Ohio v. Thomas, 10–16–05.

• Decision Date: 27 December 2016
• Docket Number: No. 10–16–05.,10–16–05.
• Citation: 79 N.E.3d 28,2016 Ohio 8406
• Parties: State of OHIO, DEPARTMENT OF NATURAL RESOURCES, Plaintiff–Appellant, v. Nelda G. THOMAS, et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

79 N.E.3d 28

2016 Ohio 8406

State of OHIO, DEPARTMENT OF NATURAL RESOURCES, Plaintiff–Appellant,

v.Nelda G. THOMAS, et al., Defendants–Appellees.

No. 10–16–05.

Court of Appeals of Ohio, Third District, Mercer County.

Dec. 27, 2016.

Scott D. Phillips, West Chester, and Shanna J. Morris, for Appellant, ODNR.

Thomas H. Fusonie, Columbus, for Appellees, Gale and Nelda Thomas.

Leah Curtis for Amici Curiae, Ohio and Mercer County Farm Bureau.

OPINION

SHAW, P.J.

{¶ 1} Plaintiff-appellant State of Ohio, Department of Natural Resources ("ODNR"), appeals the May 11, 2016, judgment of the Mercer County Common Pleas Court entering a jury's award of $515,970 to defendants-appellees, Nelda Thomas and Gale Thomas (collectively referred to as "appellees"), for ODNR's appropriation of a permanent flowage easement on the appellees' farm. For the reasons that follow, we affirm the judgment of the trial court.

I. Introduction

{¶ 2} Appellees are owners of 95.55 acres of farmland in Mercer County, Ohio.¹ Due to a spillway modification to Grand Lake Saint Marys ("GLSM") in 1997, flooding increased on the appellees' farm.²

{¶ 3} As a result of the intermittent, but inevitably recurring flooding caused by the GLSM spillway modification, appellees were among more than 80 landowners who filed an action for a writ of mandamus in the Supreme Court of Ohio on July 17, 2009, seeking to compel ODNR to initiate appropriation proceedings for the taking of their property.

II. Relevant Litigation Prior to the Current Proceeding

a. The Doner Mandamus Action

{¶ 4} The Supreme Court of Ohio granted the requested writ of mandamus in State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235. In Doner, the Supreme Court of Ohio began its decision by rejecting ODNR's argument that relators' claims were barred by the statute of limitations, holding that landowners needed "time to determine whether the flooding that followed [ODNR's] construction of the spillway in 1997 and [ODNR's] refusal to lower the lake level at GLSM was of sufficient frequency to constitute a taking." Doner at ¶ 50. In making this finding, the Doner Court relied on an expert's statement that such evidence called for " ‘at least 10 and preferably 15 years or more of record in order to produce meaningful hydrologic statistics.’ " Id. at ¶ 49. Thus the Supreme Court of Ohio found that where a trespass by flooding was continuous and ongoing, the statute of limitations period was tolled.

{¶ 5} The Doner Court then proceeded to address the mandamus action itself, analyzing the evidence presented by the parties. After thoroughly summarizing the evidence presented, the Court found that: (1) relators established by "clear and convincing evidence that flooding that occurred on their property was the direct, natural, or probable result of respondents' actions" in altering the spillway and abandoning lake-level management, and that (2) the flooding, "while intermittent, is inevitably recurring." Doner at ¶¶ 79, 82.

{¶ 6} In reaching its conclusion, the Doner Court made a number of specific findings indicating that it was persuaded by ODNR's own expert's statement that as a result of the construction of the spillway and the lack of lake-level management, 100–year flooding events were occurring "every ten years. And according to the evidence submitted by some of the relators, flooding can now occur after even a minimal rain event." Id. at ¶ 82.

{¶ 7} The Doner Court also rejected ODNR's argument that even if there was a taking, it was not compensable because ODNR had acquired a prescriptive easement to flood relators' property. The Court found that a claim for a prescriptive easement was actually an affirmative defense that ODNR failed to raise and that ODNR had thus waived a claim to a prescriptive easement.

{¶ 8} In conclusion, the Doner Court granted the relators' requested writ of mandamus to "compel [ODNR] to commence appropriation proceedings to determine the amount of [ODNR's] taking of the property. * * * The determination of the extent of the taking will be made by the court presiding over the appropriation proceeding." Id. at ¶ 86.

b. Contempt Proceedings Related to Doner

{¶ 9} Following the mandamus order in Doner, ODNR initiated appropriation proceedings against only two of the property owners who had been involved in the mandamus action. The remaining relators then filed a motion for an order for ODNR to show cause why it should not be held in contempt of the Doner decision. The Supreme Court of Ohio granted that motion and held a show-cause hearing on December 4, 2012.

{¶ 10} On December 5, 2012, in State ex rel. Doner v. Zehringer, 134 Ohio St.3d 326, 2012-Ohio-5637, 982 N.E.2d 664 ("Zehringer I "), the Supreme Court of Ohio found that ODNR was in contempt of the Court's writ in Doner. In making its contempt finding, the Court stated that after settlement negotiations had failed, ODNR filed appropriation cases for only two of the property owners. The Court thus determined that relators established that ODNR was in contempt of its writ in Doner. The Court then stated,

We order respondents to complete all appraisals on relators' parcels for the 2003–flood–level cases within 90 days and to file all appropriation cases for these parcels within 120 days. For the remaining 20 parcels that respondents claim they have not yet surveyed because they involve flooding above the 2003 flood level, respondents are ordered to institute declaratory-judgment actions in the Mercer County Common Pleas Court within 30 days to determine the legal rights of the parties for those parcels.

Zehringer I at ¶ 3.

{¶ 11} Subsequently, relators filed a second contempt motion in the Supreme Court of Ohio. The Court summarily denied the second contempt motion in State ex rel. Doner v. Zehringer, 139 Ohio St.3d 314, 2014-Ohio-2102, 11 N.E.3d 1152 ("Zehringer II ").

{¶ 12} However, Justice Pfeifer wrote a concurring opinion in Zehringer II, which was joined by Justice O'Neill, noting specifically that, "The 2003–flood–level cases were so denominated because the extent of the taking of those parcels had been established to be the level of the 2003 flood. We ordered appraisals for the 2003–flood–level cases because ODNR stated that surveys establishing the extent of the taking had already been completed." Zehringer II at ¶ 5. Justice Pfeifer indicated that ODNR was now attempting to abandon the 2003 flood level as the extent of the taking. Id. at ¶ 6. Justice Pfeifer stated that ODNR had represented to the Supreme Court of Ohio in the 2012 contempt proceeding that the 2003 flood level set the extent of the taking for the parcels that were affected by the flood.

c. ODNR's Doner-related Appropriation Proceedings Previously Reaching Verdict

{¶ 13} Consistent with the Doner decision (and the accompanying contempt proceedings), ODNR initiated appropriation proceedings in the Mercer County Common Pleas Court for the related properties. Three of those appropriation cases were fully litigated to verdict and ODNR appealed all three decisions to this Court, making similar arguments in all three cases.

{¶ 14} In Ohio Dept. of Nat. Resources v. Chad Knapke, 2015-Ohio-1691, 33 N.E.3d 528, appeal not allowed, 144 Ohio St.3d 1409, 2015-Ohio-4947, 41 N.E.3d 447, ODNR argued that the trial court erred by failing to grant ODNR's request for a jury view of the subject property, that the trial court erred by admitting some of the landowner's testimony and exhibits while excluding some of ODNR's, and that the jury received improper instructions. A 2–1 majority affirmed the trial court's judgment, finding that the denial of the jury view was error, but harmless, that certain photographs introduced by the landowners were erroneously admitted, but not prejudicial error, that the trial court did not err in excluding ODNR's evidence related to lake-level management, and that the jury instructions were not improper.

{¶ 15} In Ohio Dept. of Nat. Resources v. Mark Knapke Trust, et al., 2015-Ohio-470, 28 N.E.3d 667, appeal not allowed, 143 Ohio St.3d 1464, 2015-Ohio-3733, 37 N.E.3d 1249, a plurality opinion from this Court affirmed the trial court's judgment where similar assignments of error were raised as those in the Chad Knapke case.³

{¶ 16} However, in Ohio Dept. of Nat. Resources v. Ebbing, 2015-Ohio-471, 28 N.E.3d 682, appeal not allowed, 143 Ohio St.3d 1499, 2015-Ohio-4468, 39 N.E.3d 1270, a plurality opinion from this Court reversed the trial court's judgment, finding that it was error for the trial court to deny the jury view, that certain photographs introduced by the landowners were erroneous and prejudicial, and that it was error to exclude ODNR's testimony related to lake-level management.⁴

{¶ 17} All three of the appropriation cases that reached verdict and were addressed by this Court on appeal were then appealed to the Supreme Court of Ohio. The Supreme Court of Ohio declined to hear any of the cases.

d. Appropriation Deposit Mandamus Litigation

{¶ 18} This Court has also addressed two separate ODNR appeals related to Doner wherein ODNR challenged a writ of mandamus that had been granted by the Mercer County Common Pleas Court ordering ODNR to deposit money equal to its good-faith offers to the landowners for its appropriation cases.

{¶ 19} In State ex rel. Karr Revocable Trust v. Zehringer, 3d Dist. Mercer No. 10–13–18, 2014-Ohio-2241, 2014 WL 2457707, appeal not allowed, 140 Ohio St.3d 1497, 2014-Ohio-4845, 18 N.E.3d 1251 ("Karr I "), ODNR appealed the writ of mandamus granted by the Mercer County Common Pleas Court. On appeal, ODNR argued that it had no clear legal duty to deposit money at the time it filed its appropriation petitions, and that relators had other adequate forums to litigate the merits. A 2–1 majority of this Court rejected ODNR's claims, finding that ODNR had a clear legal duty to make the deposits on the appropriation cases and that landowners demonstrated by clear and convincing evidence that they did not...