Marchbanks v. Inland Prods., Inc. , 2021 Ohio 2655 ( 2021 )

[Cite as Marchbanks v. Inland Prods., Inc., 2021-Ohio-2655.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[Jack Marchbanks], Director of the Ohio :
Department of Transportation,
:
Plaintiff-Appellant,
: No. 19AP-670
v. (C.P.C. No. 18CV-5421)
:
Inland Products, Inc., (REGULAR CALENDAR)
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on August 3, 2021
On brief: Dave Yost, Attorney General, L. Martin Cordero,
and William J. Cole, for appellant. Argued: L. Martin
Cordero.
On brief: Goldman Braunstein Stahler Kenter LLP,
Clinton P. Stahler, and Aaron E. Kenter, for
appellee. Argued: Clinton P. Stahler.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Plaintiff-appellant, the Director of the Ohio Department of Transportation
("ODOT"), appeals a judgment of the Franklin County Court of Common Pleas that ordered
ODOT to pay defendant-appellee, Inland Products, Inc., $553,455.60 for damages caused
to the residue of Inland Products' real property as a result of ODOT's appropriation of
Inland Products' property. For the following reasons, we affirm.
No. 19AP-670 2
{¶ 2} Inland Products owns a roughly rectangular-shaped, 17.902-acre lot in south
Columbus near the Frank Road interchange with Interstate 71 ("I-71"). Although used for
decades as the site of a rendering plant, the property is currently vacant. Frank Road
borders the property on the north, and Jackson Pike borders the property on the west.1
There is a signaled intersection at the northwest corner of the property where Frank Road
and Jackson Pike meet. I-71, which runs parallel to Jackson Pike, is immediately west of
Jackson Pike.
{¶ 3} The northbound I-71 exit onto Frank Road merges into the stretch of Jackson
Pike that borders Inland Products' property. That means that vehicles exiting northbound
I-71 must merge with northbound traffic on Jackson Pike, and southbound vehicles on
Jackson Pike must cross over traffic exiting I-71. To alleviate this dangerous situation,
ODOT decided to redesign the I-71 interchange by "unbraiding" the northbound exit and
Jackson Pike. ODOT approved plans to relocate Jackson Pike, swinging the road eastward
in a diagonal, curving path through the middle of Inland Products' property beginning in
the southwest corner of the property and ending in the northeast corner.
{¶ 4} To proceed with its plans, ODOT sought to appropriate 3.793 acres of Inland
Products' property.2 ODOT separated the real property it intended to take into three
parcels: (1) Parcel 2-WL, a permanent fee simple take of 1.479 acres with limitation of
access to the abutting roads, i.e., Jackson Pike and Frank Road; (2) Parcel 2-WD 1, a
permanent fee simple take of 0.866 acres without limitation of access to the abutting road,
i.e., Jackson Pike; and (3) Parcel 2-WD 2, a permanent fee simple take of 1.448 acres
without limitation of access to the abutting road, i.e., Jackson Pike.
{¶ 5} Because the take carves a diagonal path through the middle of Inland
Products' property, it results in two triangular-shaped residue lots. The left residue is 4.959
acres, and the right residue is 9.150 acres.
{¶ 6} The parties could not agree on the amount of compensation ODOT will pay
for the appropriated property or the value of damages to the remaining property.
Consequently, on June 26, 2018, ODOT filed a petition in the trial court to appropriate the
1 Generally, Frank Road is an east/west road; Jackson Pike travels north/south.
2 ODOT also sought two temporary easements, which are not at issue in this appeal. We, therefore, do not
discuss them in this decision.
No. 19AP-670 3
property, establish just compensation for the appropriated property, and determine the
amount of damages to the residue.
{¶ 7} Prior to a jury trial, ODOT filed a motion in limine seeking to exclude certain
evidence Inland Products intended to introduce regarding the access it will have to the left
and right residues after the taking. Before the taking, vehicles could enter and exit Inland
Products' property through two driveways. One driveway allowed traffic to access the
property from Frank Road, and a second driveway, shared with an adjacent property owner,
allowed traffic to enter the property from Jackson Pike.3 ODOT's construction plans for
relocating Jackson Pike show that ODOT intends to modify access to Inland Products'
property. The project plans eliminate the Frank Road driveway to the property. Although
ODOT will retain the shared driveway from Jackson Pike, the driveway will only serve the
right residue, and it will intersect with Jackson Pike at a different angle. To ensure that the
left and right residues maintain access to an abutting road, the project plans provide both
residues with driveway stubs to the newly constructed portion of Jackson Pike. ODOT
intends to construct a 20-foot-wide driveway stub at the southeast corner of the left residue,
and, directly across the road, a 26-foot-wide driveway stub to the right residue.
{¶ 8} ODOT's motion in limine asked the trial court to exclude any evidence that
(1) the residue driveways will be unsafe and unsuitable for commercial or industrial uses,
and (2) no one can guarantee that ODOT will approve modification of the residue driveways
or installation of additional driveways in the future. ODOT asserted that it did not seek to
take Inland Products' right of access to the abutting road, i.e., Jackson Pike, with regard to
Parcels 2-WD 1 and 2-WD 2, as that right was not included in the description of rights
ODOT intended to take in the petition for appropriation. However, ODOT believed that
Inland Products would argue to the jury that ODOT intended to limit Inland Products' right
of access to only the width of the residue driveways. Thus, according to ODOT, Inland
Products would seek to prove a greater taking would occur than that described in the
petition for appropriation. Because the jury lacked authority to determine if such a taking
would occur, ODOT argued that the trial court should exclude Inland Products' evidence.
3 The shared driveway is on the property of the adjacent property owner. Apparently, Inland Products has
an easement permitting it to use the driveway to access its property.
No. 19AP-670 4
{¶ 9} Inland Products responded that it was not trying to prove an additional
taking. Inland Products pointed out that it was entitled to damages to the residues based
on the effect of the appropriation on access to the residues, and to present evidence
establishing these damages. According to Inland Products, before the taking, semi-tractor-
trailer trucks could safely access the property through both driveways. After the taking,
semi-tractor-trailer trucks will not be able to access the residues through the driveways
without driving off the pavement and/or blocking lanes of traffic. Inland Products posited
that the lack of safe access suitable for semi-tractor-trailer trucks negatively impacted the
residues' value, resulting in damages. Although Inland Products recognized that it could
seek ODOT's approval to install better driveways in the future—because it retained its right
of access—such approval was not guaranteed.
{¶ 10} The trial court denied ODOT's motion in limine. Immediately prior to the
beginning of the jury trial, the trial court stated, "The main issue for the jury to consider is
the right of access defendant possesses as of the day of the take. Accordingly, any evidence
pertaining to the driveways * * * may come in." (Tr. at 71.)
{¶ 11} At trial, Inland Products' expert real estate appraiser, Richard Vannatta,
testified that, before the take, the highest and best use of Inland Products' property was for
a highway-oriented commercial establishment, such as a travel plaza. To support this
opinion, Inland Products relied on the testimony of Mark Antonetz, a registered civil
engineer. Antonetz designed a preliminary site plan for the construction of a travel plaza
on the property and determined that the development of such a travel plaza was a feasible
use for the property. In making this determination, Antonetz took into account the existing
driveways, which numerous semi-tractor-trailer trucks had entered and exited when the
property was the site of a rendering plant.
{¶ 12} In considering the value of the residues after the take, Vannatta downgraded
his opinion of highest and best use to industrial use. Vannatta's opinion regarding highest
and best use of the property changed, in part, because of the modifications in access shown
on the Jackson Pike project plans.
{¶ 13} As we explained above, as shown in the project plans, the left residue will
have access to Jackson Pike through a 20-foot-wide driveway, and the right reside will have
access to Jackson Pike through the shared driveway and a 26-foot-wide driveway. Antonetz
No. 19AP-670 5
conducted a turning analysis for the 20-foot-wide driveway to the left residue. He testified
that a semi-tractor-trailer truck could not safely use the driveway to enter or exit the left
residue, making the driveway inadequate for commercial uses requiring semi-tractor-
trailer-truck traffic. Antonetz also conducted a turning analysis for the shared driveway.
He explained that the project plans increased the angle at which the shared driveway will
intersect with Jackson Pike, which will make the driveway unsafe and inadequate for semi-
tractor-trailer-truck traffic. Finally, Kevin Carpenter, an engineer with the infrastructure
design firm that designed the project plans to relocate Jackson Pike, conducted a turning
analysis for the 26-foot-wide driveway to the right residue. He testified that, when turning
right into the property, a semi-tractor-trailer truck will have to divert into the center turning
lane to make the turn. When turning left into the property, a semi-tractor-trailer truck will
have to turn from its lane of travel rather than the turning lane. Steven Fellenger, an ODOT
project manager, conceded that, given this maneuvering, the right driveway was unsuitable
for semi-tractor-trailer-truck traffic. Fellenger further admitted that none of the driveways
were designed for commercial use.
{¶ 14} To counter Vannatta's opinion that the residues' highest and best use was
industrial use, ODOT relied on the expert testimony of Kevin Kershner, a civil engineer,
who assessed the feasibility of developing the left and right residues. Kershner created
multiple conceptual designs for potential uses, and he concluded that both residues could
be used for commercial or light manufacturing purposes. However, Kershner's conceptual
designs included driveways different from those depicted in the Jackson Pike project plans.
Kershner widened and reconfigured the 20-foot-wide driveway to the left residue because
the driveway in the project plans would not support his conceptual designs. With regard to
the right residue, in addition to widening the 26-foot-wide driveway, Kershner added a
completely new driveway.
{¶ 15} The stretch of relocated Jackson Pike that will be built on Parcels 2-WD 1 and
2-WD 2 will be designated nonlimited access. In nonlimited access areas, property owners
may construct and connect driveways to the road if they apply for and receive ODOT's
permission. That permission depends upon the planned use, development plan, traffic
impacts, and type of vehicles that will use the driveway. Multiple ODOT witnesses,
including Kershner, acknowledged that there was no guarantee that ODOT would approve
No. 19AP-670 6
a permit to widen the residue driveways or add a new driveway to the left or right residue.
Additionally, Kershner testified that, in his experience, Inland Products would face
difficulty in obtaining approval for moving the driveways to different locations. Finally,
Fellenger, the ODOT project manager, admitted that the owner of Inland Products had
asked ODOT for additional driveways to the residues, but ODOT had refused to modify the
project plans.
{¶ 16} Throughout the trial, ODOT objected to Inland Products' evidence regarding
the residue driveways. At the conclusion of the trial, the jury awarded Inland Products
$815,447.59 in compensation for the three parcels ODOT sought to appropriate. The jury
awarded Inland Products $553,445.60 in damages to the residue, which included
$403,333.76 for injury "related to the size, location and/or configuration of the driveways
to the [ ] residue[s] as provided on the project plans[.]" (Interrog. Nos. 1 & 2.) On
September 3, 2019, the trial court entered judgment on the verdict.
{¶ 17} ODOT now appeals the September 3, 2019 judgment, and it assigns the
following error:
THE TRIAL COURT LACKED SUBJECT[-]MATTER
JURISDICTION TO PERMIT THE JURY TO HEAR
EVIDENCE OF AND COMPENSATE FOR RESIDUE
DRIVEWAY ACCESS CONTRARY TO THAT DESCRIBED IN
THE PETITION.
{¶ 18} By its only assignment of error, ODOT argues that the trial court erred in
admitting evidence that ODOT intended to appropriate Inland Products' right of access to
a road abutting its property when such a taking was not described in the petition for
appropriation. We disagree.
{¶ 19} Trial courts exercise broad discretion when deciding to admit or exclude
evidence. Banford v. Aldrich Chem. Co., 126 Ohio St.3d 210, 2010-Ohio-2470, ¶ 38; Beard
v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, ¶ 20. Consequently,
appellate courts will only reverse evidentiary rulings upon a showing of an abuse of
discretion. Banford at ¶ 38; Beard at ¶ 20. A trial court abuses its discretion if it acts in an
unreasonable, arbitrary, or unconscionable manner. Banford at ¶ 38.
{¶ 20} ODOT argues that this court should apply a de novo standard in reviewing
the trial court's evidentiary ruling because the court lacked subject-matter jurisdiction to
No. 19AP-670 7
admit evidence that defined a limitation of the right of access not found in the petition for
appropriation. We disagree.
{¶ 21} "Subject-matter jurisdiction is the power of a court to entertain and
adjudicate a particular class of cases." Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75,
2014-Ohio-4275, ¶ 19. Common pleas courts are constitutionally created courts, that have
"original jurisdiction over all justiciable matters * * * as may be provided by law." Ohio
Constitution, Article IV, Section 4(B). Generally, jurisdiction has been "provided by law"
in R.C. 2305.01, which states that courts of common pleas have "original jurisdiction in all
civil cases in which the sum or matter in dispute exceeds the exclusive original jurisdiction
of county courts." Traditionally, common pleas courts are courts of general jurisdiction,
"with subject-matter jurisdiction that extends to 'all matters at law and in equity that are
not denied to it.' " Kuchta at ¶ 20, quoting Saxton v. Seiberling, 48 Ohio St. 554, 558-59
(1891).
{¶ 22} R.C. 163.01 to 163.22 govern the procedure by which an agency, including
ODOT, may appropriate private property. See R.C. 5519.01. Pursuant to that statutory
scheme, a "court of common pleas * * * of any county in which the property sought to be
appropriated is located in whole or in part" has the authority to adjudicate a petition for
appropriation. R.C. 163.01(D). ODOT does not contest that the trial court possessed
subject-matter jurisdiction over the instant action in accordance with R.C. 163.01 to 163.22.
{¶ 23} Once a court has jurisdiction over both the subject-matter of an action and
the parties to it,4 the right to hear and determine is perfect, and the decision of every
subsequently arising question is but the exercise of jurisdiction conferred. State v. Rue, __
Ohio St.3d __, 2020-Ohio-6706, ¶ 14; Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-
1980, ¶ 12. Consequently, because the trial court here possessed both subject-matter and
personal jurisdiction, it unquestionably had the authority to exercise its jurisdiction in
determining whether to admit the evidence at issue. The issue in this appeal is whether it
committed legal error in doing so, which we review for abuse of discretion, as explained
above.
{¶ 24} The Ohio Constitution prohibits the state from taking private property for
public use without just compensation. Ohio Constitution, Article I, Section 19. An agency
4 Neither party disputes that the trial court had personal jurisdiction over them.
No. 19AP-670 8
seeking to acquire property must provide the owner of the property with a good faith offer
to purchase the property. R.C. 163.04. If the parties cannot agree on a conveyance or the
terms of a conveyance, the agency may file a petition for appropriation. R.C. 163.05. The
petition must include "[a] description of each parcel of land or interest or right therein
sought to be appropriated." R.C. 163.05(A). If the owner answers the petition, the court
then schedules a jury trial. R.C. 163.09(C). The jury assesses the amount of compensation
due the owner for the property appropriated and the damages, if any, for the residue. R.C.
163.14.
{¶ 25} Nothing in R.C. 163.01 to 163.22 permits the trial court or jury to determine
the existence of a taking beyond that described in the complaint. When a property owner
believes a governmental agency has taken his property but refused to institute
appropriation proceedings, the property owner's recourse is a mandamus action seeking to
compel the agency to proceed with the statutory process. State ex rel. New Wen, Inc. v.
Marchbanks, 159 Ohio St.3d 15, 2020-Ohio-63, ¶ 15; Proctor v. Thieken, 4th Dist. No.
03CA33, 2004-Ohio-7281, ¶ 17, 20. In an appropriation proceeding, the only question
before the jury is the amount of compensation and damages, if any, to award to the property
owner for the taking described in the complaint. R.C. 163.14; 163.15.
{¶ 26} Here, ODOT argues that Inland Products sought to expand the parameters of
the taking described in the complaint to include the appropriation of its right of access to
the abutting road, i.e., Jackson Pike. One of the elemental rights of property ownership is
the right of access to any public road abutting the property. New Wen at ¶ 17. An owner of
property abutting on a public road possesses, as a matter of law, " 'not only the right to the
use of the highway in common with other members of the public, but also a private right or
easement for the purpose of ingress and egress to and from his property.' " Id., quoting
State ex rel. Merritt v. Linzell, 163 Ohio St. 97 (1955), paragraph one of the syllabus. Any
governmental action that substantially or unreasonably interferes with the right of access
to abutting roads constitutes a taking within the meaning of Article I, Section 19 of the Ohio
Constitution. State ex rel. OTR v. Columbus, 76 Ohio St.3d 203 (1996), syllabus.
{¶ 27} ODOT asserts—and Inland Products does not contest—that ODOT did not
include Inland Products' right of access to abutting roads in the description of Parcels 2-
WD 1 and 2-WD 2 in the petition for appropriation. Thus, the right of access remained with
No. 19AP-670 9
Inland Products. However, according to ODOT, Inland Products introduced evidence
regarding the inadequacy of the residue driveways so it could assert to the jury that ODOT
planned to take its right of access to Jackson Pike. ODOT maintains that Inland Products
informed the jury that ODOT intended to limit its right of access to Jackson Pike to the 20-
foot-wide left residue driveway and the 26-foot-wide right residue driveway. Inland
Products then improperly sought compensation for a taking based on the restricted right of
access.
{¶ 28} Inland Products disputes this argument. According to Inland Products, it
never sought to prove an additional taking. Instead, it introduced evidence of how ODOT's
taking of all three parcels will cause it injury by negatively affecting access to the residues.
Inland Products asserts that it presented evidence that, after the taking, the residue
driveways will be inadequate for highway-oriented commercial use, resulting in a decrease
of the residues' value.
{¶ 29} In the case of a partial taking, the owner is entitled to a remedy consisting of
two elements: compensation for the property taken and damages for the injury to the
property that remains after the taking, i.e., the residue. Hurst v. Starr, 79 Ohio App.3d 757,
762 (10th Dist.1992). The amount of compensation due is equal to the fair market value of
the property taken. Hilliard v. First Indus., L.P., 165 Ohio App.3d 335, 2005-Ohio-6469,
¶ 8 (10th Dist.) ("First Indus. II"). Damages are due " 'for any injury that may result to the
remaining lands by reason of the construction of the proposed improvement, after making
all permissible allowances for special benefits, and the like, resulting thereto.' " Id., quoting
Norwood v. Forest Converting Co., 16 Ohio App.3d 411, 415 (1st Dist.1984).
{¶ 30} The measurement of damage to the residue is the difference between the fair
market value before the appropriation and the fair market value after the appropriation.
Dublin v. Pewamo Ltd., 194 Ohio App.3d 57, 2011-Ohio-1758, ¶ 5 (10th Dist.); First Indus.
II at ¶ 10, Hilliard v. First Indus., L.P., 158 Ohio App.3d 792, 2004-Ohio-5836, ¶ 5 (10th
Dist.) ("First Indus. I"); Starr at 763. Generally, in determining both pre- and post-
appropriation fair market values, a jury considers every element that can fairly enter into
the question of value and that an ordinarily prudent businessperson would consider when
No. 19AP-670 10
deciding whether to purchase the property.5 Pewamo at ¶ 6; First Indus. II at ¶ 10; First
Indus. I at ¶ 5; Starr at 763; accord Westerville v. Taylor, 10th Dist. No. 13AP-806, 2014-
Ohio-3470, ¶ 34 ("In assessing damages to the residue as a result of a taking, the jury is to
consider those factors that would enter into a prudent businessperson's determination of
value."). Consequently, a jury may properly consider "any element of damage that makes
'the residue less valuable in its separate state after its taking than it was as a part of the
whole before the taking.' " First Indus. I at ¶ 5, quoting Knepper & Frye, Ohio Eminent
Domain Practice, Section 9.06, at 270-71 (1977).
{¶ 31} The elements a jury may consider include the loss of ingress and egress, as
well as other losses reasonably attributable to the taking. Wray v. Frank, 4th Dist. No.
14CA2, 2015-Ohio-4248, ¶ 18; Pewamo at ¶ 6; Proctor v. NJR Properties, LLC, 175 Ohio
App.3d 378, 2008-Ohio-745, ¶ 15 (12th Dist.); First Indus. I at ¶ 5; Proctor v. French
Hardware, Inc., 12th Dist. No. CA2002-06-010, 2003-Ohio-4244, ¶ 8; accord Taylor at ¶
34 (holding that a "key element[ ] that a willing buyer could consider in purchasing the
residue that would potentially devalue the property" was access to the residue). If a partial
taking affects the property owner's access to the remainder of the property, that factor can
be considered in determining damage to the residue. Frank at ¶ 18; NJR at ¶ 16.
{¶ 32} The outcome of this appeal turns on the nature of the evidence at issue.
Inland Products introduced evidence that, as a result of the taking, ODOT plans to relocate
Jackson Pike, reconfigure Frank Road, and modify how vehicles will access Inland
Products' remaining property. According to Inland Products' witnesses, the residue
driveways depicted in the project plans are inadequate and unsafe for semi-tractor-trailer
trucks. Inland Products' expert real estate appraiser testified that because the residue
driveways will be less functional than the driveways that previously existed on the property,
the post-appropriation fair market value is less than the pre-appropriation fair market
value. Thus, here, we have evidence of a taking of real property resulting in the impairment
5 As ODOT points out, there are some exceptions to this broad rule. See Wray v. Wessell, 4th Dist. No.
15CA3724, 2016-Ohio-8584, ¶ 26 ("[W]hile the general rule for valuing residual property is 'the market
value of what remains, or what will remain, after the improvement has been completed,' 'in some situations
* * * [the market value] must be adjusted to exclude the impact of noncompensable attributes of value.' ").
ODOT, however, does not argue that any of the exceptions apply in this case.
No. 19AP-670 11
of physical access and a resulting decrease in the value of the residues. This evidence,
therefore, qualifies as admissible evidence relevant to the issue of damage to the residues.
{¶ 33} Before we go any further, we recognize that the trial court gave a different
rationale for its evidentiary ruling. The trial court admitted the evidence so the jury could
consider "the right of access defendant possesses as of the day of the take." (Tr. at 71.) That
issue, however, is outside the jury's purview. Nevertheless, the trial court's erroneous
rationale does not impact our analysis. Appellate courts review judgments, not reasons.
Mancz v. McHenry, 2d Dist. No. 2019-CA-74, 2021-Ohio-82, ¶ 36; State v. Atkinson, 5th
Dist. No. CT2019-0055, 2020-Ohio-3122, ¶ 15. Consequently, " 'a reviewing court is not
authorized to reverse a correct judgment merely because erroneous reasons were assigned
as the basis thereof.' " Salloum v. Falkowski, 151 Ohio St.3d 531, 2017-Ohio-8722, ¶ 12,
quoting Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96 (1990). We thus turn to
addressing ODOT's arguments for excluding evidence regarding the residue driveways.
{¶ 34} First, ODOT directs this court to Beasley v. Watkins-Alum Creek Co., 12th
Dist. No. CA2010-09-021, 2011-Ohio-6792, and argues that that case mandates the
exclusion of the evidence at issue. In Watkins-Alum Creek, the petition for appropriation
granted the defendant property owner a 60-foot point of access on the abutting road, State
Route 753. ODOT intended to construct a 12-foot-wide driveway within this 60-foot point
of access. Even though the petition described a 60-foot point of access, "the court permitted
[the property owner] to present evidence that the only access provided to the left residue
was a 12-foot-wide field drive." (Emphasis sic.) Id. at ¶ 50. The court cited the following
testimony:
[DEFENSE COUNSEL]: Do you have an understanding that as
a result of this project, [the property owner] will only be able to
access this portion of the property though a 12-foot field drive
* * *?
[PROPERTY OWNER]: Yes.
***
[DEFENSE COUNSEL]: Specifically, when we are talking
about this left residue that can only be accessed by the 12-foot
gravel drive, do you consider it to be significantly less desirable
farm ground as a result of this project?
No. 19AP-670 12
[PROPERTY OWNER]: We are not interested in farming it.
Id. at ¶ 59-61, 67-68.
{¶ 35} The appellate court found that the trial court erred in admitting the foregoing
testimony. The court held:
By permitting such evidence to be presented, the trial court
improperly allowed the jury to consider whether ODOT's
taking had reduced the point of access to 12 feet rather than the
60 feet expressly reserved in the Resolution and Finding filed
with the complaint. We therefore conclude that the trial court
acted outside its jurisdiction when it allowed the jury to
determine if there had been a taking beyond that described in
ODOT's complaint for appropriation.
Id. at ¶ 69.
{¶ 36} This case is unlike Watkins-Alum Creek. In Watkins-Alum Creek, by
testifying the residue could "only" be accessed through the 12-foot-wide driveway, the
property owner conflated the physical driveway with the legal right of access. The property
owner should have explained to the jury that his physical access was a 12-foot-wide
driveway, but he could seek ODOT's approval for wider driveway because he had a right of
access that extended for 60 feet along State Route 753. Instead, he wrongly limited his right
to enter and exit his property to "only" the 12-foot-wide driveway.
{¶ 37} In this case, however, ODOT points us to no testimony that the three
driveways constituted the "only" access to the residues. More importantly, the jury had
evidence before it that Inland Products' legal right of access extended beyond the physical
driveways. As shown on the project plans provided to the jury, the stretch of the newly
relocated Jackson Pike that will be built on Parcels 2-WD 1 and 2-WD 2 is marked "R/W,"
which indicates nonlimited access. Both ODOT and Inland Products witnesses testified
that a property owner can construct and connect a driveway to any part of a road designated
nonlimited access if ODOT grants it approval to do so. Consequently, the evidence
demonstrated that the driveways shown on the project plans will not preclude Inland
Products from exercising its legal right of access to Jackson Pike through different or
modified driveways, subject to ODOT's regulatory authority. Inland Products, therefore,
did not lead the jury to believe that ODOT restricted Inland Products' legal right of access
to Jackson Pike to the width of the physical driveways.
No. 19AP-670 13
{¶ 38} ODOT also relies on Thieken, 4th Dist. No. 03CA33, 2004-Ohio-7281, to
argue that the trial court erred in admitting evidence regarding the residue driveways. In
that case, ODOT planned a highway improvement project that included the installation of
concrete curbs along State Route 7, which abutted the defendant property owner's lot.
ODOT filed a petition to appropriate a miniscule portion of the defendant property owner's
lot and a temporary easement. The property owner argued that the installation of curbs in
the right of way (and not on the property owner's lot) substantially and unreasonably
interfered with his right of access. In response, ODOT argued that the court lacked subject-
matter jurisdiction to determine if there was an additional taking beyond that described in
the petition for appropriation. Over ODOT's objection, the trial court instructed the jury to
consider whether ODOT had substantially and unreasonably interfered with the property
owner's right of access by installing the curbs.
{¶ 39} On appeal, the Fourth District Court of Appeals held that the trial court erred
in allowing the jury to determine if a taking of the property owner's right of access had
occurred as a result of the installation of the curbs in the right of way. For our purposes,
we find most pertinent the portion of the appellate decision that addressed the property
owner's argument that the limitation of his access was a factor for the jury to consider when
determining the damage to the residue. The decision cited the law regarding the
determination of damages we set forth above. The court then stated:
[I]f a partial taking affects the property owner's access to the
remainder of the property, that factor can be considered in
determining damage to the residue. * * * However, that is not
the case here. [The property owner] offered no evidence
establishing that the taking of the southeastern corner of his
property or the taking of a temporary easement in his property
affected his access to the remainder of the property. Rather,
the trial evidence indicates that it is the curbing in the
preexisting right of way along Route 7 that affects access to [the
property owner's] property.
Id. at ¶ 25. Consequently, any injury suffered due to limitation of access was irrelevant in
demonstrating damages resulting from the take described in the complaint.
{¶ 40} In the case at bar, as a result of the taking, ODOT plans to relocate Jackson
Pike, reconfigure Frank Road, and modify the access to Inland Products' remaining
property. Thus, this is not a case where an external traffic control device interferes with
No. 19AP-670 14
ingress to and egress from the property. Here, unlike in Thieken, the taking itself affects
access to the residues. Therefore, instead of supporting ODOT, Thieken supports Inland
Products' position. Thieken held that a jury may consider limitation of access occasioned
by a partial taking in determining the damages to the residue. The jury in this case,
therefore, could consider the evidence regarding the residue driveways in determining the
amount of damages to award Inland Products for the residues.
{¶ 41} ODOT replies by arguing that Supreme Court of Ohio rejected limitation of
access as an element relevant to the consideration of appropriation damages in Richley v.
Jones, 38 Ohio St.2d 64 (1974). In that case, the Supreme Court considered whether a
property owner could recover damages for injury to the residue when the construction of a
median in a road abutting the property prevented traffic from turning directly onto the
property. The property owner argued that because a damages determination should
include every element entering into the question of value, the change in traffic flow caused
by the median was a necessary element for the jury to consider. The court disagreed with
the property owner's argument. The court reasoned that a property owner is not entitled
to damages for the same type of inconvenience shared in common with adjoining
landowners, even if that inconvenience was coincident with an appropriation of land.
Therefore, the property owner could not receive damages resulting from the increased
difficulty in accessing his property.
{¶ 42} At best, Jones precluded the recovery of one type of "access" damage: injury
to access of a kind that is shared in common with others. We do not interpret Jones as
preventing all consideration of how a taking affects access to the residue in the
determination of damages. Jones does not apply to the case at bar because the residue
driveways, the source of Inland Products' access problems, affect Inland Products alone.
{¶ 43} In an appropriation case, the jury determines the amount of damages to the
residue by deciding what damages are reasonable and foreseeable based on the evidence,
including the project plans and specifications. Pewamo, 194 Ohio App.3d 57, 2011-Ohio-
1758, at ¶ 25-26. Here, each side presented evidence from expert witnesses regarding their
opinion of the amount of damage the residues will sustain as a result of the take. According
to the evidence adduced by Inland Products, the residue driveways are inadequate for
highway-oriented commercial use, which decreases the residues' value. ODOT introduced
No. 19AP-670 15
evidence that Inland Products could seek approval for better driveways in the future,
making an award of damages based on the inadequate driveways unreasonable. Inland
Products countered with evidence casting doubt on the likelihood that ODOT would grant
approval for better driveways. In the end, the jury was more persuaded by Inland Products'
evidence, and it awarded Inland Products damages to the residue because of the size,
location, and configuration of the residue driveways.
{¶ 44} ODOT, ultimately, would have this court ignore the precedent holding that a
jury may consider the loss of ingress and egress when determining damage to the residue.
Tellingly, ODOT never addressed that rule of law in its briefing. We, however, see no reason
to depart from it. In deciding whether to purchase property, a reasonable businessperson
would consider the quality of the property's access points, and the suitability of those access
points for the property's intended purpose. Consequently, if a partial taking affects a
property's access, a jury should be able to consider that in determining the damage to the
residue. The trial court, therefore, did not err in admitting evidence regarding the residue
driveways.
{¶ 45} For the foregoing reasons, we overrule ODOT's sole assignment of error, and
we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BEATTY BLUNT and MENTEL, JJ., concur.