Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Maumee Watershed Conservancy District v. Buescher

Court of Appeals of Ohio, Third District, Putnam

December 18, 2017

MAUMEE WATERSHED CONSERVANCY DISTRICT, PLAINTIFF-APPELLEE,
v.
ROSALINE A. BUESCHER, ET AL., DEFENDANTS-APPELLANTS, and PUTNAM SOIL AND WATER CONSERVATION, ET AL., DEFENDANTS-APPELLEES. MAUMEE WATERSHED CONSERVANCY DISTRICT, PLAINTIFF-APPELLEE,
v.
T & A PROPERTIES, DEFENDANT-APPELLANT, and PUTNAM SOIL AND WATER CONSERVATION, ET AL., DEFENDANTS-APPELLEES.

         Appeals from Putnam County Common Pleas Court Trial Court Nos. 2016 CV 00116 and 2016 CV 00117

          Linde Hurst Webb and Matthew A. Cunningham for Appellants

          Meghan Anderson Roth and Thomas A. McWatters for Appellee, Maumee Watershed Conservancy District

          OPINION

          ZIMMERMAN, J.

         {¶1} This matter comes before us upon two consolidated appeals. The Defendants-Appellants in these appeals are: Rosaline A. Buescher, Dennis and Marie Recker, and Alan and Theresa Kuhlman (collectively referred to as "Appellants"). Their appeals are from the judgments of the Putnam County Common Pleas Court overruling their motions for judgment on the pleadings in favor of the Plaintiff-Appellee, the Maumee Watershed Conservancy District (the "District" or "Appellee"). On appeal, Appellants assert that: (1) the trial court erred by exercising jurisdiction because Appellee failed to provide Appellants "before and after" real estate appraisals and offers of "just compensation" in the appropriation proceedings; (2) the trial court erred by exercising jurisdiction because Appellee did not comply with the conditions precedent required in the filing of a petition for appropriation; and (3) the trial court erred by exercising jurisdiction because Appellee failed to provide Appellants engineering plans prior to the filing of its petition for appropriation. For the reasons that follow, we affirm the judgments of the Putnam County Common Pleas Court.

         Factual Background

         {¶2} Rosaline A. Buescher and her children (collectively referred to as "Bueschers") are owners of real property located at 319 North Glandorf Road in Ottawa, Ohio.[1] T & A Properties, LLC[2] ("T & A Properties"), is the owner of real property located at 1146 Fairview Drive, in Ottawa, Ohio. To reduce flooding and to regulate the flow of the Blanchard River in Putnam County, the District decided to construct a diversion channel on a portion of the property owned by the Bueschers and T & A Properties. Specifically, the District determined that it was necessary to acquire 19.004 acres[3] of the Bueschers real estate and 16.115 acres of real estate owned by T & A Properties to construct the diversion channel.

         {¶3} The District obtained appraisals for each property in April, 2016 from Midwest Appraisal, Inc. The appraised value of Bueschers' real estate was $7, 492.10 per acre for the agricultural portion and $14, 904.00 per acre for its non-agricultural portion. T & A Properties farmland was valued at $7, 504.56 per acre.

         {¶4} On June 15, 2016, the District sent to the Bueschers notice of its intent to acquire their property together with a copy of its real estate appraisal. And on June 20, 2016, the District sent a notice of its appropriation intent and real estate appraisal to T & A Properties. Each notice contained the legal descriptions of the land sought to be appropriated. And, per its appraisals, the District made a "good faith offer, " pursuant to R.C. 163.04, to purchase the Bueschers land for $146, 234.00, and to purchase T & A Properties land for $120, 943.08. However, neither Bueschers nor T & A Properties accepted the offer or made a counteroffer. As a result, and upon the expiration of the 30-day waiting period required by statute to file an appropriation action, the District filed its petitions and complaints for appropriation in the Putnam County Common Pleas Court against each landowner.

         Procedural Background

         Case No. 16 CV 116 - The Bueschers

         {¶5} On September 9, 2016, the District filed a "Petition and Complaint for Appropriation of Real Property" (the "Buescher Petition") in the Putnam County Common Pleas Court. (Doc. No. 1). In its Buescher Petition, the District asserted that it had the authority to appropriate a portion of Bueschers' land for the purpose of: "construction of a new diversion channel for the Blanchard River, the regulation of the flow of the Blanchard River, the maintenance of open space for the conservation of natural floodplain functions, recreational facilities, and related improvements, and maintaining, operating, altering, replacing, and repairing the diversion channel and recreational facilities." (Id. at 2-3). The District's request was for the fee simple interest in a portion of land owned by the Bueschers, located at 319 North Glandorf Road, Ottawa, Ohio, in Ottawa Township, Putnam County, Ohio. (Id.). Along with providing the address subject to the appropriation, the District attached the legal description of the 18.484 and 0.520 acreage (totaling 19.004 acres) sought from Bueschers' property. (Id., Ex. A, B). The Buescher Petition alleged that Bueschers' property was appraised, and that the District made a "good faith offer" (to the Bueschers) for the land being appropriated based upon that appraisal. (Id.). The Buescher Petition stated that the District's offer to purchase was submitted to the Bueschers more than thirty (30) days prior to filing the appropriation action. (Id.). And, because the District and the Bueschers were unable to agree on the appropriation, the petition set forth that the District passed a Resolution on August 9, 2016, resolving the necessity of the appropriation and authorizing the filing of the petition. Also named as Defendants in the Bueschers' suit were the Village of Glandorf, Ohio; Ohio Power Company; the Putnam County Treasurer; and the Putnam County Soil and Water Conservation District.

         {¶6} On November 8, 2016, the Bueschers filed a "Motion to Dismiss Petition and Complaint for Appropriation for Failure to Comply with Conditions Precedent Under Ohio Law and R.C. Chapter 163" in the trial court. (Doc. No. 19). In the motion, the Bueschers asserted that the District did not comply with the statutory and constitutional requirements for "just compensation, " resulting in the District not having the authority to file a petition under R.C. Chapter 163.

         {¶7} On December 6, 2016, the District filed their "Opposition to Defendant Bueschers' Motion to Dismiss, " asserting that the requirements of R.C. Chapter 163 were satisfied prior to filing its Petition in the trial court. (Doc. No. 28). On January 26, 2017, the trial court issued its Decision on the Bueschers' motion. (Doc. No. 31). In overruling the motion, the trial court found that R.C. 163.04 and 163.05 only required the petition to contain a description of the land or property to be appropriated, and a written good faith offer to purchase the property. (Id.).

         {¶8} On February 13, 2017, the Bueschers filed a Motion for Judgment on the Pleadings, asserting that the trial court lacked jurisdiction to hear the case because the District failed to follow the conditions precedent to file the appropriation. (Doc. No. 34). The trial court overruled the Bueschers' motion for judgment on the pleadings on April 20, 2017 and on May 19, 2017, the Bueschers filed the instant notice of appeal in the trial court, pursuant to R.C. 2505.02(B)(7) and R.C. 163.09(B)(3). (Doc. Nos. 41; 51).

         Case No. 16 CV 117 - T & A Properties, LLC

         {¶9} On September 12, 2016, the District filed a "Petition and Complaint for Appropriation of Real Property" (the "T & A Properties Petition") in the Putnam County Common Pleas Court. (Doc. No. 1). In its T & A Properties Petition, the District asserted that it had the power and authority to appropriate real property for the public purpose of: "(a) construction of a new diversion channel for the Blanchard River; (b) regulation of the flow of the Blanchard River; (c) maintenance of open space for the conservation of natural floodplain functions; (d) creation of recreational facilities, and related improvements; and (e) maintaining, operating, altering, replacing, and repairing the diversion channel and recreational facilities." (Id. at 2-3). The District requested to appropriate a fee simple interest in a portion of the land owned by T & A Properties, located at 1146 Fairview Drive, in Ottawa, Ohio. (Id.). Along with providing the address subject to the appropriation, the District attached the legal description of the 16.115 acreage from T & A Properties' property sought to be appropriated. (Id., Ex. A). The District had the property appraised, and provided T & A Properties a "good faith offer" based on that appraisal. (Id.) The District provided T & A Properties a "good faith offer" more than thirty days prior to the filing of its appropriation action. (Id.). And, after being unable to reach an agreement on the conveyance or the terms of the conveyance of the property, the District passed a Resolution on August 9, 2016, declaring the necessity of the T & A Properties appropriation for a public purpose and authorized the filing of the petition. The appropriation petition also named the Village of Glandorf, Ohio, Ohio Power Company, the Putnam County Soil and Water Conservation District, East Ohio Gas Company dba Dominion East, and the Putnam County Treasurer as defendants.

         {¶10} On November 8, 2016, T & A Properties filed a "Motion to Dismiss Petition and Complaint for Appropriation for Failure to Comply with Conditions Precedent Under Ohio Law and R.C. Chapter 163" in the trial court. (Doc. No. 16). In their motion, T & A Properties asserted that the District failed to comply with the statutory and constitutional requirements for "just compensation, " which resulted in the District not having authority to file a petition for appropriation against any landowner. (Id. at 2). On December 6, 2016, the District filed their "Opposition to Defendant T & A Properties, LLC's Motion to Dismiss, " asserting that it satisfied the requirements of R.C. Chapter 163 prior to filing its petition in the trial court. (Doc. No. 25). On January 26, 2017, the trial court issued its decision on T & A Properties' motion to dismiss. (Doc. No. 28). In overruling the motion, the trial court found that R.C. 163.04 and 163.05 only required the appropriation petition to contain a description of the land or property to be appropriated, and a written good faith offer to purchase the property. (Id.). On February 13, 2017, T & A Properties filed a Motion for Judgment on the Pleadings, asserting that the trial court lacked jurisdiction to hear the case because the District failed to follow the conditions precedent to file the case. (Doc. No. 32). The trial court overruled T & A Properties' motion for judgment on the pleadings on April 20, 2017 and on May 19, 2017, T & A Properties filed its notice of appeal in the trial court, pursuant to R.C. 2505.02(B)(7) and R.C. 163.09(B)(3). (Doc. Nos. 40; 48).

         Appellants' Appeals

         {¶11} The Bueschers and T & A Properties assert the following identical assignments of error for our review in their consolidated appeals, which we address together:

ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED BY FINDING JURISDICTION AFTER APPELLEE FAILED TO PROVIDE A "BEFORE AND AFTER" APPRAISAL AND OFFER "JUST COMPENSATION."
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED BY FINDING JURISDICTION AFTER APPELLEES FAILED TO COMPLY WITH THE CONDITIONS PRECEDENT NECESSARY TO FILE A PETITION FOR APPROPRIATION UNDER THE OHIO EMINENT DOMAIN ACT.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED BY FINDING JURISDICTION AFTER APPELLEES FAILED TO PROVIDE ACTUAL ENGINEERING PLANS PRIOR TO FILING THE PETITION FOR APPROPRIATION.

         Appellants' First and Second Assignments of Error

         {¶12} While Appellants assert three separate assignments of error, their first two assignments challenge the jurisdiction of the trial court stemming from the District's failure to complete a "before and after" appraisal prior to filing their petitions for appropriation. Thus, we will address these assignments of error together. And, for the reasons that follow, we overrule Appellants' first and second assignments of error.

         Standard of Review

         {¶13} "A trial court reviews a Civ.R. 12(C) motion for judgment on the pleadings using the same standard of review as a Civ.R. 12(B)(6) motion for failure to state a claim upon which relief may be granted." Walker v. City of Toledo, 6th Dist. Lucas No. L-15-1240, 2017-Ohio-416, 84 N.E.3d 216, ¶ 18. A reviewing court "'must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party.'" Id. quoting Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988).

         {¶14} "In ruling on the motion, a court is permitted to consider both the complaint and the answer as well as any material incorporated by reference or attached as exhibits to those pleadings." Id. at ¶ 19.

"In doing so, the court must construe the material allegations in the complaint, with all reasonable inferences drawn therefrom, as true and in favor of the non-moving party. A court granting the motion must find that the plaintiff can prove no set of facts in support of the claims that would entitle him or her to relief"

Id. quoting Frazier v. Kent, 11th Dist. Portage Nos. 2004-P-0077, 2004-P-0096, 2005-Ohio-5413, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.