[Cite as State ex rel. Ribo v. Uhrichsville, 2012-Ohio-3927.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO, ex rel. 

MARILYN RIBO, et al. 

 Relators-Appellants 

-vsCITY OF UHRICHSVILLE, OHIO 

 Respondent-Appellee 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. John W. Wise, J. 

Hon. Julie A. Edwards, J. 

Case No. 2012 AP 02 0010 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 2009 CV 07 0691 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: August 24, 2012 

APPEARANCES: 

For Relators-Appellants For Respondent-Appellee 

JOSEPH I. TRIPODI GARRY O. HURLESS 

114 East High Street Post Office Box 237 

New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663 

 JAMES F. MATHEWS 

 BAKER, DUBLIKAR, BECK, 

 WILEY & MATHEWS 

 400 South Main Street 

 North Canton, Ohio 44720 
Tuscarawas County, Case No. 2012 AP 02 0010 2

Wise, J. 

{¶1} Relators-Appellants Marilyn R. Ribo and Trudi J. Birch appeal the January 

13, 2012, decision of the Tuscarawas County Court of Common Pleas granting 

summary judgment in favor of Respondent-Appellee City of Uhrichsville and dismissing 

their case.

STATEMENT OF THE FACTS AND CASE

{¶2} On July 24, 2009, Appellant Marilyn Ribo ("Ribo"), and Appellant Trudi 

Birch (“Birch"), filed their complaints against Appellees, City of Uhrichsville, Ohio and 

Former Mayor Rick Rieger (collectively "Uhrichsville") in the Tuscarawas County Court 

of Common Pleas on July 24, 2009, alleging that they were entitled to a writ of 

mandamus ordering the City of Uhrichsville to commence an action for the appropriation 

of their property. 

{¶3} Both Ribo and Birch own properties which are located at the south end of 

Washington Street in Uhrichsville, where that street dead ends into the Stillwater Creek. 

According to Appellants, portions of their properties have eroded and slipped into the 

nearby creek as a result of a road repair project undertaken by Uhrichsville in November 

of 2003. 

{¶4} Timely answers were filed on August 20, 2009, in the respective cases. 

{¶5} Due to the similarity of issues, the cases were consolidated by order of the 

lower court entered on September 14, 2009. 

{¶6} On July 20, 2011, Appellees filed a motion for summary judgment. 

{¶7} On August 19, 2011, Appellants responded with an opposition brief, and 

the lower court then heard oral arguments on August 29, 2011. 
Tuscarawas County, Case No. 2012 AP 02 0010 3

{¶8} By judgment entry filed January 13, 2011, the trial court granted 

Appellees' motion for summary judgment finding, inter alia, that Appellants’ claims were 

barred by the four-year statute of limitation contained in R.C. §2305.09(E). 

{¶9} Relators-Appellants now appeal, raising the following assignments of 

error: 

ASSIGNMENTS OF ERROR

{¶10} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN 

IT GRANTED SUMMARY JUDGMENT TO THE APPELLEE AND DISMISSED 

APPELLANTS' CASE, BASED UPON ITS FINDING THAT "RELATORS' CAUSES OF 

ACTION ACCRUED BY THE END OF 2004 AT THE LATEST [, AND THAT] 

RELATORS' CLAIMS ARE BARRED BY THE FOUR YEAR STATUTE OF 

LIMITATIONS FOUND IN R.C. 2305.09(E)." 

{¶11} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN 

IT GRANTED SUMMARY JUDGMENT TO THE APPELLEE AND DISMISSED 

APPELLANTS' CASE WHEN IT FOUND THAT "RELATORS HAVE NOT PRESENTED 

ANY EVIDENCE THAT DEMONSTRATES A COMPENSABLE TAKING." 

{¶12} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN 

IT GRANTED SUMMARY JUDGMENT TO THE APPELLEE AND DISMISSED 

APPELLANTS' CASE, BASED UPON ITS FINDING THAT "BECAUSE TRUDI BIRCH 

NKA GUY WAS AWARE OF THE PROBLEMS ALLEGEDLY CAUSED BY THE 

[RESPONDENT] PRIOR TO BECOMING THE OWNER OF THE PROPERTY, SHE IS 

NOT ENTITLED TO RECOVER FOR THE ALLEGED TAKING THAT OCCURRED 

PRIOR TO HER OWNERSHIP." 
Tuscarawas County, Case No. 2012 AP 02 0010 4

{¶13} “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN 

IT DISMISSED THE CASE AS TO APPELLANT BIRCH BASED UPON ITS FINDING 

THAT APPELLANT BIRCH IS NOT ENTITLED TO RECOVER FOR THE ALLEGED 

TAKING THAT OCCURRED PRIOR TO HER OWNERSHIP." 

Summary Judgment Standard

{¶14} Summary judgment proceedings present the appellate court with the 

unique opportunity of reviewing the evidence in the same manner as the trial court. 

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Civ.R. 56(C) provides, 

in pertinent part: 

{¶15} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence in the pending case, and written stipulations of fact, if any, timely filed in the 

action, show that there is no genuine issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law. * * * A summary judgment shall not be 

rendered unless it appears from such evidence or stipulation and only therefrom, that 

reasonable minds can come to but one conclusion and that conclusion is adverse to the 

party against whom the motion for summary judgment is made, such party being 

entitled to have the evidence or stipulation construed most strongly in his favor.” 

{¶16} Pursuant to the above rule, a trial court may not enter a summary 

judgment if it appears a material fact is genuinely disputed. The party moving for 

summary judgment bears the initial burden of informing the trial court of the basis for its 

motion and identifying those portions of the record that demonstrate the absence of a 

genuine issue of material fact. The moving party may not make a conclusory assertion 
Tuscarawas County, Case No. 2012 AP 02 0010 5

that the non-moving party has no evidence to prove its case. The moving party must 

specifically point to some evidence which demonstrates the non-moving party cannot 

support its claim. If the moving party satisfies this requirement, the burden shifts to the 

non-moving party to set forth specific facts demonstrating there is a genuine issue of 

material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing 

Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107. 

{¶17} It is based upon this standard that we review Appellant’s assignments of 

error. 

I. 

{¶18} In their First Assignment of Error, Appellants herein argue that the trial 

court erred in granting Appellee’s motion for summary judgment on the grounds that 

Appellants’ claims were barred by a four-year statute of limitations. We disagree. 

{¶19} Pursuant to R.C. §2305.09(E), an action for relief, based upon a physical 

or regulatory taking of real property, must be brought within four years after the cause 

has accrued. Painesville Mini Storage, Inc. v. City of Painesville, 124 Ohio St.3d 504, 

2010-Ohio-920. See, also, State ex rel. Nickoli v. Erie MetroParks, 124 Ohio St.3d 449, 

2010-Ohio-606; State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716. A 

cause of action for injury to real property and relief on the grounds of a physical or 

regulatory taking accrues, and the four-year statute of limitations commences to run, 

when the injury or taking is first discovered, or through the exercise of reasonable 

diligence, should have been discovered. Harris v. Liston, 86 Ohio St.3d 203, 1999-Ohio159; NCR Corp. v. U.S. Mineral Prod. Co., 72 Ohio St.3d 269, 1995-Ohio-191; Kay v. 

City of Cleveland, Cuyahoga App. No. 81099, 2003-Ohio-171. 
Tuscarawas County, Case No. 2012 AP 02 0010 6

{¶20} The facts, as presented by the parties, through the depositions of Trudi 

Birch nka Guy, Marilyn Ribo, and the deposition and sworn affidavit of Joann 

Creachbaum, clearly show Appellants were aware of an erosion problem in 2004 and 

attempted to assign responsibility for the erosion to the City back in 2004. 

{¶21} The facts herein demonstrate that: (1) the resurfacing project occurred in 

November, 2003; (2) Relator Marilyn Ribo and her (late) husband began noticing signs 

of erosion sometime in 2004; (3) JoAnn Creachbaum, Relator Trudi Birch’s mother and 

predecessor in title, also began noticing erosion in her yard shortly after the re-paving of 

Washington Street; (4) prior to the resurfacing of Washington Street, JoAnn 

Creachbaum heard water rushing under her basement floor; (5) Relator Trudi Birch 

was aware of the alleged problems with the property in 2004 prior to her ownership of 

the property. 

{¶22} As previously stated, R.C. §2305.09(E) requires that an action for relief on 

the grounds of a physical or regulatory taking of real property shall be brought within 

four years after the cause of action has accrued. Herein, Appellants did not file their 

takings claim until July, 2009, more than four years after the first occasion in 2004 when 

Appellants alleged that the City was liable for the erosion of their properties following 

the City’s November, 2003, resurfacing project. We also find that the continuousviolation doctrine did not toll the statute of limitations, because the City did not perform 

or take any additional actions after the November, 2003, project. The present effects of 

a single past action do not trigger a continuing-violations exception to the statute of 

limitations. Nickoli, supra, at ¶ 33; Ohio Midland Inc. v. Ohio Dept. of Transp. (C.A.6,

2008), 286 Fed.Appx. 416. Therefore, because the continuing-violations doctrine does 
Tuscarawas County, Case No. 2012 AP 02 0010 7

not toll the application of the statute of limitations, we find that Appellants' claims for 

mandamus are barred since they were not brought within four years of accrual as 

mandated by R.C. §2305.09(E). 

{¶23} Appellants’ First Assignment of Error is overruled. 

II. 

{¶24} In their Second Assignment of Error, Appellants argue that the trial court 

erred in granting summary judgment and finding that they had failed to present evidence 

demonstrating a compensable taking. We disagree. 

{¶25} Relators herein claim entitlement to the requested relief in mandamus 

pursuant to the Takings Clause of the Ohio Constitution. Section 19, Article I of the Ohio 

Constitution provides: 

{¶26} “[W]here private property shall be taken for public use, a compensation 

therefore shall first be made in money, or first secured by a deposit of money, and such 

compensation shall be assessed by a jury.” (Emphasis added.) 

{¶27} In State ex rel. Blank v. Beasley 121 Ohio St.3d 301, 304-305, the Ohio 

Supreme Court explained: 

{¶28} “We have acknowledged that Section 19, Article I of the Ohio Constitution 

limits compensation to those situations where private property is taken for public use, in 

contrast to the constitutions of some states, which guarantee compensation for private 

property that is taken for or damaged by public use. State ex rel. Fejes v. Akron (1966), 

5 Ohio St.2d 47, 50, 34 O.O.2d 58, 213 N.E.2d 353, citing McKee v. Akron (1964), 176 

Ohio St. 282, 284, 27 O.O.2d 197, 199 N.E.2d 592, overruled on other grounds by 

Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749. 
Tuscarawas County, Case No. 2012 AP 02 0010 8

Accordingly, we have construed this constitutional provision to require a property owner 

to prove something more than damage to his property in order to demonstrate a 

compensable taking. Fejes, at 52, 34 O.O.2d 58, 213 N.E.2d 353. 

{¶29} In a more recent case, the Ohio Supreme Court set forth the following twopart test for inverse-condemnation claims: 

{¶30} “[N]ot every ‘invasion’ of private property resulting from government 

activity amounts to an appropriation. The line distinguishing potential physical takings 

from possible torts is drawn by a two-part inquiry. First, a property loss compensable as 

a taking only results when the government intends to invade a protected property 

interest or the asserted invasion is the ‘direct, natural, or probable result of an 

authorized activity and not the incidental or consequential injury inflicted by the action.’ 

Columbia Basin Orchard v. United States (Ct.Cl.1955), 132 F.Supp. 707, 709 * * *. * * * 

Second, the nature and magnitude of the government action must be considered. Even 

where the effects of the government action are predictable, to constitute a taking, an 

invasion must appropriate a benefit to the government at the expense of the property 

owner, or at least preempt the owner's right to enjoy his property for an extended period 

of time, rather than merely inflict an injury that reduces its value.” State ex rel. Doner v. 

Zody 130 Ohio St.3d 446, 2011-Ohio-6117, citing Ridge Line, Inc. v. United States 

(Fed.Cir.2003), 346 F.3d 1346. 

{¶31} Upon review, we find that in the case sub judice, the erosion damage to 

Appellants’ properties was not a foreseeable result of the City’s actions in repaving 

Washington Street. Further, there is no evidence that the damage herein was 
Tuscarawas County, Case No. 2012 AP 02 0010 9

deliberately inflicted for the purpose of carrying out the Washington Street resurfacing 

project. 

{¶32} As to Appellant Birch’s claim, there is evidence in the record that an 

abandoned pipe (sewer line) running under the basement floor in the house caused 

damages to the house. No evidence of a causal connection to the City of Uhrichsville or 

the Washington Street re-paving project was put forth in support of such claims. 

{¶33} Appellants’ Second Assignment of Error is overruled. 

III., IV. 

{¶34} In their Third and Fourth Assignments of Error, Appellants argue that the 

trial court erred in granting summary judgment, finding that Appellant Birch was aware 

of the problems prior to ownership of the property and, therefore, was not entitled to 

recover for any alleged taking. We disagree. 

{¶35} As stated above, this Court finds, as did the trial court, that Appellant 

Birch’s claims herein are barred by the statute of limitations. The trial court in this matter 

further found Appellant Birch lacked standing to raise any takings claims in this matter. 

{¶36} Appellant Birch did not acquire title to the property until March, 2005. The 

record reveals that she admitted that she knew of the erosion problem prior to her 

ownership of the property and, further, that the undermining of the basement occurred 

prior to such date. In fact, the basement floor was “opened” for inspection in 2004. 

{¶37} As Appellant Birch knew of and had notice of the alleged erosion problems 

and structural problems herein prior to becoming the owner of the property, she would 

not be entitled to recover for the alleged taking that occurred prior to her ownership. 
Tuscarawas County, Case No. 2012 AP 02 0010 10

{¶38} While Appellant Birch argues that she should have been given an 

opportunity to substitute the real party in interest in this case, we find such argument 

moot based on our finding that such claims are time barred based on the applicable 

statute of limitations. 

{¶39} Appellants’ Third and Fourth Assignments of Error are overruled 

{¶40} For the foregoing reasons, the decision of the Court of Common Pleas of 

Tuscarawas County, Ohio, is affirmed. 

By: Wise, J. 

Gwin, P. J., and 

Edwards, J., concur. 

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 JUDGES 

JWW/d 0726 
Tuscarawas County, Case No. 2012 AP 02 0010 11

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO, ex rel. : 

MARILYN RIBO, et al. : 

 : 

 Relators-Appellants : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

CITY OF UHRICHSVILLE, OHIO : 

 : 

 Respondent-Appellee : Case No. 2012 AP 02 0010 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Tuscarawas County, Ohio, is affirmed. 

 Costs assessed to Appellants 

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 JUDGES