Spellman Outdoor Adver. Servs., LLC v. Ohio Tpk. & Infrastructure Comm'n

• Decision Date: 30 September 2016
• Docket Number: No. 2015–P–0081.,2015–P–0081.
• Citation: 72 N.E.3d 229,2016 Ohio 7152
• Parties: SPELLMAN OUTDOOR ADVERTISING SERVICES, LLC, Plaintiff–Appellee, v. OHIO TURNPIKE AND INFRASTRUCTURE COMMISSION, Defendant–Appellant.
• Court: Ohio Court of Appeals

72 N.E.3d 229

2016 Ohio 7152

SPELLMAN OUTDOOR ADVERTISING SERVICES, LLC, Plaintiff–Appellee,

v.OHIO TURNPIKE AND INFRASTRUCTURE COMMISSION, Defendant–Appellant.

No. 2015–P–0081.

Court of Appeals of Ohio, Eleventh District, Portage County.

Sept. 30, 2016.

Michael J. Sikora, III and Alexander E. Goetsch, Sikora Law, L.L.C., Mentor, OH, for Plaintiff–Appellee.

Bruce G. Rinker and John W. Monroe, Mansour Gavin LPA, Cleveland, OH, and Tommie Jo Marsilio, Ohio Turnpike and Infrastructure Commission, Berea, OH, for Defendant–Appellant.

OPINION

COLLEEN MARY O'TOOLE, J.

{¶ 1} Appellant, Ohio Turnpike and Infrastructure Commission ("OTIC"), appeals from the November 3, 2015 judgment of the Portage County Court of Common Pleas, denying its motion for summary judgment and granting appellee's, Spellman Outdoor Advertising Services, LLC ("Spellman"), motion for summary judgment. For the reasons stated, we affirm.

{¶ 2} Spellman is an Ohio limited liability company conducting an advertising business in the state of Ohio. Martin Spellman is the president and owner of the company. OTIC was created by the General Assembly through the enactment of R.C. Chapter 5537. This matter involves a dispute between Spellman and OTIC concerning whether an alleged restriction asserted by OTIC, which would preclude billboards and other advertising, affects Spellman's interest in particular real property located at 9175 Main Street N., Windham, Portage County, Ohio 44288.

{¶ 3} By way of background, on February 15, 1946, H.W. Donaldson executed a deed conveying real property to David Mullett, Mary Mullett, Edward Mullett, and Raymond Mullett. The Donaldson deed was recorded on April 26, 1946.

{¶ 4} On March 16, 1953, the Mulletts executed a Warranty deed conveying real property to OTIC. The Spellman property was not described or conveyed in the Turnpike deed. The Turnpike deed was recorded on April 27, 1953 and contained the following Alleged Restriction:

{¶ 5} "Grantor(s), for his/her/their heirs, administrators, executors, and assigns, hereby covenant(s) with the State of Ohio and the Ohio Turnpike Commission and their successors and assigns that Grantor(s), his/her/their heirs, administrators, executors, and assigns shall not establish or maintain or permit any natural or legal person to establish or maintain on any of aforesaid remaining lands any billboard, sign, notice, poster advertising device, or other display which is visible from the travelway of Ohio Turnpike Project No. 1, and which is not at the date hereof in existence. This covenant shall run with the land."

{¶ 6} On November 20, 1954, the Mulletts executed a Warranty deed conveying the Spellman property to Joseph M. and Elizabeth Varga. The Mullett deed contained a specific metes and bounds legal description of the Spellman property and only of the Spellman property. The Mullett deed did not include or make any reference to the foregoing Alleged Restriction contained in the Turnpike deed. The Mullett deed was recorded on December 8, 1954.

{¶ 7} On October 23, 1989, Joseph Varga and Bruce Varga, as co-executors of the Estate of Joseph M. Varga, conveyed the Spellman property to Willis Mulhern and Gloria Mulhern by Fiduciary deed. The Fiduciary deed contained a specific metes and bounds legal description of the Spellman property and only of the Spellman property. Like the Mullett deed, the Fiduciary deed did not include or make any reference to the foregoing Alleged Restriction contained in the Turnpike deed. The Fiduciary deed was recorded on November 9, 1989.

{¶ 8} In 2007, Spellman entered into a Lease with the Mulherns for the Spellman property. Spellman had no actual knowledge or constructive notice of the Alleged Restriction contained in the Turnpike deed when Spellman acquired its interest in the Spellman property. On August 9, 2007, a Memorandum of Lease was executed. The Memorandum summarized the terms of the Lease which expressly allow Spellman to erect and maintain outdoor advertising structures on the Spellman property. The Memorandum was recorded on November 26, 2007.

{¶ 9} On January 21, 2015, Spellman filed a complaint against OTIC in the Portage County Court of Common Pleas requesting quiet title and declaratory relief. On March 3, 2015, OTIC filed a motion to dismiss the complaint indicating that Spellman must exhaust its administrative remedies that it seeks in a then-pending R.C. Chapter 119 proceeding before the Ohio Department of Transportation ("ODOT").¹ In response, Spellman filed a memorandum in opposition. The trial court converted OTIC's motion to dismiss into a motion for summary judgment and granted the parties additional time to submit evidence and briefing.

{¶ 10} On April 23, 2015, Spellman filed a combined memorandum contra and a Civ.R. 56 motion for summary judgment. The next day, OTIC filed a motion for summary judgment.

{¶ 11} On November 3, 2015, the trial court denied OTIC's motion for summary judgment and granted Spellman's motion for summary judgment. Specifically, the court found that the Alleged Restriction contained in the Turnpike deed excluding billboards or other advertising does not encumber the Spellman property because it was not filed in the chain of title to the Spellman property. On November 20, 2015, OTIC filed a Civ.R. 60(B) motion for relief from judgment which was denied by the trial court. On November 24, 2015, OTIC filed a supplemental motion for relief from judgment and included a copy of ODOT's decision in the administrative appeal, which also was denied by the trial court. Thereafter, OTIC filed a timely appeal with this court and asserts the following two assignments of error:

{¶ 12} "[1.] The trial court committed reversible error by failing to apply the judicial doctrine that requires the exhaustion of administrative remedies, in order to pre-empt forum-shopping, where a pre-existing and statutorily-mandated administrative appeal is pending in another state forum and whose adjudication is materially dispositive of the instant case.

{¶ 13} "[2.] The trial court committed reversible error in granting summary judgment when genuine issues of material fact exist."

{¶ 14} Preliminarily, we note that this appeal stems from the trial court's granting summary judgment in favor of Spellman.

{¶ 15} "Summary judgment is a procedural tool that terminates litigation and thus should be entered with circumspection. Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 66 * * * (1993). Summary judgment is proper where (1) there is no genuine issue of material fact remaining to be litigated; (2) the movant is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and, viewing the evidence in the non-moving party's favor, that conclusion favors the movant.See, e.g., Civ.R. 56(C).

{¶ 16} "When considering a motion for summary judgment, the trial court may not weigh the evidence or select among reasonable inferences. Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 121 * * * (1980). Rather, all doubts and questions must be resolved in the non-moving party's favor. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359 * * * (1992). Hence, a trial court is required to overrule a motion for summary judgment where conflicting evidence exists and alternative reasonable inferences can be drawn. Pierson v. Norfork Southern Corp., 11th Dist. No. 2002–A–0061, 2003-Ohio-6682, ¶ 36. In short, the central issue on summary judgment is, ‘whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–252 * * * (1986). On appeal, we review a trial court's entry of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 * * * (1996)." (Parallel citations omitted.) Meloy v. Circle K Store, 11th Dist. Portage No. 2012–P–0158, 2013-Ohio-2837, 2013 WL 3367058, ¶ 5–6.

{¶ 17} In its first assignment of error, OTIC argues the trial court erred in failing to apply the judicial doctrine that requires the exhaustion of administrative remedies. OTIC alleges that the administrative appeal concerning ODOT in the Franklin County Court of Common Pleas is materially dispositive of the instant case. OTIC maintains that Spellman does not have the right to set up this "parallel case."

{¶ 18} A party raising non-constitutional claims must exhaust any applicable administrative remedies before seeking separate judicial intervention. San Allen v. Buehrer, 2014-Ohio-2071, 11 N.E.3d 739, ¶ 72, citing Roosevelt Properties Co. v. Kinney, 12 Ohio St.3d 7, 8, 465 N.E.2d 421 (1984) ; Herrick v. Kosydar, 44 Ohio St.2d 128, 130, 339 N.E.2d 626 (1975) ; Driscoll v. Austintown Assoc., 42 Ohio St.2d 263, 328 N.E.2d 395, paragraph two of the syllabus (1975); Silverberg v. State Bd. of Pharmacy, 8th Dist. Cuyahoga No. 51777, 1987 WL 9139, *2–3 (Apr. 2, 1987).

{¶ 19} However, "[t]here are two exceptions to the above rule. First, if there is no administrative remedy available which can provide the sought after relief, or if pursuing administrative remedies would be wholly futile, exhaustion is not required. Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 17 * * *. Second, exhaustion of administrative remedies is also unnecessary when the available remedy is onerous or unusually expensive. Id. " (Emphasis added.) (Parallel citation omitted.) Bullard v. City of Warren, 11th Dist. Trumbull No. 99–T–0171, 2000 WL 1876786, *4 (Dec. 22, 2000).

{¶ 20} In this case, it is OTIC's position that Spellman's private cause of action regarding substantive real property rights which is before this court and the administrative permit application function concerning ODOT in the permit proceeding are identical. Although there are factual similarities between the two cases, we disagree with OTIC that they are one and the same.

{¶ 21} At issue in this case is Spellman's complaint against OTIC...