Kermetz v. Cook-Johnson Realty Corp.

• Citation: 54 Ohio App.2d 220,8 O.O.3d 375,376 N.E.2d 1357
• Decision Date: 29 December 1977
• Docket Number: COOK-JOHNSON
• Parties: , 8 O.O.3d 375 KERMETZ et al., Appellees, v.REALTY CORP., Appellant, City of Youngstown et al., Appellee.
• Court: Ohio Court of Appeals

Page 220

54 Ohio App.2d 220

376 N.E.2d 1357, 8 O.O.3d 375

KERMETZ et al., Appellees, v. COOK-JOHNSON REALTY CORP., Appellant City of Youngstown et al., Appellee.

Court of Appeals of Ohio, Tenth District, Franklin County.

Dec. 29, 1977.

Syllabus by the Court

1. An action may be brought in the Court of Claims where there has been a "taking" of private property, and such court has jurisdiction to consider the matters involved whether the "taking" is a permanent or "pro tanto" type.

2. An owner of real estate, having a cause of action in the Court of Claims for the taking of his property, may, in the alternative, bring an action in mandamus where he shows the existence of a clear legal duty on the part of a state official and his failure to act.

Harrington, Huxley & Smith and Frederick S. Coombs, III, Youngstown, for appellees Lewis R. Kermetz et al.

Nils P. Johnson, Youngstown, for appellant.

James E. Roberts, Youngstown, for appellee city of Youngstown.

Joseph Schiavoni, Youngstown, for appellee Frank Pondillo et al.

William J. Brown, Atty. Gen., and Gene W. Holliker, Asst. Atty. Gen., for appellee Ohio Dept. of Transportation.

HOLMES, Judge.

This matter involves an appeal from the Court of Claims, which court had dismissed the third-party complaint brought by the Cook-Johnson Realty Corp. against the Ohio Department of Transportation, such dismissal being upon the basis that the complaint was one sounding in appropriation; and in that the Court of Claims had no jurisdiction in appropriation, the complaint did not state a cause for which that court could give relief.

This case brings up for further discussion and refinement some areas of rather intricate law to which this court has previously addressed itself, most notably in the case of J. P. Sand & Gravel Co. v. State (1976), 51 Ohio App.2d 83, 367 N.E.2d 54 (decided June 8, 1976); State ex rel. Nicholson v. Jackson (1977), 54 Ohio App.2d 215, 377 N.E.2d 523, and the unreported case of State ex rel. Edmisten v. Jackson, No. 75AP-557, decided July 1, 1976.

The factual pattern which gave rise to this action initially, and the history of the case, are as follows: Mr. and Mrs. Lewis Kermetz commenced an action in the Court of Common Pleas of Mahoning County against the defendant-appellant, Cook-Johnson Realty Corp., the city of Youngstown, and Mr. and Mrs. Frank Pondillo. The complaint alleged that the plaintiffs had purchased a home from the Pondillos on a tract of land adjacent to limited-access state highway No. 11, which tract had been developed by Cook-Johnson Realty Corp.

The complaint further alleged that the plaintiffs had suffered damages to their home and property, as well as emotional distress, as a result of flooding waters coming onto their property from the state highway, and that these waters flowed from the highway due to the faulty sewer drainage system installed previously by the defendant Cook-Johnson.

Additionally, the complaint alleged that the city of Youngstown had negligently installed a water main which had interfered with the adopted state drainage plans; further that the defendants Pondillo, as the former owners, had been aware of the flooding conditions and problems, and had failed to reveal this fact to the plaintiffs when the property was sold to the plaintiffs.

Defendant Cook-Johnson, in its answer, denied that it had negligently installed the storm sewer and, as stated, filed its third-party complaint against the Ohio Director of Highways, alleging that the state had negligently permitted the city of Youngstown to engage in its construction which interfered with the proper operation of the sewer drainage system. The matter was thereafter transferred to the Court of Claims from the Common Pleas Court of Mahoning County. The Attorney General filed a motion to dismiss in the Court of Claims, stating, among other points, that the plaintiffs' complaint stated a cause of action in appropriation; and that the Court of Claims lacked subject matter jurisdiction over such an action.

The Court of Claims having sustained the state's motion to dismiss, the defendant Cook-Johnson appeals to this court, setting forth the following assignment of error:

"The Court of Claims erred as a matter of law in ruling that Plaintiff's complaint made out a case in appropriation over which the Court of Claims had no subject matter jurisdiction."

As noted above, this appeal presents an opportunity for this court to clarify and, or, amplify, what it has heretofore stated in this area of the law. The complaint in J. P. Sand & Gravel, supra, contained two theories upon which relief was claimed by the plaintiff. The first claim sounded in appropriation; the second claim sounded in tort, alleging an abuse of the state's power of eminent domain to the effect that a delay had taken place in the appropriation, which in turn had occasioned a loss of value of the plaintiff's property.

As to the first claim in J. P. Sand & Gravel, this court specifically held that the Court of Claims did not have jurisdiction to entertain actions involving the appropriation of property, and that the appropriate remedy would be an action in mandamus leading to an appropriation proceeding in the Common Pleas Court, where a jury could assess the value of the damages for property taken. Accordingly, we held, in paragraphs one and two of the syllabus of the case, as follows:

"1. The Court of Claims, pursuant to R.C. 2743.02, is deprived of jurisdiction in matters involving the appropriation of private real estate.

"2. Where a property owner claims that his property has been taken by the state; that he had been damaged and that appropriation proceedings have not been instituted, the owner may proceed to seek a writ of mandamus to compel the initiation of such proceedings."

The basis of this court's holding in J. P. Sand & Gravel was that there being a remedy available to the plaintiff in an appropriation action, pursuant to R.C. Chapters 163 and 5519, which had existed prior to the Court of Claims Act, there could, according to R.C. 2743.02(A), be no action against the state in the Court of Claims. Such section reads as follows:

"The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same, rules of law applicable to suits between private parties, subject to the limitations set forth in this chapter. To the extent that the state has previously consented to be sued, this chapter has no applicability."

As to the second cause of action in J. P. Sand & Gravel, which cause sounded in tort, this court in effect held that where such acts of the state could reasonably be interpreted as a substantial interference or domination of private property, a "pro tanto taking" could be found, and compensation for such taking could be had by the private property owner by way of an action in mandamus in Common Pleas Court in the same manner as would be a mandamus action brought for a permanent taking.

Judge McCormac, concurring in J. P. Sand & Gravel, suggested that there may well be a right of action within the Court of Claims where the claim is one sounding in tort for damages to one's real property, favorably comparing Smith v. Erie Rd. Co. (1938), 134 Ohio St. 135, 16 N.E.2d 310. Judge McCormac held that in any event in the case before our court there was no reasonable claim for relief presented, in that the only method provided by law for a landowner to avoid an unreasonable delay in the state's appropriation of real property was by way of R.C. 5511.01, and that the landowner had failed to utilize such section. Such section provides that if an application is made by the property owner to the local governmental entity after a notice of the state's intention to appropriate is given, the local governmental entity is required to notify the director of transportation who then must either act to appropriate the property within 120 days, or any extension thereof, or lift the restriction upon the use of the property.

In the case of State ex rel. Edmisten v. Jackson, supra, this court was confronted with an original action in mandamus brought by a property owner who claimed damage against the state alleged to have been occasioned by a change of grade during highway construction. In Edmisten, one panel of this court held that traditionally the only remedy available to a private party when the state took property was an original action in mandamus, there being no other remedy in the ordinary course of the law, the state not having been subject to suit without its consent (citing State ex rel. McKay v. Kauer (1951), 156 Ohio St. 347, 102 N.E.2d 703). The court, citing Wilson v. Cincinnati (1961), 172 Ohio St. 303, 175 N.E.2d 725, stated that the state had not previously consented to be sued. Continuing, this court held that the state not having previously consented to be sued, the last sentence in R.C. 2743.02(A) would not be applicable.

The court, in Edmisten, then concluded that the property owner's proper remedy against the Director of Transportation was in the Court of Claims, pursuant to R.C. 2743.02(A), which remedy, continued the court, was an adequate remedy in the ordinary course of the law, precluding mandamus, citing State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631.

As a corollary to the conclusion in Edmisten that the prior availability of mandamus did not constitute a consent by the state to be sued, we note the decision of this court in State ex rel. Ferguson v. Shoemaker (1975), 45 Ohio App.2d 83, at page 88, 341 N.E.2d 311 at page 315, where it is stated: "However, an action against a public officer to compel him to perform a public duty or to enjoin him from performing an act contrary to law is not an action against the state precluded by the doctrine of sovereign immunity"; citing State ex rel. Nichols v....