COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72244 DR. FREDERICK D. HARRIS, ET AL: : JOURNAL ENTRY PLAINTIFFS-APPELLANTS : : AND v. : : OPINION ELAINE LISTON, ET AL. : : DEFENDANTS-APPELLEES : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-260392. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellants: Robert F. Linton, Esq. Linton & Hirshman 700 West St. Clair Ave., #300 Cleveland, Ohio 44113-1230 Janis L. Small, Esq. 3839 Yellow Creek Road W. Akron, Ohio 44333 For Defendants-appellees: William H. Baughman, Esq. Forrest A. Norman, III, Esq. Weston, Hurd, Fallon, Paisley & Howley 2500 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2241 -2- JAMES D. SWEENEY, J.: Plaintiffs-appellants Dr. Frederick D. Harris and his wife, Mrs. Bernice Harris, appeal from the granting of summary judgment in favor of defendant-appellee-movant Jackson Road Company ( Jackson ) on the day of trial. For the reasons adduced below, we affirm in part, reverse in part and remand. A review of the record on appeal indicates that Jackson owned and developed land in the Village of Moreland Hills in the period of May, 1983 to May, 1984. The land in question was a Christmas tree farm and was developed as a residential subdivision by Jackson. During its ownership and development of the raw land, Jackson, with the oversight, inspection and approval of the Village, subcontracted (through independent contractors) the rough grading of the property and the installation of paved roadways and utility, water and sewer lines for the planned subdivision. In 1984, Lot 3 of the subdivision, which would eventually become 55 East Juniper Lane, was sold in 1984 by Jackson to Mr. Kenneth J. Fisher. Mr. Fisher sold the parcel to Martin and Elaine Liston, who in turn sold it to the Harrises on February 22, 1992 for $900,000. The residence on the parcel was seven years old at the time of the 1992 sale. Subsequent to the 1992 sale, the plaintiffs, who had viewed and inspected the parcel in the Winter of 1991-1992, became aware in the Spring of 1992 of a latent defect on the property involving a severe adverse drainage condition in the backyard, which defect also contributed to the cracking of the residence's interior walls. -3- Plaintiffs filed suit on October 28, 1993 against, among others, Jackson and the Listons. The claims against Jackson involve (1) negligence in the grading and development of the property and (2) creation of a present nuisance on the property. During the pendency of the action, plaintiffs settled with most of the thirteen defendants. On August 15, 1995, Jackson filed a motion for summary judgment with supporting evidentiary materials. Plaintiffs filed their brief in opposition to summary judgment, with supporting evidentiary materials, on September 15, 1995. Both parties herein, with leave of court, filed reply briefs to their respective adversary's filings. The Jackson motion was denied on November 27, 1995. Thereafter, on the day of trial, November 20, 1996, pursuant to an oral motion to renew the Jackson motion for summary judgment, the court granted the Jackson motion without opinion or elucidation using a half-sheet status form entry. The plaintiffs proceeded to a jury trial against the Listons and received a verdict in their favor for breach of contract in the amount of $350,000, and a finding of fraud by the Listons, awarding $285,000. Subsequent to the verdict, the trial court granted a motion for JNOV on the fraud claim against the Listons, but left untouched the verdict on the breach of contract claim. The Harrises filed this appeal from the trial verdict alleging error in the JNOV ruling and in the granting of Jackson's motion for summary judgment. The Listons filed a cross-appeal. At a pre- hearing conference in the appellate court, the Harrises settled -4- with the Listons. Thus, the alleged error with the Jackson motion ruling remains. Three assignments of error are presented by the Harrises. Prior to addressing the assignments presented, the court notes that the standard of review for a summary judgment ruling was generally stated in State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448-449, as follows: 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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. * * * Summary judgment is appropriate where the nonmoving party does not 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, 570 N.E.2d 1095, paragraph three of the syllabus; State ex rel. Morley v. Lordi (1995), 72 Ohio St.3d 510, 513, 651 N.E.2d 937, 940. When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine triable issue. Civ.R. 56(E); Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52, 567 N.E.2d 1027, 1031. Also see Celotex v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, -5- 91 L.Ed.2d 265. Subsequent to Tompkins, in the recent case of Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 144-145, the Ohio Supreme Court limited the third paragraph of the syllabus of Wing, supra, by reasserting reliance on Dresher v. Burt (1996), 75 Ohio St.3d 280, 293: [A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. (Footnote omitted; Italicization in original.) In our review of the motion for summary judgment, we are also mindful that such appellate review is de novo. Koos v. Cent. Ohio Cellular Inc. (1994), 94 Ohio App.3d 579. -6- We now turn to the appellants' assignments of error, which will be taken out of the order provided by appellants so as to promote a more logical progression in the overall analysis. II THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BECAUSE THE STATUTE OF LIMITATIONS HAD NOT EXPIRED AT THE TIME THE ACTION WAS FILED. Despite there being several arguments offered by the movant for the granting of summary judgment, the trial court, in its ruling on the motion, did not explain the reasons for the granting of the motion. Accordingly, Jackson's argument relative to the expiration of the statute of limitations could have been the basis for the court's ruling. It is not contested that this action is governed by a four- year statute of limitations. R.C. 2309.09(D). The dispute is when the cause of action arose, which would thereby fix the date for the running of the statute of limitations. As stated by this court in a negligent construction case, [U]nless damage is immediate, the cause of action does not accrue until actual injury occurs or damage ensues. Point East Condominium Owners' Assn. v. Cedar House Assoc. Co. (Cuyahoga, 1995), 104 Ohio App.3d 704, 713,1 citing Velotta v. Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, paragraph two of the syllabus; see also NCR Corp. v. United States Mineral Products Co. (1995), 72 Ohio St.3d 269, 271. It has additionally been held that a plaintiff's claim for negligence is 1Discretionary appeal disallowed in (1995), 74 Ohio St.3d 1458. -7- actionable when they themselves have been damaged or harmed individually by the breach of a duty. Sedar v. Knowlton Constr. Co.(1990), 49 Ohio St.3d 193, 198-199, overruled on other grounds in Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460. Therefore, it is the harm to these plaintiffs herein that governs when the claim for negligence is actionable. In the present case, the Harrises first became aware of the latent damage to their property in 1992 after taking possession of the residence. The Harrises filed their lawsuit in 1993, well within the four-year statute of limitations. Thus, the trial court could not have relied upon the statute of limitations as a basis for the granting of summary judgment in favor of Jackson. Since the record is silent as to the court's reasoning in the motion ruling, we will apply the doctrine of regularity to the court's action and conclude that the trial court, which is charged with applying the law correctly, recognized this non-application of the statute of limitations and did not rely on this basis in granting the subject motion. The second assignment of error is overruled. I THE TRIAL COURT ERRED IN GRANTING JACKSON ROAD COMPANY SUMMARY JUDGMENT SINCE GENUINE ISSUES OF FACT EXIST ON WHETHER IT MET ITS DUTY OF CARE IN DEVELOPING THE SUBDIVISION. The Harrises claim that Jackson negligently failed its duty of good workmanship in developing the raw land by improperly grading the raw land and not providing or installing an adequate storm -8- water management system in the development to handle storm water runoff. Traditionally, a builder-vendor of real-property structures has a duty, ...to construct the same in a workmanlike manner and to employ such care and skill in the choice of materials and work as will be commensurate with the gravity of the risk involved in protecting the structure against faults and hazards, including those inherent in its site. If the violation of that duty proximately causes a defect hidden from revelation by an inspection reasonably available to the vendee, the vendor is answerable to the vendee for the resulting damages. Mitchem v. Johnson (1966), 7 Ohio St.2d 66, paragraph three of the syllabus. In Mitchem, this duty ran solely to the immediate vendee. This privity of contract element was abandoned in McMillan v. Brune-Harpenau-Torbeck Builders, Inc. (1983), 8 Ohio St.3d 3, 4-5, permitting the builder-vendor's duty to extend to both original and subsequent vendees. The duty of the builder-vendor to a vendee has been extended to developers of real estate. See Point East Condominium Owners' Assn. v. Cedar House Assoc. Co. (Cuyahoga, 1995), 104 Ohio App.3d 704. The reasoning for this extension of the duty to developers is to preclude the thrust of Mitchem from being frustrated. Id. at 715-717. Although the cases cited above dealt with structural defects or quality of workmanship issues in completed structures, the fact remains that developers of land, under Point East, may be held liable to subsequent vendees for negligence in the development of -9- the property. It is equally clear that plaintiffs' engineering expert, Mr. Amir Farzaneh, maintained the professional opinion that the standing water problem on the Harrises' parcel was proximately caused by the failure of the developer to design or provide an adequate storm water management system for the master plan of the development as a whole. Accordingly, the trial court erred in granting summary judgment on the claim of Jackson's negligence since there were genuine issues of material fact extant, to-wit, whether the design and implementation of the development's storm water management system was adequate under the circumstances peculiar to the land comprising the subdivision. The first assignment of error is affirmed. III THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT ON THE NUISANCE CLAIM. Plaintiffs allege the existence of a private nuisance2 in the accumulation and ponding of water in their backyard caused by the inadequate storm water runoff system in the subdivision. In Korfel v. Partridge Housing Corp. (August 31, 1995), Cuyahoga App. No. 68030, unreported, 1995 WL 517080, at 3-4, this court stated: Black's Law Dictionary defines `nuisance' as: That activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or 2As stated by Professor Keeton in Prosser & Keeton on Torts (5 Ed. 1984) 616, Section 86: There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word `nuisance'. -10- injury to right of another, or to the public, and producing such material annoyance, inconvenience and discomfort that law will presume resulting damage. That which annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortableto him. An offensive, annoying, unpleasant, or obnoxious thing or practice; a cause or source of annoyance, especially a continuing or repeated invasion or disturbance of another's right, or anything that works a hurt, inconvenience or damage. Black's Law Dictionary (5 Ed. Abr. 1983) 552-553. In Brown v. County Commissioners of Scioto County (1993), 87 Ohio App.3d 704, 712, the Fourth District Court of Appeals held that the word `nuisance' describes two separate fields of tort liability that, through the accident of historical development, are called by the same name; `public nuisance' covers the invasion of public rights which are common to all members of the public and was historically criminal in nature, with recovery limited to those who could show particular harm of a kind different from that suffered by the general public; `private nuisance' covered the invasion of the private interest in the use and enjoyment of land and the action was required to be founded upon an interest in land. -11- Id. at paragraph two of the syllabus. Once it has been determined whether the alleged harm constitutes a public or private nuisance, a further determination must be made as to whether the alleged harm constitutes an absolute nuisance or a qualified nuisance. Generally, an absolute nuisance or nuisance per se consists of an intentional act resulting in harm or an unintentional act resulting in accidental harm for which, due to the hazards involved, absolute liability attaches notwithstanding the absence of fault. Mezger v. Penn., O.P.D. Rr. Co. (1946), 146 Ohio St. 426. A qualified nuisance consists of a lawful act that is so negligently or carelessly done as to create a potential and unreasonable risk of harm which eventually results in injury to another. Brown v. County Commissionersof Scioto County, supra, at 713. * * * Ohio courts have stated that the test as to the amount of annoyance necessary to constitute a nuisance is measured by the degree of discomfort that a person of ordinary sensibilities would experience. Adams v. Snouffer (1949), 88 Ohio App. 79; Kepler v. Indus. Disposal Co. (1948), 84 Ohio App. 80. In essence, a trial court must look to the particular facts presented and determine what persons of ordinary tastes and sensibilities would regard as an inconvenience or interference materially affecting their physical comfort to a degree which would constitute a nuisance. O'Neil v. Atwell (1991), 73 Ohio App.3d 631, 636. In the case at bar, the alleged nuisance condition can be characterized as a private qualified nuisance. A qualified nuisance depends on proof of negligence. Ogle v. Kelly (1993), 90 Ohio App.3d 392, 3983, citing Taylor v. Cincinnati (1944), 143 Ohio St. 426, at paragraphs two and three of the syllabus, and Metzger v. Pennsylvania, Ohio & Detroit RR. Co. (1946), 146 Ohio 3Jurisdictional motions overruled in (1994), 68 Ohio St.3d 1448. -12- St. 406, paragraphs one and two of the syllabus. Under a claim of qualified nuisance, the allegations of nuisance merge to become a negligence action. Ogle v. Kelly, supra, citing Allen Freight Lines, Inc. v. Consol. Rail Corp. (1992), 64 Ohio St.3d 274. Unlike the out-of-possession and control landlord who created the nuisance (blocked storm sewer drain) in Ogle, Jackson was allegedly in possession and control of the subdivision's basic site improvements during its development stage, which was the time when the alleged nuisance was created by Jackson's alleged breach of its duty to the vendee, both original and subsequent, to construct and develop the subdivision in a workmanlike manner. There are ample genuine questions of fact concerning whether the design and implementation of the subdivision's excess water management system was inadequate, whether that system, or lack of it, proximately caused the problem complained of, and whether the annoyance and inconvenience of the accumulated water in the Harrises' backyard after a heavy rain or snow melt is of such magnitude as to constitute a nuisance. Having determined that genuine issues of material fact exist as to the claim of negligence, and recognizing that the qualified nuisance claim at issue merges with the underlying claim of negligence, we must similarly conclude that there exist genuine issues of material fact regarding the nuisance claim. Accordingly, the trial court erred in granting summary judgment on the claim of nuisance. The third assignment is affirmed. Judgment is affirmed in part, reversed in part and remanded. -13- This cause is affirmed in part, reversed in part and remanded. The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellant(s) and appellee(s) each pay one-half of the 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. Exceptions. TERRENCE O'DONNELL, J., CONCURS; JAMES M. PORTER, P.J., CONCURS IN JUDGMENT ONLY. ______________________________ JAMES D. SWEENEY JUDGE 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 of decision by the .