[Cite as Loveland City School Dist. Bd. of Edn. v. Symmes Twp. Bd. of Trustees, 2018-Ohio1731.]

Civil Appeals From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed in C-170407; Appeal Dismissed in C-170419 

Date of Judgment Entry on Appeal: May 4, 2018 

Ennis Britton Co., LPA, and Gary T. Stedronsky, for Plaintiffs-RelatorsAppellants/Cross-Appellees, 

Squire Patton Boggs (US) LLP, Scott A. Kane and Joseph P. Ashbrook, for 

Defendants-Respondents-Appellees/Cross-Appellants. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

BOARD OF EDUCATION OF THE 

LOVELAND CITY SCHOOL DISTRICT, 

 and 

STATE EX REL. BOARD OF 

EDUCATION OF THE LOVELAND 

CITY SCHOOL DISTRICT, 

 Plaintiffs-RelatorsAppellants/Cross-Appellees, 

 vs. 

BOARD OF TRUSTEES OF SYMMES 

TOWNSHIP, 

 and 

SYMMES TOWNSHIP, OHIO, 

 Defendants-RespondentsAppellees/Cross-Appellants. 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

APPEAL NOS. C-170407

 C-170419 

TRIAL NO. A-1601492 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

2

MOCK, Presiding Judge. 

{¶1} Plaintiffs-relators-appellants/cross-appellees Board of Education of 

the Loveland City School District and State ex rel. Board of Education of the 

Loveland City School District (collectively “Loveland School Board”) filed a 

complaint against defendants-respondents-appellees/cross-appellants Board of 

Trustees of Symmes Township and Symmes Township, Ohio, (collectively “Symmes 

Township”) in which they sought a declaratory judgment, a writ of mandamus and 

injunctive relief. The trial court granted summary judgment in favor of Symmes 

Township on all of Loveland School Board’s claims because they were barred by the 

applicable statute of limitations. We find no merit in Loveland School Board’s four 

assignments of error, and we affirm the trial court’s judgment. We also hold that 

Symmes Township’s cross-appeal was improper, and we, therefore, dismiss it. 

I. Factual Background 

{¶2} In 1991, Symmes Township passed Resolution No. F-9101, which 

authorized and approved the Symmes Station Development Tax Increment 

Financing Project (“STIF”) to make infrastructure improvements in the vicinity of 

Fields Ertel and Montgomery Roads. Resolution F-9101 declared these 

improvements to be a public purpose and authorized a 100 percent real-property-tax 

exemption for more than 90 acres of privately-owned property. The resolution also 

stated that the exemption was to last for 30 years, subject to earlier termination upon 

the retirement of the tax-increment debt. 

{¶3} In April 1993, Symmes Township passed resolution F-9303, which 

authorized the issuance of notes for the purpose of financing the public 
OHIO FIRST DISTRICT COURT OF APPEALS

3 

improvements. Symmes Township entered into service agreements with the owners 

of the real property in late 1993. 

{¶4} Under those agreements, owners of the real property made service 

payments called PILOT payments in lieu of paying real-estate taxes. Those payments 

were paid into a special tax-increment-equivalent fund to pay for the construction of 

the specified public improvements. The agreements stated that they would expire on 

the earlier of December 31, 2010, or “the day following the date on which the final 

payment of principal * * * and interest on the Bonds or any refunding issues thereof 

is made or deemed to be made to a trustee for the benefit of the holder or holders 

thereof.” Even after the service agreements expired, Symmes Township continued to 

collect PILOT payments from the property owners. 

{¶5} The tax-increment-equivalent fund was pledged as security for the 

principal and interest on the notes authorized in Resolution F-9303. The debt owed 

on the notes was guaranteed solely by the tax-increment-equivalent fund. 

{¶6} The development of the property subject to the STIF was successful. It 

was ultimately developed into a number of retail establishments and a large 

apartment complex. 

{¶7} In 2003, Symmes Township passed Resolution F-0303 to amend 

Resolution F-9101 to specify additional public infrastructure improvements that 

could be funded by the STIF. It subsequently adopted Resolutions F-0304, F-0305 

and F-0306, which related to the debt instruments used to fund the public 

infrastructure improvements. At the time those resolutions were adopted, 

approximately $400,000 in notes used to finance the original improvements set out 

in F-9101 were still outstanding, unmatured and unpaid. The township claimed that 
OHIO FIRST DISTRICT COURT OF APPEALS

4

it sought to refinance the debt so that it could continue to use the funds generated by 

the STIF for the additional improvements. 

{¶8} The original STIF notes were special revenue obligations that limited 

Symmes Township’s liability to tax-increment revenue. Resolution F-0304 provided 

for the refunding of the outstanding STIF debt with general-obligation bonds. Those 

bonds were not secured with PILOT payments from the tax-increment-equivalent 

fund. Instead they were secured by “the full general obligation of the Township” and 

“the faith, credit and revenue of said Township.” 

{¶9} Resolution F-0305 authorized Symmes Township to issue bonds for 

the purpose of park-land acquisition. Resolution F-0306 authorized it to combine 

the park-land acquisition debt and the outstanding $400,000 debt from the 1991 

infrastructure improvements into a single consolidated bond issue. 

{¶10} The STIF continued to be successful. It generated funds to pay for the 

purchase of a park, the construction of a park maintenance building, the 

construction of a safety center, and the purchase of police and fire equipment. 

{¶11} Loveland School Board filed its complaint on March 11, 2016. It 

alleged that the “refinancing” of the original STIF debt instruments in 20o3 was 

actually the retirement of that debt, and that the STIF should have terminated at that 

time. It further alleged that the expansion of the scope of the public improvements 

funded by the STIF in Resolution F-0303 was improper, and that Symmes Township 

had improperly spent PILOT payments from the tax-increment-equivalent fund on 

expenditures that were not necessary for the development of the subject property as 

originally specified in 1991. 

{¶12} Both Loveland School Board and Symmes Township filed motions for 

summary judgment. In its motion, Symmes Township argued that it was entitled to 
OHIO FIRST DISTRICT COURT OF APPEALS

5

judgment as a matter of law because Loveland School Board’s complaint was filed 

outside of the applicable statute of limitations. 

{¶13} The trial court found that the six-year statute of limitations set forth in 

R.C. 2305.07 for actions “upon a liability created by statute” applied. The court also 

found that the cause of action accrued in 2003 when Symmes Township amended 

the STIF and, as argued by Loveland School Board, failed to terminate the STIF 

when it refunded the original securities with general-obligation bonds. Thus, the 

court determined that the Loveland School Board’s claims were time-barred. It 

entered judgment in favor of Symmes Township on all counts of Loveland School 

Board’s complaint. Both parties have appealed the trial court’s judgment. 

II. Improper “Cross-Appeal” 

{¶14} Symmes Township has filed what it refers to as a “cross-appeal,” 

although it was filed under a separate appeal number. Even if it were a cross-appeal, 

App.R. 3(C)(1) provides that “[a] person who intends to defend a judgment or order 

against an appeal taken by an appellant and who also seeks to change the judgment 

or order * * * shall file a notice of cross-appeal within the time allowed by App.R. 4.” 

App.R. 3(C)(2) further provides that “[a] person who intends to defend a judgment 

or order appealed by an appellant on a ground other than that relied on by the trial 

court but who does not seek to change the judgment or order is not required to file a 

notice or cross-appeal or raise a cross-assignment of error.” 

{¶15} The trial court granted summary judgment in Symmes Township’s 

favor. The township does not seek to change the judgment from which Loveland 

School Board has appealed. Consequently, its use of a “cross-appeal” to assert its 

arguments is improper, and we dismiss the appeal numbered C-170419. See SP9 

Ent. Trust v. Brauen, 3d Dist. Allen No. 1-14-03, 2014-Ohio-4870, ¶ 60-64. 
OHIO FIRST DISTRICT COURT OF APPEALS

6

Nevertheless, we can still address the township’s arguments as we would any 

appellee’s, and we do so where appropriate. See McCarthy v. Sterling Chemicals, 

Inc., 1st Dist. Hamilton Nos. C-110805 and C-110856, 2012-Ohio-5211, ¶ 9. 

III. TIFs Generally 

{¶16} Tax-increment financing (TIF) is a “method for funding public 

improvements in an area slated for redevelopment by recapturing, for a time, all or a 

portion of the increased property tax revenue that may result if the redevelopment 

stimulates private reinvestment.” Princeton City School Dist. Bd. of Edn. v. Zaino, 

94 Ohio St.3d 66, 68, 760 N.E.2d 375 (2002), quoting Meck & Pearlman, Ohio 

Planning and Zoning Law, Section T 15:29, 704 (2000). Townships may declare 

improvements to real property to be exempt from property taxes and to require the 

owner of the property to make service payments in lieu of the real-property taxes 

that would have been payable on the improvements had the property not been 

exempt. A township that receives service payments in lieu of taxes must establish a 

public-improvement-tax-increment-equivalent fund and deposit the payments into 

that fund. It must use the moneys deposited into that fund to pay the costs of the 

public improvements or the principal and interest on bonds or notes issued to pay 

the costs of the public improvements that are necessary for the development of the 

exempted real property. Princeton City School Dist. at 68, quoting 3 Princehorn & 

Shimp, Ohio Township Law, Section T 2.6, 42 (2000). 

{¶17} The General Assembly enacted R.C. 5709.93 et seq., which authorize 

townships to construct public improvements that will benefit specified parcels of 

property through TIF programs. It has empowered townships to redirect tax receipts 

attributable to the increase in value of the benefited parcels to a fund out of which a 

township pays for the improvements. Princeton City School Dist. at 70. 
OHIO FIRST DISTRICT COURT OF APPEALS

7

IV. Former R.C. 5715.27(F) does not Apply 

{¶18} We begin our analysis with Symmes Township’s argument that the 

statutory procedure set forth in former R.C. 5715.27(F) provides Loveland School 

Board’s exclusive remedy to challenge the exemption. The township is correct in 

arguing that a court cannot grant declaratory relief where a special statutory 

proceeding has been provided for that purpose. See State ex rel. Taft v. Court of 

Common Pleas of Franklin Cty., 63 Ohio St.3d 190, 193, 586 N.E.2d 114 (1992); 

State ex rel. Iris Sales Co. v. Voinovich, 43 Ohio App.2d 18, 19, 332 N.E.2d 79 (8th 

Dist.1975). But the statutory procedure on which it relies does not apply in this case. 

{¶19} Former R.C. 5715.27(F) stated in pertinent part, “An application for 

exemption and a complaint against exemption shall be filed prior to the thirty-first 

day of December of the tax year for which exemption is requested or for which the 

liability of the property to taxation in that year is requested.” This statute limits a 

board of education to contesting the exemption in the year in which the complaint is 

filed. It may not contest prior year exemptions. Toledo v. Levin, 117 Ohio St.3d 373, 

2008-Ohio-1119, 884 N.E.2d 31, ¶ 16; Olmsted Falls Bd. of Edn. v. Tracy, 76 Ohio 

St.3d 386, 388, 667 N.E.2d 1200 (1996). 

{¶20} Read in isolation, that provision seems to support the township’s 

position. But when reviewing a statute, a court cannot pick out one provision and 

dissociate it from the context. It must “look to the four corners of the enactment to 

determine the intent of the enacting body.” Risner v. Ohio Dept. of Natural 

Resources, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 12, quoting State v. 

Wilson, 77 Ohio St.3d 334, 336, 673 N.E.2d 1347 (1997). 

{¶21} Former R.C. 5715.27 was entitled “Right to complain to tax 

commissioner; notice to school board.” Section (A) of the statute stated that 
OHIO FIRST DISTRICT COURT OF APPEALS

8 

“[e]xcept as provided in section 3735.67 of the Revised Code, the owner of any 

property may file an application with the tax commissioner, on forms prescribed by 

the commissioner, requesting that such property be exempted from taxation and that 

taxes and penalties be remitted as provided in division (B) of section 5713.08 of the 

Revised Code.” Section (B) stated that the board of education of any school district 

could request the tax commissioner to “provide it with notification of applications for 

exemptions from taxation for property located within that district.” Section (C) 

allowed a board of education that had requested notifications to file a statement with 

the commissioner and the applicant indicating “its intent to submit evidence and 

participate in a hearing on any application.” In sum, this statute provided a 

procedure for a property owner to request an exemption and for the school board to 

contest it. 

{¶22} On the other hand, former R.C. 5709.73 empowered “a township to 

designate parcels for a public improvement area, to exempt further improvements to 

these parcels from the real estate tax, and to construct public improvements in the 

designated areas.” (Emphasis added.) Princeton City School Dist., 94 Ohio St.3d at 

68, 760 N.E.2d 375. The statute described the actions a township was required to 

take to set up a TIF, including adopting a resolution, holding a public hearing, and 

notifying the property owners. See former R.C. 5709.73(A) and (B). In certain 

situations, the board of education had to approve the township’s actions. Thus, there 

would be no need to notify the board of education about the exemption. 

{¶23} When the statute is read as a whole, the plain language of former R.C. 

5715.27 shows that it did not apply in a situation involving a TIF, which had its own 

governing statutes. In fact, in Princeton City School Dist., the Supreme Court stated 

that former R.C. 5709.73, which set forth the criteria for the TIF exemption, “does 
OHIO FIRST DISTRICT COURT OF APPEALS

9

not provide for any review by the commissioner on whether the declaration of the 

township is correct.” Therefore, the commissioner “could not review the township’s 

decision in passing the resolution; he could only record that the township had passed 

the resolution and determine that the resolution applied to the years under review.” 

Princeton School Dist. at 75. Thus, Loveland School District could not have had the 

issues raised in its complaint decided under former R.C. 5715.27(F). 

{¶24} Finally, the Ohio Supreme Court and this court have decided 

declaratory judgment actions related to TIFs. See Sugarcreek Twp. v. Centerville, 

133 Ohio St.3d 467, 2012-Ohio-4649, 979 N.E.2d 261; Hyde Park Circle, LLC v. 

Cincinnati, 2016-Ohio-3130, 66 N.E.3d 99 (1st Dist.). We find no merit to the 

township’s argument that former R.C. 5715.27(F) provided the school district’s 

exclusive remedy. 

V. Applicable Statute of Limitations 

{¶25} In its first assignment of error, Loveland School Board contends that 

the trial court erred in concluding that the six-year statute of limitations in R.C. 

2305.07 applied. Instead, it contends that the ten-year statute of limitations set 

forth in R.C. 2305.14 applied. We hold that the trial court applied the correct statute 

of limitations. 

{¶26} First, we address Symmes Township’s argument that the two-year 

statute of limitations for actions against political subdivisions set forth in R.C. 

2744.04 applies. “Courts in Ohio have been uniform in the observation that ‘(b)y its 

very language and title, (Chapter 2744) applies to tort actions for damages.’ ” 

(Emphasis sic.) State ex rel. Fatur v. Eastlake, 11th Dist. Lake No. 2009-L-037, 

2010-Ohio-1448, ¶ 36, quoting Big Springs Golf Club v. Donofrio, 74 Ohio App.3d 1, 

2, 598 N.E.2d 14 (9th Dist.1991). It has no application to equitable actions. 
OHIO FIRST DISTRICT COURT OF APPEALS

10

Cincinnati v. Harrison, 1st Dist. Hamilton No. C-130195, 2014-Ohio-2844, ¶ 29-30; 

Fatur at ¶ 36-37; State ex rel. Johnny Appleseed Metro. Park Dist. v. Delphos, 141 

Ohio App.3d 255, 258, 750 N.E.2d 1158 (3d Dist.2001). 

{¶27} Loveland School Board’s complaint primarily sought equitable relief in 

the form of a declaratory judgment, injunctive relief, and a writ of mandamus. 

Though it also sought an award of money damages, it was seeking to recover money 

to which it contends that it was entitled under the TIF statutes, but for Symmes 

Township’s allegedly improper actions. Consequently, the essence of the claim was 

not money damages, but equitable relief. Therefore, R.C. Chapter 2744 does not 

apply. See B.H. v. Ohio Dept. of Adm. Serv., 10th Dist. Franklin No. 16AP-747, 2017-

Ohio-9030, ¶ 21-25; State ex rel. Midview Local School Dist. Bd. of Edn. v. Ohio 

School Facilities Comm., 2015-Ohio-435, 28 N.E.3d 633, ¶ 15-16 (9th Dist.); Interim 

Health Care of Columbus, Inc. v. Ohio Dept. of Adm. Serv., 10th Dist. Franklin No. 

07AP-747, 2008-Ohio-2286, ¶ 15-17. 

{¶28} We also find no merit in Loveland School Board’s argument that the 

ten-year statute of limitations set forth in R.C. 2305.14 applies. R.C. 2305.14 states 

that “[a]n action for relief not provided for in sections 2305.04 to 2305.131 and 

section 1304.35 of the Revised Code shall be brought within ten years after the cause 

thereof accrued.” It is a catch-all provision that Ohio courts have generally applied 

to equitable actions. State ex rel. Lien v. House, 144 Ohio St. 238, 244-245, 58 

N.E.2d 675 (1944); Schlabach v. Kondik, 3d Dist. Harrison No. 16 HA 0017, 2017-

Ohio-8016, ¶ 19; Seitz v. Stevenson, 4th Dist. Pickaway No. 97 CA 42, 1998 WL 

328413, *6 (June 16, 1998); Biggins v. Garvey, 90 Ohio App.3d 584, 606, 630 

N.E.2d 44 (11th Dist.1993). 
OHIO FIRST DISTRICT COURT OF APPEALS

11

{¶29} R.C. 2305.07, on the other hand, provides a six-year statute of 

limitations for a “liability created by statute other than a forfeiture or penalty.” An 

action upon a liability created by statute is “one that would not exist but for the 

statute.” McAuliffe v. W. States Import Co., Inc., 72 Ohio St.3d 534, 538, 651 N.E.2d 

957 (1995); Miller v. Lincoln Hts., 1st Dist. Hamilton No. C-110276, 2011-Ohio-6722, 

¶ 8. 

{¶30} The statute of limitations to be applied is determined from the 

essential ground or gist of the complaint. Kunz v. Buckeye Union Ins. Co., 1 Ohio 

St.3d 79, 80-81, 437 N.E.2d 1194 (1982); Chateau Estate Homes, LLC v. Fifth Third 

Bank, 1st Dist. Hamilton No. C-160703, 2017-Ohio-6985, ¶ 11. Though Loveland 

School District sought equitable relief, all of its claims were based on the statutory 

sections governing TIFs. 

{¶31} Loveland School Board argues that its claims were not based on the 

statutes, but on the language of the resolutions authorizing the STIF in 1991 and 

1993 and the resolutions amending the STIF in 2003. But without the statutes 

authorizing townships to create TIFs, Symmes Township could not have enacted the 

resolutions. Without the statutes, Loveland School Board’s claims would not exist. 

Therefore, R.C. 2305.07 applies. The ten-year statute of limitations set forth in R.C. 

2305.14 does not apply, because that statute specifically states that it only applies to 

actions for relief not provided for in R.C. 2505.04 to 2305.131. Consequently, we 

overrule Loveland School Board’s first assignment of error. 

VI. Accrual of the Cause of Action 

{¶32} We discuss the remainder of Loveland School Board’s assignments of 

error out of order. In its third assignment of error, Loveland School Board contends 

that the trial court erred in concluding that the cause of action accrued in 2003 when 
OHIO FIRST DISTRICT COURT OF APPEALS

12

the township amended the original 1991 STIF to add additional public infrastructure 

improvements. It argues that a new cause of action accrued each time an additional 

expenditure from the tax-increment fund was actually made. This assignment of 

error is not well taken. 

{¶33} As a general rule, a cause of action accrues at the time the wrongful act 

is committed. Flagstar Bank, F.S.B. v. Airline Union’s Mtge. Co., 128 Ohio St.3d 

529, 2011-Ohio-1961, 947 N.E.2d 672, ¶ 13; Chateau Estate Homes, 1st Dist. 

Hamilton No. C-160703, 2017-Ohio-6985, at ¶ 13. It is only in narrow circumstances 

that exceptions are made to this rule. LGR, Realty, Inc. v. Frank & London Ins. 

Agency, __ Ohio St.3d ___, 2018-Ohio-334, ___ N.E.3d ___, ¶ 26. A cause of 

action arising from a statute accrues when the violation of the statute occurs. 

Younker v. Citizens Commercial Bank & Trust Co., 3d Dist. Mercer No. 10-04-05, 

2004-Ohio-4162, ¶ 19; Arbor Village Condominium Assn. v. Arbor Village, Ltd., 

L.P., 95 Ohio App.3d 499, 506, 642 N.E.2d 1124 (10th Dist.1994); Perry v. 

Cincinnati, 1st Dist. Hamilton No. C-880451, 1989 WL 107588, *3 (Sept. 2o, 1989). 

{¶34} The alleged statutory violation occurred in 2003 when Symmes 

Township amended the STIF and, according to Loveland School Board, improperly 

expanded the scope of the public improvements funded by the STIF. Further, 

according to Loveland School Board, at that time Symmes Township retired the debt, 

causing the termination of the STIF. Thus, the cause of action accrued at that time. 

{¶35} Loveland School Board’s complaint was not filed until March 11, 2016. 

Therefore, it was filed well after the expiration of the six-year statute of limitations 

provided for in R.C. 2305.07. Even if we would have accepted Loveland School 

Board’s argument that the ten-year statute of limitations set forth in R.C. 2305.14 
OHIO FIRST DISTRICT COURT OF APPEALS

13

applied, the complaint was still filed well after the expiration of the statute of 

limitations. 

A. Continuous-Violation Doctrine 

{¶36} In its second assignment of error, Loveland School Board contends 

that the trial court erred in finding that the continuous-violation doctrine did not 

apply. It argues that the failure to terminate the STIF in 2003 when the taxincrement debt was retired allowed the township to continue to collect the PILOT 

payments, which deprived the school district of its tax revenue. This assignment of 

error is not well taken. 

{¶37} Loveland School Board relies upon State ex rel. Doner v. Zody, 130 

Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, which involved a takings claim 

resulting from flooding caused by a spillway on a lake. The Ohio Department of 

Natural Resources (“ODNR”) had constructed a new spillway to replace one that was 

inadequate. After the construction of the new spillway, ODNR considered the lake to 

be self-regulating and stopped drawing down the water annually or as needed. Also, 

after the construction of the spillway, nearby landowners had suffered from 

persistent flooding. 

{¶38} The plaintiffs filed their complaint in 2009. The state argued that the 

actions that would have fixed liability were completed when the spillway was built in 

1997 and that the plaintiffs knew or should have known of damage by 2003, when a 

catastrophic flood had occurred. Id. at ¶ 36. In rejecting the state’s argument, the 

Ohio Supreme Court stated that “[i]n construing the statute of limitations for actions 

for trespass upon real property, we have held that if a trespass is continuing rather 

than a single completed act, the limitations period is tolled.” Id. at ¶ 37. The court 

held that “[w]hen an action carried out on the actor’s own land causes continuing 
OHIO FIRST DISTRICT COURT OF APPEALS

14 

damage to another’s property and the actor’s conduct or retention of control is of a 

continuing nature, the statute of limitations is tolled.” Id. at paragraph two of the 

syllabus. 

{¶39} The court reasoned that “the ‘defendant’s ongoing conduct or retention 

of control is the key’ to distinguishing a continuing trespass, which tolls a statute of 

limitations, from a permanent trespass, which does not.” A continuing trespass 

occurs when there is “ ‘some continuing or ongoing allegedly tortious activity 

attributable to the defendant. A permanent trespass occurs when the defendant’s 

allegedly tortious act has been fully accomplished.’ ” Id. at ¶ 44, quoting Sexton v. 

Mason, 117 Ohio St.3d 275, 2008-Ohio-858, 883 N.E.2d 1013, ¶ 45. 

{¶40} The court further stated that “a cause of action against the government 

does not accrue until ‘all of the events which fix the government’s alleged liability 

have occurred and the plaintiff was or should have been aware of their existence.’ ” 

State ex rel. Doner at ¶ 48, quoting State ex rel. Nickoli v. Erie MetroParks, 124 

Ohio St.3d 449, 2010-Ohio-606, 923 N.E.2d 588, ¶ 34. Thus, whether the plaintiff 

had notice of the alleged tortious activity is relevant in determining when the cause 

of action accrued. 

{¶41} In rejecting Loveland School Board’s argument, the trial court relied 

on Painesville Mini Storage, Inc. v. Painesville, 124 Ohio St.3d 504, 2010-Ohio-920, 

924 N.E.2d 357. In that case, the plaintiff had filed a petition for a writ of mandamus 

to compel a city to commence an appropriation proceeding for the alleged taking of 

plaintiff’s property through the issuance of a building permit. The Ohio Supreme 

Court found that the complaint was filed outside the alleged applicable statute of 

limitations. 
OHIO FIRST DISTRICT COURT OF APPEALS

15

{¶42} The court in that case stated that “the continuous-violation doctrine 

did not toll the statute of limitations, because the city did not perform any additional 

challenged actions after it issued the permit. Every event that occurred thereafter 

‘was merely a continuation of the effects of that solitary event rather than the 

occurrence of new discrete acts.’ ” Id. at ¶ 3, quoting Nickoli at ¶ 33; see State ex rel. 

Lee v. Plain City, 12th Dist. Madison No. CA2017-01-002, 2017-Ohio-8931, ¶ 27-29 

(sewers and other infrastructures constitute a permanent trespass of which the 

property owners had notice at the time they were put in place with no further action 

by the village); Byers DiPaola Castle, LLC v. Portage Cty. Bd. of Commrs., 2015-

Ohio-3089, 41 N.E.3d 89, ¶ 43 (11th Dist.) (the present effects of a single past action 

do not trigger a continuing-violations exception to the statute of limitations). 

{¶43} The trial court found that the events that occurred after 2003 were a 

continuation of the effects of the 2003 amendment and the expansion of the STIF. 

Loveland School Board argues that State ex rel. Doner applies, and not Painesville 

Mini Storage, because Symmes Township exercised sole control over the STIF by 

continuing to collect PILOT payments and continuing to use the tax-increment fund 

to make expenditures. Thus, all of the events that fixed the township’s liability could 

not have occurred in 2003, and the continuing-violation doctrine applies. 

{¶44} We disagree. In State ex rel. Doner, the alleged tortious activity was 

continuing in that ODNR controlled the waterway and failed to draw down the lake 

as needed. Thus, the tortious activity remained in the control of ODNR. 

{¶45} In this case, the alleged tortious activity was the 2003 amendment of 

the STIF to expand it for allegedly improper purposes and the failure to terminate it 

when the debt on the original notes was paid. All of the tortious activity occurred in 

2003. The continued collection of the PILOT payments and continued expenditures 
OHIO FIRST DISTRICT COURT OF APPEALS

16 

from the tax-increment fund flowed from that alleged tortious activity. The township 

had no authority to continue to collect the payments or make expenditures out of the 

fund without the authorization provided by the amendment of the STIF. Any of its 

actions after 2003 were the result of the allegedly improper amendment of the STIF 

and the failure to terminate it. Thus, the tortious activity was completed in 2003, 

and the township’s acts after 2003 were merely a continuation of the effects of the 

2003 amendment. 

{¶46} We also cannot ignore the fact that Loveland School Board knew or 

should have known about the amendment of the STIF more than six years before it 

filed its complaint. First, the 2003 resolutions were public records and gave notice 

to Loveland School Board and the public about the expansion of the STIF. See 

Stewart v. Allen, 9th Dist. Wayne No. 06CA0039, 2008-Ohio-1645, ¶ 17-18;

Wendover Road Property Owners Assn. v. Kornicks, 28 Ohio App.3d 101, 103, 502 

N.E.2d 226 (8th Dist.1985). 

{¶47} Further, the record shows that Symmes Township held an annual 

meeting of the Tax Increment Review Council (“TIRC”), which included 

representatives from the various school districts in the township, including Loveland 

School District. During those meetings, the township provided a packet of 

information related to the STIF and discussed the STIF expenditures. Loveland 

School District actually produced the packet from the 2004 TIRC meeting, which 

included information regarding new public improvements to be funded by the TIF, 

including “construction of a new fire/safety building and miscellaneous park 

improvements.” That packet stated that it had been provided to Loveland School 

Board’s representative. The school district’s treasurer testified that although he was 

not at the 2004 meeting, he had attended the TIRC meetings himself and was 
OHIO FIRST DISTRICT COURT OF APPEALS

17 

familiar with the information historically reported by Symmes Township. He also 

acknowledged that the Loveland School District superintendent had attended TIRC 

meetings. Thus, the record shows that Loveland School Board had notice in 2004 

about the expansion and the continuation of the STIF. 

{¶48} Finally, we note that courts have been reluctant to expand the 

continuous-violation doctrine beyond the original context in which it was applied. 

See Byers DiPaola Castle, 2015-Ohio-3089, 41 N.E.3d 89, at ¶ 45; Rosenbaum v. 

Chronicle Telegram, 9th Dist. Lorain Nos. 01CA0079896 and 01CA007908, 2002-

Ohio-7319, ¶ 28-29. Under the circumstances, we hold that the continuing-violation 

doctrine did not toll the running of the statute of limitations, and the trial court did 

not err in failing to apply it. We overrule Loveland School Board’s second 

assignment of error. 

B. Delayed-Damage Rule 

{¶49} Under its third assignment of error, Loveland School Board also 

contends that the delayed-damage rule applies. Under that rule, “where the 

wrongful conduct complained of is not presently harmful, the cause of action does 

not accrue until actual damage occurs.” Flagstar, 128 Ohio St.3d 529, 2011-Ohio1961, 947 N.E.2d 672, at ¶ 19; Chateau Estate Homes, 1st Dist. Hamilton No. C160703, 2017-Ohio-6985, at ¶ 14. The delayed-damage rule does not toll the running 

of the statute of limitations, it adjusts when the cause of action accrues. Chateau 

Estate Homes at ¶ 14. 

{¶50} Loveland School Board contends that the statutory violation of the 

improper expenditure of PILOT payments did not occur until the expenditures were 

actually made. It argues that most of those expenditures were not contemplated at 

the time of the 2003 amendment. For example, starting in 2003, Symmes Township 
OHIO FIRST DISTRICT COURT OF APPEALS

18

spent $350,000 of the PILOT payments to purchase a park. From 2003 through 

2005, it spent about $2,500,000 on a safety-services center. In 2008 and 2009, it 

spent $360,000 to construct a park maintenance building. Finally, in 2012 and 

continuing each year through 2016, it spent over $2,000,000 on police and fire 

equipment. Loveland School Board argues that the damage resulting from any 

statutory violation did not occur until those expenditures had been made. 

{¶51} We find no case law applying the delayed-damage rule where R.C. 

2305.07 is the applicable statute of limitations. We also note that the Ohio Supreme 

Court recently declined to apply the delayed-damage rule in a case involving the 

four-year statute of limitations set forth in R.C. 2305.09 for negligent procurement 

of a professional-liability insurance company and negligent representation. See LGR 

Realty, ___ Ohio St.3d ___, 2018-Ohio-334, ___ N.E.3d ___, at ¶ 31. This court 

reached the same conclusion in Chateau Estate Homes, 1st Dist. Hamilton No. C160703, 2017-Ohio-6985, at ¶ 15-25. Therefore, we decline to apply the delayeddamage rule in this case. 

{¶52} Nevertheless, even if the rule does apply, the damage occurred in 2003 

when the allegedly overreaching amendment to the original STIF was passed. 

Without this amendment, the continued expenditures could not have been made. 

Thus, all of the conduct giving rise to Symmes Township’s alleged liability occurred 

at that time. Consequently, we overrule Loveland School Board’s third assignment of 

error. 

C. Discovery Rule 

{¶53} In its fourth assignment of error, Loveland School Board contends that 

the trial court erred in concluding that the discovery rule did not apply. It argues 

that it did not know, and could not have known, that Symmes Township had retired 
OHIO FIRST DISTRICT COURT OF APPEALS

19 

its tax-increment debt until it made a public records request in 2014 for various 

STIF-related documents. This assignment of error is not well taken. 

{¶54} The discovery rule provides that a cause of action does not arise until 

the plaintiff knows, or by the exercise of reasonable diligence should know, that he or 

she has been injured by the defendant’s conduct. Flagstar, 128 Ohio St.3d 529, 

2011-Ohio-1961, 947 N.E.2d 672, at ¶ 13-14; Chateau Estate Homes, 1st Dist. 

Hamilton No. C-160703, 2017-Ohio-6985, at ¶ 13. The discovery rule tolls the 

running of the statute of limitations. Chateau Estate Homes at ¶ 13. It is typically 

applied in tort and medical-malpractice cases, and it is doubtful it would apply to a 

case under R.C. 2305.07 or 2305.14. See Miller v. Cloud, 2016-Ohio-5390, 76 

N.E.3d 297, ¶ 52 (7th Dist.); Wilkerson v. Hartings, 1st Dist. Hamilton No. C081160, 2009-Ohio-4987, ¶ 9-11. At least two courts have refused to apply the 

discovery rule to cases involving statutory violations under R.C. 2305.07. See Arbor 

Village Condominium Assn., 95 Ohio App.3d at 506, 642 N.E.2d 1124; Arandell 

Corp. v. Amer. Elec. Power Co., S.D. Ohio No. 2:09-cv-231, 2010 WL 3667004, *7-8 

(Sept. 15, 2010). 

{¶55} Even if the discovery rule applies, the school district should have 

known that it was injured by the township’s conduct long before 2014. This court 

has stated that “[n]o more than a reasonable opportunity to discover” the injurious 

conduct is required to start the running of the statute of limitations. Wilkerson at ¶ 

15, quoting Craggett v. Adell Ins. Agency, 92 Ohio App.3d 443, 454, 635 N.E.2d 

1326 (8th Dist.1993). “Information sufficient to alert a reasonable person to the 

possibility of wrongdoing gives rise to a party’s duty to inquire into the matter with 

due diligence.” Id. 
OHIO FIRST DISTRICT COURT OF APPEALS

20

{¶56} The record shows that Loveland School Board knew in 2004 of the 

amendment to the STIF and the expansion of the public improvements funded by the 

STIF. At that time, it had information sufficient to put it on notice of the possibility 

of wrongdoing which gave rise to a duty to inquire into the matter. Thus, the cause 

of action would have accrued, at the latest, in 2004. Even if we apply the discovery 

rule, the complaint was not filed within the six-year statute of limitations. We 

overrule Loveland School Board’s fourth assignment of error. 

VII. Summary 

{¶57} In sum, we find no merit in Loveland School Board’s four assignments 

of error. We find no issues of material fact. Construing the evidence most strongly 

in Loveland School Board’s favor, we hold that reasonable minds can come to but 

one conclusion—that Loveland School Board’s claims were time-barred and that 

Symmes Township was entitled to judgment as a matter of law. Consequently, the 

trial court did not err in granting summary judgment in favor of Symmes Township. 

See Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977); 

Wal-Mart Realty Co. v. Tri-County Commons Assoc., Inc., 1st Dist. Hamilton No. C160747, 2017-Ohio-9280, ¶ 8. Having overruled Loveland School Board’s 

assignments of error, we affirm the trial court’s judgment in the appeal numbered C170407. We dismiss the appeal in the case numbered C-170419. 

Judgment affirmed in C-170407 and appeal dismissed in C-170419. 

CUNNINGHAM and ZAYAS, JJ., concur. 

Please note: 

 The court has recorded its own entry this date.