Marchbanks v. Algoma Group

[Cite as Marchbanks v. Algoma Group, 2022-Ohio-1385.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JACK MARCHBANKS, Director of JUDGES: ODOT Hon. Earle E. Wise, Jr., P. J. Hon. John W. Wise, J. Plaintiff-Appellee Hon. Craig R. Baldwin, J.

-vs- Case Nos. 21 CAE 10 0053 and 21 CAE 10 0054 THE ALGOMA GROUP, et al.

Defendants-Appellants OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case Nos. 21-CVH-04 0176 and 21- CVH-04 0177

JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: April 25, 2022 APPEARANCES: For Plaintiff-Appellee For Defendants-Appellants

DAVID YOST AARON E. KENTER ATTORNEY GENERAL OF OHIO CLINTON P. STAHLER CORINNA V. EFKEMAN GOLDMAN BRAUNSTEIN STAHLER JUSTINE A. ALLEN KENTER LLP ASSISTANT ATTORNEYS GENERAL 500 South Front Street 30 East Broad Street, 26th Floor Suite 1200 Columbus, Ohio 43215 Columbus, Ohio 43215

Delaware County, Case Nos. 21 CAE 10 0053 and 21 CAE 10 0054 2 Wise, John, J.

{¶1} Defendants-Appellants The Algoma Group and John W. Holcomb (“Appellants”) appeal from the October 18, 2021, Judgment Entry entered by the Delaware County Court of Common Pleas. Plaintiff-Appellee is Jack Marchbanks, Director of Ohio Department of Transportation. The relevant facts leading to this appeal are as follows.

FACTS AND PROCEDURAL HISTORY

{¶2} On April 15, 2021, Appellee filed an appropriation action in the Delaware County Court of Common Pleas taking in fee simple and a temporary easement on parcels 62-WD and 64-WD, (“the properties”) from Appellants. Appellee’s complaint indicated that Appellee intends to take the property for the purposes of making, constructing, repairing or improving a public roadway open for use without charge.

{¶3} On June 25, 2021, Appellants filed answers challenging Appellee’s failure to satisfy statutory pre-filing requirements, Appellee’s assertion that the appropriation is for a public use, Appellee’s assertion that the appropriation is necessary, and that the appropriation violates the prior public use.

{¶4} On July 16, 2021, Appellee moved to strike these defenses on the grounds that Ohio eminent domain law restricts the scope of an appropriation proceeding to determine the compensation for the takings.

{¶5} On September 23, 2021, the trial court granted Appellee’s motion to strike.

{¶6} Appellants appeal from that motion. Delaware County, Case Nos. 21 CAE 10 0053 and 21 CAE 10 0054 3

ASSIGNMENTS OF ERROR

{¶7} On October 18, 2021, Appellant filed a notice of appeal raising the following two Assignments of Error:

{¶8} “I. THE TRIAL COURT ERRED TO THE MATERIAL PREJUDICE OF

ALGOMA AND HOLCOMB BY STRIKING THE SECOND AND THIRD SPECIFIC

DENIALS OF ALGOMA’S AND HOLCOMB’S AMENDED ANSWER CHALLENGING

THE APPROPRIATION AS NEITHER FOR A PUBLIC USE NOR NECESSARY

WITHOUT CONDUCTING A HEARING AS TO THE SPECIFIC [SIC].

{¶9} “II. THE TRIAL COURT ERRED TO THE MATERIAL PREJUDICE OF ALGOMA BY STRIKING THE FIRST SPECIFIC DENIAL OF ALGOMA’S AMENDED

ANSWER CHALLENGING THE APPROPRIATION FOR FAILURE TO SATISFY PRE-

FILING REQUIREMENTS WITHOUT CONDUCTING A HEARING AS TO THE

SPECIFIC DENIAL”.

Final Appealable Order

{¶10} In the case sub judice, we must determine whether the judgment entry under review is a final appealable order.

{¶11} Appellate courts have jurisdiction to review only final orders or judgments. See, Section 3(B)(2), Article IV, Ohio Constitution; R.C. §2505.02. If an order is not a final appealable order, then an appellate court has no jurisdiction to review the matter, and it must be dismissed. See, Gen. Acc. Ins. Co. v. Ins. Co. of N. America, 44 Ohio St.3d 17, 540 N.E.2d 266 (1989). R.C. §2505.02 states, in pertinent part, “[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial Delaware County, Case Nos. 21 CAE 10 0053 and 21 CAE 10 0054 4 when * * * [a]n order is an appropriation proceeding that may be appealed pursuant to division (B)(3) of section 163.09 of the Revised Code.”

{¶12} R.C. §163.03(B)(3) states:

An owner has a right to an immediate appeal if the order of the court

is in favor of the agency in any of the matters the owner denied in the

answer, unless the agency is appropriating property in time of war or other

public exigency imperatively requiring its immediate seizure, for the

purpose of making or repairing roads which shall be open to the public

without charge * * *

{¶13} The State of Ohio Supreme Court held:

A trial court’s order in favor of an appropriating agency, entered

pursuant to R.C. 163.09(B), is not subject to immediate appellate review;

rather, the property owner may seek appellate review only after a jury has

assessed compensation and damages and the trial court enters an order,

pursuant to R.C. 163.15, which disposes of the whole case. Cincinnati Gas & Elec. Co. v. Pope, 54 Ohio St.2d 12, 374 N.E.2d 406, 407 (1978).

{¶14} In the case sub judice, it is undisputed that the issues of compensation and damages to Appellants remain outstanding. Therefore, pursuant to R.C. §2505.02, and R.C. §163.09(B) the order striking Appellants’ answers is not a final appealable order. Delaware County, Case Nos. 21 CAE 10 0053 and 21 CAE 10 0054 5

{¶15} Based upon the foregoing, we find this Court lacks jurisdiction to address the assignments of error. Consequently, the appeal is dismissed. By: Wise, John, J. Wise, Earle, P. J., and Baldwin, J., concur. JWW/br 0422