State ex rel. Blank v. Beasley

• Court: Ohio Supreme Court
• Writing for the Court: O'Donnell
• Citation: State ex rel. Blank v. Beasley, 903 N.E.2d 1196, 121 Ohio St.3d 301, 2009 Ohio 835 (Ohio 2009)
• Decision Date: 05 March 2009
• Docket Number: No. 2007-2220.,No. 2007-2217.,2007-2217.,2007-2220.
• Parties: The STATE ex rel. BLANK et al. v. BEASLEY, Dir. The State ex rel. Kardassilaris et al. v. Beasley, Dir.

903 N.E.2d 1196

121 Ohio St.3d 301

2009-Ohio-835

The STATE ex rel. BLANK et al. v. BEASLEY, Dir.

The State ex rel. Kardassilaris et al. v. Beasley, Dir.

No. 2007-2217.

No. 2007-2220.

Supreme Court of Ohio.

Submitted September 16, 2008.

Decided March 5, 2009.

Frank R. Bodor, Warren, for relators.

Richard Cordray, Attorney General, and L. Martin Cordero and Richard J. Makowski, Assistant Attorneys General, for respondent.

O'DONNELL, J.

{¶ 1} The matters before the court are original actions seeking writs of mandamus to compel the director of the Ohio Department of Transportation to appropriate relators' real property. Because these cases raise similar legal issues, we have consolidated them for resolution. We grant the writs with respect to the damages caused by the contractor's intentional operation and parking of heavy construction equipment on the relators' parking lots, which were not part of the appropriation, but were nonetheless taken for public use; we deny the requested writs with respect to the remaining damages because relators have not established that they constitute compensable takings.

The Blanks' Property

{¶ 2} Relators June L. Blank and the estate of Richard L. Blank own certain real estate in Cortland, Ohio. The property includes a restaurant and a florist shop. The department undertook a project to widen the existing asphalt pavement of State Route 5 through Cortland and to upgrade companion curbs, sidewalks, drainage, signing, markings, and signals. To complete the project, the department required perpetual and temporary easements over the Blanks' property. The property subject to the perpetual easement would be used to construct and maintain a storm sewer, and the property subject to the temporary easement would be used to construct a drive and to grade the property.

{¶ 3} After the department and the Blanks were unable to agree on a price for the property required for the project, the former director of the department filed a petition in the Trumbull County Court of Common Pleas to appropriate portions of the Blanks' property for the perpetual and temporary easements. The department took physical possession of the property subject to the easements in April 2002.

{¶ 4} According to the Blanks, during the work on the project, the department used and damaged portions of their property that were not part of the appropriated property by (1) operating highway-construction equipment on parking lots, which cracked and gouged the lots, (2) breaking a sewer line and then failing to adequately fix it, causing the backup of sewage in the kitchen and restrooms in the restaurant, (3) leaving holes and cracks in sidewalks and hitting the building-support post in front of the florist shop with excavating equipment and failing to adequately repair the damages, (4) blocking a rear entrance to the restaurant used for bulk deliveries, (5) causing a brick wall of the restaurant to crack and bow out after excavating on nearby property subject to a sewer easement, (6) removing existing catch basins in front of the florist shop, lowering the grade around an existing drain, and raising the grade of the highway, all of which caused water to go through the front doors of the florist shop, damaging the carpet and impeding business during heavy rainfall, (7) temporarily blocking an access drive used for deliveries to the florist shop, and (8) cracking a sanitary-sewer line leading from the florist shop to the main sewer line and not properly repairing it.

{¶ 5} The department had hired Marucci & Gaffney Excavating Company as the contractor for the project. Under the terms of the contract with the department, the contractor was "responsible for all damage or injury to property of any character, during the prosecution of the work, resulting from any act, omission, neglect, or misconduct in his manner or method of executing the work, or at any time due to defective work or materials" and was to "save harmless the State of Ohio * * * from all suits, actions, or claims of any character brought on account of any * * * damages sustained by any * * * property in consequence of any neglect in safeguarding the work or through the use of unacceptable materials in the construction of the improvement or on account of any act or omission, by the Contractor, or his agents."

{¶ 6} According to the department's district real estate administrator, the damage alleged by the Blanks is "consistent with claims of physical damage or trespass caused by the contractor during the course of construction" and is not an indication that an additional right-of-way was necessary for the project. He further stated that the damage alleged by the Blanks could not have been anticipated by the department and that the project did not require any of the actions that led to the alleged damage.

The Kardassilarises' Property

{¶ 7} Relators Kathy and Panagiotis Kardassilaris own certain real property in Cortland on which they have a house and a market that they operate. As part of its State Route 5 project, the department required a taking in fee simple of part of the property and temporary easements over other portions. After the department and the Kardassilarises were unable to reach an agreement on the fair market value, the former director of the department filed a petition in the Trumbull County Court of Common Pleas to appropriate the required portions of the property in October 2001. The department took physical possession of the appropriated property in January 2003.

{¶ 8} According to the Kardassilarises, during the work on the project, the department used and damaged portions of their property that were not part of the appropriated property by (1) moving the water line in front of the market, causing water to back up into the building for about eight days, until the Kardassilarises had a plumber install a new check valve, (2) breaking a natural-gas line, causing the Kardassilarises to close the market for several hours, (3) removing survey pins marking boundary lines and failing to replace them, (4) cracking blacktop and concrete areas outside the appropriated property by operating and parking heavy construction equipment, (5) disturbing or removing a catch basin, which caused flooding of a customer parking lot six or seven times between January and September 2003, when the department installed new catch basins to fix the problem, (6) breaking or disconnecting the sanitary-sewer line, causing sewage to back up into the market, and not repairing it properly, and (7) disconnecting the electrical line illuminating the market's signs and not properly fixing the line, causing the Kardassilarises to hire an electrician after the signs had been out of order for about six weeks.

{¶ 9} The project was part of the same one involving the Blanks' property, with the department using Marucci & Gaffney Excavating Company as the contractor, which was required to abide by the contract provisions previously discussed. According to the department's district real estate administrator, the project could have been completed without causing the damage alleged by the Kardassilarises.

Appropriation Cases

{¶ 10} In the department's appropriation cases, the Blanks and the Kardassilarises filed counterclaims in mandamus to compel the department's director to appropriate the additional portions of their property that they claimed had been taken. The common pleas court dismissed the counterclaims for lack of subject-matter jurisdiction, and the judgments were affirmed by the court of appeals. On appeal to this court, we consolidated the cases and affirmed the judgments, holding that "R.C. 5501.22 requires individuals to prosecute all claims for relief against the director of transportation in Franklin County, even those that could be brought as counterclaims under Civ.R. 13." Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872, at syllabus.

Mandamus Cases

{¶ 11} Less than two months after Proctor was released, relators filed these actions seeking to compel respondent, James G. Beasley, the current director of the department, to appropriate the additional property that they alleged had been taken. We granted alternative writs, and the parties have submitted evidence and briefs. This cause is now before the court for our consideration of the merits.

Mandamus to Compel Appropriation

{¶ 12} "The United States and Ohio Constitutions guarantee that private property shall not be taken for public use without just compensation." State ex rel. Shemo v. Mayfield Hts. (2002), 95 Ohio St.3d 59, 63, 765 N.E.2d 345, judgment modified in part on other grounds, 96 Ohio St.3d 379, 2002-Ohio-4905, 775 N.E.2d 493; Fifth and Fourteenth Amendments to the United States Constitution; Section 19, Article I, Ohio Constitution. "Mandamus is the appropriate action to compel public authorities to institute appropriation proceedings where an involuntary taking of private property is alleged." Shemo, 95 Ohio St.3d at 63, 765 N.E.2d 345.

{¶ 13} In their cases, relators appear to make a "classic appropriation claim" of "an actual physical taking" of their real property. State ex rel. Coles v. Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, 877 N.E.2d 968, ¶ 22; Lingle v. Chevron U.S.A., Inc. (2005), 544 U.S. 528, 537, 125 S.Ct. 2074, 161 L.Ed.2d 876 ("The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property").

Property Taken for Public Use

{¶ 14} Relators claim entitlement to the requested relief in mandamus pursuant to the Takings Clause of the Ohio Constitution. Section 19, Article I of the Ohio Constitution provides:

{¶ 15} "[W]here private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money, and such compensation shall be assessed by a jury." (Emphasis added.)

{¶ 16} The director argues that the asserted...