Wray v. Albi Holdings, P.L.L., & Bus. Info. Solutions, Inc.
| Decision Date | 03 November 2021 |
| Docket Number | C-200381 |
| Parties | Jerry WRAY, Director Ohio Department of Transportation, Plaintiff-Appellee, v. ALBI HOLDINGS, P.L.L., and Business Information Solutions, Inc., Defendants-Appellants, and Dusty Rhodes, Hamilton County Auditor, and Robert A. Goehring, Hamilton County Treasurer, Defendants. |
| Court | Ohio Court of Appeals |
Dave Yost, Ohio Attorney General, and L. Martin Cordero and Corinna V. Efkeman, Assistant Attorneys General, for Plaintiff-Appellee.
Manley Burke, L.P.A., Sean P. Callan, Cincinnati and Ilana L. Linder, for Defendants-Appellants.
{¶1} Defendant-appellant Albi Holdings, P.L.L., owns property in Hamilton County on which defendant-appellant Business Information Solutions (collectively referred to as "BiS") operates a commercial records storage facility. Plaintiff-appellee Ohio Department of Transportation ("ODOT") instituted appropriation proceedings to acquire the property, but later abandoned the appropriation. BiS sought reimbursement from ODOT for employee-retention bonuses it paid after the appropriation was abandoned.
{¶2} The trial court held that the employee-retention bonuses were not a recoverable expense. BiS has appealed, arguing in two assignments of error that the trial court erred by failing to properly interpret and apply R.C. 163.21 and 163.62. For the reasons discussed below, we overrule both assignments of error and affirm the judgment of the trial court.
{¶3} Because the Covid-19 pandemic caused courtrooms in Hamilton County to temporarily close, the parties agreed to allow BiS to proffer facts it expected to prove at an evidentiary hearing, in lieu of conducting a hearing. For the purpose of resolving the legal issues presented, we accept the proffered facts as true, as the trial court did.
{¶4} Frank Albi, owner of BiS and Albi Holdings, received an email on May 22, 2014, from ODOT's real estate administrator informing him that ODOT was planning a "total take" of his property. The email was in response to an inquiry made by Albi after he read an article in the newspaper about the reconstruction of the Western Hills Viaduct and a portion of Interstate Highway 75. The email stated, in relevant part:
{¶5} Due to the proposed appropriation, employee retention became a primary concern for BiS because of the extensive skill and experience involved in the storing, retrieving, and safeguarding of over 200,000 boxes of records. Additionally, Albi was scheduled to retire in 2020, and the proposed appropriation caused concern among employees that Albi would retire early and sell the business.
{¶6} In response, BiS developed a "retention policy" in order to incentivize employees to remain with the company through the appropriation proceedings. On May 1, 2017, ODOT informed BiS that it was no longer planning a "total take" and instead would only appropriate part of the property. Sometime thereafter, ODOT made a "good faith offer" of $200,000 for the partial take and the resulting damage to the residue of the property. The offer was rejected by BiS. On June 4, 2018, ODOT commenced the appropriation proceedings by filing a petition for appropriation. On November 19, 2019, ODOT abandoned the appropriation altogether. After the abandonment, BiS paid a total of $212,990 in retention bonuses previously promised to its employees. Pursuant to R.C. 163.21(A) and 163.62, it sought reimbursement from ODOT for the retention bonuses.
{¶7} In its first assignment of error, BiS contends that the trial court erred by failing to properly interpret and apply R.C. 163.21. Because we are interpreting whether the retention bonuses qualify as "other actual expenses," under R.C. 163.21(A), the first assignment of error turns on an issue of statutory interpretation. We review issues of statutory interpretation de novo. 435 Elm Invest., LLC v. CBD Invest. Ltd. Partnership I , 1st Dist. Hamilton No. C-190133, 2020-Ohio-943, 2020 WL 1230320, ¶ 8.
{¶8} R.C. 163.21 is a remedial law and should be liberally construed in order to promote its object and assist the parties in obtaining justice. Dept. of Natural Resources v. Sellers , 14 Ohio App.2d 132, 135, 237 N.E.2d 328 (5th Dist. 1968) ; R.C. 1.11.
{¶9} When ODOT or a similar state agency abandons an appropriation action, R.C. 163.21(A) requires that the court enter judgment against ODOT for certain expenses incurred by the property owner. The statute reads in pertinent part:
(Emphasis added.)
{¶11} BiS's primary contention is that the trial court applied the wrong standard in interpreting R.C. 163.21 by requiring that the expenses be "necessary" for the presentation of the case.
{¶12} We hold that the trial court properly interpreted R.C. 163.21. First, its interpretation is consistent with two canons of statutory interpretation.
{¶13} According to the canon of noscitur a sociis,2 the meaning of an unclear word may be derived from the meaning of accompanying words. Sunoco, Inc. (R & M) v. Toledo Edison Co., 129 Ohio St.3d 397, 2011-Ohio-2720, 953 N.E.2d 285, ¶ 43. Witness fees, including expert witness fees, and attorney fees are expenses necessary for the presentation of the case. The rule of noscitur a sociis suggests that "other actual expenses" would also be referring to expenses necessary for the presentation of the case.
{¶14} Moreover, the canon of ejusdem generis3 states that "where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." Circuit City Stores, Inc. v. Adams , 532 U.S. 105, 114-15, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001).
{¶15} For example, Adams involved 9 U.S.C. 1, which excludes from the Federal Arbitration Act "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." Id. at 109, 121 S.Ct. 1302. The Court was asked to interpret whether the residual clause "any other class of workers engaged in foreign or interstate commerce" referred only to transportation workers, or included workers such as Adams, who worked at an electronics store. Id. The Court held, pursuant to the maxim of ejusdem generis, the residual clause "should be read to give effect to the terms ‘seamen’ and ‘railroad employees,’ and should itself be controlled and defined by reference to the enumerated categories of workers which are recited just before it." Id. at 115, 121 S.Ct. 1302. Therefore, the residual clause applied only to transportation workers, not all workers.
{¶16} The present case illustrates a textbook example of when the canon of ejusdem generis should be applied. The residual clause "other actual expenses" should be read to give effect to "witness fees" and "attorney fees," and should itself be controlled and defined by those categories of expenses. Witness and attorney fees both relate to the case's legal proceedings, i.e., the determination of, and presentation of, the value of the property. See In re Appropriation of Easement for Hwy. Purposes (Preston v. Weiler), 175 Ohio St. 107, 191 N.E.2d 832 (1963), paragraph one of the syllabus (in cases of appropriation for public highways, roads, and bridges, the sole issue for the fact finder is to determine the amount of compensation and damages owed to the landowner); R.C. 5519.01.
{¶17} Other appellate districts have limited "other actual expenses" to "trial preparation expenses" or "expenses incurred that are reasonably necessary for the presentation of the case." Sellers, 14 Ohio App.2d at 135, 237 N.E.2d 328 ; Triplett , 127 Ohio App.3d at 439, 713 N.E.2d 68 ; Village of Wayne Lakes v. Midwest United Indus., Inc. , 2d Dist. Darke No. 1275, 1991 WL 96310, *2 (May 24, 1991).
{¶18} R.C. 163.21 was enacted to revise and consolidate several separate appropriation statutes. Sellers at 135, 237 N.E.2d 328. Although R.C. 163.21(A)(2)(c) was not at issue in Sellers, the case still offers guidance regarding the types of expenses recoverable as "other actual expenses." Before repeal, R.C. 2709.24 concerned...
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