[Cite as State ex rel. Duncan v. Am. Transm. Sys., Inc., 2021-Ohio-1697.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
[STATE OF OHIO ex rel.] : PER CURIAM OPINION RICHARD DUNCAN, : Relator, CASE NO. 2021-P-0005 : - vs - : AMERICAN TRANSMISSION SYSTEMS, INCORPORATED : (ATSI), et al., : Respondents. :
Original Action for Declaratory Judgment, Injunction, Damages, and Mandamus.
Judgment: Petition dismissed.
Richard Duncan, pro se, 1101 East Boulevard, Aurora, OH 44202 (Relator).
Stephen D. Jones and Jeremy S. Young, Roetzel & Andress, LPA, 41 South High Street, 21st Floor, Columbus, OH 43215 (For Respondents, American Transmission Systems, Incorporated (ATSI) and First Energy).
Dean E. Depiero, City of Aurora Law Director, 130 South Chillicothe Road, Aurora, OH 44202 (For Respondents, City of Aurora and Ann Womer Benjamin).
PER CURIAM.
{¶1} Relator, Richard Duncan, pro se, has filed a complaint for declaratory
judgment, injunction, damages, and mandamus in this court against respondents
American Transmission Systems, Inc. (“ATSI”), “First Energy,” the City of Aurora Mayor
Ann Womer Benjamin, and the City of Aurora (the “City”). Respondents filed a Civ.R. 12(B) motion to dismiss. For the reasons set forth herein, relator’s claims for declaratory
judgment, injunction, and damages are dismissed for lack of subject-matter jurisdiction;
and his petition is dismissed for failure to state a claim upon which relief can be granted.
{¶2} According to Mr. Duncan, he owns one tenth of an acre of triangular-
shaped, landlocked property adjacent to an abandoned right-of-way located in the city of
Aurora. Apparently, the City, hoping to use the land to build a park or trail, and ATSI,
hoping to build power lines, engaged in litigation and eventually a settlement, with ATSI
being permitted to build the power lines along the right-of-way. Mr. Duncan asserts that
these power lines will detract from the charming and historic aesthetic of the city of Aurora
and seeks to prevent the installation of these power lines or appropriations from an
alleged taking of his property.
{¶3} Article IV, Section 3(B) of the Ohio Constitution sets forth the jurisdiction of
Ohio’s courts of appeals:
{¶4} (1) The courts of appeals shall have original jurisdiction in the following:
{¶5} (a) Quo warranto;
{¶6} (b) Mandamus;
{¶7} (c) Habeas corpus;
{¶8} (d) Prohibition;
{¶9} (e) Procedendo;
{¶10} (f) In any cause on review as may be necessary to its complete determination.
{¶11} (2) Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district, except that courts of appeals shall not have jurisdiction to review on direct appeal a judgment that imposes a sentence of death. Courts of appeals shall have such appellate jurisdiction as
2 may be provided by law to review and affirm, modify, or reverse final orders or actions of administrative officers or agencies.
{¶12} Here, Mr. Duncan brought his complaint directly to this court of appeals;
there is no decision of a lower court for this court to review. Pursuant to the Ohio
Constitution, this court does not have jurisdiction to hear Mr. Duncan’s claims for public
and private nuisance, nor answer his prayer for injunctive relief and compensatory
damages.1
{¶13} However, as Mr. Duncan’s request for a writ of mandamus falls within this
court’s original jurisdiction, we shall consider that portion of Mr. Duncan’s pleadings.
Respondents argue this count should also be dismissed pursuant to Civ.R. 12(B)(6),
failure to state a claim upon which relief can be granted.
{¶14} Preliminarily, we note that although Mr. Duncan has failed to caption his
petition “in the name of the state on the relation of the person applying,” as required by
R.C. 2731.04, respondents have not raised this as error. Thus, we sua sponte correct
the caption and address the merits of Mr. Duncan’s petition. See Salemi v. Cleveland
Metroparks, 145 Ohio St.3d 408, 2016-Ohio-1192, ¶13 (finding miscaptioning a waivable
defense and noting that it is “common practice when parties fail to raise the issue simply
to correct the error before publication.”)
{¶15} “Mandamus is the appropriate action to compel public authorities to institute
appropriation proceedings when an involuntary taking of private property is alleged. Any
1. We note that though “[a]s a general rule, a writ of mandamus will not issue when there is a plain and adequate remedy in the ordinary course of law,” there is an exception where the “‘declaratory judgment would not be a complete remedy unless coupled with extraordinary relief in the nature of a mandatory injunction * * *.’” (Emphasis original.) State ex rel. Gadell-Newton v. Husted, 153 Ohio St.3d 225, 2018- Ohio-1854, ¶9, quoting State ex rel. Arnett v. Winemiller, 80 Ohio St.3d 255, 259 (1997). This exception is not applicable here as Mr. Duncan’s request is for a prohibitory injunction to prevent a future injury. See id. at ¶9-10.
3 direct encroachment upon land that subjects it to a public use that excludes or restricts
the dominion and control of the owner over it is a taking of property, for which the owner
is guaranteed a right of compensation under Section 19, Article I of the Ohio Constitution.”
State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, at paragraph four of
the syllabus, citing State ex rel. Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63 (2002); and
Norwood v. Sheen, 126 Ohio St. 482 (1933).
{¶16} “To be entitled to a writ of mandamus, a party must establish, by clear and
convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty
on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the
ordinary course of the law.” Gadell-Newton, supra, at ¶6, citing State ex rel. Waters v.
Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, ¶6, 13. “Under Civ.R. 12(B)(6), dismissal for
failure to state a claim upon which relief can be granted is proper if, after all material
factual allegations of the complaint are presumed true and all reasonable inferences are
made in appellants’ favor, it appears beyond doubt that they could prove no set of facts
warranting the requested extraordinary relief in mandamus.” State ex rel. MetroHealth
Med. Ctr. v. Sutula, 110 Ohio St.3d 201, 2006-Ohio-4249, ¶7.
{¶17} Mr. Duncan argues that due to the power lines on the adjacent property, his
and his neighbor’s property value will decrease, that he will not be able to acquire a right
of way that he had “hoped to acquire,” that any personal or real property placed on the
lot will become a safety hazard due to an arcing risk, and that persons and animals on
the property will have a safety and cancer risk. Mr. Duncan attempts to differentiate the
damage he asserts will result to his property from that of his neighbors’ by arguing his lot
is “specifically and substantially burdened” by the proposed use of the adjacent land due
to his lot’s small size, triangular shape, and that it is landlocked.
4 {¶18} However, these so-called “[c]onsequential damages are generally
noncompensable on the theory that: ‘* * * Whatever injury is suffered thereby is an injury
suffered in common by the entire community; and even though one property owner may
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[Cite as State ex rel. Duncan v. Am. Transm. Sys., Inc., 2021-Ohio-1697.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
[STATE OF OHIO ex rel.] : PER CURIAM OPINION RICHARD DUNCAN, : Relator, CASE NO. 2021-P-0005 : - vs - : AMERICAN TRANSMISSION SYSTEMS, INCORPORATED : (ATSI), et al., : Respondents. :
Original Action for Declaratory Judgment, Injunction, Damages, and Mandamus.
Judgment: Petition dismissed.
Richard Duncan, pro se, 1101 East Boulevard, Aurora, OH 44202 (Relator).
Stephen D. Jones and Jeremy S. Young, Roetzel & Andress, LPA, 41 South High Street, 21st Floor, Columbus, OH 43215 (For Respondents, American Transmission Systems, Incorporated (ATSI) and First Energy).
Dean E. Depiero, City of Aurora Law Director, 130 South Chillicothe Road, Aurora, OH 44202 (For Respondents, City of Aurora and Ann Womer Benjamin).
PER CURIAM.
{¶1} Relator, Richard Duncan, pro se, has filed a complaint for declaratory
judgment, injunction, damages, and mandamus in this court against respondents
American Transmission Systems, Inc. (“ATSI”), “First Energy,” the City of Aurora Mayor
Ann Womer Benjamin, and the City of Aurora (the “City”). Respondents filed a Civ.R. 12(B) motion to dismiss. For the reasons set forth herein, relator’s claims for declaratory
judgment, injunction, and damages are dismissed for lack of subject-matter jurisdiction;
and his petition is dismissed for failure to state a claim upon which relief can be granted.
{¶2} According to Mr. Duncan, he owns one tenth of an acre of triangular-
shaped, landlocked property adjacent to an abandoned right-of-way located in the city of
Aurora. Apparently, the City, hoping to use the land to build a park or trail, and ATSI,
hoping to build power lines, engaged in litigation and eventually a settlement, with ATSI
being permitted to build the power lines along the right-of-way. Mr. Duncan asserts that
these power lines will detract from the charming and historic aesthetic of the city of Aurora
and seeks to prevent the installation of these power lines or appropriations from an
alleged taking of his property.
{¶3} Article IV, Section 3(B) of the Ohio Constitution sets forth the jurisdiction of
Ohio’s courts of appeals:
{¶4} (1) The courts of appeals shall have original jurisdiction in the following:
{¶5} (a) Quo warranto;
{¶6} (b) Mandamus;
{¶7} (c) Habeas corpus;
{¶8} (d) Prohibition;
{¶9} (e) Procedendo;
{¶10} (f) In any cause on review as may be necessary to its complete determination.
{¶11} (2) Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district, except that courts of appeals shall not have jurisdiction to review on direct appeal a judgment that imposes a sentence of death. Courts of appeals shall have such appellate jurisdiction as
2 may be provided by law to review and affirm, modify, or reverse final orders or actions of administrative officers or agencies.
{¶12} Here, Mr. Duncan brought his complaint directly to this court of appeals;
there is no decision of a lower court for this court to review. Pursuant to the Ohio
Constitution, this court does not have jurisdiction to hear Mr. Duncan’s claims for public
and private nuisance, nor answer his prayer for injunctive relief and compensatory
damages.1
{¶13} However, as Mr. Duncan’s request for a writ of mandamus falls within this
court’s original jurisdiction, we shall consider that portion of Mr. Duncan’s pleadings.
Respondents argue this count should also be dismissed pursuant to Civ.R. 12(B)(6),
failure to state a claim upon which relief can be granted.
{¶14} Preliminarily, we note that although Mr. Duncan has failed to caption his
petition “in the name of the state on the relation of the person applying,” as required by
R.C. 2731.04, respondents have not raised this as error. Thus, we sua sponte correct
the caption and address the merits of Mr. Duncan’s petition. See Salemi v. Cleveland
Metroparks, 145 Ohio St.3d 408, 2016-Ohio-1192, ¶13 (finding miscaptioning a waivable
defense and noting that it is “common practice when parties fail to raise the issue simply
to correct the error before publication.”)
{¶15} “Mandamus is the appropriate action to compel public authorities to institute
appropriation proceedings when an involuntary taking of private property is alleged. Any
1. We note that though “[a]s a general rule, a writ of mandamus will not issue when there is a plain and adequate remedy in the ordinary course of law,” there is an exception where the “‘declaratory judgment would not be a complete remedy unless coupled with extraordinary relief in the nature of a mandatory injunction * * *.’” (Emphasis original.) State ex rel. Gadell-Newton v. Husted, 153 Ohio St.3d 225, 2018- Ohio-1854, ¶9, quoting State ex rel. Arnett v. Winemiller, 80 Ohio St.3d 255, 259 (1997). This exception is not applicable here as Mr. Duncan’s request is for a prohibitory injunction to prevent a future injury. See id. at ¶9-10.
3 direct encroachment upon land that subjects it to a public use that excludes or restricts
the dominion and control of the owner over it is a taking of property, for which the owner
is guaranteed a right of compensation under Section 19, Article I of the Ohio Constitution.”
State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, at paragraph four of
the syllabus, citing State ex rel. Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63 (2002); and
Norwood v. Sheen, 126 Ohio St. 482 (1933).
{¶16} “To be entitled to a writ of mandamus, a party must establish, by clear and
convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty
on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the
ordinary course of the law.” Gadell-Newton, supra, at ¶6, citing State ex rel. Waters v.
Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, ¶6, 13. “Under Civ.R. 12(B)(6), dismissal for
failure to state a claim upon which relief can be granted is proper if, after all material
factual allegations of the complaint are presumed true and all reasonable inferences are
made in appellants’ favor, it appears beyond doubt that they could prove no set of facts
warranting the requested extraordinary relief in mandamus.” State ex rel. MetroHealth
Med. Ctr. v. Sutula, 110 Ohio St.3d 201, 2006-Ohio-4249, ¶7.
{¶17} Mr. Duncan argues that due to the power lines on the adjacent property, his
and his neighbor’s property value will decrease, that he will not be able to acquire a right
of way that he had “hoped to acquire,” that any personal or real property placed on the
lot will become a safety hazard due to an arcing risk, and that persons and animals on
the property will have a safety and cancer risk. Mr. Duncan attempts to differentiate the
damage he asserts will result to his property from that of his neighbors’ by arguing his lot
is “specifically and substantially burdened” by the proposed use of the adjacent land due
to his lot’s small size, triangular shape, and that it is landlocked.
4 {¶18} However, these so-called “[c]onsequential damages are generally
noncompensable on the theory that: ‘* * * Whatever injury is suffered thereby is an injury
suffered in common by the entire community; and even though one property owner may
suffer in a greater degree than another, nevertheless the injury is not different in kind, and
is therefore damnum absque injuria [i.e. damage without injury].’” Richley v. Jones, 38
Ohio St.2d 64, 68-69 (1974), citing Robert Mitchell Furniture Co. v. C. C. C. & St. Louis
R. R. Co., 7 N.P. 639 (1900), affirmed, 65 Ohio St. 571.
{¶19} Furthermore, “[t]he mere fact of the danger attendant upon the maintenance
of high voltage wires in front of the property is not a valid ground of objection, unless it is
also an interference with access, light, air, or view.” Smith v. Cent. Power Co., 103 Ohio
St. 681, 699 (1921); see also Ohio Edison Co. v. Carroll, 14 Ohio App.3d 421, 425 (9th
Dist.1984), citing Friedman Transfer & Constr. Co. v. Youngstown, 176 Ohio St. 209, 213
(1964); Smith v. Central Power Co., 103 Ohio St. 681 (1921); and Sears v. Hopley, 103
Ohio St. 46 (1921).
{¶20} Mr. Duncan has not argued an interference with light, air, or view.
Additionally, Mr. Duncan admits that his property was landlocked and there was no right
of way when he purchased it; he was merely hoping he would acquire one over the
disputed property if the City were permitted to build on it. Moreover, he admits he
potentially has other access to his property. Thus, the installation of these power lines
does not alter the ingress and egress to his property.
{¶21} Mr. Duncan has failed to establish a taking of his property and thus cannot
show by clear and convincing evidence that he is entitled to the relief sought.
5 {¶22} In light of the foregoing, respondents’ motion to dismiss is granted, and this
matter is hereby dismissed. All pending motions are dismissed as moot.
MARY JANE TRAPP, P.J., CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., concur.