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State ex rel. Jones v. City of Athens

Court of Appeals of Ohio, Fourth District, Athens

August 10, 2017

STATE OF OHIO EX REL. SEAN JONES, Plaintiff-Appellant,
v.
THE CITY OF ATHENS, Defendant-Appellee,

          John P. Lavelle and Robert R. Rittenhouse, Lavelle and Associates, Athens, Ohio, for appellant.

          Lisa Eliason, Athens Law Director, Athens, Ohio; and Steven G. Carlino and Kaitlin L. Madigan, Weston Hurd, LLP, Columbus, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          William H. Harsha, Judge

         {¶1} Following a bench trial the Athens County Court of Common Pleas denied landowner Sean Jones's petition for a writ of mandamus to compel the city of Athens to initiate appropriation proceedings for the city's taking of his property in 2011. Subsequently, the trial court dismissed all of his additional claims.

         {¶2} Preliminarily, we conclude that the trial court's judgment dismissing "all counts" constitutes a final appealable order. The judgment, which denied all of Jones's requested relief, affected his substantial rights and determined the action. The entry indicates that it resolved all of the multiple claims raised by the parties; in the alternative the court made an express determination that there was no just reason for delay under Civ.R. 54(B). Thus, we have jurisdiction to address the merits of Jones's appeal.

         {¶3} Initially, Jones asserts that the trial court erred in denying his first mandamus claim, which addressed the city's 2011 entry upon his property and replacement of a drainage pipe. We agree. The trial court denied his mandamus claim because "[n]o third party proof of interference with sale was provided and [Jones] was not otherwise using the land." The trial court erred because there is no requirement that a relator must introduce "third-party proof or evidence that he was "otherwise using the land" to support a takings claim. Moreover, the city's activity constituted a physical invasion of his property-entering on his land, replacing pipe located on his land, and continuing to use the pipe for a public purpose as part the city's sewer system. In effect the city's actions were consistent with creating or maintaining an easement on Jones's property. Jones did not need to establish interference with potential sales or other uses of his land to prove that a taking occurred. Ultimately, the issue of whether Jones agreed to grant the city an easement for its repair and continued use of the drainage line on his property in return for the city's agreement to tie that line to another line existing on Jones's property goes to the amount of compensation that Jones is due from the city, rather than whether a taking occurred. We sustain his first assignment of error.

         {¶4} Next Jones contends that the trial court erred in dismissing his second mandamus petition based on res judicata. This contention is correct because the second mandamus claim was based on the city's actions in 2015, not in 2011. Res judicata does not bar a subsequent action between the same parties when the facts giving rise to the second action were not in existence at the time of the commencement of the first action. We sustain his second assignment of error.

         {¶5} Jones also claims that the trial court erred in dismissing the remaining constitutional claims in his second amended complaint. Res judicata does not bar Jones's constitutional claims, which were based on the city's 2011 entry onto his property, because the quantum of proof for these claims is less than that for his first mandamus claim. And we have now determined that the trial court erred in denying his initial mandamus claim.

         {¶6} And in the third assignment of error Jones claims the trial court erred in applying the wrong legal standard to decide the motion to dismiss. The city argues that "unsupported conclusions of a complaint are not considered admitted and are not sufficient to withstand a motion to dismiss." However, the Supreme Court has held that this fact-pleading requirement is an exception to the general rule that a plaintiff need only give reasonable notice of the claim. The fact pleading exception only applies in a few carefully circumscribed cases; this is not one of those exceptional cases. We sustain Jones's third assignment of error.

         {¶7} Finally Jones argues that the trial court erred in dismissing his breach of contract and promissory estoppel claims because they were not the subject of the city's motion to dismiss. The city agrees that its motion did not address these claims, so the trial court erred in dismissing them. We sustain Jones's fourth assignment of error.

         {¶8} Accordingly, we reverse the judgment of the trial court and remand the cause for further proceedings.

         I. FACTS

         {¶9} Jones filed a complaint in 2013 in the Athens County Court of Common Pleas against the city of Athens. He alleged several claims, including a petition for a writ of mandamus to compel the city to commence an appropriation proceeding for its taking of Jones's property in 2011 when it entered his property, replaced a drainage pipe, and continued to use that pipe as part of the city's sewer system. The court decided Jones's mandamus claim in a 2014 bench trial, which produced the following evidence.

         {¶10} Jones testified that in 2002, he bought real property located on Columbus Road in Athens for approximately $347, 000. A title examination revealed no easements for drainage pipes. Jones later discovered an 18-inch pipe that drained water from the other side of Columbus Road through the middle of his property to the river. When Jones contacted the city about the drainage pipe, the city denied ownership, but advised him that he could not build anything on top of the pipe.

         {¶11} In 2007 Jones had another title examination, which again discovered no easements for drainage pipes on his property.

         {¶12} In 2009, the city started excavating property adjacent to Jones's property; Jones learned that there was another drainage pipe on his property. This pipe, which was 42 inches in diameter and ran parallel to Columbus Road, was being excavated on the neighboring property because it was collapsing.

         {¶13} In 2010, the city moved large sections of pipe, along with equipment, onto Jones's property. When Jones contacted the city about it, Athens stated that it was also going to replace the drainage pipe on his property. After Jones notified Athens that it did not have an easement on his property and that he did not give the city permission to enter, the city removed the pipe and equipment from his property.

         {¶14} In November 2011, the city again moved pipe sections and equipment onto Jones's property even though he had not given the city permission to do so. Jones e-mailed Athens City Engineer and Director of Public Works Andrew Stone asking about the city's actions, but Stone did not respond.

         {¶15} In late November 2011, the city began excavating on Jones's property, and he immediately advised the city's service safety director that the city was not permitted on his property until they could reach an agreement. The service safety director admitted to Jones that it was replacing a section of pipe on his property along Columbus Road, and that notwithstanding Jones's objection, the city would continue its work on his property because it was an emergency. After Jones objected to the city engineer, the city refused to leave his property; the city told Jones that it could not install the pipe in the city's existing right-of-way next to Columbus Road because that would be much more difficult and expensive due to other city utilities already in the right-of-way.

         {¶16} Faced with the city's refusal to leave his property, Jones testified he entered into an oral agreement with the engineer. Under the agreement Jones would permit the city to continue working on his property and provide the city with an easement for the 42-inch drainage line if the city: (1) tied the 42-inch line into the 18-inch line; and (2) determined through a survey how much of Jones's property it would be taking for the easement and awarded him just compensation for the property taken.

         {¶17} The city continued its work on Jones's property, which included digging a trench about 20 feet deep and 40 feet wide to tie the two drainage lines together. Jones testified this work interfered with his ability to use the property. In January 2012 the city completed its work, which included replacing between 100 to 120 feet of the 42-inch drainage pipe.

         {¶18} In early 2012, Jones continued to ask the engineer about the easement and the survey because the uncertainty about the scope of the easement impeded his ability to sell or develop the property. In early 2013, the parties entered into a written agreement in which the city agreed to waive any statute of limitations defense to Jones's takings claim. In September 2013 the city completed its survey, which showed the city's newly installed drainage pipeline outside its right-of-way and on Jones's property. Nevertheless, the city failed to commence an appropriation proceeding.

         {¶19} Athens Engineer Stone testified that he believed that Jones's predecessor-in-title had originally installed the 42-inch pipeline, albeit mistakenly outside the city's right-of-way next to Columbus Road. The city engineer admitted that he ordered the moving of pipe and equipment onto Jones's property in 2010 and 2011 without Jones's permission and that he directed the work to begin in November 2011 before Jones gave the city permission to do so. According to the engineer, the subsequent oral agreement the city reached with Jones differed in that he believed that the city agreed to tie the two drainage lines together, but had not agreed to pay him for the easement, i.e., Jones would give the city an easement for the 42-inch drainage line after it tied it to the 18-inch line. The engineer acknowledged that the city intended to use Jones's property regardless of whether he had provided the city with permission to be there.

         {¶20} Jones provided uncontroverted testimony that the city's actions subjected his property to a continuing public use and substantially and unreasonably interfered with his property rights. Jones claimed that his property had been for sale most of the time he owned it but that the unresolved issue with the city's easement interfered with his ability to sell and develop it, and had decreased his enjoyment of it.

         {¶21} Addressing the impact on his ability to sell his ...


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