Brothers v. Allen Cnty. Comm'rs
| Decision Date | 21 October 2013 |
| Docket Number | No. 1–13–14.,1–13–14. |
| Citation | 3 N.E.3d 1231 |
| Parties | BRENNEMAN BROTHERS, et al., Plaintiffs–Appellants, v. ALLEN COUNTY COMMISSIONERS, Defendants–Appellees. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Michael A. Rumer and Zachary D. Maisch, for appellants.
Gregory M. Antalis, for appellees.
{¶ 1} Appellants, Brenneman Brothers, Stanley G. Brenneman, and Kim C. Brenneman (“the Brennemans”),1 appeal the February 12, 2013 judgment entry of the Allen County Court of Common Pleas denying the Brennemans' appeal from Resolution # 421–12 of Appellees, Allen County Commissioners (“the Board”), disallowing the Brennemans' objections to the estimated assessments for a ditch-improvement project known as the Wrasman Project # 1268 (“the Wrasman project”). For the reasons that follow, we reverse.
{¶ 2} In an earlier appeal concerning the Wrasman project, we discussed the following background:
On March 18, 2009, the Allen Soil and Water Conservation District held an informational meeting for a proposed drainage project known as [the Wrasman project] located in Marion Township, Allen County. After this meeting, the Soil and Water Conservation District determined that the Wrasman project was necessary and conducive to the public welfare, and it requested approval for the project from the board as required by R.C. 1515.19. On April 22, 2009, the board concurred with the recommendation of the Soil and Water Conservation District and approved the project.
Thereafter, the property owners affected by the Wrasman project were provided notice, pursuant to R.C. 1515.24(D)(1), of their estimated assessments and informed that if they had concerns about the proposed project, they could write a letter of objection within 30 days to the board. Several landowners, including the Brennemans, filed letters with the board to express their concerns about the Wrasman project. These concerns largely involved the estimated assessments and the cost of the project.
In accordance with R.C. 1515.24(D)(2), the board conducted a final hearing on the objections on June 25, 2009. At the conclusion of the hearing, the board once again approved the Wrasman project and established a schedule for the collection of assessments. On July 1, 2009, the board made a number of adjustments to the assessment schedule in recognition of four parcels of property that had been improperly assessed, which resulted in increased assessments to the other parcels of land affected by the Wrasman project.
Brenneman v. Allen Cty. Bd. of Commrs., 196 Ohio App.3d 60, 2011-Ohio-4032, 962 N.E.2d 342, ¶ 2–4 (3d Dist.).
{¶ 3} Stanley and Kim Brenneman appealed to the Allen County Court of Common Pleas, challenging the Board's decision to accept the Wrasman project and the assessments levied against the property owners affected by the Wrasman project. Id. at ¶ 5. Based on evidence from another case before it, the Allen County Court of Common Pleas affirmed the Board's decision and dismissed the appeal. Id. at ¶ 8. Stanley and Kim Brenneman appealed to this Court, and we reversed the trial court's decision because it abused its discretion when it “improperly considered evidence from another case that seemingly had nothing to do with the Wrasman project and issued its judgment using the rationale of this other case that did not raise the same issues as the present matter.” Id. at ¶ 18.
{¶ 4} On remand, the trial court vacated the Board's approval of the Wrasman project. ( See Case No. CV 2012 0432, Doc. No. 7, Attachment No. 19, Ex. 3). On January 12, 2012, in an executive session meeting of the Board, two or three members of the Board met with Allen Soil and Water Conservation District (“Soil and Water”) employees Dan Ellerbrock and Scott Langenkamp, along with the Board's counsel, Greg Antalis, the Board's clerk, Kelli Singhaus, Allen County engineer Tim Piper, and Allen County drainage engineer Doug Degan.2 (Dec. 13, 2012 Tr., Vol. 1, at 55, Ex. 9); (Jan. 18, 2013 Tr. at 54). According to Singhaus, the purpose of that meeting was to discuss the Wrasman project litigation. (Jan. 18, 2013 Tr. at 54–55). According to Langenkamp's entry in Soil and Water's diary of events, after some discussion, Ellerbrock suggested that Soil and Water resubmit the same Wrasman project to the Board. (Dec. 13, 2012 Tr., Vol. 1, at 55, Ex. 9).
{¶ 5} On February 8, 2012, after no parties appealed the trial court's decision vacating the Board's approval, Antalis sent a letter to Soil and Water requesting that it certify to the Board the Wrasman project “exactly the same as was previously approved by Soil and Water, with no distinguishing new characteristics which would require a new vote of Soil and Water to recommend sending the project to the [Board] for approval of construction.” (Case No. CV 2012 0432, Doc. No. 7, Attachment No. 19, Ex. 3).
{¶ 6} In a letter to the Board dated February 15, 2012, Soil and Water once again approved the Wrasman project and certified it to the Board. ( Id. at Attachment No. 20, Ex. 4). On March 22, 2012, Soil and Water submitted to the Board that letter, along with plans, specifications, cost estimates, a watershed area benefited by the project, a preliminary report, and a schedule of damages. (Resolution # 267–12, Case No. CV 2012 0432, Doc. No. 4, Attachment No. 1). By Resolution # 267–12, dated April 26, 2012, the Board concurred with Soil and Water and approved the construction of the Wrasman project. ( Id.).
{¶ 7} Also on April 26, 2012, the Board passed Resolution # 268–12, in which it acknowledged receipt of a schedule of estimated assessments from Soil and Water and directed the clerk of the Board to, pursuant to R.C. 1515.24(D)(1), notify landowners of the estimated assessments for their respective properties. (Resolution # 268–12, Case No. CV 2012 0432, Doc. No. 4, Attachment No. 2). Attached to Resolution # 268–12 was the schedule of estimated assessments, which bore an April 23, 2012 printed date in the lower left-hand corner, as well as the Board's “RECEIVED” stamp dated March 22, 2012. ( Id.). ( See also Jan. 18, 2013 Tr. at 50–51).
{¶ 8} On May 3, 2012, the Board mailed the estimated-assessment notices to the landowners. ( See Case No. CV 2012 0432, Doc. No. 4, Attachment Nos. 9–18); (Case No. CV 2012 0432, Doc. No. 7, Attachment Nos. 3–12). After the Brennemans receivedtheir notices, they filed separate objections for each parcel of real estate that they owned. ( Id.); ( Id.). On June 20, 2012, the Board scheduled a July 9, 2012 hearing, at which it would hear the Brennemans and other objectors. ( Id. at Resolution # 389–12, Attachment No. 21); ( Id. at Resolution # 389–12, Attachment No. 13). The Board notified the objectors of the date, time, and location of the objection hearing. ( Id. at Attachment No. 22); ( Id. at Attachment No. 14).
{¶ 9} On July 9, 2012, the Brennemans appeared at the objection hearing and presented their arguments through counsel. ( See Case No. CV 2012 0432, Doc. No. 7, Attachment Nos. 15, 16, 21). That same day, after the hearing, the Board issued Resolution # 421–12, in which it disallowed all of the landowners' objections. ( Id. at Attachment No. 21). The Brennemans filed a notice of appeal in the trial court on July 26, 2012, challenging Resolution # 421–12. (Case No. CV 2012 0601, Doc. No. 1). That appeal was assigned case number CV 2012 0601. ( Id.).
{¶ 10} Meanwhile, on May 29, 2012, the Brennemans challenged Resolution # 267–12—in which the Board approved the construction of the Wrasman project—by filing a notice of appeal in the trial court. (Case No. CV 2012 0432, Doc. No. 1). That appeal was assigned case number CV 2012 0432. ( Id.). On August 7, 2012, the trial court granted the Brennemans' motion to consolidate the two cases and merge case number CV 2012 0601 into case number CV 2012 0432. (Case No. CV 2012 0601, Doc. No. 4). After the trial court merged case number CV 2012 0601 into case number CV 2012 0432, the parties filed all documents in case number CV 2012 0432. ( See id.).
{¶ 11} The Board filed the transcript related to Resolution # 267–12 on June 26, 2012. (Case No. CV 2012 0432, Doc. No. 4). It filed the transcript related to Resolution # 421–12 on August 15, 2012. (Case No. CV 2012 0432, Doc. No. 7).
{¶ 12} On September 21, 2012, the Brennemans moved the trial court to “permit additional evidence to be entered into the record * * * pursuant to R.C. 2506.03,” arguing that the transcript filed in the trial court by the Board did not contain a report of all evidence admitted or proffered by the Brennemans and that the testimony adduced before the Board was not given under oath. (Case No. CV 2012 0432, Doc. No. 11). The Board opposed the Brennemans' motion, and the Brennemans filed a reply in support. (Case No. CV 2012 0432, Doc. Nos. 13, 16). The trial court granted the Brennemans' motion on October 23, 2012, finding well taken their argument that the transcript filed by the Board did not contain all of the evidence admitted or proffered. (Case No. CV 2012 0432, Doc. No. 18). The trial court scheduled an evidentiary hearing for December 13, 2012. ( Id.).
{¶ 13} The day before the evidentiary hearing, the Board moved to dismiss the Brennemans' appeal of Resolution # 267–12, case number CV 2012 0432, arguing that the trial court lacked subject-matter jurisdiction because Resolution # 267–12 was a “purely legislative act.” (Case No. CV 2012 0432, Doc. No. 30). At the evidentiary hearing, after counsel for the Brennemans indicated that they consented to the dismissal of case number CV 2012 0432, the trial court stated that “the Motion to Dismiss will be granted.” (Dec. 13, 2012 Tr., Vol. 1, at 4–5). The trial court's final judgment entry of February 12, 2013, as amended by a nunc pro tunc entry, dismissed case number CV 2012 0432. 3 ( See Case No. CV 2012 0432, Doc. No. 37).
{¶ 14} The parties presented evidence at the evidentiary hearing, which the trial court held on December 13,...
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