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CV-2019-01-0254 BAKER ROSS, SUSAN 07/11/2019 12:57:21 PM ORD-ORDE Page 1 of 5
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 07/11/2019 12:57:21 PM ORD-ORDE Page 1 of 5 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 12:57:21 PM ORD-ORDE Page 2 of 5 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 12:57:21 PM ORD-ORDE Page 3 of 5 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 12:57:21 PM ORD-ORDE Page 4 of 5 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 12:57:21 PM ORD-ORDE Page 5 of 5 5 Sandra Kurt, Summit County Clerk of Courts