Civil Appeal from Common Pleas Court Trial Court Case No. 12-CV-6355
JOHN K. LIMOLI, Atty. Reg. #0058551, Attorney for Plaintiff-Appellant
JOHN J. DANISH, Atty. Reg. #0046639, and JONATHAN W. CROFT, Atty. Reg. #0082093, City Attorney's Office, Attorneys for Defendant-Appellee
(¶ 1} A property owner brought an action seeking to compel the city to purchase property that, the complaint alleges, has been rendered valueless by the city's zoning regulations and zoning decisions. The trial court dismissed the complaint under Civ.R. 12(B)(6) for failing to state a claim on which relief can be granted. We conclude that the court properly dismissed the complaint because the complaint's allegations do not state a cause of action. Even if the allegations are true, the property owner has not alleged a right to relief We affirm.
Background and Facts
(¶ 2} The plaintiff-appellant, Rion MacConnell, owned property on West Grand Avenue in Dayton. In 2010, the city filed a complaint to appropriate a portion of MacConnell's property. (See Case No. 2010 CV 663). MacConnell does not dispute that he and the city eventually entered into a settlement agreement. The city agreed to give MacConnell a certain amount to compensate him for the appropriation.
(¶ 3} In August 2012, MacConnell filed the present action pro se against the city. In his complaint, MacConnell states that he has been the owner of real property on Grand Avenue and that the City of Dayton filed a previous appropriation action, which he specifically refers to as case No. 2010 CV 00663, "* * *wherein the Defendant [City] sought to appropriate a portion of Plaintiffs [MacConnell's] land for certain civic projects * * *." (Complaint ¶ 5) "The City took the portion of the plaintiffs land that it deemed necessary* * *." ( Id. ¶ 7) The 2012 complaint alleges that the City's use of the appropriated land rendered the remainder of MacConnell's property unusable and of no commercial or practical value because it is now surrounded by roads and the grade angle limits access. The complaint further alleges that MacConnell asked the city for permission to place a high- or low-rise sign on the remaining property, or to turn it into a family cemetery, but permission was denied. The complaint also alleges that MacConnell asked the city if he could operate a used car parts business on the remaining property but this request was denied too because the property is in a campus-institutional zoning district. The complaint further alleges that the offset requirements in the district prevent the construction of a building. Because of the road extension and the zoning restrictions, says the complaint, MacConnell cannot use the property for anything other than green space–"all feasible commercial ventures are denied as either impractical or a violation of the current zoning ordinances." (Id., ¶ 22). In the prayer of the complaint, "Plaintiff asks that this Honorable Court order the defendant to purchase the balance of the property * * *."(Id., Ad Damnum clause).
(¶ 4} The city moved to dismiss the complaint under Civ.R. 12(B)(6) for failing to state a claim on which relief can be granted. The city's motion to dismiss states: "The attached Settlement Entry in Case Number 2010 CV 00663 was approved by this court * * *." (Motion to Dismiss, unnumbered pg. 1, filed October 3, 2012). In his response MacConnell indicates that he "* * * finds no attachment in the record." (Dkt 10, pg. 3). Nor do we. Nevertheless, in the very next paragraph, MacConnell quotes specific language from the Settlement Entry, but argues that the settlement was for the land actually taken and not the remainder of his property. In its decision sustaining the motion to dismiss, the the trial court quoted the entirety of the Settlement Entry from case # 2010 CV 00663. The court then concluded that MacConnell's new claim is for appropriation damages, which claim the settlement agreement bars. The trial court alternatively concluded that MacConnell had failed to exhaust his administrative remedies with respect to zoning. The court also observed that he failed to attach to the complaint any evidence that he actually sought the city's permission for the property uses mentioned.
(¶ 5} MacConnell appealed.
(¶ 6} MacConnell challenges the trial court's dismissal of his complaint under Civ.R. 12(B)(6). "When a trial court construes a complaint for purposes of a motion to dismiss for failure to state a claim, the court must assume that 'all factual allegations in the complaint are true.'" Thomas v. Progressive Cas. Ins. Co., Inc., 2011-Ohio-6712, 969 N.E.2d 1284, ¶ 10 (2d Dist.), quoting Tulloh v. Goodyear Atomic Corp., 62 Ohio St.3d 541, 544, 584 N.E.2d 729 (1992). "'Since all factual allegations in the complaint are presumed true, only legal issues are presented and an entry of dismissal will be reviewed de novo.'" Id., quoting Hunt v. Marksman Prods., 101 Ohio App.3d 760, 762, 656 N.E.2d 726 (9th Dist.1995).
(¶ 7} We observe a shift in focus regarding the cause of MacConnell's damages. The pro se complaint says that his damages have two causes: "[T]he defendant made it impossible for the plaintiff to use the property for anything other than green space because, due to road construction and zoning restriction[s], all feasible commercial ventures are denied as either impractical or a violation of the current zoning ordinances." (Emphasis added.) (Complaint, ¶ 22). But MacConnell's attorney-drafted appellate brief identifies the zoning restrictions as the sole cause of his damages: "[T]he damage did not occur as a result of the appropriation but, rather, as a result of the City's unwillingness to grant a permissive use to the Plaintiff * * * The Plaintiffs damages are related to the City's subsequent determination to confiscate the remainder of the property by refusing all requests for a use that is beneficial to the Plaintiff rather than a use that is envisioned by the City." (Appellant's Merit Brief, 7).
(¶ 8} The appellate brief s focus on the zoning regulations is undoubtedly related to the impact of the previous appropriation case. Assuming for the moment that the trial court properly considered that the prior case was concluded, the compensation that MacConnell received from the city would have been compensation not only for the value of the appropriated property but also for damages to the remaining property caused by the appropriation. In an appropriation case, R.C 163.14(B) provides: "The jury, in its verdict, shall assess the compensation for the property appropriated and damages, if any, to the residue * * *." Case law confirms the same concept. "In the event of a partial appropriation, the landowner is entitled to receive not only the value of the appropriated land, but also compensation for any damage to the landowner's remaining property (the residue) as a result of the take. Damage to the residue is measured by the difference between the fair market values of the remaining property before, and after, the taking. In determining the fair market value of the residue before and after the appropriation, all of those factors which would enter into a prudent businessperson's determination of value should be considered." (Citations omitted.) City of Englewood v. Wagoner, 41 Ohio App.3d 324, 326, 535 N.E.2d 736 (2d Dist.1987). Based on the statute, case law, and the prior appropriation case, MacConnell can prove no set of facts that would permit him to now receive additional compensation for perceived damages to the residue because that matter was adjudicated in the original action. Moreover, assuming the trial court properly considered the expressed terminology of the Settlement Entry it approved, the entry stated: "[T]he owner of the property interests appropriated herein, Defendant Rion MacConnell, ('Owner'), has agreed with Plaintiff, the City of Dayton, Ohio ('City'), upon the amount of compensation and damages due by reason of said appropriation." (Jan. ...