Court of Appeals of Ohio, Eleventh District, Lake
Appeal from the Lake County Court of Common Pleas, Case No.
2017 CV 000571.
V. Aveni and Joshua T. Morrow, Ranallo & Aveni, L.L.C.
Richard A. Hennig, Hennig, Szeman & Klammer Co., L.P.A.,
CYNTHIA WESTCOTT RICE, J.
Appellant, Lawnfield Properties, LLC, appeals the judgment of
the Lake County Court of Common Pleas granting appellee, the
city of Mentor's, Civ.R. 12(B)(6) motion to dismiss
appellant's amended complaint for an injunction. This
case involves the taking by Mentor of a strip of
appellant's property for a road-widening project. The
main issue is whether the trial court erred in finding that
the Lake County Probate Court, rather than the trial court,
has jurisdiction to adjudicate appellant's entitlement to
residual damages. For the reasons that follow, we affirm.
The statement of facts that follows is derived from
appellant's amended complaint and its attachments.
Appellant owns a hotel/restaurant on Mentor Ave. in Mentor,
Ohio. In early 2016, Mentor advised appellant that it
intended to appropriate a strip of frontage of its property
along Mentor Ave. for the purpose of widening that road.
Shortly thereafter, appellant attended an on-site meeting
with Dennis Keeney, Mentor's appraiser, during which
appellant advised him of specific items of residual damage
that it expected as a result of the appropriation. These
included the relocation of a sign, the loss of parking spaces
in its parking lot, the loss of one of its multiple curb
cuts, and the temporary loss of use of its outdoor patio and
swimming pool during construction of the project.
Mr. Keeney, in his April 13, 2016 appraisal report, concluded
the fair market value of the property to be appropriated was
$37, 665. He further concluded that the instant appropriation
would not result in residual damage.
On June 20, 2016, Mentor provided appellant with a copy of
Mr. Keeney's appraisal and a formal offer to purchase the
property for the amount determined by Mr. Keeney to be the
fair market value of the property.
One month later, on July 22, 2016, appellant's counsel
sent a letter to Mentor, rejecting its offer, citing Mr.
Keeney's failure to appraise the value of appellant's
anticipated residual damage. In that letter, appellant's
counsel stated that appellant had retained another appraiser,
Tom Horner, to evaluate Mr. Keeney's appraisal, and that
appellant would provide a settlement demand to Mentor once
Mr. Horner completed his review. However, appellant never
provided Mentor with its own appraisal or with a settlement
demand. On October 11, 2016, appellant's counsel sent
Mentor a second letter supplementing his first. In this
letter, appellant's counsel asserted that the city's
reliance on Mr. Keeney's appraisal was
"unwarranted" and "unlawful" and accused
Mentor of not making a good faith offer. Contrary to
appellant's argument on appeal, his counsel in these two
letters never asked Mentor to obtain an amended
appraisal to value its residual damage or to present a new
offer in accord with same; appellant simply rejected
On October 24, 2016, Mentor initiated appropriation
proceedings by serving appellant with its Notice of Intent,
which included Mr. Keeney's appraisal and Mentor's
"good faith offer" to purchase the property based
on Mr. Keeney's appraisal.
Thereafter, on December 22, 2016, Mentor filed an
appropriation action in the Lake County Probate Court,
Mentor v. Lawnfield Properties, LLC, Case No.
16-CV-189, which remains pending. Appellant concedes that,
because Mentor's appropriation action was a "quick
take" for road construction purposes, appellant was
statutorily barred from seeking to enjoin Mentor from the
actual taking of the property.
Instead, on April 13, 2017, appellant filed a complaint for
an injunction in the trial court (general division), alleging
that Mentor's appropriation action was procedurally
defective because it failed to include a good faith offer
that compensated appellant for the alleged residual damage to
its property. In its amended complaint, appellant requested
that the trial court enjoin Mentor from pursuing its
appropriation action until such time as Mentor obtains an
amended appraisal that values appellant's residual damage
and makes an offer based on such amended appraisal.
On June 1, 2017, Mentor filed a Civ.R. 12(B)(6) motion to
dismiss appellant's complaint for failure to state a
claim. After considering the parties' briefs, the trial
court granted Mentor's motion to dismiss, finding that
appellant's challenge "should be brought before the
Lake County Probate Court in the pending appropriation case
where the issue of just compensation can be determined."
Appellant appeals the trial court's judgment, asserting
two assignments of error. For its first, it alleges:
"The trial court erred by holding that the Lake County
Probate Court maintains competent jurisdiction to rule upon