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City of Girard v. The Youngstown Belt Railway Co.

Court of Appeals of Ohio, Eleventh District, Trumbull

December 31, 2019

CITY OF GIRARD, OHIO, Plaintiff-Appellant,

          Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2006 CV 02995.

         Judgment: Appeal dismissed.

          LuWayne Annos, and Brian C. Kren, Girard City Law Director, (For Plaintiff-Appellant).

          Richard Leland Evans and Richard James Silk, Jr., Dickie McCamey & Chilcote, P.C., (For Defendant-Appellee).



         {¶1} Appellee, The Youngstown Belt Railway Co., et al. ("YBR"), has moved to dismiss the underlying appeal, filed by appellant, City of Girard, Ohio ("the city"), for lack of a final, appealable order. For the reasons that follow, we grant YBR's motion and dismiss the instant appeal.

         {¶2} In 2006, the city sought to appropriate approximately 41.5 acres of a 55-acre parcel of land owned, but not fully used, by YBR. YBR filed a motion to dismiss, arguing the Trumbull County Court of Common Pleas was federally preempted by the Interstate Commerce Commission Termination Act ("ICCTA") and that, therefore, the matter must be committed to the exclusive jurisdiction of the Surface Transportation Board ("STB"). The city opposed YBR's motion, arguing the appropriation would have no effect on YBR's operation of its railway and, as a result, its cause of action was not federally preempted. In May 2010, the trial court concluded the city's cause of action in appropriation was federally preempted.

         {¶3} The city appealed and, in Girard v. Youngstown Belt Ry. Co., 196 Ohio App.3d 271, 2011-Ohio-4699 (11th Dist.), while rejecting much of the trial court's rationale, this court affirmed the trial court's ultimate disposition. Id. at ¶55. The Supreme Court of Ohio then accepted discretionary review of the City's appeal. In Girard v. Youngstown Belt Ry. Co., 134 Ohio St.3d 79, 2012-Ohio-5370, the Court reversed this court and held the Trumbull County Court of Common Pleas had jurisdiction over the city's complaint for appropriation was not federally preempted under the ICCTA. Id. at ¶44. The matter was therefore remanded to the court of common pleas.

         {¶4} Ultimately, the parties commenced discussions regarding a possible resolution of the city's appropriation claim. The city then attempted to enforce a purported settlement agreement through a motion to enforce. YBR, however, denied a settlement had been reached. A hearing was held and, on December 6, 2018, the trial court issued a decision denying the motion to enforce.

         {¶5} On January 7, 2019, the city filed a motion to amend and supplement its complaint for appropriation to include the appropriation of two different rights-of-way. YBR opposed the motion, but the trial court granted the same. Subsequently, YBR filed a motion to reconsider, asserting the additional appropriation(s) were preempted by the ICCTA. A hearing was held and, on August 9, 2019, the trial court granted YBR's motion concluding it lacked subject-matter jurisdiction to hear the new matters that were the subject of the amended complaint. The judgment entry stated it was a "final appealable order," but, notwithstanding the pending appropriation proceedings, did not include Civ.R. 54(B) language. The city filed a notice of appeal of both the December 6, 2018 judgment denying enforcement of a purported settlement agreement as well as the August 9, 2019 judgment. YBR subsequently filed its motion to dismiss for lack of a final appealable order, to which the city duly opposed; YBR, with leave of this court, filed a reply to the memorandum in opposition.

         {¶6} Pursuant to Section 3(B)(2), Article IV of the Ohio Constitution, a judgment of a trial court can be immediately reviewed by an appellate court only if it constitutes a "final order" in the action. Germ v. Fuerst, 11th Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶3. If a lower court's order is not final, then an appellate court does not have jurisdiction to review the matter, and the matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20 (1989). For a judgment to be final and appealable, it must satisfy the requirements of R.C. 2505.02 and if applicable, Civ.R. 54(B). See Children's Hosp. Med. Ctr. v. Tomaiko, 11th Dist. Portage No. 2011-P-0103, 2011-Ohio-6838, ¶3.

         {¶7} We first point out that the December 6, 2018 judgment is not properly before this court because the entry did not include proper Civ.R. 54(B) language. To the extent that judgment was otherwise final and appealable, Civ.R. 54(B) language was necessary because issues are still pending relating to the original appropriations proceeding. We shall next consider whether the August 9, 2019 judgment is final and appealable.

         {¶8} Pursuant to R.C. 2505.02(B), there are various categories of a "final order," and if the judgment of the trial court satisfies any of them, it will be deemed a "final order and can be immediately appealed and reviewed by a court of appeals. YBR sets forth various bases in support of its argument that the underlying judgment is not a final, appealable order. The city, alternatively, does not make a specific argument that the order is final, per R.C. 2505.02(B); rather, it appears to presume finality and simply requests this court to temporarily remand this matter for the trial court to determine whether to affix the necessary Civ.R. 54(B) language. In its docketing statement, however, the city references R.C. 2505.02(B)(1), (2), (4), and (7) as bases for the appealability of the order.

         {¶9} R.C. 2505.02(B) ...

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