State ex rel. Anderson v. Obetz, 2008 Ohio 4064 (Ohio App. 8/12/2008)

Decision Date12 August 2008
Docket NumberNo. 06AP-1030.,06AP-1030.
Citation2008 Ohio 4064
PartiesThe State of Ohio, Upon the Relation of Roger L. Anderson and Richard L. Freeman, Relators, v. The Village of Obetz et al., Respondents.
CourtOhio Court of Appeals

Wayne D. Miller, for relators.

Isaac Brant Ledman & Teetor, LLP, and Maribeth Deavers, for respondents.



{¶1} Relator, Roger L. Anderson, seeks a writ of mandamus ordering respondents, the Village of Obetz, its mayor and council members (collectively "respondents"), to petition for appropriation of a parcel of rezoned real estate under authority of R.C. Chapter 163.1 Opposing relator's request for a writ of mandamus, respondents have moved for summary judgment.

{¶2} Pursuant to former Loc.R. 12(M) of the Tenth District Court of Appeals,2 this court appointed a magistrate without limitation of authority specified in Civ.R. 53(C) to consider relator's cause of action. After examining the evidence, the magistrate issued a decision, wherein he made findings of fact and conclusions of law. In his decision, the magistrate recommended granting respondents' motion for summary judgment. (Attached as Appendix A.) Respondents and relator have filed objections to the magistrate's decision. See, generally, Civ.R. 53(D)(3)(b).

{¶3} For reasons discussed within, we sustain in part and overrule in part respondents' and relator's objections to the magistrate's decision, adopt in part the magistrate's decision, grant respondents' motion for summary judgment, and deny relator's request for relief in mandamus.

{¶4} R.C. 2731.01 provides: "Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." "Mandamus is the appropriate action to compel public authorities to commence appropriation cases when an involuntary taking of private property is alleged." State ex rel. Shelly Materials, Inc. v. Clark Cty. Bd. of Cty. Commrs., 115 Ohio St.3d 337, 2007-Ohio-5022, at ¶15, citing State ex rel. Preschool Dev. Ltd. v. Springboro, 99 Ohio St.3d 347, 2003-Ohio-3999, at ¶12, reconsideration denied, 100 Ohio St.3d 1510, 2003-Ohio-6161. Cf. State ex rel. Liberty Mills, Inc. v. Locker (1986), 22 Ohio St.3d 102, 103 (stating that "[m]andamus is an extraordinary writ that must be granted with caution").

{¶5} To be entitled to a writ of mandamus, relator must show (1) a clear legal right to the relief requested; (2) respondents are under a clear legal duty to perform the act sought; and (3) relator has no plain and adequate remedy at law. State ex rel. Fain v. Summit Cty. Adult Probation Dept. (1995), 71 Ohio St.3d 658, citing State ex. rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589. To constitute an adequate remedy at law, the alternative must be complete, beneficial, and speedy. State ex rel. Mackey v. Blackwell, 106 Ohio St.3d 261, 2005-Ohio-4789, at ¶21, quoting State ex rel. Ullmann v. Hayes, 103 Ohio St.3d 405, 2004-Ohio-5469, at ¶8, reconsideration denied, 104 Ohio St.3d 1124, 2004-Ohio-7033.

{¶6} By comparison, to be entitled to summary judgment, respondents must demonstrate that (1) no genuine issue of material fact exists; (2) respondents are entitled to judgment as a matter of law; and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to relator, who is entitled to have the evidence most strongly construed in his favor. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183. See, also, Dresher v. Burt (1996), 75 Ohio St.3d 280, 293 (stating that under Civ.R. 56 a moving party cannot discharge its initial burden by making a conclusory assertion that a nonmoving party has no evidence to prove its case but, instead, "the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims") (emphasis omitted).

{¶7} Here, as the magistrate correctly determined, the central issue in this action concerns whether respondents' rezoning constituted an involuntary taking of relator's private property. Whether relator is entitled to relief in mandamus, and whether respondents are entitled to summary judgment are other correlative issues in this action.


{¶8} Although not objecting to the magistrate's ultimate conclusion that summary judgment should be granted in their favor, respondents assert three objections: (1) State ex rel. Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 2002-Ohio-1627, on reconsideration in part, 96 Ohio St.3d 379, 2002-Ohio-4905, certiorari denied (2003), 538 U.S. 906, 123 S.Ct. 1484, is controlling authority in this matter; (2) the affidavit of Terry Anderson is inadmissible; and (3) the appraisal of Charles Porter is inadmissible.

{¶9} Respondents' first objection asserts the magistrate erred in his conclusions of law by failing to rely on Shemo, supra, as controlling authority because, notwithstanding Shelly Materials, supra, Shemo was governing law at the time relator sought relief in mandamus.

{¶10} "In the absence of a specific provision in a decision declaring its application to be prospective only * * * the decision shall be applied retrospectively as well: `* * * [t]he general rule is that a decision of the court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law.'" State ex rel. Bosch v. Indus. Comm. of Ohio (1982), 1 Ohio St.3d 94, 98, quoting Peerless Electric Co. v. Bowers (1955), 164 Ohio St. 209, 210, appeal dismissed sub nom. Van Huffel Tube Corp. v. Bowers (1956), 352 U.S. 804, 77 S.Ct. 30. See, also, Peerless Electric Co., at 210 (observing that "[t]he one general exception to this rule is where contractual rights have arisen or vested rights have been acquired under the prior decision"). Cf. Rogers v. Tennessee (2001), 532 U.S. 451, 462, 121 S.Ct. 1693 (concluding "that a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is `unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue' "). (Citation omitted; emphasis added.)

{¶11} Here, although Shelly Materials does not expressly overrule Shemo, our review of Shelly Materials finds no specific provision declaring its application to be prospective only. Accordingly, applying Peerless and Bosch, we must conclude that Shelly Materials must be applied retrospectively as well as prospectively. Respondents' claim that the magistrate prejudicially erred in his conclusions of law by failing to rely on Shemo, notwithstanding Shelly Materials, is therefore not well-taken.

{¶12} Additionally, the magistrate's reliance on precedents of the United States Supreme Court, such as Lingle v. Chevron Oil, U.S.A., Inc. (2005), 544 U.S. 528, 125 S.Ct. 2074, and Penn Cent. Transp. Co. v. City of New York (1978), 438 U.S. 104, 98 S.Ct. 2646, rehearing denied, 439 U.S. 883, 99 S.Ct. 226, relating to the Takings Clause of the Fifth Amendment to the United States Constitution is not error as the prohibition in the Takings Clause applies to the states through the Fourteenth Amendment to the United States Constitution. Webb's Fabulous Pharmacies, Inc. v. Beckwith (1980), 449 U.S. 155, 160, 101 S.Ct. 446; Shelly Materials, Inc., at ¶16. Moreover, Ohio courts are bound to follow guidelines that the United States Supreme Court has set up on facts involving federal constitutional questions. State v. Fletcher (1971), 26 Ohio St.2d 221, 225, certiorari denied sub nom. Walker v. Ohio (1972), 404 U.S. 1024, 92 S.Ct. 699. Cf. Jordon v. Gilligan (C.A.6, 1974), 500 F.2d 701, 707, certiorari denied (1975), 421 U.S. 991, 95 S.Ct. 1996 (stating that "[d]ecisions of the United States Supreme Court rendered by written opinions are binding on all courts, state and federal. The Court's holding is stare decisis and cannot be overruled except by the Court itself").

{¶13} Finding respondents' first objection to the magistrate's decision is not well-taken, we overrule this objection.

{¶14} Claiming that Terry Anderson's affidavit, which relator filed with a memorandum in opposition to respondents' summary judgment motion, contradicts relator's own testimony, respondents in their second objection assert that Terry Anderson's affidavit is inadmissible.

{¶15} Although, as a matter of law, "an affidavit of a party opposing summary judgment that contradicts former deposition testimony of that party may not, without sufficient explanation, create a genuine issue of material fact to defeat the motion for summary judgment," Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, paragraph three of the syllabus, the issue raised by respondents' second objection, namely, the admissibility of Terry Anderson's affidavit, is distinct from respondents' argument that Terry Anderson's affidavit cannot be used to create a genuine issue of material fact. Even if the issue raised by respondents' second objection did concern whether Terry Anderson's affidavit created a genuine issue of material fact, respondents cannot show prejudice because the magistrate concluded that there was no genuine issue of material fact in this action. Additionally, whether Byrd is applicable is arguable because, as the magistrate correctly observed, Terry Anderson, relator's son, is not a party to the action before us.

{¶16} Notwithstanding respondents' lack of prejudice, to the extent that respondents' second objection challenges whether Terry Anderson's affidavit is sufficient for...

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