[Cite as State ex rel. Lillis v. Summit, 2017-Ohio-1539.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO ex rel. C.A. No. 28307 MONICA LILLIS, et al.
Appellants APPEAL FROM JUDGMENT v. ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, et al. COUNTY OF SUMMIT, OHIO CASE No. CV 2013-07-3400 Appellees
DECISION AND JOURNAL ENTRY
Dated: April 26, 2017
CALLAHAN, Judge.
{¶1} Monica Lillis, David Horvath, and James Horvath appeal a decision of the
Summit County Court of Common Pleas dismissing their petition for a writ of mandamus against
the City of Akron for lack of standing. This Court reverses.
I.
{¶2} Because this matter comes before this Court following the grant of a motion to
dismiss, this Court relates the facts as alleged in the amended complaint.1
{¶3} Ms. Lillis and Messrs. Horvath (“the Owners”) own real property at 2139
Glenmount Avenue in Coventry Township. This property was improved with two apartment
buildings. In July 2011, Brewster Creek overflowed and its southern tributary flooded one of the
1 The initial complaint was amended before the motion to dismiss. 2
apartment buildings. A portion of the building’s foundation and its first floor collapsed.
Ultimately, the Owners had that building demolished.
{¶4} In 2013, the Owners filed suit against the Ohio Department of Transportation, the
County of Summit, the City of Akron (“Akron”), Coventry Crossing Community Association,
and Coventry Crossing P.U.D. Owners’ Association. They alleged that the defendants and
respondents “own and/or otherwise bear responsibility for maintaining storm water management
systems and structures that have an impact upon the amount of water that drains into the
Brewster Creek,” that construction has increased the storm water burdens on the “Brewster
Creek system,” and that the defendants and respondents had not maintained the storm water
management systems so as to minimize flooding. They contended that the result was “repeated
and worsening flooding” on their property and particularly described the July 2011 flooding.
They further alleged that “the public agency [r]espondents have acted in such a way as to
constitute a taking of [the Owners’] property.” With respect to Akron, the Owners also alleged
“Akron is a home-rule city * * * and possesses the power to appropriate land through eminent
domain under R.C. Chap[ter] 719 and R.C. 163.01 et seq.” They sought damages for a private
nuisance and a writ of mandamus to compel eminent domain proceedings.
{¶5} As the case proceeded, all of the defendants except Akron were dismissed. In
addition, the private nuisance count against Akron was dismissed. Consequently, by the time of
trial, all that remained was a petition for a writ of mandamus to compel Akron to institute
eminent domain proceedings concerning the subject property.
{¶6} On the day of the trial, Akron orally moved to dismiss the amended complaint for
lack of standing. The trial court proceeded with the trial, after which the parties briefed the
standing issue. Akron argued that the Owners’ claim was not redressable because it “has no 3
authority (under either the Ohio Constitution or the Revised Code) to initiate appropriation
proceedings in response to [the Owners’] complaint in mandamus alleging a taking-by-flooding
claim, given that it is undisputed that [the Owners’] property is located outside the City’s
municipal limits.”
{¶7} The trial court dismissed the action for lack of standing. The court reasoned,
“Ohio law is clear that property owners do not have standing to bring a mandamus action to
compel a municipality to appropriate property outside the municipality’s jurisdiction” and “none
of the enumerated purposes listed in R.C. 719.01 include appropriating property for an alleged
taking.” Noting that the Owners’ property is located outside of Akron in Coventry Township,
the court concluded that the Owners “have no redressable claim against the City of Akron and
are without standing.”
{¶8} The Owners appeal raising one assignment of error.
II.
ASSIGNMENT OF ERROR
THE [OWNERS] HAVE STANDING UNDER THE U.S. CONSTITUTION AND THE LAWS AND CONSTITUTION OF THE STATE OF OHIO TO BRING A MANDAMUS ACTION IN INVERSE CONDEMNATION AGAINST THE CITY OF AKRON FOR A PHYSICAL TAKING OF THE [OWNERS’] PROPERTY IN COVENTRY TOWNSHIP, AND THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DECIDED THEY LACKED STANDING.
{¶9} In their sole assignment of error, the Owners argue that the trial court erred in
finding they lacked a redressable claim and, therefore, lacked standing. This Court agrees.
{¶10} The trial court construed Akron’s motion to dismiss for lack of standing as a
motion to dismiss under Civ.R. 12(B)(6). Akron did not move to dismiss until after it filed its
answer to the amended complaint. Consequently, its motion was, in effect, a motion for 4
judgment on the pleadings under Civ.R. 12(C). See Savoy v. Kramer, 9th Dist. Summit No.
27418, 2015-Ohio-437, ¶ 5. This Court reviews the granting of a motion under either subsection
de novo. Id.
{¶11} “A motion for judgment on the pleadings is akin to a delayed motion to dismiss
for failure to state a claim.” Cashland Fin. Servs., Inc. v. Hoyt, 9th Dist. Lorain No.
12CA010232, 2013-Ohio-3663, ¶ 7. The standard applied by a trial court in resolving motions
under Civ.R. 12(B)(6) and Civ.R. 12(C) is similar. State ex rel. Midwest Pride IV, Inc. v.
Pontious, 75 Ohio St.3d 565, 569-570 (1996). “Under Civ.R. 12(C), dismissal is appropriate
where a court (1) construes the material allegations in the complaint, with all reasonable
inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond a
doubt, that the plaintiff can prove no set of facts in support of his claim that would entitle him to
relief.” Id. at 570.
{¶12} Standing is a preliminary issue that is decided before a court considers the merits
of a claim. Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, ¶ 9. It is an issue of
law that is reviewed de novo on appeal. Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-
3897, ¶ 20. Standing requires (1) an injury; (2) that is fairly traceable to the defendant; and (3)
that the relief sought in the complaint is likely to redress. Id. at ¶ 22, citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-561 (1992).
{¶13} Akron’s motion to dismiss focused on the issue of redressability and the trial
court’s decision was based on that issue. Consequently, this Court reviews the narrow issue of
whether the Owners’ alleged injury was likely to be redressed by the relief sought in their
complaint. This Court does not address whether the Owners met the other requirements for
standing or the merits of the Owners’ claim. 5
{¶14} “‘Mandamus is the appropriate action to compel public authorities to institute
appropriation proceedings where an involuntary taking of private property is alleged.’” State ex
rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio-1473, ¶ 14, quoting State ex rel.
Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63 (2002). Inverse condemnation is “‘a cause of
action against the government to recover the value of property taken by the government without
formal exercise of the power of eminent domain.’” State ex rel. Doner v. Zody, 130 Ohio St.3d
446, 2011-Ohio-6117, ¶ 62, quoting Moden v. United States, 404 F.3d 1335, 1342
(Fed.Cir.2005). “Two main theories exist for establishing a taking, one based on land-use or
zoning regulations and the other, on physical invasions by the government.” State ex rel. River
City Capital v. Clermont Cty. Bd. of Commrs., 12th Dist. Clermont No. CA2010-07-051, 2011-
Ohio-4039, ¶ 25. While regulatory takings generally impact an owner’s use of his or her land,
physical takings involve a direct encroachment on the land. See id.
{¶15} To be entitled to a writ of mandamus for inverse condemnation, an owner “must
establish a clear legal right to compel the city to commence appropriation, a corresponding legal
duty on the part of the city to institute that action, and the lack of an adequate remedy * * * in the
ordinary course of law.” Gilbert at ¶ 15. The parties and the trial court focused on whether
Akron had the authority to appropriate the Owners’ property. Both the Owners’ right to compel
appropriation and Akron’s duty to institute an action depend on the existence of this authority.
Whether a municipality has the authority to appropriate property for a particular purpose and
whether a property owner has a redressable claim where such a taking occurs without
compensation are in essence opposite sides of the same coin.
{¶16} In determining that the Owners’ claim was not redressable, the trial court relied
on Clifton v. Blanchester, 131 Ohio St.3d 287, 2012-Ohio-780, and Moore, 133 Ohio St.3d 55, 6
2012-Ohio-3897. Both of those cases involved property owners who sought to compel a
municipality to institute eminent domain proceedings concerning their property that was located
outside of the municipality based on zoning changes within the municipality.
{¶17} The issue in Clifton was “whether a property owner has standing to compel a
government entity to initiate appropriation proceedings for an alleged regulatory taking when the
affected property lies outside the limits of the government entity.” Clifton at ¶ 1. The Moore
court noted that it “expressly cautioned in Clifton that the decision should not be construed too
broadly beyond the facts and posture of that case.” Moore at ¶ 29, citing Clifton at ¶ 30-32.
Clifton “does not stand for the proposition that a property owner always lacks standing to bring a
mandamus claim against a municipality when the affected property is outside the municipality’s
corporate limits.” Moore at ¶ 30. “Rather, Clifton must be understood in conjunction with the
unique facts and circumstances upon which it rests * * * including the fact that it was a
mandamus claim against a foreign municipality by a property owner who attempted to challenge
the rezoning of contiguous land from one industrial use to another.” (Emphasis added.) Id.
{¶18} There were two “unique facts” in Clifton. First, the property that was alleged to
have been taken was outside of the municipality. Clifton at ¶ 32. Second, the alleged taking
occurred by a zoning change within the municipality. Id. at ¶ 31. The present case is similar in
that the Owners’ property is outside of Akron. But, it is dissimilar in that the Owners alleged a
physical taking based on flooding, not a regulatory taking based on zoning.
{¶19} The trial court noted that municipalities have inherent and statutory power to
appropriate property. Addressing a municipality’s inherent authority, the trial court quoted
portions of Clifton and Moore indicating a municipality’s inherent authority is based on the
home-rule amendment to the Ohio Constitution and, as such, is generally restricted to a 7
municipality’s corporate limits. See Clifton at ¶ 27, and Moore at ¶ 27, both citing Britt v.
Columbus, 38 Ohio St.2d 1 (1974), paragraph one of the syllabus.
{¶20} Addressing a municipality’s statutory authority, the trial court noted that R.C.
719.02 provides: “In the appropriation of property for any of the purposes named in section
719.01 of the Revised Code, the municipal corporation may, when reasonably necessary, acquire
property outside the limits of the municipal corporation.” The court then quoted the purposes
listed in R.C. 719.01(A) through (O) and concluded, “[n]one of the enumerated purposes listed in
R.C. 719.01 include appropriating property for an alleged taking.” The Owners argue that, in
doing so, the trial court “misread[]” Clifton. Akron, on the other hand, argues that the trial court
merely “echoe[d]” the Ohio Supreme Court’s language in Clifton. Neither of these propositions
is entirely correct.
{¶21} The trial court recognized that a municipality has statutory authority to
appropriate property outside of its boundaries. Before addressing that authority, the court quoted
Clifton. “The General Assembly has also provided municipalities with statutory authority to use
eminent-domain powers to acquire property that lies outside the municipality’s corporate limits
‘when reasonably necessary,’ but only for certain enumerated public purposes.” Clifton at ¶ 28,
quoting R.C. 719.02 and citing R.C. 719.01. Although the court did not fully analyze the
purposes enumerated in R.C. 719.01, it did not “misread[]” Clifton’s finding that R.C. 719.01
and 719.02 empower a municipality to appropriate property outside of its corporate limits.
Rather, it concluded that the statutory purposes did not apply to the present case because it was
“an alleged taking.”
{¶22} Akron argues that, in reaching this conclusion, the trial court “echoe[d]” the
Clifton court’s finding that “none of the enumerated purposes listed in R.C. 719.01 include 8
appropriating property for an alleged regulatory taking.” (Emphasis added.) Clifton at ¶ 28. In
the present case, however, the trial court did not include the word “regulatory.” Rather, the trial
court found that “none of the enumerated purposes listed in R.C. 719.01 include appropriating
property for an alleged taking.” (Emphasis added.). Under the trial court’s language, an inverse
condemnation action could never be brought based on one of the purposes listed in R.C. 719.01
when a municipality takes property without the formal exercise of its eminent domain power.
Thus, the trial court’s broad language does not “echo[]” Clifton, which specified “an alleged
regulatory taking.” (Emphasis added.) Clifton at ¶ 28.
{¶23} A review of the purposes listed in R.C. 719.01 shows that each one involves a
physical, as opposed to a regulatory, taking of property. For example, a municipality may
appropriate property for “streets,” “public halls,” and “sewers.” R.C. 719.01(A), (C), and (J).
Unlike Clifton and Moore, the current case does not involve an alleged regulatory taking.
Rather, the Owners claimed that Akron physically took their property without formally
instituting appropriation proceedings. The Owners cite three sections of R.C. 719.01 in support
of their argument that Akron was empowered to appropriate property for the type of taking they
experienced, namely R.C. 719.01(I), (J), and (M).
{¶24} Initially, Akron points out that the Owners did not argue below that R.C.
719.01(M) applied. “Arguments that were not raised in the trial court cannot be raised for the
first time on appeal.” JPMorgan Chase Bank, Natl. Assn. v. Burden, 9th Dist. Summit No.
27104, 2014-Ohio-2746, ¶ 12. The Owners did not mention R.C. 719.01(M) in their brief to the
trial court, nor did they make any argument concerning that provision. Therefore, the Owners’
argument concerning R.C. 719.01(M) is not properly before this Court. The Owners, however, 9
did argue to the trial court that R.C. 719.01(I) and (J) applied. Consequently, this Court will
address the applicability of those provisions.
{¶25} R.C. 719.01(I) permits a municipality to appropriate land
[f]or constructing, opening, excavating, improving, or extending any canal or watercourse, located in whole or in part within the limits of the municipal corporation or adjacent and contiguous thereto, and which is not owned in whole or in part by the state, or by a company or individual authorized by law to make such improvement.
The Owners contend that this section empowers Akron to appropriate their property because the
“consistent and uncontroverted evidence in this case was * * * that most of the Brewster Creek’s
course runs through the City of Akron” and “the City [of Akron], not the State, owns the water in
Brewster Creek.”
{¶26} When deciding a motion for judgment on the pleadings under Civ.R. 12(C), “[t]he
trial court must confine its inquiry to the material allegations in the pleadings.” Cashland Fin.
Servs., Inc., 2013-Ohio-3663, at ¶ 7. The Owners reference to “evidence in this case” goes
beyond the facts alleged in the pleadings. The amended complaint does not allege Akron owns
the Brewster Creek watercourse or its southern tributary to the exclusion of State. Consequently,
the amended complaint does not allege a redressable claim under R.C. 719.01(I).
{¶27} R.C. 719.01(J) provides a municipality may appropriate land “[f]or sewers,
drains, ditches, public urinals, bathhouses, water closets, and sewage and garbage disposal plants
and farms.” In its brief to the trial court, Akron argued that the Owners’ claim was not
redressable under this provision because the term “sewer” does not include storm water
management and collection systems. By contrast, the Owners contended R.C. 719.01(J) is not
limited to sanitary sewers. 10
{¶28} A court’s primary concern when analyzing a statute is to ascertain and give effect
to the intentions of the General Assembly. State v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-
236, ¶ 7. If a statute is unambiguous, it is applied as written “giving effect to all of its language,
without adding or deleting any words chosen by the General Assembly.” Id. “Ambiguity exists
if the language is susceptible of more than one reasonable interpretation.” State v. Jordan, 89
Ohio St.3d 488, 492 (2000). In the current case, the word “sewers” is ambiguous as it can be
read either as limited to sanitary sewers or as also including storm water sewers.
{¶29} When words have a technical or legislative definition, they are construed in
accordance with that definition. R.C. 1.42. Otherwise, “[w]ords and phrases shall be read in
context and construed according to the rules of grammar and common usage.” Id. The term
“sewers” is not defined in R.C. Chapter 719, so this Court looks to its common usage. A sewer
is “an artificial usu[ally] subterranean conduit to carry off sewage and sometimes surface water
(as from rainfall).” Merriam-Webster’s Collegiate Dictionary 1140 (11th Ed.2004). The
definition explicitly includes both “sewage” and “surface water (as from rainfall).” Thus, the
common usage of the term “sewers” includes both sanitary and storm water sewers.
{¶30} Moreover, the legislature did not use the term “sewers” in isolation in R.C.
719.01(J). Along with “sewers,” the legislature listed “drains, ditches, public urinals,
bathhouses, water closets, and sewage and garbage disposal plants and farms.” R.C. 719.01(J).
Some of these terms, such as “sewage * * * disposal plants,” are commonly associated with
sanitary sewers. Others, such as “ditches,” are commonly associated with storm water
management.
{¶31} Indeed, other appellate districts have found that R.C. 719.01(J) authorizes the
appropriation of property for storm water management and flood control purposes. For instance, 11
the First District found statutory authority based on R.C. 719.01(J) to appropriate land for a
“storm water sewer.” Boehle v. Colerain Twp. 1st Dist. Hamilton No. C-840678, 1985 WL
11468, *2 (Sept. 18, 1985). Similarly, the Seventh District found the statute permitted
appropriation to construct a “storm water retention system” for flood control purposes.
Boardman Twp. Bd. of Trustees v. Fleming, 110 Ohio App.3d 539, 544 (7th Dist.1996). The
Eighth District, likewise, found a “proposed ‘retention basin’ comes clearly within the term
‘sewers and drains’ as authorized under this section [R.C. 719.01(J)].” Doering v. City of South
Euclid, 112 Ohio App. 177, 183 (8th Dist. June 18, 1960), reconsidered on other grounds 112
Ohio App. 177 (8th Dist. Nov. 3, 1960).
{¶32} This Court concludes that R.C. 719.01(J) is not limited to sanitary sewers.
Rather, the terms used in the statute including “sewers, drains, [and] ditches” also encompass
various elements of a storm water management system. The Owners contend that Akron took
their property for this purpose without instituting formal appropriation proceedings or
compensating them for the taking. Assuming the allegations in the complaint are true, as is
required when deciding a motion to dismiss, the Owners alleged a redressable claim for inverse
condemnation.
{¶33} Finally, the Owners make arguments concerning the United States and Ohio
Constitutions and common law riparian rights. Akron contends that these arguments were not
raised below and cannot be raised for the first time on appeal. Akron further contends that the
Owners’ constitutional and common law arguments concern the injury prong, not the
redressability prong, for standing. Having already determined that the Owners alleged a
redressable claim based on R.C. 719.01(J), this Court finds it unnecessary to address these
additional arguments. 12
{¶34} This Court expresses no opinion on the merits of the Owners’ claim, but holds
simply that they met the redressability prong for standing to bring their claim. See Moore, 133
Ohio St.3d 55, 2012-Ohio-3897, at ¶ 23 (“It is well settled that standing does not depend on the
merits of the plaintiff’s contention * * *.”). Consequently, the Owners’ assignment of error is
sustained.
III.
{¶35} The Owners’ assignment of error is sustained. The judgment of the Summit
County Court of Common Pleas is reversed and this matter is remanded for further proceedings
consistent with this opinion.
Judgment reversed and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30. 13
Costs taxed to Appellee.
LYNNE S. CALLAHAN FOR THE COURT
HENSAL, P. J. SCHAFER, J. CONCUR.
APPEARANCES:
JACQUENETTE S. CORGAN, WILLIAM H. CORGAN, and GEORGE J. EMERSHAW, Attorneys at Law, for Appellants.
EVE V. BELFANCE, Director of Law, and SEAN W. VOLLMAN and BRIAN D. BREMER, Assistant Directors of Law, for Appellee.