Mill Creek Metro. Dist. Bd. of Commrs. v. Less

2022 Ohio 1289

• Court: Ohio Court of Appeals
• Decided: April 14, 2022
• Docket: 20MA0074 & 20MA0082
• Status: Published

Opinion

[Cite as Mill Creek Metro. Dist. Bd. of Commrs. v. Less, 2022-Ohio-1289.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT MAHONING COUNTY

The Board of Commissioners of the Mill Creek Park Metropolitan District,

Plaintiff-Appellee,

v.

Diane M. Less, et. al.,

Defendant-Appellant. ___________________________________ OPINION AND JUDGMENT ENTRY Case Nos. 20MA0074 20MA0082 ___________________________________

Appeal from the Court of Common Pleas of Mahoning County, Ohio Case Nos. 2019-CV-00485 2019-CV-00316

BEFORE: Judge Jason P. Smith Judge Peter B. Abele Judge Michael D. Hess __________________________________________________________________

JUDGMENT REVERSED AND CAUSE REMANDED

Carl James James E. Roberts 4450 Market Street Elizabeth H. Farbman Youngstown, Ohio 44512 Roth, Blair, Roberts, Strasfeld & Lodge Attorney for Defendant-Appellant 100 Federal Plaza, East, Suite 600 Youngstown, Ohio 44503 Attorney for Plaintiff-Appellee 2

Dated: April 14, 2022

Smith, V.J.

{¶1} Appellant, Diane M. Less, appeals the judgments of the trial court

denying her motions for summary judgment, which were filed in two different

cases below. In both judgments, the trial court determined that Less was not

entitled to summary judgment regarding the issues of whether Appellee, The Board

of the Commissioners of Mill Creek Metropolitan Park District, (hereinafter “Park

District”), was authorized to appropriate her property for public use in order to

expand an existing bikeway, or recreational trail, and whether the Park District

complied with the statutory requirements governing the taking of private property

through the power of eminent domain. On appeal, Less raises two assignments of

error, contending 1) that the common pleas court erred in overruling her motion for

summary judgment because the Park District failed to have a statutorily authorized

reason or purpose for the appropriation by eminent domain as required by R.C.

1545.11; and 2) that the common pleas court erred in overruling her motion for

summary judgment because the complaint and the process leading up to the filing

of the complaint did not follow the mandatory requirements set forth in R.C.

163.04, 163.041 and 163.05. 3

{¶2} Because we conclude that the resolutions passed by the Park District

failed to set forth a statutorily authorized purpose for the appropriation of the

property at issue, we find the Park District lacked statutory authority under R.C.

1545.11 to appropriate both Less’s and Green Valley’s private property for the

development and extension of a public bikeway or recreational trail, and it abused

its discretion in passing a resolution to go forward with the appropriation of the

property at issue. We further conclude the trial court erred in finding that Less did

not meet her burden of proving the Park District abused its discretion in the

passage of the resolutions. Because we have found that the Park District abused its

discretion, Less has rebutted the presumption that the resolutions constituted prima

facie evidence of necessity and therefore, we conclude the trial court erred in

denying her motions for summary judgment. Thus, the arguments raised under

Less’s first assignment of error are meritorious and are sustained.

{¶3} In light of our disposition of Less’s first assignment of error, the

judgments of the trial court denying Less’s motions for summary judgment are

hereby reversed and this matter is remanded to the trial courts with instructions to

enter summary judgment in favor of Less in both cases. Furthermore, despite the

fact that Green Valley is not participating on appeal, the trial court’s denial of

summary judgment in favor of Green Valley is also reversed and remanded.

Additionally, because our disposition of Less’s first assignment of error has 4

rendered the arguments raised under her second assignment of error moot, we need

not address them. Accordingly, the judgments of the trial courts are reversed and

these matters are hereby remanded with instructions.

FACTS

{¶4} On March 8, 2019, the Park District filed a petition titled

“Petition/Complaint to Appropriate Property” naming Diane Less and several

others.1 In the petition the Park District alleged that the trial court possessed

jurisdiction over the subject matter of the petition under Chapter 163 of the Ohio

Revised Code as well as R.C. 1545.11. The petition alleged that the Park District

had previously passed a resolution on February 25, 1993, “resolving that the public

interest demanded the construction of a bicycle path on a railroad right-of-way

abandoned by Conrail, stretching from the Western Reserve Road on the south to

the Mahoning County/Trumbull County line on the north, and having a length of

approximately 10.6 miles, situated in Mahoning County.” The petition further

alleged that 10.6 miles of the “bikeway trail” had already been constructed, “which

construction comprised Phases I and II of the Mill Creek MetroParks Bikeway

1 Diane Less was the primary property owner named in the petition in lower case no. 19CV485. The other defendants were named because they were thought to possibly have an interest in the Less property. Those individuals are not part of the present case on appeal. Additionally, the Park District filed an earlier petition on February 12, 2019, naming Green Valley Wood Products, LLC (hereinafter “Green Valley”) as the primary defendant, but also naming Less and several others, as it was believed they may have had an interest in the property. That case number was 19CV316 and was before a different trial court judge. The petition that was filed against Less in case no. 19CV485 makes essentially the same allegations as the petition that was filed against Green Valley in case no. 19CV316. Less is currently appealing the summary judgment decisions issued in both cases. 5

project (the ‘Bikeway’).” The petition went on to allege that the Park District

intended the following:

to acquire a perpetual easement and right of way on the Less Property and enter upon the property being appropriated for the purposes of completing a 6.4 mile extension of the existing Mill Creek Metroparks Bikeway in Mahoning County, Ohio, which will provide a safe, uniformly designed, multi-use, off-road trail facility dedicated to public transportation and recreational purposes (herein “Phase III”).

{¶5} Additionally, the petition alleged that on or about September 10, 2018,

the Park District, by resolution of the Mill Creek Board of Park Commissioners,

resolved as follows:

that it is necessary and in the best public interest that Mill Creek be authorized to consummate and complete all acquisition transactions as may be necessary to acquire the real property contemplated for inclusion in Phase III of the project or, in instances where agreement cannot be reached with the landowner, that Mill Creek by and through its legal counsel be authorized to appropriate such property by power of eminent domain and initiate legal proceedings pursuant to Ohio Revised Code Chapter 163.

Elsewhere in the petition the Park District claimed it was seeking to acquire “an

exclusive perpetual easement for public highway and road purposes, including, but

not limited to, access, construction, improvement, repair, operation, relocation,

and/or maintenance of Phase III * * * [,]” pursuant to Ohio Revised Code Chapter

163 and R.C. 1545.11. 6

{¶6} Finally, the petition alleged that the Park District had complied with

the requirements of R.C. 163.04 and 163.041 by providing and delivering a written

“Notice of Intent to Acquire and Good Faith Offer” at least 30 days prior to the

filing of the action and that the Park District had been unable to agree on a

conveyance with Less. The Park District alleged that the portion of the Less

property sought to be appropriated had been appraised and had a fair market value

of $13,650.00. The Park District further requested that the trial court “fix a time

* * * for the assessment of compensation by a jury, pursuant to R.C. 163.09.”

{¶7} Less filed answers in both cases, followed by motions for judgment on

the pleadings in both cases. In both of these motions, Less argued that R.C.

1545.11 “strictly limits the purposes for which a park district may appropriate

lands [,]” and that “[t]he statute must be strictly construed.” More specifically,

Less argued that R.C. 1545.11 only permits the appropriation of private property

for “conversion into forest reserves and for the conservation of the natural

resources of the state * * *.” Less argued that the Park District’s attempt to take

her property for public transportation and recreation purposes, public highway and

road purposes, and for use as a “multi-use, off-road trail facility dedicated to public

transportation and recreational purposes” and a “Bikeway,” was not an authorized

purpose under R.C. 1545.11. Less also argued that the Park District’s failure to

state an authorized purpose for the takings in its petitions required dismissal of the 7

petition/complaint for failure to state a claim. Less further argued that the Park

District failed to comply with the statutory requirements set forth in Ohio Revised

Code Chapter 163 for the taking of private property through the use of eminent

domain. The Park District opposed both motions and the trial court ultimately

denied both motions.

{¶8} Thereafter, both Less and Green Valley moved for summary judgment

in case no. 19CV316. Less also moved for summary judgment in case no.

19CV485. The summary judgment motions set forth essentially the same grounds

as the motions for judgment on the pleadings. In both motions, Less supported her

arguments with references to deposition testimony by representatives of the Park

District indicating that the appropriation of her property was for the creation of a

bikeway only, and not for the conversion into forest reserves for the conservation

of natural resources. The Park District opposed both motions. In addition to other

arguments, they contended that they had passed a resolution regarding the

necessity of the appropriation of the property at issue, and that “R.C. 163.09(B)

provides that the necessity determination of the appropriating agency ‘shall be

prima facie evidence of that necessity,’ barring proof showing that the agency

abused its discretion in making the determination.” The Park District further

argued that Less had the burden of demonstrating either an abuse of discretion, 8

fraud, or bad faith on the part of the Park District, and that she had failed to make

such a showing.

{¶9} The trial courts eventually denied Less’s and Green Valley’s motions

for summary judgment in both cases. A judgment entry denying Less’s motion

without findings of facts or conclusions of law was entered in case no. 19CV485

on June 30, 2020. A five-page judgment entry that contained findings of facts and

conclusions of law was entered in case no. 19CA316 on July 22, 2020, denying

summary judgment to both Less and Green Valley. In the latter decision, the trial

court found that the Park District’s petition to appropriate the property at issue for

the purpose of a bikeway was authorized by R.C. 1545.11 and that the Park District

had complied with the requirements set forth in R.C. 163.04, 163.041 and 163.05.

{¶10} The trial court further found that the Park District’s passage of its

resolutions containing necessity determinations constituted prima facie evidence of

necessity for purposes of the appropriation and that Less and Green Valley failed

to prove the Park District abused its discretion in making its necessity

determination. Thus, all three summary judgment motions that were filed by Less

and Green Valley in both cases were denied. It is from these denials of summary 9

judgment that Less now timely appeals.2 The two appeals were consolidated on

September 28, 2020, and are both now properly before us for review.

ASSIGNMENTS OF ERROR

I. “THE COURT OF COMMON PLEAS ERRED IN OVERRULING THE MOTION OF THE APPELLANT FOR A SUMMARY JUDGMENT DISMISSING THE COMPLAINT OF THE APPELLEE BECAUSE THE COMPLAINT FAILED TO HAVE A STATUTORILY AUTHORIZED REASON OR PURPOSE FOR THE APPROPRIATION BY EMINENT DOMAIN THAT IS AUTHORIZED BY SECTION 1545.11 OF THE OHIO REVISED CODE. SECTION 1545.11 OF THE OHIO REVISED CODE ONLY AUTHORIZES A BOARD OF PARK COMMISSIONERS TO ACQUIRE LANDS EITHER WITHIN OR WITHOUT THE PARK DISTRICT FOR PURPOSES FOR CONVERSION INTO FOREST RESERVES AND FOR THE CONSERVATION OF THE NATURAL RESOURCES OF THE STATE, INCLUDING STREAMS, LAKES, SUBMERGED LANDS, AND SWAMPLANDS NOT TO CREATE AN EXCLUSIVE PERPETUAL EASEMENT FOR A BIKEWAY FOR PUBLIC HIGHWAY AND ROAD PURPOSES APART FROM THE PARK DISTRICT WHICH ARE NOT AUTHORIZED FOR EMINENT DOMAIN UNDER THE STATUTE.”

II. “THE COURT OF COMMON PLEAS ERRED IN OVERRULING THE MOTION OF THE APPELLANT FOR A SUMMARY JUDGMENT DISMISSING THE COMPLAINT OF THE APPELLEE BECAUSE THE

2 At this juncture we note our disagreement with the view in the dissenting opinion that these orders were not final and appealable. The dissent notes that the orders at issue denied summary judgment to Less and Green Valley and observes that the denial of summary judgment is generally considered an interlocutory order not subject to an immediate appeal. However, Mill Creek already raised this argument in motions to dismiss filed in each appeal prior to their consolidation. Despite the argument, this Court issued a judgment entry on September 28, 2020, denying Mill Creek’s motions to dismiss and finding that the orders were immediately appealable pursuant to R.C. 163.09(B)(3), which provides that in appropriation proceedings property owners have “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 * * *.” 10

COMPLAINT, AND THE PROCESS LEADING UP TO THE COMPLAINT AS SET FORTH IN THE COMPLAINT OF THE APPELLEE, DID NOT FOLLOW AND EXPRESSLY EXCLUDED THE MANDATORY REQUIREMENTS SET FORTH AT SECTION 163.04, 163.041 AND 163.05 OF THE OHIO REVISED CODE BY 1) EXCLUDING IN THE NOTICE OF INTENT TO ACQUIRE TO APPELLANT THAT SHE HAD A RIGHT TO APPEAL TO THE ELECTED OFFICIAL(S) WHO APPOINTED THE DIRECTOR OF THE TAKING AGENCY SINCE THE TAKING AGENCY OR DIRECTOR ARE NOT ELECTED OR DID NOT PROVIDE A NOTICE TO TAKE AT ALL; AND 2) NOT STATING A SPECIFIC NEED FOR EMINENT DOMAIN BEYOND A PREFERENCE TO BUILD A BIKEWAY ON LANDS OF ANOTHER WHEN A BIKEWAY ALREADY EXISTED LESS THAN ONE (1) MILE FROM THE PROPOSED TAKING OF THE LANDS OF THE APPELLANT; AND 3) NOT ADEQUATELY OR CLEARLY DESCRIBING THE PROPERTY TO BE TAKEN AND THAT THE PROPERTY BEING LESS THAN A COMPLETE FEE AND NOT SPECIFYING THAT PART OF THE LAND NOT BEING TAKEN WOULD BE SEPARATED AND ISOLATED FROM THE REMAINING LANDS OF THE APPELLANT.”

ASSIGNMENT OF ERROR I

{¶11} In her first assignment of error, Diane Less contends that the trial

court erred in overruling her motions for summary judgment which were filed in

the cases below. She argues that she was entitled to judgment in her favor as a

matter of law because the Park District’s petitions/complaints failed to include a

statutorily authorized reason or purpose for the appropriation by eminent domain

that is authorized by R.C. 1545.11. The Park District, however, contends that 11

Less’s argument is based upon an “impermissibly narrow reading and statutory

construction of R.C. §1545.11 concerning the term ‘Bikeway’ that contradicts

many Ohio courts’ interpretation of the statute.”

SUMMARY JUDGMENT STANDARD OF REVIEW

{¶12} Here, as set forth above, in the case that was filed primarily against

Diane Less, the trial court overruled Less’s motion for summary judgment, finding

that there were genuine issues of material fact preventing judgment as a matter of

law. Further, in the case that was filed primarily against Green Valley Wood

Products, LLC, but that named Less due to her interest in Green Valley’s property,

the trial court overruled the motions for summary judgment that were filed by Less

and Green Valley, finding that the Park District’s response to the motions for

summary judgment set forth specific facts showing genuine issues for trial.

{¶13} Although the denial of summary judgment is not normally

immediately appealable, these cases involve governmental appropriation

proceedings which are governed by Chapter 163 of the Ohio Revised Code. R.C.

2505.02(B)(7) specifically provides that “[a]n order in an appropriation proceeding

[] may be appealed pursuant to division (B)(3) of section 163.09 of the Revised

Code.” Further, R.C. 163.09(B)(3) states that “[a]n owner has a right to an

immediate appeal if the order of the court is in favor of the agency in any matters

the owner denied in the answer * * *.” Because these consolidated appeals are 12

from judgment entries denying motions for summary judgment filed by the owner

(Diane Less) regarding the legality and necessity of appropriation proceedings, the

judgments were clearly in favor of the agency (Park District) and therefore the

requirements of R.C. 163.09(B)(3) have been met.

{¶14} In reviewing an award of summary judgment, appellate courts apply a

de novo standard of review. Cole v. Am. Industries & Resources Corp., 128 Ohio

App.3d 546, 552, 715 N.E.2d 1179 (1998). Civ.R. 56(C) provides that the trial

court is to grant summary judgment if there is no genuine issue of material fact

and, when construing the evidence most strongly in favor of the nonmoving party,

reasonable minds can only conclude that the movant is entitled to judgment as a

matter of law. State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 511, 628

N.E.2d 1377 (1994). In order to determine whether a fact is material, we look to

the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc.,

Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995), citing Anderson

v. Liberty Lobby, Inc., 106 S.Ct. 2505, 477 U.S. 242 (1986).

R.C. 1545.11

{¶15} In both the motions to dismiss and motions for summary judgment

that were filed by Less, it was argued that the Park District’s appropriation of

private property for purposes of a bikeway was not authorized under R.C. 1545.11.

Title XV of the Ohio Revised Code is entitled “Conservation of Natural 13

Resources.” R.C. 1545.11 governs the Park District’s power to acquire property

and provides as follows:

The board of park commissioners may acquire lands either within or without the park district for conversion into forest reserves and for the conservation of the natural resources of the state, including streams, lakes, submerged lands, and swamplands, and to those ends may create parks, parkways, forest reservations, and other reservations and afforest, develop, improve, protect, and promote the use of the same in such manner as the board deems conducive to the general welfare. Such lands may be acquired by such board, on behalf of said district, (1) by gift or devise, (2) by purchase for cash, by purchase by installment payments with or without a mortgage, by entering into lease-purchase agreements, by lease with or without option to purchase, or, (3) by appropriation. In furtherance of the use and enjoyment of the lands controlled by it, the board may accept donations of money or other property, or may act as trustees of land, money, or other property, and use and administer the same as stipulated by the donor, or as provided in the trust agreement. The terms of each such donation or trust shall first be approved by the probate court before acceptance by the board.

In case of appropriation, the proceedings shall be instituted in the name of the board, and shall be conducted in the manner provided in sections 163.01 to 163.22, inclusive, of the Revised Code.

This section applies to districts created prior to April 16, 1920. (Emphasis added).

Eminent Domain

{¶16} Article I, Section 19 of the Ohio Constitution provides: “Private

property shall ever be held inviolate, but subservient to the public welfare.”

Wray v. Allied Indus. Dev. Corp., 138 Ohio App.3d 362, 364, 741 N.E.2d 14

238 (2000). Further, “[t]he Fifth Amendment states that private property

shall not be ‘taken for public use, without just compensation,’ and is

applicable to the states through the Fourteenth Amendment.” Paczewski v.

Antero Resources Corporation, 7th Dist. Monroe No. 18MO0016, 2019-

Ohio-2641, ¶ 36, citing Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S.

226, 241, 17 S.Ct. 581, 41 L.Ed. 979 (1897). As the Supreme Court of Ohio

has explained, “[t]he sovereign's right to take property may be conferred by

the legislature on municipalities, which enjoy broad discretion in

determining whether a proposed taking serves the public.” Norwood v.

Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 70.

However, “when the authority is delegated to another, the courts must ensure

that the grant of authority is construed strictly and that any doubt over the

propriety of the taking is resolved in favor of the property owner.” Id.,

citing Pontiac Improvement Co. v. Board of Com’rs. Of Cleveland

Metropolitan Park Dist., 104 Ohio St. 447, 453-454, 135 N.E. 635 (1922)

(“The right of eminent domain is an attribute of sovereignty, and only the

sovereign power, or one to whom it has delegated the right, can take

property without the consent of the owner, and, when this right has been

granted to a subdivision of the state, a person, or a corporation, the terms of

the grant must be strictly pursued. When the matter is in doubt, it must be 15

resolved in favor of the property owner. These principles are firmly

established”).

Ohio Revised Code Chapter 163

{¶17} Title I of the Ohio Revised Codes governs state government and

Chapter 163 of the Ohio Revised Code is entitled “Appropriation of Property,” or

eminent domain, which is the taking of private property for public use. Here, the

Park District adopted two resolutions regarding the necessity of creating a bikeway

over property owned by Less and Green Valley. Both Less and Green Valley

denied the necessity of the appropriation below and now also challenge the

necessity determination on appeal.

{¶18} Pursuant to R.C. 163.021(A), “No agency shall appropriate real

property except as necessary and for a public use. In any appropriation, the taking

agency shall show by a preponderance of the evidence that the taking is necessary

and for a public use.” Importantly, according to R.C. 163.09(B)(1)(a), “A

resolution or ordinance of the governing or controlling body, council, or board of

the agency declaring the necessity for the appropriation creates a rebuttable

presumption of the necessity for the appropriation if the agency is not

appropriating the property because it is a blighted parcel or part of a blighted area

or slum.” In this case, as explained above, the Park District passed two resolutions

indicating that the appropriation actions for the construction of the bikeway were 16

necessary for public use. Thus, based on R.C. 163.09(B)(1)(a), there was a

rebuttable presumption that the appropriation was, in fact, necessary.

{¶19} As explained in City of Dublin v. Beatley, 2018-Ohio-3354, 119

N.E.3d 826, ¶ 15 (5th Dist.):

* * * under R.C. §163.09(B), the burden of proof fell upon [Appellant] to demonstrate that the appropriation was not necessary. In order to find that there was no necessity for the appropriation, the trial court would have had to determine that Appellee * * *abused its discretion. In reviewing the trial court's conclusion that there was no such abuse of discretion, we are limited to determining whether the decision was supported by competent and credible evidence. City of Toledo v. Kim's Auto & Truck Service, Inc., 6th Dist. No. L-02-1318, 2003-Ohio-5604 [2003 WL 22390102], at ¶ 10; Erie–Ottawa–Sandusky Regional Airport Authority v. Orris (Sept. 13, 1991), 6th Dist. No. 90–OT– 039 [1991 WL 254227], at *4.

Thus, in order to overcome the rebuttable presumptions that the appropriations at

issue were not necessary, Less had to demonstrate that the Park District had abused

its discretion in the passage of its resolutions. “An ‘abuse of discretion’ is ‘an

unreasonable, arbitrary, or unconscionable use of discretion[.] * * *’ ” State v.

Curtis, 4th Dist. Meigs No. 20CA6, 2021-Ohio-1145, ¶ 10, quoting State v. Brady,

119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23.

Legal Analysis

{¶20} The record before us indicates that the Park District filed a

petition/complaint to appropriate property against Green Valley Wood Products,

LLC and others, including Diane Less, on February 12, 2019. The Park District 17

filed another complaint/petition to appropriate property against Diane Less and

several others on March 8, 2019. In both petitions/complaints, the Park District

referenced that it had passed a resolution on February 25, 1993, “resolving that the

public interest demanded the construction of a bicycle path on a railroad right-of-

way abandoned by Conrail” and that it had already constructed, during years 2000

and 2001, “10.6 miles of bikeway trail * * * which construction comprised Phases

I and II of the Mill Creek MetroParks Bikeway project (the ‘Bikeway’).” The

petitions/complaints went on to state the Park District’s intention to acquire a

perpetual easement and right of way on Less’s and Green Valley’s property “for

the purposes of completing a 6.4-mile extension of the existing Mill Creek

MetroParks Bikeway in Mahoning County, Ohio, which will provide a safe,

uniformly designed, multi-use, off-road trail facility dedicated to public

transportation and recreational purposes (herein ‘Phase III’).”

{¶21} The Park District alleged that a feasibility study had been conducted

that “resulted in a determination that the option to align and construct Phase III of

the Bikeway along the former railroad corridor was the preferred alignment.” This

“alignment” runs through property owned by both Less and Green Valley. The

Park District further alleged that “[o]n or about September 10, 2018, by resolution

of the Board of Park Commissioners, Mill Creek resolved that it is necessary and

in the best public interest that Mill Creek be authorized to complete Phase III of the 18

Bikeway project” and that for the property necessary for inclusion in Phase III that

it be “authorized to appropriate such property by power of eminent domain and

initiate legal proceedings pursuant to Ohio Revised Code Chapter 163.” As set

forth above, the Park District alleged that its actions were authorized by R.C.

1545.11 and R.C. Chapter 163. Exhibits attached to the petitions stated that the

Park District would need to appropriate 2.4780 acres of Less’s property and 1.1199

acres of Green Valley’s property. The record further indicates that Less claims to

own a perpetual easement across the portion of Green Valley’s property sought to

be taken by the Park District.

{¶22} In the present case, R.C. 1545.11 and R.C. 163.01 et seq., together

govern the purpose and procedure related to a park district’s authority to

appropriate private property. Further, per R.C. 163.04, a park district may only

commence appropriation proceedings if it is unable to agree with the owner to a

purchase of the property. Here, the Park District claims it has authority under R.C.

1545.11 to appropriate private property for the creation of a bikeway, more

commonly referred to in case law as a bike path, recreational trail, multi-use trail,

or linear park. Less contends, however, that the Park District is limited to

appropriating property for purposes of conversion into forest reserves and

conservation of natural resources, as expressly stated in R.C. 1545.11, and that the

creation of the bikeway at issue does not constitute either. Thus, Less argues that 19

the Park District lacked statutory authority for the appropriation at issue and

therefore abused its discretion in passing a resolution to go forward with

appropriation under R.C. 163.01 et seq.

{¶23} The trial court found that the Park District enacted a resolution

demonstrating the necessity of the appropriation of the property at issue for the

purpose of the bikeway, that the Park District complied with the appropriation

requirements contained in R.C. 163.01 et seq., that the resolution constituted prima

facie evidence of the necessity, and that Less and Green Valley failed to

demonstrate an abuse of discretion on the part of the Park District. In reaching its

decision, the trial court cited prior reasoning from the Supreme Court of Ohio for

the proposition that “R.C. 1545.11 authorizes all boards of park commissioners,

including the Plaintiff, to appropriate property for the construction and use of a

recreational trail.” State ex rel. Coles v. Granville, 116 Ohio St.3d 231, 2007-

Ohio-6057, 877 N.E.2d 968. It does not appear, however, that the trial court

considered the question of whether the creation of the bikeway actually constituted

conversion into forest reserves or conservation of natural resources for purposes of

R.C. 1545.11. Instead, the trial court appears to have simply relied on the fact that

the Park District passed a resolution stating the public demanded a bikeway and

that the creation of such bikeway served a sufficient public purpose to allow the

private property at issue to be appropriated. 20

{¶24} Although there are several cases which have addressed issues related

to the creation of recreational trails by park districts, we have found no cases in our

research which directly address the question of whether R.C. 1545.11 actually

authorizes park districts to create these types of trails. Although the trial court

cited the reasoning of the Supreme Court of Ohio in State ex rel. Coles v.

Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, 877 N.E.2d 968, in support of its

decision, we believe the statement contained in that case was obiter dictum. See

State ex rel Gordon v. Barthalow, 150 Ohio St. 499, 505-506, 83 N.E.2d 393

(1948), quoting Webster's New International Dictionary (2d Ed.) (defining “obiter

dictum” as “ ‘an incidental and collateral opinion uttered by a judge, and therefore

[as not material to his decision or judgment] not binding * * * Hence, any

incidental remark, reflection, comment, or the like’ ”).

{¶25} In State ex rel. Coles, the Court granted a writ of mandamus to

compel a park district’s board of commissioners to begin an appropriation

proceeding to compensate relators for the taking of property for the construction of

a recreational trail that had already taken place. State ex rel. Coles at ¶ 1. In

Coles, the property owners questioned the park district’s authority to appropriate

property, in general, because the park district at issue was established after April

16, 1920, and because R.C. 1545.11 states that “[t]his section applies to districts

created prior to April 16, 1920.” Id. at ¶ 23. The Court found that “R.C. 1545.11 21

* * * authorizes all boards of park commissioners to appropriate property,

regardless of the date of any park district’s creation.” Id. at ¶ 25. The Court

reasoned that “[t]his statutory provision was, of course, necessitated by the historic

presumption applied by the courts of this state that the legislature intends statutes

enacted by it to operate prospectively rather than retroactively.” Id. at ¶ 26. We

agree with the Court’s reasoning up to this point; however, the Court made another

summary statement before concluding. The Court stated as follows:

Therefore, the board of park commissioners is authorized under R.C. 1545.11 to appropriate property for the construction and use of a recreational trail, and a mandamus claim to compel the board to commence an appropriation proceeding is viable as long as relators establish an involuntary taking of their property by the board.

Coles, supra, at ¶ 29.

{¶26} Because the question of whether the park district had authority to

appropriate private property specifically for the purpose of creating a recreational

trail was not a question before the Court, we conclude this summary statement was

not material to the judgment of the Court and thus constituted obiter dictum that is

not binding upon this Court.

{¶27} Having found we are not bound by the language contained in State ex

rel. Coles, we now turn to the specific question of whether R.C. 1545.11 authorizes

a park district to appropriate private property for use as a public bikeway, or

recreational trial, which is a question of law. It appears to be well-settled, and Less 22

concedes, that R.C. 1545.11 authorizes park districts to appropriate property.

However, as set forth above, Less argues that such appropriations must be “for

conversion into forest reserves and for the conservation of the natural resources of

the state, including streams, lakes, submerged lands, and swamplands,” as

expressly stated in the statute. The statute goes on to state that “to those ends” (the

conversion of forest reserves and the conservation of natural resources), park

districts “may create parks, parkways, * * * and promote the use of same in such a

manner as the board deems conducive to the general welfare.” It appears to be

generally accepted that the creation of recreational trails for public use benefits the

general welfare of the public; however, such a public use certainly does not

constitute conversion into forest reserves for purposes of R.C. 1545.11.3 The

primary question, in our view, is whether the creation of bikeways or recreational

trails, which are for public use, constitute the conservation of natural resources of

the state, a purpose which is required under R.C. 1545.11 in order for a park

district to appropriate private property for a park or parkway.

{¶28} 41 Ohio Jur.3d Environmental Protection §25 addresses the definition

of “natural resources” and provides as follows:

3 The Ohio Department of Natural Resources currently has a program called “The Recreational Trails Program & Clean Ohio Trails Fund.” This program provides grant funding for the creation of new recreational trails and the maintenance and restoration of existing recreational trails. Funding is available to cities and villages and other entities, including park districts. However, projects that involve the appropriation of property through the exercise of eminent domain are not eligible for the grants. Ohiodnr.gov/wps/portal/gove/odnr/buy-and-apply/apply-for- grants/grants/recreational-trails-program 23

The phrase, “natural resources,” is not restricted to timber, gas, oil, coal, minerals, lakes, and submerged land; any given area, to the extent that it possesses features that supply human needs and contribute to the health, welfare, and benefit of a community, constitutes a “natural resource.” Thus, the scope of regulation concerning the “conservation of natural resources” is not limited to such subjects as land, water, forests, and minerals.

This section of Ohio Jur.3d cites to two cases from nearly a century ago, in

support: MacNAB v. Board of Park Com’rs of Metropolitan Park Dist. in

Cleveland, 108 Ohio St. 497, 1 Ohio L. Abs. 780, 141 N.E. 332 (1923) and Snyder

v. Board of Park Com’rs of Cleveland Metropolitan Park Dist., 125 Ohio St. 336,

181 N.E. 483 (1932).

{¶29} In MacNAB, the question presented was whether various sections of

the acts of the General Assembly, specifically 2976.7 (the general code precursor

to R.C. 1545.11), which resulted in the creation of the board of park

commissioners of Cleveland metropolitan park district, were in conflict with any

provision of the Ohio Constitution, section 36 of article II in particular, and

whether the board of park commissioners exceeded its statutory powers in creating

parks and parkways. MacNAB at syllabus, 499. The Court ultimately held they

were not in conflict. Id. at syllabus. With respect to the question of whether the

board of park commissioners had exceeded its authority, the Court observed as

follows:

The General Assembly of Ohio at a very early date sought to confer upon municipalities the power to create parks and 24

parkways, and that power has never been seriously questioned, and it is too late to question such power in this twentieth century. If the General Assembly could confer that power upon a municipality, it is self-evident that it could likewise confer it upon any district or other political subdivision of the state. The usefulness or the serviceableness of public parks, with the necessary or appropriate driveways and boulevards, bears such a reasonable relation to the public health, recreation, and welfare that to hold otherwise would be the sheerest of nonsense.

{¶30} The Court went on to discuss the constitutional amendment of 1912

(section 36, article II) which dealt with conservation policy and which reads, in

pertinent part, as follows:

“Laws may be passed to encourage forestry * * *. Laws may also be passed to provide for converting into forest reserves such lands or parts of lands as have been or may be forfeited to the state, and to authorize the acquiring of other lands for that purpose; also, to provide for the conservation of natural resources of the state, including streams, lakes, submerged and swamp lands and the development and regulation of water power and the formation of drainage conservation districts; and to provide for the regulation of methods of mining, weighing, measuring and marketing coal, oil, gas and all other minerals.”

The MacNAB court further reasoned as follows regarding the language contained

in section 36, article II:

“Laws may also be passed * * *to provide for the conservation of natural resources of the state * * * is so broad and comprehensive that any natural tract of land bearing a reasonable relation to these words is clearly comprehended within the terms of this constitutional amendment.”

{¶31} In reaching its decision, the MacNAB Court reasoned that “police

power must be as expansive as the public needs.” Id. at 502. Importantly, 25

however, the Court also observed that “[i]t is obvious that those public needs, as

interpreted and applied to the public welfare of densely populated districts, are

quite different than the public needs of rural communities.” Id. Here, at issue is

the creation of a bikeway, or recreational trail, through the middle of extensive

acreage of family-owed farm land. Thus, it appears the area at issue here is a rural

area, not a densely-populated urban area.

{¶32} In Snyder, the Supreme Court of Ohio again considered an

appropriation action filed by a park district seeking to acquire a 100-foot tract of

land which was situated in between two public parks. Snyder at 336. Snyder

argued “that the park board was without authority to take this land because there

were no natural resources to be conserved.” Id. at 339. The Court, however,

disagreed with the property owner’s “limited construction” of the words “natural

resources” as only encompassing timber, gas, oil, coal, minerals, lakes and

submerged land, and instead reasoned as follows:

* * * to the extent to which a given area possesses elements or features which supply human need and contribute to the health, welfare, and benefit of a community, and are essential for the well being of such community and the proper enjoyment of its property devoted to park and recreational purposes, the same constitute natural resources.

Id.

{¶33} The Court ultimately found in favor of the appropriating agency, in

part based upon its reliance on MacNAB, supra, for the proposition that the power 26

granted by the General Assembly to pass laws to provide for the conservation of

natural resources was “broad and comprehensive” and was a “broad blanket

power.” Id. at 340. The Court noted that the property at issue therein was situated

between two public parks and, as such, “[t]he recreational value of the both these

parks will be conserved by the acquisition of plaintiff’s property, as such

acquisition is essential to the enjoyment thereof.” Id. at 339. Importantly,

however, in determining that the board of park commissioners’ appropriation

action was authorized, the Court noted the fact that the resolution of necessity filed

by the board was “sufficient in law, declaring, as it did, the necessity of

appropriating plaintiff’s property to be used ‘for the purpose of conserving the

natural resources of the Cleveland Metropolitan Park District, by the creation of

parks, parkways and other reservations of land.’ ” Id. at 338.

{¶34} In our view, despite the reasoning set forth in both MacNAB and

Snyder, characterizing essentially anything that serves the public and contributes to

the health and welfare of the community as the “conservation of natural resources”

is a bit of a stretch, especially when considering that the statutory grant of authority

contained in R.C. 1545.11 should be strictly construed and it should be construed

in favor of the property owner. We believe our concerns that a

bikeway/recreational trail is not within the current contemplation of R.C. 1545.11

is further supported by the fact that in 1972, a new statute was enacted charging the 27

Department of Natural Resources with the duty of planning and developing

recreational trails, and giving the department the right to appropriate land for such

purposes. See R.C. 1519.02.

{¶35} Upon reading R.C. 1519.02, it is clear that the Department of Natural

Resources has the right and duty to develop these trails. Reading such right into

R.C. 1545.11 requires a lot of effort, interpretation, and reference to cases from

one hundred years ago.4 Reading these two statutes together—although it is clear

that park districts possess statutory authority to appropriate private property for

uses that include conversion into forest reserves and the conservation of natural

resources—in our view, the Department of Natural Resources is the state agency

with the authority to appropriate private property for the development of

recreational trails, or in this case, bikeways.

{¶36} Nonetheless, we are constrained to apply the reasoning of these prior

Ohio cases to hold that the creation of a bikeway, to the extent it “supplies a human

need,” “contributes to the health, welfare, and benefit of the community,” and is

“essential for the well-being of such community and the proper enjoyment of its

4 For instance, in California, it has been held that park districts have authority to develop recreational trails and to appropriate land for such purposes. See Golden Gate Land Holdings LLC v. East Bay Regional Park Districts, 215 Cal.App.4th 353, 155 Cal.Rptr.3d 546, *358. However, unlike Ohio’s statute, the applicable statute there clearly provides that park districts may “plan, adopt, lay out, plant, develop, and otherwise improve, extend, control, operate, and maintain a system of public parks, playgrounds, golf courses, beaches, trails, natural areas, ecological and open space preserves, parkways, scenic drives, boulevards, and other facilities for public recreation, for the use and enjoyment of all the inhabitants of the district, and it may select, designate, and acquire land, or rights in land, within or without the district, to be used and appropriated for such purposes.” Id. at fn. 3, quoting section 5541 of the California Public Resources Code. 28

property,” constitutes the conservation of natural resources. We do not agree with

these principles, however, especially when applied to a rural area where it appears

the public need is speculative at best and the harm to the private property owners is

great.

{¶37} It is these points that lead us to conclude that the resolutions passed

by the Park District here were insufficient. In Snyder, the Court’s decision was

based, in part, on the fact that the park district at issue passed a resolution which

alleged that the private property sought to be appropriated would serve to conserve

natural resources, a purpose which is expressly set forth in R.C. 1545.11. Here,

however, the Park District’s two resolutions are completely devoid of any such

language. The Park District’s 1993 resolution simply stated that “[t]he public

interest demands construction of a bicycle path * * *.” There is no language tying

the demand for the bicycle path to the general welfare of the public or the

conservation of natural resources. Further, the stated purpose of Phase III in the

Park District’s 2018 resolution was “to extend the existing Bikeway * * *” and that

completion of such “will provide local and regional users with a safe, uniformly-

designed, multi-use, off-road trail facility dedicated for public transportation and

recreational purposes * * *.” Although the 2018 resolution is more elaborate, it is

still devoid of any language tying the expansion of the bikeway to the general

health and welfare of the public or the conservation of natural resources. Many 29

things provide for public recreation: movie theaters, shopping malls, bowling

alleys, etc. However, just because those things provide recreation does not mean

they constitute the conservation of natural resources. We believe the same may be

said of a bikeway.

{¶38} Although there are other cases that seem to accept that these types of

trails may be created by park districts, there is nothing in the resolutions presently

before us which indicate that the creation of this particular trail or bikeway is

designed to promote the general health and welfare of the public, which we believe

requires more than that just a recreational purpose. Moreover, there is no

statement contained in either resolution even remotely tying the creation of this

bikeway to the conservation of natural resources. In this regard, the case sub

judice is factually distinguishable from Snyder, supra.

{¶39} For these reasons, we conclude that the resolutions passed by the Park

District purporting to establish the necessity of the taking of Less’s property lacked

a covered statutory purpose, which is a requirement for the appropriation of private

property. Thus, the Park District abused its discretion in passing the resolutions

authorizing itself to take Less’s property through the use of eminent domain, as set

forth in R.C. 163 et seq. As a result, we conclude the trial court erred in finding

that Less failed to demonstrate an abuse of discretion on the part of the Park

District in the passage of its resolutions and in denying her motions for summary 30

judgment. Accordingly, having found the trial court erred in denying Less’s

motions for summary judgment as to the necessity determination, Less’s first

assignment of error is sustained and the judgments of the trial courts denying her

motions for summary judgment are reversed. Furthermore, these matters are

remanded to the trial court with instructions to enter summary judgment in favor of

Less and also Green Valley, by default, on the issue of whether or not the Park

District was statutorily authorized to appropriate the property at issue.

ASSIGNMENT OF ERROR II

{¶40} In her second assignment of error, Less contends that the trial court

erred in denying her motions for summary judgment because the Park District did

not follow the mandatory requirements of R.C. 163.04, 163.041 and 163.05 in the

filing of its petition/complaint and leading up to the filing of its complaint.

However, in light of our disposition of Less’s first assignment of error, which has

already resulted in a reversal of the trial court’s denial of summary judgment in her

favor and a remand order with instructions to grant summary judgment in favor of

both Less and Green Valley on the issue of whether the Park District lacked

statutory authority to appropriate the property at issue, we conclude the arguments

raised under this assignment have been rendered moot. Therefore, we need not

address them.

JUDGMENT REVERSED AND CAUSE REMANDED. 31

Hess, J., dissenting.

{¶41} I respectfully dissent from the majority opinion because the orders here

are not final appealable orders. It is well-established that courts of appeals have

jurisdiction to “affirm, modify, or reverse judgments or final orders of the courts of

record inferior to the court of appeals within the district.” Section 3(B)(2), Article

IV, Ohio Constitution. If a trial court order is not final and appealable, an appellate

court must dismiss the appeal. Matter of Guardianship of Sammons, 2020-Ohio-563,

152 N.E.3d 336, ¶ 5 (4th Dist.). Although I agree with the holding reached in the

well-reasoned opinion, I believe we lack jurisdiction to address the merits and should

dismiss this consolidated appeal for lack of final appealable orders.

{¶42} This consolidated appeal involves two separate lawsuits brought under

Chapter 163 for the appropriation of property. In the first suit, the Park District sued

Green Valley and others that might have an interest in the Green Valley property,

including Diane Less and Columbia Gas of Ohio. In the second suit, the Park District

sued Diane Less and others that might have an interest in the Diane Less property.

In both lawsuits, the defendants filed answers pursuant to R.C. 163.08, and several

defendants challenged, among other issues, the Park District’s right to make the 32

appropriation, the inability of the parties to agree, and the necessity for the

appropriation. Thus, under R.C. 163.09(B)(1), the trial courts were each required to

set a hearing date to hear any of those matters challenged in the answers. If the trial

courts ruled in favor of the Park District, the cases would proceed to a jury trial on

compensation subject to the owner’s immediate right to appeal the trial court’s

decision under R.C. 163.09(B)(3). A trial court lacks jurisdiction to proceed with a

compensation trial if the owner appeals the trial court’s decision. See State ex rel.

Bohlen v. Halliday, 145 Ohio St.3d 121, 2021-Ohio-194, 172 N.E.3d 114, ¶ 2-3, 17.

{¶43} Here, the trial courts have not yet held a hearing under R.C.

163.09(B)(1). Before a hearing date was set and a hearing on those matters held,

Less and Green Valley filed motions for summary judgment asking that the

appropriation petitions be dismissed on several grounds, including that the Park

District failed to issue a valid letter of intent to take and lacked statutory authority

to make the appropriation. The Park District filed opposition memoranda in each

case arguing, “the evidence submitted by Mill Creek demonstrates that genuine

issues of material fact do exist, which warrant a complete denial of” the defendants’

summary judgment motions. The Park District asked that the motions be denied and

the Park District be permitted to proceed forward with the petitions. In keeping with

its position that genuine issues of material fact exist, the Park District did not file 33

cross motions for summary judgment or otherwise seek an order in its favor on any

of the matters challenged in the answers.

{¶44} The trial courts each separately denied the summary judgment motions

on the ground that there were genuine issues of material fact. The trial court in Case

No. 19CV485 issued a terse judgment entry denying the motion because “there are

genuine issues of material fact,” the defendant “is not entitled to judgment as a matter

of law,” and ordering the motion “is hereby overruled.” Likewise, in Case No.

19CV316, the trial court issued a judgment entry denying the motion. In a lengthier

decision, that court found that the Park District “did set forth specific facts showing

genuine issues for trial” and finding the defendants’ motions “are not well-taken and

are hereby overruled.” Although the trial court’s entry in Case No. 19CV316

included findings in favor of the Park District, these findings were part of the trial

court’s denial of summary judgment, were interlocutory in nature, and subject to

revision at any time under Civ.R. 54(B). Thus, the Park District did not seek or

receive an order in its favor; rather the trial courts denied the summary judgment

motions and, in Case No. 19CV316, made findings that it could revise at a

subsequent R.C. 163.09(B)(1) hearing.

{¶45} After the trial courts denied Less and Green Valley’s motions for

summary judgment, the cases should have proceeded forward on the Park District’s

petition with hearings under R.C. 163.09(B)(1) to hear the genuinely disputed factual 34

matters and legal defenses raised in the answers. However, Less appealed the denial

of the summary judgment motions, divesting each trial court of jurisdiction to

proceed with a hearing.

{¶46} “The denial of a motion for summary judgment generally is considered

an interlocutory order not subject to immediate appeal.” Stevens v. Ackman, 91 Ohio

St.3d 182, 186, 743 N.E.2d 901, 904 (2001). An interlocutory order denying

summary judgment is subject to revision by the trial court at any time prior to entry

of final judgment. Poluse v. Youngstown, 135 Ohio App.3d 720, 725, 735 N.E.2d

505, 508 (7th Dist.1999).

At the outset, it is noted that the denial of a motion for summary judgment is a nonfinal order that can be reconsidered by the trial court at any time. A court is not bound by its prior decision denying summary judgment. To the contrary, a court may reconsider it either by motion of one of the parties or sua sponte. It “is subject to revision by the trial court at any time prior to entry of final judgment, and the court may correct an error upon motion for reconsideration predicated upon the same law and facts.” (Citations omitted.)

First Place Bank v. Blythe, 7th Dist. Columbiana No. 12 CO 27, 2013-Ohio-2550, ¶ 18. {¶47} No hearing under R.C. 163.09(B)(1) has yet been held and no order in

favor of the Park District has yet been issued. Thus, the provisions governing an

immediate appeal under R.C. 163.09(B)(3) are inapplicable as they have not yet been

triggered. An order denying an owner’s motion for summary judgment on the ground 35

that there are genuine issues of material fact is not the equivalent of a judgment in

favor of the Park District following a hearing under R.C. 163.09(B)(1).

{¶48} Additionally, although an appropriation proceeding is a “special

proceeding” under R.C. 2505.02(B)(2), neither judgment entry was an “order that

affects a substantial right made in a special proceeding.” R.C. 2505.02(B)(2); City

of Akron v. Carter, 190 Ohio App.3d 420, 2010-Ohio-5462, 942 N.E.2d 409, ¶ 11

(“An order in an appropriation proceeding instituted under R.C. Chapter 163 is an

order in a special proceeding as defined by R.C. 2505.02. Cincinnati Gas & Elec.

Co. v. Pope (1978), 54 Ohio St.2d 12, 16, 8 O.O.3d 7, 374 N.E.2d 406.”).

An order affects a substantial right for the purposes of R.C. 2505.02(B)(2) only if an immediate appeal is necessary to protect the right effectively. Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (To prevail in contending that an order affects a substantial right, “appellants must demonstrate that in the absence of immediate review of the order they will be denied effective relief in the future”). Covered rights include any “right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.” R.C. 2505.02(A)(1).

Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d

516, ¶ 7. Although Chapter 163 appropriation proceedings are special proceedings,

the orders denying summary judgment do not affect a substantial right because they

merely found that genuine material factual issues existed that precluded judgment in

defendants’ favor as a matter of law. Terpenning v. Comfortrol, Inc., 10th Dist. 36

Franklin No. 09AP-315, 2009-Ohio-6418, ¶ 14 (order denying summary judgment

in special proceeding is not a final appealable order). Delaying review of the trial

courts’ decisions until after the hearings under R.C. 163.09(B)(1) will not deny

defendants full and complete relief. After the trial courts hold the hearings on the

denials set forth in the defendants’ answers, defendants will be entitled to an

immediate appeal under R.C. 163.09(B)(3) and R.C. 2505.02(B)(7) if the orders are

in favor of the Park District.

{¶49} The orders here are neither orders in favor of the Park District pursuant

to R.C. 163.09(B)(3) and R.C. 2505.02(B)(7), nor are they orders that affect a

substantial right made in a special proceeding under R.C. 2505.02(B)(2). For these

reasons, I respectfully dissent and would dismiss the consolidated appeal for lack of

jurisdiction. 37

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE REVERSED AND CAUSE REMANDED. Costs shall be assessed to Appellee. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Mahoning County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J., concurs in Judgment and Opinion. Hess, J., dissents with Dissenting Opinion.

For the Court, _____________________________ Jason P. Smith Seventh District Court of Appeals Sitting By Assignment

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk. 38