[Cite as Lake Park Estates Pond Assn. v. Brecksville, 2024-Ohio-660.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF OHIO

LAKE PARK ESTATES POND :

ASSOCIATION, ET AL.,

:

Plaintiffs-Appellants, No. 112589

:

v.

:

THE CITY OF BRECKSVILLE, OHIO,

ET AL., :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED AND REMANDED

RELEASED AND JOURNALIZED: February 22, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-21-948430

Appearances:

The Lindner Law Firm, LLC, and Daniel F. Lindner, for 

appellants.

Mazanec, Raskin & Ryder Co., L.P.A., John T. 

McLandrich, Frank H. Scialdone, and Terence L. 

Williams; David J. Matty, Brecksville Director of Law, for 

appellee.

SEAN C. GALLAGHER, J.: 

Plaintiffs-appellants Lake Park Estates Pond Association, et al.,

appeal the decision of the trial court that granted the motion for summary judgment 
of defendant-appellee the city of Brecksville, Ohio (“the city”), upon finding the city 

is entitled to political-subdivision immunity in this matter and that denied the 

plaintiffs-appellants’ motion for summary judgment. Upon review, we affirm the 

decision of the trial court and remand the case.

I. Background

The Lake Park Estates Pond Association (“the LPE Pond 

Association”) was formed by a group of property owners whose lots abut and extend 

under a pond in the Lake Park Estates Subdivision in Brecksville, Ohio.1 On June 7, 

2021, the LPE Pond Association and the property owners (collectively “the 

appellants”) filed a verified complaint for declaratory judgment, specific 

performance, writ of mandamus, monetary, and other relief. They asserted, among 

other allegations, that the city has failed to maintain and repair the pond and its 

man-made structures, which the appellants allege are part of the city’s stormwater 

sewer system. The appellants raised claims against the city for declaratory judgment

under the Ohio Constitution — procedural and substantive due process (Count I), 

declaratory judgment under the Ohio Constitution — takings (Count II), 

mandamus — inverse condemnation (Count III), and trespass (Count IV). The 

1 The property owners, who are also plaintiffs-appellants in this action, include Eric 

and Jill Tayfel, James and Rachel Jones, Kevin and Allision Dranuski, Fred and Annette 

Pedersen, and John Turner.
appellants’ claims against another defendant were bifurcated and are not involved 

in this appeal.2 

In its answer, the city asserted, among other affirmative defenses, the 

defense of political-subdivision immunity. The appellants and the city filed crossmotions for summary judgment, and the trial court conducted a hearing on the city’s 

defense of political-subdivision immunity. Thereafter, the trial court ruled in favor 

of the city. 

The record reflects that the pond at issue has existed since the Lake 

Park Estates Subdivision was developed. The pond is man-made; it has a headwall 

that dams the naturally formed stream that feeds it and drains it, and it has an outlet 

structure that helps control the water-elevation level in the pond. In the past few 

years, the pond’s headwall and outlet structure, which are located on the property 

owned by Eric and Jill Tayfel, have fallen into disrepair, causing the water level in 

the pond to drop.

The parties dispute who is responsible for the repair and maintenance 

of the pond and its associated structures. The appellants claim that the pond is a 

part of the city’s stormwater sewer system and a public use. The city maintains that 

the pond is on private property, that it serves no necessary stormwater conveyance 

purposes, and that the pond exists solely for the aesthetic benefit of the appellants. 

2 The appellants also raised claims against another property owner, Julian 

Colonna, Trustee of the Julian Colonna Trust UTD 10/6/2017, who is not a member of 

the LPE Pond Association.
At a 1959 Brecksville Planning Commission meeting, it was 

represented by the developer that the property owners having lots on the pond 

would own the pond and take care of their own sections of the pond. The pond was 

present when each of the individual appellants purchased their property. There is 

no evidence that the pond was designed to be a part of the city’s stormwater sewer 

system.

According to Gerald Wise, the city’s engineer, the pond was not 

created by the city, the city does not hold any easements related to the pond or its 

outlet structure, and the pond was never dedicated for public use. Although the city 

utilizes an inlet structure to permit the flow of water into the pond, the inlet permits 

water from the city’s stormwater sewer system to follow its natural watercourse

through the pond.

According to the city, it did not build the pond; rather, the pond was 

created prior to or when the development was built, and it was formed by adding an 

embankment and control structure to dam the natural watercourse to create an 

aesthetic water feature. The city maintains that the appellants, as riparian owners, 

are able to utilize the natural watercourse to create the pond or they can remove the

headwall and outlet structure and allow the water to continue on the natural 

watercourse to the downstream properties, with no effect on the stormwater 

management system. Further, there is no evidence of any flooding of the appellants’ 

properties, either before or after the outlet structure’s failure.
Michael Menoes, a registered professional engineer retained by the 

city, indicated in his affidavit that the presence or absence of the pond does not affect 

the stormwater management to the appellants, any upstream owner, or any 

downstream owner. Menoes stated in his report that the removal of the subject 

pond would reduce the risk of flooding for homes located adjacent to the pond. He 

also stated that the removal would cause only a small increase in downstream 

maximum water surface elevation during a rainfall event having a 10-year return, 

and that to the extent removal of the subject pond would cause a significant increase 

in the maximum water surface elevation of a downstream pond during a rainfall 

event having a 100-year return period, it would still be several feet below the top 

elevation of the pond.

Other evidence was presented in the matter that we have also 

reviewed. Ultimately, on April 4, 2023, the trial court granted the city’s motion for 

summary judgment upon determining that the city is entitled to politicalsubdivision immunity, and the trial court denied the appellants’ motion for 

summary judgment.3 This appeal followed.

II. Assignments of Error

Under their first assignment of error, the appellants claim the trial 

court erred by granting the city immunity and by granting summary judgment on all 

counts of the complaint. The appellants assert that “when a municipality 

3 The trial court included Civ.R. 54(B) language in its judgment entry.
superimposes its storm sewer system upon a natural watercourse, the defense of 

sovereign immunity does not preclude liability for damages caused by any attendant 

abridgment of riparian rights” and that “[the city] is statutorily bound to repair and 

maintain the pond and its structure as part of its stormwater sewer system because 

decisions involving the proper maintenance of the sewer or drainage system is a 

proprietary act which is mandatory and not discretionary.”

Under its second assignment of error, appellants assert the trial court 

erred in denying their motion for summary judgment. Appellants claim they are 

“entitled to a writ of mandamus compelling Brecksville to commence appropriation 

proceedings to assess just compensation and damages due to appellants for 

Brecksville’s taking of appellants’ properties and trespass thereon.”

III. Law and Analysis

Appellate review of summary judgment is de novo, governed by the 

standard set forth in Civ.R. 56. Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio8374, 75 N.E.3d 161, ¶ 14. Summary judgment is appropriate only when “[1] no 

genuine issue of material fact remains to be litigated, [2] the moving party is entitled 

to judgment as a matter of law, and, [3] viewing the evidence most strongly in favor 

of the nonmoving party, reasonable minds can reach a conclusion only in favor of 

the moving party.” Id., citing M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-

Ohio-5336, 979 N.E.2d 1261, ¶ 12.

The city is a political subdivision that pursuant to R.C. 2744.02(A)(1)

generally “is not liable in damages in a civil action for injury, death, or loss to person 
or property allegedly caused by an act or omission of the political subdivision or an 

employee of the political subdivision in connection with a governmental or 

proprietary function.” R.C. 2744.02(B) lists several exceptions to the general grant 

of immunity, and if an exception applies, R.C. 2744.03 provides defenses to liability

that may be asserted to restore immunity.

Appellants claim the R.C. 2744.02(B)(2) exception to the general 

grant of immunity applies to this case. R.C. 2744.02(B)(2) states: “Except as 

otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political 

subdivisions are liable for injury, death, or loss to person or property caused by the 

negligent performance of acts by their employees with respect to proprietary 

functions of the political subdivisions.” R.C. 2744.01(G)(2)(d) defines a “proprietary 

function” to include “[t]he maintenance, destruction, operation, and upkeep of a 

sewer system[.]” 

Contrary to appellants’ arguments, the evidence in the record before 

us fails to show that the pond and its outlet structure are part of the city’s stormwater 

sewer system. The cases upon which appellants rely are all distinguishable. For 

instance, in Economus v. Independence, 8th Dist. Cuyahoga No. 107713, 2020-

Ohio-266, there was evidence showing the city of Independence possessed a storm 

sewer-drainage ditch easement as well as an easement over the retention basin, the 

city had performed maintenance in these areas and dredged the retention basin in 

the past, and the alleged failures led to flooding and property damage. Id. at ¶ 26-

30. In Nelson v. Cleveland, 8th Dist. Cuyahoga No. 98548, 2013-Ohio-493, it was 
alleged that the city of Cleveland failed to maintain or clean out its sewers and catch

basins and that this led to a large unnatural accumulation of a pool of water on a 

roadway that caused an accident. Id. at ¶ 20-25. In Accurate Die Casting Co. v. 

Cleveland, 2 Ohio App.3d 386, 442 N.E.2d 459 (8th Dist.1981), the city did not 

design its storm sewer system to merely conjoin a natural watercourse, but rather, 

it enclosed the “entire watercourse” within storm sewer pipes so that no portion 

thereof continued to flow in its natural state and flood damage occurred. Id. at 390.

This case does not involve any similar circumstances.

Although the appellants’ engineering expert George Hess opined that 

the pond and the outlet structure are an integral part of the city’s stormwater sewer 

and drainage system, this and his other conclusory assertions lack evidentiary 

support in the record and are insufficient to create any genuine issue of material 

fact. The record shows that the pond is situated on private property and that the city 

did not construct, and has never maintained, the pond or its outlet structure. 

Further, the pond was never dedicated to the city, and the city has no easement over 

the pond or its outlet structure. Water flows from the city’s stormwater sewer 

system along its natural watercourse through the pond, and the inlet structures 

identified by appellants convey water along the preexisting natural watercourse. 

The record also shows the pond is not necessary to the city’s stormwater 

management system, there has been no flooding, and the collapse of the outlet drain 

has caused the water level in the pond to be lowered. After reviewing the record, we 

find the appellants have failed to produce evidence upon which to establish the pond 
at issue and its outlet structure are a part of the city’s public stormwater sewer 

system. The R.C. 2744.02(B)(2) exception to the general grant of immunity to a 

political subdivision does not apply in this case.

While appellants argue the loss of the pond or eradication of its 

shoreline have been caused by the city’s failure to maintain and repair the pond and 

its structures, “Ohio courts have held that a city has no duty to maintain a private 

drainage system on private property unless it has been established or used for public 

purposes.” Economus at ¶ 24, citing Bibbs v. Cinergy Corp., 1st Dist. Hamilton No. 

C-010390, 2002-Ohio-1851. It also is well settled that generally, “[a]n upstream 

municipality may collect, by means of sewers, the surface water from a watershed 

area within the corporate limits and channel it into a natural watercourse” without 

incurring liability to downstream landowners. Munn v. Horvitz Co., 175 Ohio 

St. 521, 196 N.E.2d 764 (1964), paragraph one of the syllabus, citing Mason v. 

Commrs. of Fulton Cty., 80 Ohio St. 151, 88 N.E. 401 (1909). Moreover, “a 

municipal corporation may make reasonable use of a natural watercourse to drain 

surface water” and it generally is “not liable for increased flow caused simply by 

improvement of lots and streets * * *.” Masley v. Lorain, 48 Ohio St.2d 334, 340, 

358 N.E.2d 596 (1976), citing Hamilton v. Ashbrook, 62 Ohio St. 511, 57 N.E. 239

(1900). 

The record simply does not support appellants’ claims that a taking 

or trespass has occurred in this matter. Here again, the cases cited by appellants in 

support of their arguments are distinguishable from this case. In State ex rel. 
Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio-1473, 928 N.E.2d 706, there 

was evidence that the city deposited sewage into the natural watercourse so as to 

cause physical interference with the landowners’ use and enjoyment of their 

property. See id. at ¶ 30-31. In McNamara v. Rittman, 107 Ohio St.3d 243, 2005-

Ohio-6433, 838 N.E.2d 640, there was evidence that the cities’ construction 

impacted the water supplies of the homeowners and the court recognized a property 

right in groundwater located beneath their land. Id. at ¶ 245. In McKee v. Akron, 

176 Ohio St. 282, 285, 199 N.E.2d 592 (1964), the homeowner alleged damage to her 

property from an odor arising from a city’s sewage disposal plant. Id. at 283. In 

Lucas v. Carney, 167 Ohio St. 416, 149 N.E.2d 238 (1958), the construction of a 

public improvement on county property greatly increased the amount of water 

flowing onto the plaintiff’s land and caused frequent flooding on the plaintiff’s 

property. Id. at 417-419. None of those circumstances are present herein, and the 

other cases cited by appellants are also distinguishable. The record in this case does 

not support any of appellants’ claims, and we are not persuaded by appellants’ 

arguments otherwise. 

After thoroughly reviewing the record, we find the city is entitled to 

political-subdivision immunity in this case and that the trial court properly ruled 

upon the cross-motions for summary judgment.4 The appellants’ assignments of 

error are overruled.

4 We do not consider the city’s statute-of-limitations arguments, which were not 

addressed by the trial court in the first instance.
Judgment affirmed. The case is remanded because there were

bifurcated claims against the remaining defendant.

It is ordered that appellee recover from appellants 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.

______________________

SEAN C. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and

MARY J. BOYLE, J., CONCUR