Marchbanks v. Algoma Group , 2022 Ohio 1385 ( 2022 )

[Cite as Marchbanks v. Algoma Group, 2022-Ohio-1385.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JACK MARCHBANKS, Director of JUDGES:
ODOT Hon. Earle E. Wise, Jr., P. J.
Hon. John W. Wise, J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
-vs- Case Nos. 21 CAE 10 0053 and
21 CAE 10 0054
THE ALGOMA GROUP, et al.
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case Nos. 21-CVH-04 0176 and 21-
CVH-04 0177
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: April 25, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
DAVID YOST AARON E. KENTER
ATTORNEY GENERAL OF OHIO CLINTON P. STAHLER
CORINNA V. EFKEMAN GOLDMAN BRAUNSTEIN STAHLER
JUSTINE A. ALLEN KENTER LLP
ASSISTANT ATTORNEYS GENERAL 500 South Front Street
30 East Broad Street, 26th Floor Suite 1200
Columbus, Ohio 43215 Columbus, Ohio 43215
Delaware County, Case Nos. 21 CAE 10 0053 and 21 CAE 10 0054 2
Wise, John, J.
{¶1} Defendants-Appellants The Algoma Group and John W. Holcomb
(“Appellants”) appeal from the October 18, 2021, Judgment Entry entered by the
Delaware County Court of Common Pleas. Plaintiff-Appellee is Jack Marchbanks,
Director of Ohio Department of Transportation. The relevant facts leading to this appeal
are as follows.
FACTS AND PROCEDURAL HISTORY
{¶2} On April 15, 2021, Appellee filed an appropriation action in the Delaware
County Court of Common Pleas taking in fee simple and a temporary easement on
parcels 62-WD and 64-WD, (“the properties”) from Appellants. Appellee’s complaint
indicated that Appellee intends to take the property for the purposes of making,
constructing, repairing or improving a public roadway open for use without charge.
{¶3} On June 25, 2021, Appellants filed answers challenging Appellee’s failure
to satisfy statutory pre-filing requirements, Appellee’s assertion that the appropriation is
for a public use, Appellee’s assertion that the appropriation is necessary, and that the
appropriation violates the prior public use.
{¶4} On July 16, 2021, Appellee moved to strike these defenses on the grounds
that Ohio eminent domain law restricts the scope of an appropriation proceeding to
determine the compensation for the takings.
{¶5} On September 23, 2021, the trial court granted Appellee’s motion to strike.
{¶6} Appellants appeal from that motion.
Delaware County, Case Nos. 21 CAE 10 0053 and 21 CAE 10 0054 3
ASSIGNMENTS OF ERROR
{¶7} On October 18, 2021, Appellant filed a notice of appeal raising the following
two Assignments of Error:
{¶8} “I. THE TRIAL COURT ERRED TO THE MATERIAL PREJUDICE OF
ALGOMA AND HOLCOMB BY STRIKING THE SECOND AND THIRD SPECIFIC
DENIALS OF ALGOMA’S AND HOLCOMB’S AMENDED ANSWER CHALLENGING
THE APPROPRIATION AS NEITHER FOR A PUBLIC USE NOR NECESSARY
WITHOUT CONDUCTING A HEARING AS TO THE SPECIFIC [SIC].
{¶9} “II. THE TRIAL COURT ERRED TO THE MATERIAL PREJUDICE OF
ALGOMA BY STRIKING THE FIRST SPECIFIC DENIAL OF ALGOMA’S AMENDED
ANSWER CHALLENGING THE APPROPRIATION FOR FAILURE TO SATISFY PRE-
FILING REQUIREMENTS WITHOUT CONDUCTING A HEARING AS TO THE
SPECIFIC DENIAL”.
Final Appealable Order
{¶10} In the case sub judice, we must determine whether the judgment entry
under review is a final appealable order.
{¶11} Appellate courts have jurisdiction to review only final orders or judgments.
See, Section 3(B)(2), Article IV, Ohio Constitution; R.C. §2505.02. If an order is not a
final appealable order, then an appellate court has no jurisdiction to review the matter,
and it must be dismissed. See, Gen. Acc. Ins. Co. v. Ins. Co. of N. America, 44 Ohio
St.3d 17, 540 N.E.2d 266 (1989). R.C. §2505.02 states, in pertinent part, “[a]n order is a
final order that may be reviewed, affirmed, modified, or reversed, with or without retrial
Delaware County, Case Nos. 21 CAE 10 0053 and 21 CAE 10 0054 4
when * * * [a]n order is an appropriation proceeding that may be appealed pursuant to
division (B)(3) of section 163.09 of the Revised Code.”
{¶12} R.C. §163.03(B)(3) states:
An owner has a right to an immediate appeal if the order of the court
is in favor of the agency in any of the matters the owner denied in the
answer, unless the agency is appropriating property in time of war or other
public exigency imperatively requiring its immediate seizure, for the
purpose of making or repairing roads which shall be open to the public
without charge * * *
{¶13} The State of Ohio Supreme Court held:
A trial court’s order in favor of an appropriating agency, entered
pursuant to R.C. 163.09(B), is not subject to immediate appellate review;
rather, the property owner may seek appellate review only after a jury has
assessed compensation and damages and the trial court enters an order,
pursuant to R.C. 163.15, which disposes of the whole case.
Cincinnati Gas & Elec. Co. v. Pope, 54 Ohio St.2d 12, 374 N.E.2d 406, 407 (1978).
{¶14} In the case sub judice, it is undisputed that the issues of compensation and
damages to Appellants remain outstanding. Therefore, pursuant to R.C. §2505.02, and
R.C. §163.09(B) the order striking Appellants’ answers is not a final appealable order.
Delaware County, Case Nos. 21 CAE 10 0053 and 21 CAE 10 0054 5
{¶15} Based upon the foregoing, we find this Court lacks jurisdiction to address
the assignments of error. Consequently, the appeal is dismissed.
By: Wise, John, J.
Wise, Earle, P. J., and
Baldwin, J., concur.
JWW/br 0422