Cincinnati, 2009-Ohio-4189 (1st. Dist, 2009). Thus, arguing that Defendant’s procurement of road salt is not a governmental function under the statute. Defendant further argues that the procurement of road salt is an activity engaged in by everyone – not just a governmental entity – and thus it was a proprietary function. The Court finds Plaintiff’s reliance upon Sullivan misplaced. Neither road widening nor the installation of a sidewalk are expressly identified under R.C. §2744(C)(2)(e). However, the Sullivan Court held that the installation of a sidewalk and the widening of a road are governmental functions. Similarly, the issue in Kenko was the construction of a road, not the regulation and maintenance of the road and as such, that decision is inapplicable to the issue before the court herein. ¶ 20. More on point is the 9th District Court of Appeal decision in Thomas v. Wooster, 2008 Ohio 1464 (9th. Dist., 2008)(¶14), wherein the court addressed and acknowledged that the removal of snow and ice from the roads is a function of maintaining the roads and is, therefore, a governmental function pursuant to R.C. §2744.01(C)(2)(e). See also Seikel v. Akron, 191 Ohio App.3d 362 (9th Dist., 2010) (where a tree fell on a car, the court held that the maintenance of trees located near a public road was a government function referencing, 3 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 07/11/2019 13:44:26 08/09/2019 12:57:21 PM ORD-ORDE DOST Page 7 4 of 8 5 CA-29499 Appeals, Court of 08/09/2019 13:44:26 PM DOST Page 7 of 8 in part, the duty to maintain roads pursuant to 2744.01(C)(2)(e)). When a statute does “not expressly define a function as a governmental one” a Court must determine what “the political subdivision was ‘actually doing’ when performing the function.” Kenko at ¶ 27, quoting Allied Erecting and Dismantling Co. v. Youngstown, 151 Ohio App.3d 16. The Court finds that as a matter of law a political subdivision’s actions in seeking to procure road salt is a governmental function as defined under R.C. §2744 because said salt is needed to maintain the roads, which is a governmental function. Consequently, the Plaintiff’s promissory estoppel claim against the City of Akron is precluded. CONCLUSION Construing the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of Plaintiff, the court finds beyond doubt that Plaintiff could prove no set of facts in support of its claim that would entitle it to relief. IT IS SO ORDERED. JUDGE SUSAN BAKER ROSS The Clerk of the Summit County Common Pleas Court shall serve upon all parties not in default for failure to appear a notice of this Judgment and its date of entry upon the journal. CC: ATTORNEY WARNER MENDENHALL ATTORNEY LOGAN TROMBLEY ATTORNEY DAVID HONIG ATTORNEY BRIAN D. BREMER CMP 4 Sandra Kurt, Summit County Clerk of Courts CV-2019-01-0254 BAKER ROSS, SUSAN 07/11/2019 13:44:26 08/09/2019 12:57:21 PM ORD-ORDE DOST Page 8 5 of 8 5 CA-29499 Appeals, Court of 08/09/2019 13:44:26 PM DOST Page 8 of 8 5 Sandra Kurt, Summit County Clerk of Courts