author: CYNTHIA WESTCOTT RICE, P.J.

text:
    Kimberley RAGAZZO, on behalf of herself and all others similarly situated, Plaintiff-Appellee, v. The CITY OF WILLOWICK, Defendant-Appellant.
    NO. 2017-L-061
    Court of Appeals of Ohio, Eleventh District, Lake County.
    Decided December 29, 2017
    Phillip A. Ciano and Andrew S. Goldwasser, Ciano & Goldwasser, LLP, 1610 Midland Building, 101 West Prospect Avenue, Cleveland, OH 44115; Daniel P. Goetz and Robert E. Kennedy, Weisman, Kennedy & Berris Co., L.P.A., 1600 Midland Building, 101 Prospect Avenue, Cleveland, OH 44115; and Paul W. Flowers, Paul W. Flowers Co., L.P.A., Terminal Tower, Suite 1910, 50 Public Square, Cleveland, OH 44113 (For Plaintiff-Appellee).
    John T. McLandrich and Robert F. Cathcart, Mazanec, Raskin & Ryder Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Solon, OH 44139; and Michael C. Lucas, Wiles and Richards, 37265 Euclid Avenue, Willoughby, OH 44094 (For Defendant-Appellant).
   CYNTHIA WESTCOTT RICE, P.J.

{¶ 1} Appellant, the city of Willowick, appeals the judgment of the Lake County Court of Common Pleas in favor of appellee, Kimberly Ragazzo, denying the city's motion for judgment on the pleadings on her negligence claim against the city. At issue is whether the court erred in finding the city was not entitled to political subdivision immunity. The city's appeal of a judgment in a related action, which asserted the same allegations against the city, but without class action allegations, is also pending before this court in Abramezyk v. Willowick , 11th Dist. Lake No. 2017-L-060, 2017 WL 6729682. For the reasons that follow, we affirm.

{¶ 2} On July 14, 2015, Ms. Ragazzo, who is a resident of Willowick, on behalf of herself and all others similarly situated, filed a class-action complaint against the city asserting, as pertinent to this appeal, a claim for negligence. On the same date, the complaint in Abramezyk was filed. Ms. Ragazzo states on appeal that Abramezyk was "filed out of concern that class action status could be denied in the instant Ragazzo proceeding." Ms. Ragazzo subsequently filed an amended complaint that did not make any substantive changes to the original. The statement of facts that follows is derived from the allegations in Ms. Ragazzo's complaint and documents attached to the city's answer.

{¶ 3} The city owns, operates, and maintains a sanitary sewer system that provides sewer services to its residents. On July 20, 2013, the city's sewer system backed up into hundreds of homes in Willowick, including Ms. Ragazzo's home, causing them to be flooded with raw sewage, bacteria-tainted water, feces, urine, dirt, debris, and noxious odors.

{¶ 4} In the past several years prior to the July 20, 2013 sewer system backup, the city's residents experienced a number of such backups.

{¶ 5} In June 2010, about 200 city residents were affected by a sanitary sewer backup. On October 12, 2010, during a meeting of Willowick City Council, in which Council discussed the deteriorating condition of the city's sewer system, then-Mayor Richard Bonde said: "[T]he city has done all it can to cut back on the expenses to avoid passing costs onto residents. However, the city is now at the point where they cannot fix the sewers."

{¶ 6} At the same hearing, Bob Patton, Chairman of the Streets, Sidewalks, and Sewers Committee, said: "The city is in a bad place with making this decision, in light of the photographs the city engineer produced of the collapse[d] sewers, something needs to be done." Further, Mr. Patton said that the "city must do something" and that he was "very concerned with the fact that there are bricks falling and blocking the sewers." Council member, Mike Vanni, said: "the photographs of the bricks blocking the sewers is just more justification that the city needs to do something."

{¶ 7} Two months later, during a Council meeting on December 7, 2010, the city's Service Director, Joe Dominick, said: "[t]he 305th [Street] sewer line is in need of jetting," i.e., cleaning out. He said: "there are three troublesome areas that have 70%, 50%, and 20% restricted flow. The [sewer] lines have calcifications that cannot be easily cleaned out." To clarify, Mr. Dominick said: "there is one location that has a blockage of 70%" and "another spot [is] at 50% and 20% blockages." Mr. Dominick said this was the same blockage the city engineer discussed at the public meetings on October 12, 2010 and October 19, 2010. City Engineer Juday, who was also present at the December meeting, said this could be the reason for the sewer backup on Willowick Drive. At this meeting, Mayor Bonde said he "still has some concerns with the Bayridge [Boulevard] overflow that occurred this year."

{¶ 8} Ms. Ragazzo alleged in her complaint that, throughout 2011, city representatives continued to note concerns regarding the condition and maintenance of the city's sanitary sewer lines. She further alleged that the city never appropriately addressed these issues and that, despite these ongoing concerns, the city never took the necessary steps to repair the sewers through proper upkeep, maintenance, operation, and repair. Ms. Ragazzo alleged that, as a result of the city's failure to maintain and repair the sewer system, the system backed up into her home and the homes of others similarly situated on July 20, 2013.

{¶ 9} Ms. Ragazzo alleged the city had a duty to maintain and repair its sewer system, and that the city's breach of that duty resulted in damage to her home and to the homes of others similarly situated, for which the city is liable in negligence.

{¶ 10} The city filed an answer, denying the material allegations of the complaint and asserting various affirmative defenses, including that the complaint was barred by political subdivision immunity, pursuant to R.C. Chapter 2744.

{¶ 11} Two weeks later, the city filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C), arguing that Ms. Ragazzo's claim was barred by subdivision immunity. In her brief in opposition, Ms. Ragazzo argued that maintenance and repair of a sewer system is a "proprietary" function, which is an exception to the city's immunity.

{¶ 12} The trial court designated this case to be "complex litigation" due to, in part, "the extent of the discovery necessary to prepare the case for trial."

{¶ 13} The trial court entered a seven-page, highly-detailed judgment denying the city's motion. The trial court concluded:

{¶ 14} Upon review of the Complaint in this case, the Court finds that Plaintiff has alleged in the Amended Class Action Complaint * * * that the City has failed to maintain its sewer system. Maintenance of a sewer system is a "proprietary function" which satisfies one of the exceptions to immunity set forth in R.C. * * * 2744.02(B)(2). Viewing the pleadings in a light most favorable to the Plaintiff, the Court finds that it would be improper to grant judgment on the pleadings in favor of the Defendant at this time based upon statutory immunity.

{¶ 15} The city appeals the trial court's judgment, asserting the following for its sole assignment of error:

{¶ 16} "The trial court improperly denied defendant/appellant city of Willowick immunity under R.C. Chapter 2744 and judgment on the pleadings."

{¶ 17} This interlocutory appeal was filed pursuant to R.C. 2744.02(C), which provides that an order denying a political subdivision the benefit of an alleged immunity from liability is a final order. This court has held that the denial of a motion to dismiss based on sovereign immunity is immediately appealable. Am. Site Contrs., Inc. v. Willowick , 11th Dist. Lake No. 2005-L-088, 2005-Ohio-4768, 2005 WL 2211142, ¶ 2. Since the trial court's judgment denied the city's motion for judgment on the pleadings, thus denying the city immunity, the court's judgment was a final order and the instant appeal is properly before this court.

{¶ 18} "Because a Civ.R. 12(C) motion for judgment on the pleadings tests the legal basis for the claims asserted in a complaint, our standard of review is de novo." Orwell Nat. Gas Co. v. Fredon Corp. , 2015-Ohio-1212, 30 N.E.3d 977, ¶ 18 (11th Dist.), citing State ex rel. Midwest Pride IV, Inc. v. Pontious , 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996). Further, whether a political subdivision is entitled to immunity is a question of law that we review de novo. See Cornelison v. Colosimo , 11th Dist. Trumbull No. 2009-T-0099, 2010-Ohio-2527, 2010 WL 2245614, ¶ 30.

{¶ 19} "In ruling on the motion [for judgment on the pleadings], a court is permitted to consider the complaint and the answer as well as any documents attached as exhibits to those pleadings." Orwell, supra . "In so doing, the court must construe the material allegations in the complaint, with all reasonable inferences drawn therefrom, as true and in favor of the non-moving party." Id. "A court granting the motion must find that the plaintiff can prove no set of facts in support of the claims that would entitle him or her to relief." Id. " '[A] motion for judgment on the pleadings has been characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted.' " Orwell, supra , quoting Gawloski v. Miller Brewing Co. , 96 Ohio App.3d 160, 163, 644 N.E.2d 731 (9th Dist.1994).

{¶ 20} "Generally, the party asserting immunity as an affirmative defense has the burden of proving that defense by a preponderance of the evidence at trial." Hall v. Ft. Frye Loc. School Dist. Bd. Of Edn. , 111 Ohio App.3d 690, 694, 676 N.E.2d 1241 (4th Dist.1996). This court, in Frazier v. Kent , 11th Dist. Portage Nos. 2004-P-0077 and 2004-P-0096, 2005-Ohio-5413, 2005 WL 2542940, set forth the appropriate analysis to be applied upon the assertion of a defense based on political subdivision immunity, as follows:

{¶ 21} R.C. Chapter 2744 sets forth a three tiered analysis for determining a political subdivision's immunity from liability. Greene Cty. Agricultural Soc. v. Liming , 89 Ohio St.3d 551, 556 [733 N.E.2d 1141] (2000). First, R.C. 2744.02(A)(1) codifies the general rule of sovereign immunity, viz., that "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 proprietary function." However, this general rule is limited by R.C. 2744.02(B), which sets forth five instances in which a political subdivision is not immune. Hence, the second tier of the analysis requires a court to determine whether any of the exceptions under R.C. 2744.02(B) apply. Finally, if a political subdivision is exposed to liability through the application of R.C. 2744.02(B), a court must consider whether the political subdivision could legitimately assert any of the defenses or immunities under R.C. 2744.03. See, e.g. , Greene Cty. Agricultural Soc. , supra , at 557 [733 N.E.2d 1141]. Frazier , supra , at ¶ 20.

{¶ 22} I. THE FIRST TIER: GENERAL SUBDIVISION IMMUNITY UNDER R.C. 2744.02(A)(1)

{¶ 23} Applying this analysis to the instant case, it is undisputed that the city of Willowick is a political subdivision pursuant to R.C. 2744.01(F). Thus, under the first tier of the analysis, the city is entitled to general immunity pursuant to R.C. 2744.02(A)(1).

{¶ 24} II. THE SECOND TIER: THE EXCEPTION TO SUBDIVISION IMMUNITY FOR THE NEGLIGENT PERFORMANCE OF A PROPRIETARY FUNCTION UNDER R.C. 2744.02(B)

{¶ 25} Under the second tier of the analysis, this court must determine whether any of the exceptions to immunity applies under R.C. 2744.02(B). Ms. Ragazzo argues her damages were caused by the city's failure to maintain its sewer system. She argues this failure amounts to negligence in the performance of a proprietary function, which, she contends, satisfies the exception to immunity in R.C. 2744.02(B)(2). That section provides:

{¶ 26} [P]olitical subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivision. (Emphasis added.)

{¶ 27} Government conduct is divided into governmental functions and proprietary functions under Ohio's Political Subdivision Tort Liability Law. Guenther v. Springfield Twp. Trustees , 2012-Ohio-203, 970 N.E.2d 1058, ¶ 12. With respect to sewer systems, "governmental functions" include "[t]he * * * planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system." R.C. 2744.01(C)(2)(l). In contrast, "proprietary functions" regarding sewer systems include "[t]he maintenance, * * * operation, and upkeep of a sewer system." R.C. 2744.01(G)(2)(d). Thus, "planning, design, construction, or reconstruction of a sewer system is shielded by immunity; maintenance or operation is not." Guenther , supra , at ¶ 17.

{¶ 28} In determining whether a complaint presents a maintenance issue (no immunity) or a construction issue (immunity), the Second District, in Guenther, supra , stated:

{¶ 29} A complaint is properly characterized as a maintenance, operation, or upkeep issue when "remedying the sewer problem would involve little discretion but, instead, would be a matter of routine maintenance, inspection, repair, removal of obstructions, or general repair of deterioration." Essman [v. Portsmouth , 4th Dist. Scioto No. 09CA3325, 2010-Ohio-4837, 2010 WL 3852247,] ¶ 32. But the complaint presents a design or construction issue if "remedying a problem would require a [political subdivision] to, in essence, redesign or reconstruct the sewer system." Essman at ¶ 32-33. Guenther , supra , at ¶ 18 ; quoted with approval by Coleman v. Portage Cty. Engineer , 133 Ohio St.3d 28, 2012-Ohio-3881, 975 N.E.2d 952, ¶ 30.

{¶ 30} Here, the complaint alleged that the city failed to maintain and repair its sewer system. Further, the city concedes the proprietary-function exception to immunity is arguably at issue here. However, the city contends that the complaint does not contain sufficient factual allegations to support Ms. Ragazzo's negligence claims or to deprive the city of immunity. We do not agree.

{¶ 31} In addressing Ohio's pleading requirements, this court, in McWreath v. Cortland Bank , 11th Dist. Trumbull No. 2010-T-0023, 2012-Ohio-3013, 2012 WL 2522933, ¶ 38, stated:

{¶ 32} "Because Ohio is a notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity. * * * Rather, Civ.R. 8(A) requires only a short and plain statement of the claim that gives the defendant fair notice of the plaintiff's claim and the grounds upon which it is based. * * * Thus, a plaintiff is not required to plead the legal theory of the case at the pleading stage and need only give reasonable notice of the claim. * * * Outside of a few exceptions, * * * a complaint need not contain more than 'brief and sketchy allegations of fact to survive a motion to dismiss under the notice pleading rule.' * * *." (Internal citations omitted.) Ogle v. Ohio Power Co. , 180 Ohio App.3d 44, 2008-Ohio-7042, 903 N.E.2d 1284, ¶ 5 (4th Dist.).

{¶ 33} "When ruling on a motion to dismiss, 'a plaintiff is not required to prove his or her case at the pleading stage.' " Mohat v. Horvath , 11th Dist. Lake No. 2013-L-009, 2013-Ohio-4290, 2013 WL 5450296, ¶ 14, quoting York v. Ohio State Hwy. Patrol , 60 Ohio St.3d 143, 144-145, 573 N.E.2d 1063 (1991). "Rather, a plaintiff is only required to allege a set of facts, which, if proven, would plausibly allow for recovery." Id. , citing Howard v. Girard , 11th Dist. Trumbull No. 2010-T-0096, 2011-Ohio-2331, 2011 WL 1944196, ¶ 14. "The plausibility standard does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence in support of a claim." Id. "While the complaint does not need detailed factual allegations, it requires more than mere conclusions or a recitation of the elements of the claim." Id.

{¶ 34} The city argues that Ms. Ragazzo's factual allegations are insufficient and the complaint must be dismissed because she failed to allege: (1) the specific cause of the 2010 sewer backup; (2) that she was affected by that backup; (3) whether the problems with the sewer system in 2010 had anything to do with the 2013 backup; (4) the specific sewer problem that affected her home in 2013; (5) the specific steps necessary to remedy the problem with the sewers; and (6) what work was not performed. Basically, the city argues that, unless the complaint made specific factual allegations regarding virtually every aspect of her claim, it must be dismissed.

{¶ 35} However, in making this argument, the city misconstrues-or ignores-Ms. Ragazzo's burden at the pleading stage. As noted above, in order to survive a motion for judgment on the pleadings, she was not required to meet a particularity or probability standard. Rather, she was simply required to allege enough facts to give the city notice of her claim and the grounds on which it was based. McWreath, supra. While the complaint requires more than mere legal conclusions, it does not need detailed or particularized factual allegations. Id.

{¶ 36} Contrary to the city's argument, Ms. Ragazzo alleged sufficient facts to support her claim and to defeat the city's immunity defense. Ms. Ragazzo alleged in her complaint that in June 2010, some 200 residents of the city were affected by the sewer backup. The complaint and Council's minutes (attached to the city's answer) provide facts regarding at least three different potential causes of the 2010 backup, i.e., calcification in the sewer lines, bricks falling and blocking the sewers, and collapsed sewers. The city engineer said the calcification blockage might have been the cause of the sewer backup on Willowick Drive. The mayor himself acknowledged the serious nature of the problems with the sewer system by saying that "the city is now at the point where they cannot fix the sewers." Further, the complaint alleged that, throughout 2011, city representatives continued to express concerns regarding the condition and maintenance of the city's sewer lines. Ms. Ragazzo alleged that, despite these ongoing concerns regarding the sewer system, the city failed to remedy the problems with the sewer system through proper upkeep, maintenance, operation, and repair. These facts support a reasonable inference that the sewer problems connected with the 2010 backup were not repaired by the time of the 2013 backup and were thus also related to that backup.

{¶ 37} In light of the obvious complexity of this case, as evidenced by the trial court's designation of this matter as "complex litigation," it is unrealistic to expect that, at the pleading stage, Ms. Ragazzo would be able to plead detailed facts regarding all the pleading omissions alleged by the city. These issues will presumably be addressed in discovery. For now, the city cannot reasonably deny that it is on notice of Ms. Ragazzo's claim and the grounds on which it is based. Nor can the city reasonably deny that Ms. Ragazzo has alleged a set of facts, which, if proven, would plausibly allow for recovery.

{¶ 38} The city attempts to minimize the significance of the facts alleged by Ms. Ragazzo in the complaint. First, the city argues she took the mayor's comments about the city not being able to fix the sewers out of context because he made them while discussing repairing the sewers without raising sewer rates. However, construing the mayor's comments in a light most favorable to Ms. Ragazzo, these comments acknowledge that the city was on notice of the deteriorating condition of its sewer system and that the city allowed these problems to continue to the point where it could not fix the sewers.

{¶ 39} Further, the city's argument that it hired a contractor to clean out the calcification in the E. 305th Street sewer line does not mean the city repaired the calcification problem at that location or at any other area of the city where calcification had created blockages or any of the other problems plaguing the sewer system. Notably, the city does not reference anything in the record showing the city repaired any of the problems with the sewer system prior to the 2013 backup.

{¶ 40} Finally, the city argues there are no facts connecting the sewer system problems identified in 2010 with the 2013 backup. However, the city ignores Ms. Ragazzo's allegations that city officials remained concerned about the condition and maintenance of the sewer lines "[t]hroughout 2011" and that, despite these ongoing concerns, the city failed to repair the sewers, resulting in the 2013 backup.

{¶ 41} III. THE THIRD TIER: THE RESTORATION OF DISCRETIONARY IMMUNITY UNDER R.C. 2744.03(A)(5)

{¶ 42} Next, under the third tier of the immunity analysis, the city argues that, even if the proprietary-function exception to immunity in R.C. 2744.02(B)(2) applies, Ms. Ragazzo failed to allege facts that would defeat the reinstatement of discretionary immunity pursuant to R.C. 2744.03(A)(5). That section provides:

{¶ 43} 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.

{¶ 44} However, the city does not argue, let alone show, that it exercised any discretion in the maintenance and repair of its sewer system, thus defeating the restoration of immunity contemplated in R.C. 2744.03(A).

{¶ 45} Ohio Appellate Districts have repeatedly held that the decision to provide maintenance and repair to a sewer system does not involve the exercise of discretion that would provide for the restoration of immunity under R.C. 2744.03(A)(5). In Williams v. Glouster , 4th Dist. Athens No. 10CA58, 2012-Ohio-1283, 2012 WL 1029470, the Fourth District "rejected [the appellant-village's] contention that its duty to maintain the [sewer] system constituted the type of discretionary decision * * * contemplated under R.C. 2744.03(A)(5) which would re-establish its immunity." Williams at ¶ 35. The Fourth District stated:

{¶ 46} [I]f it is proven that [a]ppellant negligently maintained its * * * sewer system, the maintenance of which is a proprietary function, because that function is mandatory and did not involve the exercise of judgment or discretion, [a]ppellant's immunity from liability would not be re-instated under R.C. 2744.03(A)(5). As such, we need not reach the question of whether [a]ppellant's actions were exercised with malicious purpose, in bad faith, or in a wanton or reckless manner, as set forth in R.C. 2744.03(A)(5). Williams at ¶ 36.

{¶ 47} Further, in Nelson v. Cleveland , 8th Dist. Cuyahoga No. 98548, 2013-Ohio-493, 2013 WL 588718, another case involving a city's alleged negligent maintenance of its sewer system, the court rejected the city's argument that it was entitled to discretionary immunity under R.C. 2744.03(A)(5). Nelson at ¶ 30. The Eighth District, in citing Williams, supra , and other cases stated:

{¶ 48} Decisions involving the proper maintenance of the sewer * * * system is a proprietary act, which is mandatory and not discretionary. These decisions do not involve a high degree of discretion. Rather, they involve routine inspection and maintenance. Therefore, the defense outlined in R.C. 2744.03(A)(5) is not available to the City. Nelson, supra .

{¶ 49} We find the reasoning in Williams and Nelson to be persuasive and applicable here. Since this case involves the maintenance and repair of sewers, which, per R.C. 2744.01(G)(2)(d), is a proprietary function, R.C. 2744.03(A)(5) does not apply to restore immunity to the city.

{¶ 50} We therefore hold the trial court did not err in denying the city's motion for judgment on the pleadings and in finding that the city was not entitled to political subdivision immunity on Ms. Ragazzo's negligence claim.

{¶ 51} For the reasons stated in this opinion, the assignment of error is overruled. It is the order and judgment of this court that the judgment of the Lake County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only.


source: Caselaw Access Project

author: DIANE V. GRENDELL, J.

license: Public Domain

text:
    Christopher P. HITCHCOCK, Treasurer of Geauga County, Ohio, Plaintiff, v. Sherman F. DENISON, et al., Defendants-Appellants,
    Sylvia B. Imars, Defendant-Appellee.
    NO. 2017-G-0107
    Court of Appeals of Ohio, Eleventh District, Geauga County.
    Decided December 29, 2017
    Bruce L. Waterhouse, Jr., Nicola, Gudbranson & Cooper, LLC, Republic Building, Suite 1400, 25 West Prospect Avenue, Cleveland, OH 44115 (For Defendants-Appellants).
    Joyce E. Barrett and James P. Reddy, Jr., 55 Public Square, Suite 1260, Cleveland, OH 44113 (For Defendant-Appellee).
   DIANE V. GRENDELL, J.

{¶ 1} Defendants-appellants appeal the judgment of the Geauga County Court of Common Pleas, holding that they are barred from raising the statute of limitations defense against defendant-appellee. The issue before this court is whether, when the original mortgagor has been found to have waived the statute of limitations against a senior lienholder in a foreclosure action, subordinate lienholders are bound by that waiver and barred from raising the defense against the senior lienholder. For the following reasons, the judgment of the lower court is reversed and this matter is remanded for further proceedings consistent with this opinion.

{¶ 2} On February 9, 2015, Christopher P. Hitchcock, Treasurer for Geauga County, Ohio, filed a Complaint in Foreclosure against Charles J. Imars and others, including appellee, Sylvia B. Imars, and appellants, Sherman F. Denison, E. Bruce Dunn, and Rebecca Dunn. Hitchcock sought the foreclosure of property owned by Charles Imars at 14656 South Cheshire Street, in Burton, for "due and unpaid taxes, assessments, interest and penalties."

{¶ 3} On March 10, 2015, Sylvia Imars filed an Answer and Cross-Claim against Charles Imars. Sylvia alleged that she and Charles were divorced on March 6, 1996, and that he executed a promissory note to her in the amount of $20,000, secured by a mortgage on the property located at 14656 South Cheshire Street. According to the note, "both principal and interest were due and payable thirty-six (36) months from December 5, 1996 or upon the earlier sale of the real property."

{¶ 4} On April 16, 2015, Denison and the Dunns filed an Answer, Crossclaims and Counterclaim. They asserted that they "have a security interest in and lien against the real property and premises * * * pursuant to two Cognovit Demand Promissory Notes," executed on January 1, 2009, in the amount of $290,702.83 to Denison and $182,370.19 to the Dunns.

{¶ 5} On April 24, 2015, Charles Imars filed a Reply to Cross-Claim of Sylvia B. Imars, raising the affirmative defense of the statute of limitations.

{¶ 6} On September 21, 2015, Charles Imars and the Treasurer for Geauga County stipulated to judgment in favor of the Treasurer in the amount of $41,494.42.

{¶ 7} On February 29, 2016, Denison and the Dunns filed a Motion for Partial Summary Judgment, asserting that the Cross-Claim of Sylvia Imars "is time-barred by the statute of limitations set forth in R.C. 1303.16."

{¶ 8} On April 19, 2016, the trial court entered judgment in favor of Denison in the amount of $496,657.03, and in favor of the Dunns in the amount of $309,694.68.

{¶ 9} On September 30, 2016, a hearing was held on the issue of lien priorities and whether Sylvia Imars' note was subject to the statute of limitations defense.

{¶ 10} On December 30, 2016, the trial court ordered the foreclosure of the subject premises. With respect to Sylvia Imars' claim, the court ruled as follows:

Mrs. Imars' Note provides, by its express terms, that the principal and interest is due and payable thirty-six (36) months from the date of the Note or upon sale of the subject property, whichever occurs first. Therefore, the latest that Mrs. Imars' Note would have been due and payable was December 5, 1999.
Absent an applicable defense to or exemption from its application, a claim to enforce Mrs. Imars' Note would be subject to the six-year statute of limitations set forth in R.C. 1303.16(A).
* * *
This Court finds, however, based upon the testimony at trial, that Mr. Imars has waived the operation of R.C. 1303.16(A) with respect to his debt to Mrs. Imars and that such waiver is binding upon subordinate lienholders, including the Denison and Dunn Defendants. Therefore, Mrs. Imars' Note remains a valid and enforceable obligation of Mr. Imars.

{¶ 11} The trial court's December 30, 2016 judgment further provides that, upon confirmation of the sale of the property, the proceeds of the sale shall be paid first to the Geauga County Clerk of Courts; second to the Geauga County Treasurer; third to Sylvia Imars; fourth to Denison and the Dunns; and fifth to Charles Imars.

{¶ 12} On January 25, 2017, Denison and the Dunns filed a Notice of Appeal. On appeal, they raise the following assignments of error:

{¶ 13} "[1.] The trial court committed prejudicial error by entering judgment in favor of mortgagee Sylvia B. Imars against mortgagor Charles J. Imars, finding that Charles J. Imars waived his right to assert R.C. 1303.16(A) (the statute of limitations applicable to promissory notes), where there was no evidence in the record that Mr. Imars either expressly or impliedly waived the statute of limitations defense."

{¶ 14} "[2.] The trial court committed prejudicial error by holding that Mr. Imars' waiver of his statute of limitations defense prevented the Denison/Dunn Defendants from asserting the defense themselves, and by enforcing Mrs. Imars' promissory note as a valid claim and Mrs. Imars' mortgage as a valid lien with priority over the lien of the Denison/Dunn Defendants."

{¶ 15} We will address the second assignment of error first, as it is dispositive of the entire appeal.

{¶ 16} Under the second assignment of error, Denison and the Dunns argue that the trial court erred "in its holding that Mr. Imars' waiver of the defense of the statute of limitations was 'binding upon subordinate lienholders', thereby reviving Mrs. Imars' mortgage lien with priority over the mortgage lien of the Denison/Dunn Defendants." Appellants' brief at 7.

{¶ 17} The issue presented for review, whether the waiver of the statute of limitations defense by the maker of a promissory note secured by a mortgage is binding on third parties having an interest in the mortgaged property, is a question of law. Therefore, this court applies the de novo standard of review. Hayward v. Summa Health Sys./Akron City Hosp. , 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 23 ; Office of Consumers' Counsel v. Pub. Util. Comm. , 58 Ohio St.2d 108, 110, 388 N.E.2d 1370 (1979) ("[a]s to questions of law, [a reviewing] court has complete, independent power of review[;] [l]egal issues are accordingly subject to more intensive examination than are factual questions").

{¶ 18} Denison and the Dunns rely on Hopkins v. Clyde , 71 Ohio St. 141, 72 N.E. 846 (1904). The fact specific holding of that case was: "One who, by either private or judicial sale, has become the owner of the interests in real estate belonging to one or more of the heirs at law of a mortgagor, may plead the statute of limitations in bar of an action to foreclose the mortgage on the real estate so acquired, although each and all of such heirs at law are parties to the action, and neglect or refuse to interpose the plea." Id. at syllabus. The party seeking to assert the statute of limitations defense in Hopkins had acquired his interest in the subject property from an heir of the original mortgagor/promisor. He did not merely possess a secured interest in the property, but, rather, he had become "seised of all the rights, title, and interest which [the heir] had theretofore held in the premises as one of the heirs of the mortgagor, and he became a tenant in common with the other heirs of the mortgagor, entitled as against them to bring and maintain proceedings for the partition of the real estate, and to enforce any and all the rights and be subject to the liabilities of a tenant in common, which might accrue under his new relation." Id. at 145-146, 72 N.E. 846.

{¶ 19} It is evident that the factual situation in Hopkins is distinguishable, but not ultimately material to the outcome. The decision in Hopkins rests upon "[t]he general rule * * * that the right to plead the statute of limitations is a personal privilege, but persons standing in the place of the party having the personal privilege, such as grantees, mortgagees, executors, administrators, trustees, heirs, devisees, or other persons holding under him, may set up such defense." (Citation omitted.) Id. at 147-148, 72 N.E. 846. The court began with the proposition that the heirs of the mortgagor could assert the defense since they "would be holding under the mortgagor, and [would be] in privity of estate with him." Id. at 148, 72 N.E. 846. The question was whether a subsequent grantee (so the court described Hopkins as the purchaser of an interest at judicial sale) stood in the grantor's "place in the chain of title" so to hold under the mortgagor. Id. The court resolved the question by appealing to several "well decided" cases in which it was held that "the holder of a junior mortgage may plead the statutory bar against the enforcement of a senior mortgage" even when "the mortgagor is a party to the action and refuses to plead the statute." (Citation omitted.) Id.

{¶ 20} The holding of Hopkins was reaffirmed in the factually more similar case of Curtis v. Island Dev. Corp. , 102 Ohio App.3d 320, 657 N.E.2d 295 (6th Dist.1995). In Curtis , an assignee of the original mortgagee sought to foreclose the mortgage after the expiration of the statute of limitations. Id. at 321-322, 657 N.E.2d 295. The party seeking to assert the statute of limitations defense was a utility company which held a lien on the subject premises for "available for use fees." The assignee argued that the utility company lacked privity with a proper holder of the defense. Id. at 323, 657 N.E.2d 295. The court of appeals rejected this argument, noting that the holding of Hopkins did "not limit the defense to those in privity." Id. As discussed above, the Ohio Supreme Court in Hopkins expressly cited to the example of a holder of a junior mortgage raising the defense against the enforcement of a senior mortgage. Hopkins at 149, 72 N.E. 846 ("on the ground that he holds * * * equity of redemption in * * * the incumbered premises, he is entitled to plead the statutory bar for the protection of his title"). Also Adams v. Bankers Trust Co. , 2d Dist. Montgomery Nos. 25703 and 25706, 2014-Ohio-231, 2014 WL 273132, ¶ 15, fn. 4 (acknowledging, in dicta, "that authority exists allowing a junior mortgagee or lien holder to assert the statute of limitations against enforcement of a senior mortgage held by another party").

{¶ 21} Sylvia Imars' only argument as to why Hopkins should not determine the present appeal is that " Hopkins involved a foreclosure action brought by the purchaser of real estate, not another mortgagee, as appellants are herein." Appellee's brief at 12. As demonstrated above, the fact that in Hopkins a purchaser (judgment creditor) sought to raise the limitations defense is not a material difference from the present situation. In determining that the defense could be so raised, the Ohio Supreme Court reasoned that, "[i]f a junior mortgagee may so defend, so may a subsequent purchaser." Hopkins at 148, 72 N.E. 846. Thus, the holding in Hopkins is premised on the proposition that a junior mortgagee may raise the limitations defense against a senior mortgagee.

{¶ 22} For a discussion of the issue in foreign jurisdictions, see Krauss v. Natl. Bank of Brunswick , 184 Ga. 456, 192 S.E. 12, 14 (1937) ("we are of the opinion that the relation of the [subsequent mortgagee] to [the mortgagor] was so nearly analogous to that of a privy that it was entitled to the same relief as one would have been who was in the strictest sense a privy"); Buss v. Kemp Lumber Co. , 23 N.M. 567, 170 P. 54, 55 (1918) ("[b]roadly speaking any person who claims title to, or interest in, any real estate may invoke the aid of the statute of limitations as against a claimant whose claim is prior in time to the person invoking the aid of the statute, where the prior claim has been barred by the statute of limitations") (citation omitted).

{¶ 23} The second assignment of error is with merit.

{¶ 24} In the first assignment of error, Denison and the Dunns contend that the trial court's finding that Charles Imars waived the statute of limitations defense was not supported by the weight of the evidence. Our disposition of the second assignment of error and the conclusion that Denison and the Dunns would not be bound by Charles Imars' waiver renders the issue of whether that waiver was supported by the weight of the evidence moot.

{¶ 25} The judgment of the Geauga County Court of Common Pleas is reversed to the extent indicated above, i.e., with respect to its holding that Charles Imars' waiver of "the operation of R.C. 1303.16(A) with respect to his debt to Mrs. Imars * * * is binding upon subordinate lienholders, including the Denison and Dunn Defendants." The matter is reversed for further proceedings consistent with this opinion. Costs to be taxed against the appellee.

THOMAS R. WRIGHT, J., concurs with Concurring Opinion,

CYNTHIA WESTCOTT RICE, P.J., dissents with a Dissenting Opinion.

THOMAS R. WRIGHT, J., concurs with Concurring Opinion.

{¶ 26} While I concur, I write separately to address the dissent. Not acknowledged or addressed is Hopkins v. Clyde , 71 Ohio St. 141, 72 N.E. 846 (1904), wherein the Supreme Court cited with approval Hill v. Hilliard , 103 N.C. 34, 9 S.E. 639 (1889) :

{¶ 27} " 'A subsequent mortgagee or purchaser of the equity of redemption has the right to avail himself of the statute of limitations as a defense to the first mortgage, and after the rights of the first mortgage are barred by the statute no act or acknowledgement on the part of the mortgagor can revive the mortgage as to subsequent mortgagees or purchasers .' " (Emphasis added.) Hopkins , at 148, 72 N.E. 846.

{¶ 28} Accordingly, the dissent is based on an inconsequential distinction and contrary to a superior court.

CYNTHIA WESTCOTT RICE, P.J., dissents with a Dissenting Opinion.

{¶ 29} I would affirm the trial court's finding that Charles Imars waived the operation of R.C. 1303.16(A) with respect to the $20,000 debt he owed Sylvia Imars and that his waiver is binding upon subordinate lienholders, including the Denison and Dunn defendants. Thus, I respectfully dissent.

{¶ 30} "When reviewing a civil appeal from a bench trial, we apply a manifest weight standard of review." San Allen, Inc. v. Buehrer , 8th Dist. Cuyahoga, 2014-Ohio-2071, 11 N.E.3d 739, ¶ 89. "A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not." Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984). Thus, in a bench trial, the trial court's factual findings are reviewed under the manifest weight standard of review, while the court's legal findings are reviewed de novo.

{¶ 31} The expiration of the statute of limitations is an affirmative defense that may be waived by the defendant. State ex rel. Jones v. Suster , 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998) ; Marks v. Beacon Mut. Ind. Co. , 4th Dist. Ross No. 935, 1983 WL 3120, *2 (Feb. 8, 1983). "[W]aiver is the voluntary relinquishment of a known right." Nat'l City Bank v. Rini , 162 Ohio App.3d 662, 2005-Ohio-4041, 834 N.E.2d 836, ¶ 24 (11th Dist.). "Waiver can be express or implied from the conduct of the parties * * *." Quest Workforce Solutions, LLC v. Job1USA, Inc. , 6th Dist. Lucas, 2016-Ohio-8380, 75 N.E.3d 1020, ¶ 40. A waiver by estoppel exists when a party's conduct is inconsistent with an intent to claim a right and the other party relies on that conduct to his detriment. Rini, supra . The existence of waiver is a question of fact. Palek Corp. v. A.P. O'Horo Co. , 7th Dist. Mahoning No. 05 MA 141, 2007-Ohio-1121, 2007 WL 752159, ¶ 27. However, whether a mortgagor's waiver is legally binding on subsequent mortgagees is a question of law since it concerns the application or interpretation of the law. See Wheatley v. Marietta College , 4th Dist. Washington, 2016-Ohio-949, 48 N.E.3d 587, ¶ 55.

{¶ 32} The record contains evidence of Charles' waiver. Sylvia testified she did not sue Charles prior to this case for several reasons. She said that between 1996 and 1999, he repeatedly told her he would pay his debt when he sold his property. She said that after 1999, she called him multiple times asking him to pay his debt. He said he still did not have the money, but would pay her when he sold his property. Finally, in 2008, Sylvia hired an attorney to send Charles a demand letter. In response, Charles' attorney sent her attorney a letter stating:

I discussed the demand with Mr. Imars, who indicated that his financial situation at the present time is such that he is unable to make any payment.
He does have his real estate listed for sale, and should he be able to find a buyer, it would enable him to meet his financial obligations.
I realize that this is not what you or your client would wish to hear, however, I do believe that continued forbearance in this matter would be the best course for all concerned." (Emphasis sic.)

{¶ 33} "A forbearance means 'a delay in enforcing * * * debts, * * * claims or obligations.' " HomEq Servicing Corp. v. Schwamberger , 4th Dist. Scioto No. 07CA3146, 2008-Ohio-2478, 2008 WL 2151996, ¶ 19, quoting Webster's Third New Int'l Dictionary 886 (3d ed.1993). Otherwise stated, a forbearance is " 'the refraining from doing something that one has a legal right to do. Giving of further time for repayment of [an] obligation or [an] agreement not to enforce a claim at its due date.' " Id. , quoting Black's Law Dictionary 664 (7th ed.1999). Sylvia said that, based on the letter from Charles' attorney, she further delayed filing suit.

{¶ 34} Sylvia testified that Charles never told her he did not owe her the money. Further, Charles testified that in 2008, when his attorney sent his letter to Sylvia's attorney, it was his (Charles') intention to pay the debt to Sylvia. In fact, Charles said he has always intended to pay this debt.

{¶ 35} Following the presentation of the evidence, the trial court ruled from the bench:

Mr. Imars testified honorably: * * * He intends to pay his wife. And it's his debt. It's not the debt of the other lienholders.
And while in his answer to [Sylvia's] cross-claim his attorney raised the statute of limitations, Mr. Imars as the person who owes the debt said: I intend to pay that debt, so he has effectively waived his statute of limitations defense. And the Court is of the opinion that other lienholders cannot bring that up when the debtor himself says: I owe it and intend to pay it.
So I do find that Mr. Imars continues to be obligated to Mrs. Imars and that the timing of the mortgage and note grant Mrs. Imars * * * priority over the other parties.

{¶ 36} The trial court's finding that Charles waived the statute of limitations was supported by competent, credible evidence. In reliance on his repeated promises to pay his debt when he sold his property, Sylvia delayed filing suit. Thus, Charles waived the defense based on prior agreements of forbearance to enforce the underlying note. The cases cited by appellants are inapposite because the mortgagors in those cases did not waive the limitations defense, thus allowing subsequent lienholders to assert the defense. In contrast, here, Charles waived the limitations defense before and after the limitations period ran on Sylvia's note and before appellants obtained their interests in his property. Thus, the trial court did not err in finding that Sylvia's interests had priority over appellants'. As a result, I would affirm and I respectfully dissent.

      The appellate decision in Curtis does not provide further detail regarding the nature of the utility company's interest.

      Charles Imars has not challenged the finding that he waived the statute of limitations defense and is not a party to this appeal.