Peggy Certain v. Bernard Hurst, Director Department of Transportation State of Ohio
| Decision Date | 03 July 1991 |
| Docket Number | 91-LW-0588,90CA5 |
| Parties | PEGGY CERTAIN, et al., Plaintiff-Appellants v. BERNARD HURST, DIRECTOR DEPARTMENT OF TRANSPORTATION STATE OF OHIO, Defendant-Appellee Case |
| Court | Ohio Court of Appeals |
ATTY MICHAEL T. GUNNER, Columbus, Ohio, for Appellants,
ATTY LEE FISHER, Ohio Attorney General, and Ronald H. Snyder and Gerald A. Rocco, Assistant Attorneys General, Columbus, Ohio for Appellee.
This is an appeal from a judgment entered by the Pickaway County Court of Common Pleas dismissing, for lack of jurisdiction, the within action filed by Peggy Certain and Kallous Certain, plaintiffs below and appellants herein, against Bernard Hurst, State of Ohio Department of Transportation (hereinafter referred to as "the director of ODOT"), defendant below and appellee herein. Appellants assign the following error:
The record reveals the following facts pertinent to this appeal. On October 24, 1989, appellants commenced the action below seeking a writ of mandamus to compel the director of ODOT to commence appropriation proceedings against them or, in the alternative, for compensatory damages in the amount of $200,000.00. The basis for this action was appellants' allegations that the director of ODOT had affected a confiscation of certain leased property, located along State Route 104 between Ashville and South Bloomfield, Ohio, by commencing two separate construction projects which closed all lanes of travel along route 104 and denied customer access to a retail grocery business operated by appellants on the premises.
On November 16, 1989, the director of ODOT filed a motion to dismiss the action, for lack of jurisdiction, arguing that any suit for money damages against the State must be brought in the Court of Claims, as required by R.C. 2743.03, and that, otherwise, he could only be sued in Franklin County as provided for under R.C. 5501.22. On November 27, 1989, appellants filed a memorandum in opposition to said motion.
In substance, appellants argued that they had previously commenced a similar action in the Ohio Court of Claims, but that the director of ODOT had filed an identical motion to dismiss arguing that the action should have been brought in the county where the alleged confiscation occurred. Appellants further contended that they had voluntarily dismissed their action in the court of claims and recommenced it below and, they concluded, that the director of ODOT should not be permitted to continually "scuttle" the action from one forum to another.
On December 15, 1989, the court below issued its decision to sustain the motion and dismiss the action. In so ruling, the court concluded that it had no jurisdiction to consider a monetary damages claim inasmuch as only the Court of Claims had jurisdiction to entertain such suits. Further, the court determined that any action in mandamus against the director of ODOT would have to be brought in the Common Pleas Court of Franklin County. Thus, the court concluded that it was without jurisdiction to consider the action below and, therefore, ordered it to be dismissed. A judgment entry to that effect was filed on December 29, 1989, and this appeal follows.
The ultimate issue to be resolved in this appeal is whether the trial court properly dismissed the action below. In order to resolve that issue, we must first address whether the cause sub judice was for money damages, such that the Court of Claims would have exclusive original jurisdiction, or for a writ of mandamus. Then we must determine whether the provisions of R.C. 5501.22 would allow for the suit to be brought in Pickaway County or require the action to be commenced in Franklin County.
With respect to the first question, we note that a civil suit for money damages is within the exclusive original jurisdiction of the Court of Claims. Friedman v. Johnson (1985), 18 Ohio St. 3d 85, 87; Boggs v. State (1983), 8 Ohio St. 3d 15, 17. On the other hand, Ohio law has long provided recourse to forums outside the Court of Claims in matters involving real property appropriations. Thus, when a person claims that an interest in property has been taken by the state, and appropriation proceedings have not been commenced, that person may seek a writ of mandamus in other courts to compel the director of ODOT to commence eminent domain proceedings. See Kermetz v. Cook Johnson Realty (1977), 54 Ohio App. 2d 220, 228; J.P. Sand & Gravel Co. v. State (1976), 51 Ohio App. 2d 83, 89; also see State. ex rel. McKay v. Kaver, Dir. (1951), 156 Ohio St. 347 at paragraph three of the syllabus; also see generally Knepper & Frye, Ohio Eminent Domain Practice (1977) 73, Section 2.08. [1] It follows that a determination of the precise nature of the relief requested below is essential in order to determine which court would have properly had jurisdiction.
The argument advanced by the director of ODOT is that the action below was "primarily" for money damages and, therefore, its dismissal was correct because only the Court of Claims would have had jurisdiction. In reviewing the complaint, however, we reach the opposite conclusion. Appellants' prayer for relief clearly provides, in pertinent part, as follows:
"WHEREFORE Plaintiffs pray for judgment for a writ of mandamus that the Director of the State of Ohio Department of Transportation be ordered to commence appropriation proceedings against Plaintiffs property or in the alternative that Plaintiffs be awarded damages of $200,000.00 for the present and future loss of business. . ." (Emphasis added.)
Obviously, a writ of mandamus was the primary remedy sought by appellant and money damages was the alternate relief sought. It goes without saying that the Ohio Rules of Civil Procedure are applicable to pleadings in mandamus actions, see R.C. 2731.09; 67 Ohio Jurisprudence 3d (1986) 398, Mandamus, Section 127, and Civ. R. 8(A) specifically allows for the pleading of alternate relief. Therefore, the complaint appears, at least on its face, to be an action in mandamus.
That being said, however, we note a different problem with the complaint that was neither addressed by the parties nor the court below. Generally, the form of the prayer in a mandamus complaint is irrelevant so long as sufficient allegations are pleaded to warrant relief in mandamus. see State, ex rel. Blackwell v. Bachrach (1957), 166 Ohio St. 301 at paragraph one of the syllabus; State, ex rel. Keyser v. Babst (1920), 101 Ohio St. 275, 281. Thus, a characterization of the action below as one in mandamus depends, to an extent, upon whether such relief is warranted by the allegations in the complaint.
The essence of appellants' complaint is that the construction on State Route 104 has prohibited customer access to their business, thus destroying its value. Appellants contend that this is an appropriation of the business for which they are entitled to compensation. The Ohio Supreme Court, however, has affirmatively held as follows in State, ex rel. Merritt v. Linzell, Dir. (1955), 163 Ohio St. 97 at paragraph three of the syllabus:
"The owner of land abutting on a highway has no property right in the continuation or maintenance of the flow of traffic past his property, and the diversion of traffic as the result of an improvement in the highway . . . is not an impairment of a property right of such owner for which damages may be awarded." (Emphasis added.)
Thus, the rerouting or diminution in flow of traffic is not a compensable taking of a property interest. Knepper & Frye, supra at 164-165 & 277-278, Section 6.07 & 9.13. Rather, this is merely one of the risks that a property owner, or lessee, is deemed to have assumed. See In re Appropriation for Hwy. Purposes (1968), 15 Ohio App. 2d 139, 143. Furthermore, Ohio law does not allow for compensation to be paid in condemnation when the conditions caused by construction are only temporary rather than permanent, Bellevue v. Stedman (1939), 63 Ohio App. 150, 154; Colonial Furniture Co. v. Cleveland Union Terminal Co. (1934), 47 Ohio App. 399, 406, and most jurisdictions hold that a temporary interference with access to property during highway construction or repair does not rise to the level of a compensable taking. See Annotation, Damages Resulting From Temporary Conditions Incident to Public Improvements or Repairs as Compensable Taking (1983), 23 A.L.R. 4th 674, 691-698.
For these reasons, a strong argument could be made that appellants have failed to allege any...
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