COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70419 SANFORD J. BERGER : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION CITY OF CLEVELAND : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-264853 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: ROBERT M. FERTEL Berger & Fertel 1836 Euclid Avenue, Room 305 Cleveland, Ohio 44115-2234 For Defendant-Appellee: SHARON SOBOL JORDAN Director of Law LISA M. HERBERT Assistant Director of Law Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 - 2 - O'DONNELL, J.: Sanford Berger appeals the judgment of the Common Pleas Court granting summary judgment in favor of the City of Cleveland on its counterclaim for damages for Berger's failure to maintain his lateral sewer line. In August of 1990, Sanford Berger suffered repeated flooding and sewer back-up in the furnace room of an apartment building he owned on East 140th Street in Cleveland. On several occasions, Berger's sewer contractor, Ciro Grandini, snaked and water- jetted the lateral line which runs from his building to the city's main line. Since flooding and back-up persisted the contractor concluded the city's main sewer lines were the source of the problem and he so advised Berger. Berger, then, complained to the city. Despite efforts by city workers who on three occasions flushed the main sewer line and found it clear, Berger's problem did not abate. Consequently, in early 1992, the city hired Leonard Knight to determine the nature and source of the blockage and to construct a manhole so that Berger could have future access to his line. Since the completion of that work, Berger has not experienced any further sewage problems at the apartment building. In January 1994, Berger filed a complaint in Common Pleas Court seeking damages for the city's failure to maintain its sewer line adjacent to his property. He then filed a motion for - 3 - summary judgment. The city, then, filed its answer, a counterclaim for the expenses incurred in opening Berger's line and installing a manhole, and its own motion for summary judgment. Thereafter, in February 1996, the trial court denied Berger's motion for summary judgment and granted the city's motion for summary judgment on Berger's complaint and on the city's counterclaim in the amount of $3,201.76. Berger now appeals only the trial court's granting of summary judgment in favor of the city on the city's counterclaim and assigns the following as error for our review: IT WAS ERROR FOR THE TRIAL COURT, BY ITS FEBRUARY 29, 1996 JUDGMENT, TO HAVE GRANTED SUMMARY JUDGMENT FOR THE APPELLEE CITY ON ITS COUNTERCLAIM. Berger argues the trial court erred in granting summary judgment for the city on its counterclaim because a genuine issue of material fact exists due to the conflict between the city's evidence of grease in Berger's lateral line and the affidavit of Ciro Grandini that grease could not have been in the line. The city contends the trial court properly granted summary judgment in its favor because no material issue of fact exists and it is entitled to judgment as a matter of law. The city contends the affidavit of Grandini does not create an issue of fact because Grandini did not see the opened sewer line and merely gave his opinion that there was no grease in the line. - 4 - The issue for our consideration, then, is whether the trial court properly granted summary judgment in favor of the City of Cleveland on its counterclaim for damages. Civ. R. 56 governs summary judgments and in State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509 at 511, the Ohio Supreme Court explained the rule's requirements: Civ. R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party against whom the motion for summary judgment is made. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. A genuine issue of material fact remains to be litigated when a conflict exists between the relevant factual allegations in the pleadings, affidavits, depositions or interrogatories. Aglinsky v. Cleveland Builders Supply Company (1990), 68 Ohio App.3d 810. The party seeking the summary judgment bears the burden of proof in showing that no material issue of fact remains to be litigated. Celotex Corp. v. Catrett (1987), 477 U.S. 317. It is well settled that matters involving credibility are outside the province of summary judgment and should be left to the trier of facts. Duke v. Sanymetal Products Co. (1972), 31 Ohio App.2d 78. Furthermore, all doubts must be resolved in - 5 - favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. Once the moving party demonstrates that no material fact remains to be litigated, the nonmoving party then has the burden to set forth specific facts showing that there is a genuine issue of material fact or summary judgment shall be entered. Dresher v. Burt (1996), 75 Ohio St.3d 280. Thus, as provided in Civ.R. 56(E): When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response *** must set forth specific facts showing that there is a genuine issue for trial. With these standards in mind, we consider the granting of summary judgment in this case. Cleveland Codified Ordinance 541.11 provides, in pertinent part: (a) No person shall discharge or cause or allow to be discharged into the sewer system any wastewater, material, or substances which are hereby deemed unacceptable, including without limitation those which have been determined by the Commissioner to: (2) Constitute or create a public health hazard; (6) Cause the City to incur unreasonable expense in the handling or treatment thereof; (b) No person shall discharge or cause or allow to be discharged into the sewer system any wastewater which is hereby deemed by the Commissioner to constitute an unacceptable discharge because it contains any of the following: - 6 - (3) * * * any solid or viscous substance capable of causing obstruction to the flow in sewers or of otherwise interfering with the proper operation of the sewer system; Furthermore, Cleveland Codified Ordinance 541.99(a) provides: Whenever the Commissioner finds that any person has violated * * * any provision * * * concerning unacceptable discharge, he * * * shall fine the person charged five hundred dollars ($500.00) for each offense plus all expenses incurred and damages resulting from the violation. The record in this case reveals the city presented evidence through the deposition of Leonard Knight, the contractor hired by the city to construct a manhole, that his crew made a cut in the lateral line and found the line blocked. They then probed the lateral line, broke the obstruction, and caused grease and other debris to flow from Berger's building. Knight also testified that grease caked around the edges of the pipe in the lateral sewer line. In opposition, Berger presented an affidavit from Ciro Grandini, a plumber who had serviced Berger's sewer problems for over ten years, which stated that he snaked the lateral line with cutting blades and also water-jetted Berger's sewer line which would have broken up any accumulation of grease or other waste products in the lateral line if the city's sewage system had been intact and operative. Therefore, based on his experience, Grandini concluded either a break or an impassible obstruction existed at the junction to the city's main sewer line which caused the sewage to back up. - 7 - In construing this evidence most strongly in favor of Berger, as we are required to do under Civ. R. 56, we note that Grandini's affidavit met the requirements of summary judgment because it set forth facts admissible in evidence, was made on personal knowledge, and contained opinions which were rationally based on Grandini's perception and were helpful in determining a critical issue. Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679. Therefore, based on the record before us, we conclude a genuine issue of material fact exists between the factual allegations contained in Knight's deposition and those in Grandini's affidavit. This conflict is material to the resolution of this case because it pertains to whether Berger had unlawful discharge in his lateral sewer line. Accordingly, because a determination of credibility should be left to the trier of fact, the trial court erred in granting summary judgment in favor of the city on its counterclaim. Therefore, the assignment of error is sustained. Judgment reversed and cause remanded. - 8 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said 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. SWEENEY, P.J., and DYKE, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .