COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69254 NICK N. PAPADELIS, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION CITY OF CLEVELAND : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : APRIL 4, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 252486 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Michael Westerhaus 14255 Peppercreek Drive Strongsville, Ohio 44136 For defendant-appellee: Paul A. Janis Assistant Law Director 601 Lakeside Avenue City Hall - Room 106 Cleveland, Ohio 44114 -2- NAHRA, J.: Plaintiff-appellant Nick N. Papadelis appeals from the trial court order which granted defendant-appellee the City of Cleveland's ("the City's") motion for summary judgment. Appellant originally filed his complaint in the Cuyahoga County Court of Common Pleas against the City, and specifically, its Division of Water. Appellant alleged he was the owner of numerous rental properties supplied with water by appellee. For his cause of action against appellee, he stated in pertinent part as follows: 2. Defendant has treated plaintiff in an unreasonable, discriminatory and arbitrarily (sic) manner in the way it has terminated and threatened to terminate his supply of water to enforce payment and in the way it has billed him for water. 3. Defendant has failed to comply with Cleveland Ordinance Sec. 535.16, which requires notice of 1 Hereinafter, an ordinance of appellee will be designated as "C.C.O." C.C.O. 535.16 provides: 535.16 Termination for Nonpayment; Notice Water service may be terminated at any premises where any water bill remains unpaid after the date payment is due, subject to the following: (a) The Division of Water shall send to the account holder a notice of termination of service at least fifteen days prior to such termination. (b) Where the Division of Water has reason to believe that the premises where service is to be terminated is occupied by residential tenants, the Division shall provide at least thirty (30) days' notice to any such tenants by mail or by posting a notice of termination on all accessible building entrances and, where possible, at the door of each dwelling unit. The notice shall inform the tenants of -3- termination at least 15 days prior to termination and notification to tenants. The remaining paragraphs of appellant's complaint listed four specific properties to which the foregoing allegations applied, and detailed the "wrongful" actions appellee was alleged to have taken with regard to them. Finally, appellant's complaint stated: 9. Defendant has in other ways and for other properties treated plaintiff in a manner that is unreasonable, discriminatory or excessive. 10. As a result of defendant's arbitrary, unreasonable and illegal treatment of plaintiff, plaintiff has suffered damages in the amount of $100,000.00. Appellant prayed for both compensatory and punitive damages. Appellee answered the complaint with denials of the pertinent allegations. Appellee also asserted several affirmative defenses to the action, including statutory immunity. The record reflects that, thereafter, discovery proceeded. Appellant answered interrogatories and a first request for admissions propounded to him by appellee; he refused to answer a second request for admissions, despite a trial court order to the remedies available to them under Section 535.14 of this Chapter. Except as provided in Section 535.14, water service at a premises terminated for nonpayment shall not be restored until all charges due and payable have been paid, whether or not there has been in the meantime a change of ownership or possession of the premises supplied. (Ord. No. 284-A-88. Passed 2-6- 89, eff. 2-10-89) -4- comply with appellee's discovery attempts. Appellee also deposed 2 3 appellant and appellant deposed an official employed by appellee. Subsequently, appellee filed a motion for summary judgment. In its brief in support of the motion, appellee noted that even after discovery, the legal theory upon which appellant based his cause of action was unclear. However, appellee stated that whether 4 appellant's cause of action was based upon defamation, the common law public duty rule or negligence, there were no genuine issues of material fact since the evidence demonstrated appellant, without excuse, simply had failed to pay the water bills incurred at the subject properties. Appellee's motion was supported by copies of appellant's answers to appellee's interrogatories and requests for admissions and the affidavit of the clerk of the Customer Service Section of the Division of Water. Appellant responded to appellee's motion by restating that the "basis of [his] Complaint is that [appellee] has violated its own ordinances in its treatment of [appellant]," specifically, C.C.O. 535.16. Appellant then cited a portion of the City official's deposition as support for his statement. 2 Although appellee stated to the trial court appellant's deposition had been filed with it, the record does not so reflect. 3 The record reflects this deposition was filed in the trial court. 4 This supposition stemmed from appellant's answer to one of the interrogatories propounded to him by appellee. -5- Appellant went on to deny his cause of action was based upon either defamation or negligence; rather, it was based upon the premise that no "city may intentionally violate its own ordinances." (Emphasis added.) Appellant cited 92 O.Jur.3d, Water, 318 as support for this premise. Appellant then proceeded to cite 292, however, which indicated the City's liability for causing damage to a consumer for shutting off his water supply was based upon negligence. Appellant concluded his brief by asserting appellee's motion "must be denied" because he had "demonstrated he has a cause of action for unreasonable and discriminatory water shut off because [appellee] has violated its own ordinances in regard to notice of water termination, resulting in damage to [appellant]." Attached to appellant's brief was his affidavit. Appellee filed a reply brief in which it essentially argued it was entitled to judgment on appellant's claims for two reasons: 1) the immunity provided by R.C. 2744.02; and 2) appellant had produced no evidence to support his allegations. Ultimately, the trial court granted appellee's motion for summary judgment without opinion. It is from that order that appellant has filed his timely appeal. Appellant's sole assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Appellant argues summary judgment was improperly granted to appellee on the following grounds: 1) he provided sufficient -6- evidence to raise genuine issues of fact with regard to his claims; 2) the trial court failed to consider that his action was based upon contract; 3) R.C. 2744.02 does not apply to bar his action; and 4) the trial court is the "traditional" arbiter in disputes such as the one between him and appellee. Appellant's argument, however, is baseless. Initially, this court notes that the record on appeal filed pursuant to App.R. 9(A) consists of the original trial court file which contains only the pleadings, judgment entries, and the motions and responsive briefs with attached exhibits that were filed in the trial court. Thus, since there are no deposition transcripts in the record before this court, its review is limited: it may not consider "facts" which appear only in appellant's appellate brief. App.R. 9(A); App.R.12 (A)(1)(b); Sanders v. Webb (1993), 85 Ohio App.3d 674. Moreover, in the absence of an adequate record on appeal, this court presumes the validity of the proceedings below, viz., that the trial court considered all the evidence presented to it pertaining to appellee's motion for summary judgment and properly based its decision thereon. See, e.g., Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313. Furthermore, this court has reviewed the App.R. 9(A) record and finds no support for appellant's first asserted ground for reversal. Although appellant contends he provided sufficient evidence with regard to his claim appellee failed to comply with the requirements of C.C.O. 535.16, the record contains only his -7- affidavit attached to his brief in opposition to appellee's motion for summary judgment. A perusal of appellant's affidavit reveals it merely restated the allegations of his complaint, stated no specific facts, and also contained hearsay. Thus, it was inadequate pursuant to Civ.R. 56(E). Hogan v. South Lebanon (1991), 73 Ohio App.3d 239. Appellee's evidence, on the other hand, demonstrated the following: 1) appellant did not dispute he owed the amounts appellee billed him for water service; 2) appellant did not dispute he was delinquent in paying those amounts at the time appellee discontinued water service to the property; and 3) appellee provided the requisite notice prior to terminating water service to appellant's property. Appellant next asserts summary judgment was improper because his claim was "basically a contract action." In view of the record, this is disingenuous. Appellant's complaint did not sound in contract. Moreover, appellant never either stated or argued this in any of the papers filed in the trial court, preferring instead to base his cause of action upon a conclusory "statement of law" set forth in 92 O.Jur.3d, Water. It is also a fundamental rule of appellate review that issues and arguments not raised in the proceedings in the trial court cannot be considered on appeal. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 73; Brannon v. Troutman (1992), 75 Ohio App.3d 233; Federal Deposit Ins. Corp. v. Willoughby (1984), 19 Ohio App.3d 51 at 55; Forest City Management, Inc. v. -8- International Total Services, Inc. (Dec. 16, 1993), Cuyahoga App. No. 64188, unreported. Furthermore, assuming arguendo the water service provided by a city to a customer is a contractual arrangement, the evidence demonstrates appellant failed to pay for the services. Hence, appellant was the party who first abrogated the contract, thus excusing appellee from "performing" under it. See, e.g., 92 O.Jur.3d, Water 318. Appellant next asserts R.C. 2744.02 is inapplicable to bar his action, since it "specifically allows negligence actions and does not apply to contract actions." Once again, appellant attempts to shift his position from the one he asserted in the trial court. Although appellant specifically stated in his brief in opposition to appellee's motion that his cause of action was not based upon negligence but rather upon appellee's "intentional" acts, appellant never stated that his cause of action was based 5 upon contract. In any case, appellant's position cannot be supported. A perusal of the papers filed in the trial court reveals that due to the nature of the damages appellant claimed to have suffered from appellee's acts, viz., harm to his business and "reputation," appellant's cause of action essentially sounded in tort rather than contract. See, e.g., Bram v. Cleveland (1993), 97 Ohio App.3d 718; 5 Appellant also did not allege that appellee's actions were in violation of any of his federal constitutional rights. See, e.g., Hogan v. South Lebanon (1991), 73 Ohio App.3d 230. -9- Hackathorn v. Springfield Local School Dist. (1994), 94 Ohio App.3d 319. R.C. 2744.02 states in relevant part: 2744.02 Classification of functions of political subdivisions; liability; exceptions. (A)(1) For the purpose of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons 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. * * * (B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows: * * * (2) Except as otherwise provided in section 3746.24 of the Revised Code, political 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 subdivisions. (Emphasis added.) Thus, the statute provides immunity to political subdivisions in the performance of both governmental and proprietary functions, and such immunity is subject only to delineated exceptions. See, e.g., Amborski v. Toledo (1990), 67 Ohio App.3d 47. R.C. 2744.01(G)(2)(c) specifies the operation of a public water system -10- as a "proprietary" function. Therefore, unless appellant provided evidence that an exception to immunity applied, appellee's acts in connection with providing water service were protected by R.C. 2744.02(A)(1). However, appellant not only specifically conceded in his brief in opposition to appellee's motion for summary judgment that appellee's actions toward him had not been negligent, he also failed to provide any evidence on that point. Civ.R. 56(C) makes summary judgment proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Since appellant provided no evidence in this case that an exception to the immunity granted appellee by R.C. 2744.02(A) existed, the trial court properly granted summary judgment to appellee with respect to appellant's claims. Brannon v. Troutman, supra; Hackathorn v. Springfield Local School Dist., supra; cf., Crago v. Lorain Cty. Commrs. (1990), 69 Ohio App.3d 24. Appellant's final argument is simply that courts "traditionally" are "involved" when a customer disputes the amount of a water bill. Although he supports this assertion with some legal authority, it is still unpersuasive for two reasons: 1) the cases appellant cites were decided long before passage of R.C. -11- 2744.01 et seq.; and, more importantly and once again, 2) appellant did not dispute his water bills. See, e.g., Amborski v. Toledo, supra; cf., Miller v. Canale (1990), 66 Ohio App.3d 367, Maust v. Meyers Products, Inc. (1989), 64 Ohio App.3d 310. A review of the record in this case demonstrates appellant provided neither authority nor evidence to support any of his claims against appellee. Therefore, the trial court did not err in granting appellee's motion for summary judgment. Bram v. Cleveland, supra. Accordingly, appellant's assignment of error is overruled. The order of the trial court is affirmed. -12- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, P.J., and KARPINSKI, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .