State ex rel. Horwitz v. Cuyahoga Court of Common Pleas, Probate Div.

• Decision Date: 14 December 1992
• Docket Number: No. 92-1582,92-1582
• Parties: The STATE ex rel. HORWITZ, d.b.a. Second Street Pier Bar & Deli, v. COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, PROBATE DIVISION, et al.
• Court: Ohio Supreme Court

Page 323

65 Ohio St.3d 323

603 N.E.2d 1005

The STATE ex rel. HORWITZ, d.b.a. Second Street Pier Bar & Deli, v. COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, PROBATE DIVISION, et al.

No. 92-1582.

Supreme Court of Ohio.

Submitted Nov. 10, 1992.

Decided Dec. 14, 1992.

Relator, Donarae Horwitz, leases from respondent Conro Company ("Conro") certain property in Cleveland where she operates the Second Street Pier Bar & Deli. On June 18, 1992, respondent city of Cleveland ("Cleveland") filed a petition to appropriate the property before respondent Court of Common Pleas of Cuyahoga County, Probate Division.

Horwitz timely answered Cleveland's petition, denying that the city had previously negotiated for the value of her leasehold interest as required by R.C. 163.04. ¹ She also specifically denied the right and necessity of appropriation and alleged supportive facts. Horwitz further sought damages in a counterclaim and a cross-claim against Conro.

After a preliminary hearing on July 27, 1992, respondent Judge John E. Corrigan of the court of common pleas dismissed the denials in Horwitz's answer relating to the right and necessity of the appropriation. He ruled that Horwitz lacked standing to challenge the appropriation because Conro, her lessor, had not also contested it. Judge Corrigan scheduled another hearing for August 27, 1992, apparently to consider other property-owner objections to the appropriation pursuant to R.C. 163.09.

Horwitz seeks a writ of mandamus that guarantees her a hearing to challenge the right to and necessity of the appropriation.

Patrick J. Holland, Fairview Park, for relator.

Stephanie Tubbs Jones, Pros. Atty., and Patrick J. Murphy, Asst. Pros. Atty., for respondents Judge Corrigan and the court of common pleas, probate div.

Danny R. Williams, Director of Law, and Kenneth G. Silliman, Asst. Director of Law, Mansour, Gavin, Gerlack & Manos Co., L.P.A., Michael T. Gavin and Eli Manos, Cleveland, for respondent Cleveland.

Petersen, Ibold & Wantz and Jerry Peterson, Chardon, for respondent Conro Co.

PER CURIAM.

On August 25, 1992, we issued, sua sponte, an alternative writ ordering respondents to show cause by September 14, 1992 why the writ of mandamus should not issue and staying the August 27 hearing. In its answer, Conro urged us to issue the writ. Judge Corrigan and the probate court moved for dismissal of the complaint pursuant to Civ.R. 12(B)(6) (failure to state a claim for relief) or, in the alternative, for summary judgment pursuant to Civ.R. 56. Cleveland also moved to dismiss the complaint. For the reasons that follow, we overrule these motions and grant the writ of mandamus.

Motions to Dismiss

Civ.R. 12(B)(6) motions attack the sufficiency of the complaint and may not be used to summarily review the merits of a cause of action in mandamus. Assn. for the Defense of the Washington Local School Dist. v. Kiger (1989), 42 Ohio St.3d 116, 117, 537 N.E.2d 1292, 1293. Thus, when such a motion is sustained, the appropriate response is amendment of the complaint, if possible, to cure the defective pleading. McCormac, Ohio Civil Rules Practice (2 Ed.1992) 150, Section 6.20. The instant motions to dismiss, however, urge us to deny a writ of mandamus because the undisputed facts underlying this case do not show the prerequisites for the writ to issue, i.e., that Horwitz has a clear right to a hearing on the right to and necessity of this appropriation, that Judge Corrigan has a clear duty to provide such a hearing, and that Horwitz has no adequate remedy in the ordinary course of law. See State ex rel. Westchester Estates, Inc. v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, paragraph one of the syllabus. Because these motions raise substantive arguments against issuing the writ, the motions are ill-conceived, and must be overruled. Kiger, supra.

Motion for Summary Judgment

Respondents' arguments for denying relief are properly raised on motion for summary judgment, as such motions require us, where no material factual issues exist, to determine whether the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). To establish this, Judge Corrigan and the probate court contend that the dismissal of the denials in Horwitz's answer prevent her from establishing a right and duty to act. In essence, they argue that Horwitz would have been entitled to a hearing under R.C. 163.09, but that Judge Corrigan's ruling extinguished this right.

R.C. 163.09 provides, in part:

"(A) If no answer is filed pursuant to section 163.08 of the Revised Code, nor approval ordered by the court to a settlement of the rights of all necessary parties, the court, on motion of a public agency, shall declare the value of the property taken and the damages, if any, to be as set forth in any document properly filed with the clerk of courts by the public agency. In all other cases, the court shall fix a time, within twenty days from the last date such answer could have been filed, for the assessment of compensation by a jury.

"(B) When an answer is filed pursuant to section 163.08 of the Revised Code and any of the matters relating to the right to make the appropriation, the inability of the parties to agree, or the necessity of the appropriation are specifically denied in the manner provided in such section, the court shall set a day, not less than five or more than fifteen days from the date the answer was filed, to hear such questions. Upon such questions, the burden of proof is upon the owner. * * * If, as to any or all the property or other interests sought to be appropriated, the court determines the questions in favor of the [appropriating] agency, the court shall set a time for the assessment of compensation by the jury within twenty days from the date of the journalization of such determination. An order of the court in favor of the agency on any of such questions * * * shall not be a final order for purposes of appeal. An order of the court against the agency on any of such questions * * * shall be a final order for purposes of appeal. If a public agency has taken possession prior to such order and such order, after any appeal, is against the agency on any of such questions, the agency shall restore the property to the owner in its original condition or respond in damages, which may include the items set forth in division (A)(2) of section 163.21 of the Revised Code, recoverable by civil action, to which the state consents.

"(C) When an answer is filed pursuant to Section 163.08 of the Revised Code, and none of the matters set forth in division (B) of this section is specifically denied, the court shall fix a time within twenty days from the date the answer was filed for the assessment of compensation by a jury."

Basically, R.C. 163.09 provides that upon filing a timely answer that specifically denies the right and necessity of an appropriation, property owners must be heard on these issues. Here, Judge Corrigan and the probate court concede that Horwitz's answer satisfies the specificity requirements of R.C. 163.08. ² By virtue of her leasehold interest, Horwitz is a "property owner" as defined by R.C. 163.01(C). ³ Cincinnati v. Spangenburg (1973), 35 Ohio App.2d 168, 170-171, 64 O.O.2d 272, 273, 300 N.E.2d 457, 459. Horwitz, therefore, is entitled to a hearing under R.C. 163.09. Weir v. Wiseman (1982), 2 Ohio St.3d 92, 2 OBR 644, 443 N.E.2d 152, paragraph one of the syllabus.

The only justification offered for the trial court's ruling that Horwitz lacked standing is that her leasehold interest in the pertinent property is less significant than that of her lessor, which is not challenging the appropriation. Under the preceding authority, however, the General Assembly has already determined that Horwitz has standing in this appropriation proceeding independent of Conro's interests and notwithstanding Conro's apparent acquiescence in the matter. Accordingly, we hold that Horwitz is entitled to the hearing she seeks and that Judge Corrigan and the probate court have a duty to provide it.

Cleveland's argument, albeit improperly raised by motion to dismiss, does not change our conclusion. The city suggests that Judge Corrigan had discretion to dismiss the pertinent denials in Horwitz's answer. The discretion afforded by Civ.R. 12(F) to "strik[e] from any pleading any insufficient * * * defense," however, does not allow a court to exercise discretion where none exists by statute. See Mun. Court of Toledo v. State ex rel. Platter (1933), 126 Ohio St. 103, 184 N.E. 1 (writ of mandamus issued to vacate municipal court judgment because court had no authority, much less discretion, to suspend execution of sentence where statutes allowed this only for the purpose of appeal or probation).

Before a writ of mandamus may issue, however, we must also find that Horwitz has no adequate legal remedy. Judge Corrigan and the probate court argue that Horwitz is attempting to substitute mandamus for appeal. They do not cite any statute in support, but we assume they are referring to R.C. 163.19, which states:

"Subject to sections 163.07 [notice to property owners] and 163.09 of the Revised Code, any party may prosecute appeals as in other civil actions from the judgment of the court. The trial court upon proper terms may suspend the execution of any order; but in all cases where the agency pays or deposits the amount of the award assessed and gives adequate security for any further compensation and costs, as required by the court, the right to take and use the property appropriated shall not be affected by such review by the appellate courts."

Appeal pursuant to R.C. 163.19 is not immediate, but in Cincinnati Gas & Elec. Co. v. Pope (1978), 54 Ohio St.2d 12, 8 O.O.3d 7, 374 N.E.2d 406, we held that the General Assembly intended to provide appellate review only after the preliminary issues described in R.C. 163.09 are decided by the trial court, a jury assesses compensation pursuant...