State ex rel. Bohlen v. Halliday

• Decision Date: 27 January 2021
• Docket Number: No. 2020-1245,2020-1245
• Citation: 172 N.E.3d 114,164 Ohio St.3d 121
• Court: Ohio Supreme Court
• Parties: The STATE EX REL. BOHLEN et al. v. HALLIDAY, Judge.

164 Ohio St.3d 121

172 N.E.3d 114

The STATE EX REL. BOHLEN et al.

v.HALLIDAY, Judge.

No. 2020-1245

Supreme Court of Ohio.

Submitted January 12, 2021

Decided January 27, 2021

Vorys, Sater, Seymour & Pease, L.L.P., Joseph R. Miller, Thomas H. Fusonie, John M. Kuhl, and Daniel E. Shuey, Columbus, for relators.

Nicole T. Coil, Washington County Prosecuting Attorney, for respondent.

Porter, Wright, Morris & Arthur, L.L.P., Ryan P. Sherman, Christopher J. Baronzzi, Jason T. Gerken, Molly S. Crabtree, and Syed Ahmadul Huda, Columbus, for intervening respondent.

Chad A. Endsley, Leah F. Curtis, and Amy Milam, urging granting of the writ for amicus curiae Ohio Farm Bureau Federation, Inc.

Thompson Hine, L.L.P., and Stephanie M. Chmiel, Columbus,; and Kurt Helfrich and Lija Kaleps-Clark, urging denial of the writ for amicus curiae Buckeye Power, Inc.

McDonald Hopkins, L.L.C., Adam C. Smith, Matthew R. Rechner, and Richard W. Cline, Cleveland, urging denial of the writ for amicus curiae Columbia Gas of Ohio, Inc.

Per Curiam.

{¶ 1} Relators, Ronald and Barbara Bohlen, Michael and Misty Burns, Ryan and Denay May, and Jeffrey and Holly Dexter, own property over which Ohio Power Company ("Ohio Power") seeks to take easements by eminent domain. Respondent, Washington County Court of Common Pleas Judge John M. Halliday, ruled that Ohio Power's takings were necessary for a public use. Relators timely appealed that decision to the Fourth District Court of Appeals under R.C. 163.09(B)(3). Notwithstanding relators' appeal, Judge Halliday has scheduled a trial to commence on March 2, 2021, on the issue of the compensation Ohio Power must pay to relators for the takings. Relators seek a writ of prohibition to prevent Judge Halliday from moving forward with the compensation trial pending the disposition of their appeal to the Fourth District. We grant the writ.

I. Overview of Ohio's Eminent-Domain Procedure

{¶ 2} After an appropriating agency files a petition to take property by eminent domain, the property owner may assert specific denials to, among other things, the necessity of the appropriation. R.C. 163.08. In the first phase of the ensuing proceeding, the court must hold a hearing and rule on the denials. R.C. 163.09(B)(1).

{¶ 3} If the court rules in favor of the appropriating agency, then the case proceeds to a second phase, at which the amount of compensation owed to the property owner is determined in a jury trial. R.C. 163.09(B)(2). The trial court's duty to proceed with the compensation trial, however, is "subject to the * * * right of the owner to an immediate appeal under [ R.C. 163.09(B)(3) ]." Id. ; see also R.C. 2505.02(B)(7) (defining "final order" to include "[a]n order in an appropriation proceeding that may be appealed pursuant to" R.C. 163.09(B)(3) ). The issue in this case is whether a landowner's appeal taken under R.C. 163.09(B)(3) divests the trial court of jurisdiction to proceed with a compensation trial while the appeal is pending.

II. Factual and Procedural Background

{¶ 4} On January 14, 2020, Ohio Power filed complaints for appropriation and condemnation of easements against relators in the Washington County Court of Common Pleas. Ohio Power seeks the easements for the installation and construction of a high-voltage transmission line. Relators denied the necessity of the appropriations under R.C. 163.08 on the ground that Ohio Power sought easements in excess of those reasonably necessary for the construction project.

{¶ 5} Judge Halliday consolidated the cases for a hearing on the necessity of the appropriations, which was held on August 10, 2020. On September 2, he determined that Ohio Power was entitled to an "irrebuttable presumption of the necessity for the appropriation" under R.C. 163.09(B)(1)(c), by virtue of the Ohio Power Siting Board's approval of Ohio Power's construction project. He also found that the takings were necessary and for a public use.

{¶ 6} Relators appealed Judge Halliday's necessity determination to the Fourth District under R.C. 163.09(B)(3). On September 30, Judge Halliday issued an order setting a compensation trial to begin on March 2, 2021. In the order, Judge Halliday rejected relators' argument that he lacked jurisdiction to proceed while their appeal to the Fourth District was pending. Relators commenced this action on October 13, seeking a writ of prohibition to prevent Judge Halliday from holding the compensation trial while their appeal is pending.

III. Procedural Motions

A. Motions for Leave to File Amicus Briefs

{¶ 7} Amici curiae, Ohio Farm Bureau Federation, Inc., Buckeye Power, Inc., and Columbia Gas of Ohio, Inc., seek leave to file amicus briefs instanter. An amicus curiae may participate with leave of court during the motion-to-dismiss stage of an extraordinary-writ proceeding filed in this court. See, e.g. , State ex rel. Greene Cty. Bd. of Commrs. v. O'Diam , 156 Ohio St.3d 458, 2019-Ohio-1676, 129 N.E.3d 393, ¶ 8. As in O'Diam , the amici curiae in this case have filed procedurally proper and unopposed motions for leave to file their amicus briefs. We therefore grant the motions.

B. Ohio Power's Motion to Intervene as a Respondent

{¶ 8} Ohio Power has moved to intervene as of right in this action under Civ.R. 24(A)(2) or, in the alternative, permissively under Civ.R. 24(B). As a general rule, we construe Civ.R. 24 liberally to permit intervention. State ex rel. Merrill v. Ohio Dept. of Natural Resources , 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41. Under Civ.R. 24(A)(2), when intervention is timely sought and disposition of the action may impair the applicant's ability to protect its interest, intervention must be granted unless the applicant's interest is adequately represented by an existing party.

{¶ 9} In this case, Ohio Power's motion to intervene is timely, as it was filed just ten days after relators filed their complaint. And because this action, if successful, would prevent Ohio Power from proceeding with the compensation phase of the appropriation proceedings, it has an interest that could be impaired as a result of this case. Finally, although Judge Halliday and Ohio Power both oppose relators' complaint, Judge Halliday, as the judge in the underlying matter, must remain impartial, which means that his interest cannot be said to fully align with Ohio Power's interest. We therefore grant Ohio Power's motion to intervene under Civ.R. 24(A)(2).

C. Ohio Power's Motion for Leave to File Notice of Relators' Second Appeal

{¶ 10} Ohio Power has filed a motion for leave to file notice of relators' second appeal to the Fourth District, in which relators appeal Judge Halliday's order setting the compensation trial for March 2, 2021. We deny Ohio Power's motion.

{¶ 11} The issue to be decided in this prohibition action is whether a trial court lacks jurisdiction to proceed with a compensation trial in an eminent-domain case when the landowners have appealed from a necessity determination under R.C. 163.09(B)(3). Relators' appeal from a separate order issued by Judge Halliday, in which he set a trial date, is irrelevant to this issue. Moreover, Ohio Power is seeking to offer evidence outside the pleadings, which is not proper at this stage of the proceeding. See State ex rel. Findlay Publishing Co. v. Schroeder , 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996).

IV. Writ of Prohibition

{¶ 12} Judge Halliday has filed a motion to dismiss relators' complaint under Civ.R. 12(B)(6) and Ohio Power has filed a motion for judgment on the pleadings under Civ.R. 12(C).¹ Dismissal under Civ.R. 12(B)(6) is appropriate when it appears beyond doubt, after presuming the truth of all material factual allegations in the complaint and making all reasonable inferences in the relators' favor, that relators are not entitled to extraordinary relief in prohibition. State ex rel. Zander v. Judge of Summit Cty. Common Pleas Court , 156 Ohio St.3d 466, 2019-Ohio-1704, 129 N.E.3d 401, ¶ 4. The standard for a Civ.R. 12(C) motion is similar: dismissal is appropriate when the court, construing all material allegations in the complaint as true, determines that the relators can prove no set of facts that would entitle them to relief. State ex rel. Midwest Pride IV, Inc. v. Pontious , 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996).

{¶ 13} To obtain a writ of prohibition, relators must show that (1) Judge Halliday is about to exercise judicial power, (2) the exercise of that power is unauthorized by law, and (3) they lack an adequate remedy in the ordinary course of law. State ex rel. Bates v. Court of Appeals for Sixth Appellate Dist. , 130 Ohio St.3d 326, 2011-Ohio-5456, 958 N.E.2d 162, ¶ 11. But if jurisdiction is patently and unambiguously lacking, relators need not establish the lack of an adequate remedy in the ordinary course of law. Id. at ¶ 12.

{¶ 14} There is no dispute that Judge Halliday intends to exercise judicial power by proceeding with a compensation trial on March 2, 2021. The dispute is over whether he lacks jurisdiction to proceed with the trial while relators' appeal from the necessity ruling under R.C. 163.09(B)(3) is pending. Relators contend that jurisdiction is patently and unambiguously lacking because (1) R.C. 163.09(B)(2) divests the trial court of jurisdiction to proceed and (2) proceeding with a compensation trial during the pendency of an appeal of the necessity determination is inconsistent with the Fourth District's appellate jurisdiction. We agree.

A. "Subject to" Language in R.C. 163.09(B)(2)

{¶ 15} R.C. 163.09(B)(2) provides:

Subject to the irrebuttable presumption in division (B)(1)(c) of this section, only the judge may determine the necessity of the appropriation.

If, as to any or all of the property or other interests sought to be appropriated, the court determines the matters in favor of the agency, the court shall set a time for the assessment of compensation by the jury not less than sixty days from the date of the journalization of [the trial court's] determi

...