Mill Creek Metro. Dist. Bd. of Commrs. v. Less

[Cite as Mill Creek Metro. Dist. Bd. of Commrs. v. Less, 2022-Ohio-1289.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
The Board of Commissioners of the Mill Creek Park
Metropolitan District,
Plaintiff-Appellee,
v.
Diane M. Less, et. al.,
Defendant-Appellant.
___________________________________
OPINION AND JUDGMENT ENTRY
Case Nos. 20MA0074
20MA0082
___________________________________
Appeal from the Court of Common Pleas of
Mahoning County, Ohio
Case Nos. 2019-CV-00485
2019-CV-00316
BEFORE:
Judge Jason P. Smith
Judge Peter B. Abele
Judge Michael D. Hess
__________________________________________________________________
JUDGMENT REVERSED AND CAUSE REMANDED
Carl James James E. Roberts
4450 Market Street Elizabeth H. Farbman
Youngstown, Ohio 44512 Roth, Blair, Roberts, Strasfeld & Lodge
Attorney for Defendant-Appellant 100 Federal Plaza, East, Suite 600
Youngstown, Ohio 44503
Attorney for Plaintiff-Appellee
2
Dated: April 14, 2022
Smith, V.J.
{¶1} Appellant, Diane M. Less, appeals the judgments of the trial court
denying her motions for summary judgment, which were filed in two different
cases below. In both judgments, the trial court determined that Less was not
entitled to summary judgment regarding the issues of whether Appellee, The Board
of the Commissioners of Mill Creek Metropolitan Park District, (hereinafter “Park
District”), was authorized to appropriate her property for public use in order to
expand an existing bikeway, or recreational trail, and whether the Park District
complied with the statutory requirements governing the taking of private property
through the power of eminent domain. On appeal, Less raises two assignments of
error, contending 1) that the common pleas court erred in overruling her motion for
summary judgment because the Park District failed to have a statutorily authorized
reason or purpose for the appropriation by eminent domain as required by R.C.
1545.11; and 2) that the common pleas court erred in overruling her motion for
summary judgment because the complaint and the process leading up to the filing
of the complaint did not follow the mandatory requirements set forth in R.C.
163.04, 163.041 and 163.05.
3
{¶2} Because we conclude that the resolutions passed by the Park District
failed to set forth a statutorily authorized purpose for the appropriation of the
property at issue, we find the Park District lacked statutory authority under R.C.
1545.11 to appropriate both Less’s and Green Valley’s private property for the
development and extension of a public bikeway or recreational trail, and it abused
its discretion in passing a resolution to go forward with the appropriation of the
property at issue. We further conclude the trial court erred in finding that Less did
not meet her burden of proving the Park District abused its discretion in the
passage of the resolutions. Because we have found that the Park District abused its
discretion, Less has rebutted the presumption that the resolutions constituted prima
facie evidence of necessity and therefore, we conclude the trial court erred in
denying her motions for summary judgment. Thus, the arguments raised under
Less’s first assignment of error are meritorious and are sustained.
{¶3} In light of our disposition of Less’s first assignment of error, the
judgments of the trial court denying Less’s motions for summary judgment are
hereby reversed and this matter is remanded to the trial courts with instructions to
enter summary judgment in favor of Less in both cases. Furthermore, despite the
fact that Green Valley is not participating on appeal, the trial court’s denial of
summary judgment in favor of Green Valley is also reversed and remanded.
Additionally, because our disposition of Less’s first assignment of error has
4
rendered the arguments raised under her second assignment of error moot, we need
not address them. Accordingly, the judgments of the trial courts are reversed and
these matters are hereby remanded with instructions.
FACTS
{¶4} On March 8, 2019, the Park District filed a petition titled
“Petition/Complaint to Appropriate Property” naming Diane Less and several
others.1 In the petition the Park District alleged that the trial court possessed
jurisdiction over the subject matter of the petition under Chapter 163 of the Ohio
Revised Code as well as R.C. 1545.11. The petition alleged that the Park District
had previously passed a resolution on February 25, 1993, “resolving that the public
interest demanded the construction of a bicycle path on a railroad right-of-way
abandoned by Conrail, stretching from the Western Reserve Road on the south to
the Mahoning County/Trumbull County line on the north, and having a length of
approximately 10.6 miles, situated in Mahoning County.” The petition further
alleged that 10.6 miles of the “bikeway trail” had already been constructed, “which
construction comprised Phases I and II of the Mill Creek MetroParks Bikeway
1
Diane Less was the primary property owner named in the petition in lower case no. 19CV485. The other
defendants were named because they were thought to possibly have an interest in the Less property. Those
individuals are not part of the present case on appeal. Additionally, the Park District filed an earlier petition on
February 12, 2019, naming Green Valley Wood Products, LLC (hereinafter “Green Valley”) as the primary
defendant, but also naming Less and several others, as it was believed they may have had an interest in the property.
That case number was 19CV316 and was before a different trial court judge. The petition that was filed against Less
in case no. 19CV485 makes essentially the same allegations as the petition that was filed against Green Valley in
case no. 19CV316. Less is currently appealing the summary judgment decisions issued in both cases.
5
project (the ‘Bikeway’).” The petition went on to allege that the Park District
intended the following:
to acquire a perpetual easement and right of way on the Less
Property and enter upon the property being appropriated for the
purposes of completing a 6.4 mile extension of the existing Mill
Creek Metroparks Bikeway in Mahoning County, Ohio, which
will provide a safe, uniformly designed, multi-use, off-road trail
facility dedicated to public transportation and recreational
purposes (herein “Phase III”).
{¶5} Additionally, the petition alleged that on or about September 10, 2018,
the Park District, by resolution of the Mill Creek Board of Park Commissioners,
resolved as follows:
that it is necessary and in the best public interest that Mill Creek
be authorized to consummate and complete all acquisition
transactions as may be necessary to acquire the real property
contemplated for inclusion in Phase III of the project or, in
instances where agreement cannot be reached with the
landowner, that Mill Creek by and through its legal counsel be
authorized to appropriate such property by power of eminent
domain and initiate legal proceedings pursuant to Ohio Revised
Code Chapter 163.
Elsewhere in the petition the Park District claimed it was seeking to acquire “an
exclusive perpetual easement for public highway and road purposes, including, but
not limited to, access, construction, improvement, repair, operation, relocation,
and/or maintenance of Phase III * * * [,]” pursuant to Ohio Revised Code Chapter
163 and R.C. 1545.11.
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{¶6} Finally, the petition alleged that the Park District had complied with
the requirements of R.C. 163.04 and 163.041 by providing and delivering a written
“Notice of Intent to Acquire and Good Faith Offer” at least 30 days prior to the
filing of the action and that the Park District had been unable to agree on a
conveyance with Less. The Park District alleged that the portion of the Less
property sought to be appropriated had been appraised and had a fair market value
of $13,650.00. The Park District further requested that the trial court “fix a time
* * * for the assessment of compensation by a jury, pursuant to R.C. 163.09.”
{¶7} Less filed answers in both cases, followed by motions for judgment on
the pleadings in both cases. In both of these motions, Less argued that R.C.
1545.11 “strictly limits the purposes for which a park district may appropriate
lands [,]” and that “[t]he statute must be strictly construed.” More specifically,
Less argued that R.C. 1545.11 only permits the appropriation of private property
for “conversion into forest reserves and for the conservation of the natural
resources of the state * * *.” Less argued that the Park District’s attempt to take
her property for public transportation and recreation purposes, public highway and
road purposes, and for use as a “multi-use, off-road trail facility dedicated to public
transportation and recreational purposes” and a “Bikeway,” was not an authorized
purpose under R.C. 1545.11. Less also argued that the Park District’s failure to
state an authorized purpose for the takings in its petitions required dismissal of the
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petition/complaint for failure to state a claim. Less further argued that the Park
District failed to comply with the statutory requirements set forth in Ohio Revised
Code Chapter 163 for the taking of private property through the use of eminent
domain. The Park District opposed both motions and the trial court ultimately
denied both motions.
{¶8} Thereafter, both Less and Green Valley moved for summary judgment
in case no. 19CV316. Less also moved for summary judgment in case no.
19CV485. The summary judgment motions set forth essentially the same grounds
as the motions for judgment on the pleadings. In both motions, Less supported her
arguments with references to deposition testimony by representatives of the Park
District indicating that the appropriation of her property was for the creation of a
bikeway only, and not for the conversion into forest reserves for the conservation
of natural resources. The Park District opposed both motions. In addition to other
arguments, they contended that they had passed a resolution regarding the
necessity of the appropriation of the property at issue, and that “R.C. 163.09(B)
provides that the necessity determination of the appropriating agency ‘shall be
prima facie evidence of that necessity,’ barring proof showing that the agency
abused its discretion in making the determination.” The Park District further
argued that Less had the burden of demonstrating either an abuse of discretion,
8
fraud, or bad faith on the part of the Park District, and that she had failed to make
such a showing.
{¶9} The trial courts eventually denied Less’s and Green Valley’s motions
for summary judgment in both cases. A judgment entry denying Less’s motion
without findings of facts or conclusions of law was entered in case no. 19CV485
on June 30, 2020. A five-page judgment entry that contained findings of facts and
conclusions of law was entered in case no. 19CA316 on July 22, 2020, denying
summary judgment to both Less and Green Valley. In the latter decision, the trial
court found that the Park District’s petition to appropriate the property at issue for
the purpose of a bikeway was authorized by R.C. 1545.11 and that the Park District
had complied with the requirements set forth in R.C. 163.04, 163.041 and 163.05.
{¶10} The trial court further found that the Park District’s passage of its
resolutions containing necessity determinations constituted prima facie evidence of
necessity for purposes of the appropriation and that Less and Green Valley failed
to prove the Park District abused its discretion in making its necessity
determination. Thus, all three summary judgment motions that were filed by Less
and Green Valley in both cases were denied. It is from these denials of summary
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judgment that Less now timely appeals.2 The two appeals were consolidated on
September 28, 2020, and are both now properly before us for review.
ASSIGNMENTS OF ERROR
I. “THE COURT OF COMMON PLEAS ERRED IN
OVERRULING THE MOTION OF THE APPELLANT
FOR A SUMMARY JUDGMENT DISMISSING THE
COMPLAINT OF THE APPELLEE BECAUSE THE
COMPLAINT FAILED TO HAVE A STATUTORILY
AUTHORIZED REASON OR PURPOSE FOR THE
APPROPRIATION BY EMINENT DOMAIN THAT IS
AUTHORIZED BY SECTION 1545.11 OF THE OHIO
REVISED CODE. SECTION 1545.11 OF THE OHIO
REVISED CODE ONLY AUTHORIZES A BOARD OF
PARK COMMISSIONERS TO ACQUIRE LANDS
EITHER WITHIN OR WITHOUT THE PARK
DISTRICT FOR PURPOSES FOR CONVERSION
INTO FOREST RESERVES AND FOR THE
CONSERVATION OF THE NATURAL RESOURCES OF
THE STATE, INCLUDING STREAMS, LAKES,
SUBMERGED LANDS, AND SWAMPLANDS NOT TO
CREATE AN EXCLUSIVE PERPETUAL EASEMENT
FOR A BIKEWAY FOR PUBLIC HIGHWAY AND
ROAD PURPOSES APART FROM THE PARK
DISTRICT WHICH ARE NOT AUTHORIZED FOR
EMINENT DOMAIN UNDER THE STATUTE.”
II. “THE COURT OF COMMON PLEAS ERRED IN
OVERRULING THE MOTION OF THE APPELLANT
FOR A SUMMARY JUDGMENT DISMISSING THE
COMPLAINT OF THE APPELLEE BECAUSE THE
2
At this juncture we note our disagreement with the view in the dissenting opinion that these orders were not final
and appealable. The dissent notes that the orders at issue denied summary judgment to Less and Green Valley and
observes that the denial of summary judgment is generally considered an interlocutory order not subject to an
immediate appeal. However, Mill Creek already raised this argument in motions to dismiss filed in each appeal
prior to their consolidation. Despite the argument, this Court issued a judgment entry on September 28, 2020,
denying Mill Creek’s motions to dismiss and finding that the orders were immediately appealable pursuant to R.C.
163.09(B)(3), which provides that in appropriation proceedings property owners have “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 * * *.”
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COMPLAINT, AND THE PROCESS LEADING UP TO
THE COMPLAINT AS SET FORTH IN THE
COMPLAINT OF THE APPELLEE, DID NOT
FOLLOW AND EXPRESSLY EXCLUDED THE
MANDATORY REQUIREMENTS SET FORTH AT
SECTION 163.04, 163.041 AND 163.05 OF THE OHIO
REVISED CODE BY 1) EXCLUDING IN THE NOTICE
OF INTENT TO ACQUIRE TO APPELLANT THAT
SHE HAD A RIGHT TO APPEAL TO THE ELECTED
OFFICIAL(S) WHO APPOINTED THE DIRECTOR OF
THE TAKING AGENCY SINCE THE TAKING
AGENCY OR DIRECTOR ARE NOT ELECTED OR
DID NOT PROVIDE A NOTICE TO TAKE AT ALL;
AND 2) NOT STATING A SPECIFIC NEED FOR
EMINENT DOMAIN BEYOND A PREFERENCE TO
BUILD A BIKEWAY ON LANDS OF ANOTHER
WHEN A BIKEWAY ALREADY EXISTED LESS
THAN ONE (1) MILE FROM THE PROPOSED
TAKING OF THE LANDS OF THE APPELLANT; AND
3) NOT ADEQUATELY OR CLEARLY DESCRIBING
THE PROPERTY TO BE TAKEN AND THAT THE
PROPERTY BEING LESS THAN A COMPLETE FEE
AND NOT SPECIFYING THAT PART OF THE LAND
NOT BEING TAKEN WOULD BE SEPARATED AND
ISOLATED FROM THE REMAINING LANDS OF THE
APPELLANT.”
ASSIGNMENT OF ERROR I
{¶11} In her first assignment of error, Diane Less contends that the trial
court erred in overruling her motions for summary judgment which were filed in
the cases below. She argues that she was entitled to judgment in her favor as a
matter of law because the Park District’s petitions/complaints failed to include a
statutorily authorized reason or purpose for the appropriation by eminent domain
that is authorized by R.C. 1545.11. The Park District, however, contends that
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Less’s argument is based upon an “impermissibly narrow reading and statutory
construction of R.C. §1545.11 concerning the term ‘Bikeway’ that contradicts
many Ohio courts’ interpretation of the statute.”
SUMMARY JUDGMENT STANDARD OF REVIEW
{¶12} Here, as set forth above, in the case that was filed primarily against
Diane Less, the trial court overruled Less’s motion for summary judgment, finding
that there were genuine issues of material fact preventing judgment as a matter of
law. Further, in the case that was filed primarily against Green Valley Wood
Products, LLC, but that named Less due to her interest in Green Valley’s property,
the trial court overruled the motions for summary judgment that were filed by Less
and Green Valley, finding that the Park District’s response to the motions for
summary judgment set forth specific facts showing genuine issues for trial.
{¶13} Although the denial of summary judgment is not normally
immediately appealable, these cases involve governmental appropriation
proceedings which are governed by Chapter 163 of the Ohio Revised Code. R.C.
2505.02(B)(7) specifically provides that “[a]n order in an appropriation proceeding
[] may be appealed pursuant to division (B)(3) of section 163.09 of the Revised
Code.” Further, R.C. 163.09(B)(3) states that “[a]n owner has a right to an
immediate appeal if the order of the court is in favor of the agency in any matters
the owner denied in the answer * * *.” Because these consolidated appeals are
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from judgment entries denying motions for summary judgment filed by the owner
(Diane Less) regarding the legality and necessity of appropriation proceedings, the
judgments were clearly in favor of the agency (Park District) and therefore the
requirements of R.C. 163.09(B)(3) have been met.
{¶14} In reviewing an award of summary judgment, appellate courts apply a
de novo standard of review. Cole v. Am. Industries & Resources Corp., 128 Ohio
App.3d 546, 552, 715 N.E.2d 1179 (1998). Civ.R. 56(C) provides that the trial
court is to grant summary judgment if there is no genuine issue of material fact
and, when construing the evidence most strongly in favor of the nonmoving party,
reasonable minds can only conclude that the movant is entitled to judgment as a
matter of law. State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 511, 628
N.E.2d 1377 (1994). In order to determine whether a fact is material, we look to
the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc.,
Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995), citing Anderson
v. Liberty Lobby, Inc., 106 S.Ct. 2505, 477 U.S. 242 (1986).
R.C. 1545.11
{¶15} In both the motions to dismiss and motions for summary judgment
that were filed by Less, it was argued that the Park District’s appropriation of
private property for purposes of a bikeway was not authorized under R.C. 1545.11.
Title XV of the Ohio Revised Code is entitled “Conservation of Natural
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Resources.” R.C. 1545.11 governs the Park District’s power to acquire property
and provides as follows:
The board of park commissioners may acquire lands either
within or without the park district for conversion into forest
reserves and for the conservation of the natural resources of the
state, including streams, lakes, submerged lands, and
swamplands, and to those ends may create parks, parkways,
forest reservations, and other reservations and afforest, develop,
improve, protect, and promote the use of the same in such
manner as the board deems conducive to the general welfare.
Such lands may be acquired by such board, on behalf of said
district, (1) by gift or devise, (2) by purchase for cash, by
purchase by installment payments with or without a mortgage,
by entering into lease-purchase agreements, by lease with or
without option to purchase, or, (3) by appropriation. In
furtherance of the use and enjoyment of the lands controlled by
it, the board may accept donations of money or other property,
or may act as trustees of land, money, or other property, and use
and administer the same as stipulated by the donor, or as
provided in the trust agreement. The terms of each such donation
or trust shall first be approved by the probate court before
acceptance by the board.
In case of appropriation, the proceedings shall be instituted in the
name of the board, and shall be conducted in the manner
provided in sections 163.01 to 163.22, inclusive, of the Revised
Code.
This section applies to districts created prior to April 16, 1920.
(Emphasis added).
Eminent Domain
{¶16} Article I, Section 19 of the Ohio Constitution provides: “Private
property shall ever be held inviolate, but subservient to the public welfare.”
Wray v. Allied Indus. Dev. Corp., 138 Ohio App.3d 362, 364, 741 N.E.2d
14238 (2000). Further, “[t]he Fifth Amendment states that private property
shall not be ‘taken for public use, without just compensation,’ and is
applicable to the states through the Fourteenth Amendment.” Paczewski v.
Antero Resources Corporation, 7th Dist. Monroe No. 18MO0016, 2019-
Ohio-2641, ¶ 36, citing Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S.
226, 241, 17 S.Ct. 581, 41 L.Ed. 979 (1897). As the Supreme Court of Ohio
has explained, “[t]he sovereign's right to take property may be conferred by
the legislature on municipalities, which enjoy broad discretion in
determining whether a proposed taking serves the public.” Norwood v.
Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 70.
However, “when the authority is delegated to another, the courts must ensure
that the grant of authority is construed strictly and that any doubt over the
propriety of the taking is resolved in favor of the property owner.” Id.,citing Pontiac Improvement Co. v. Board of Com’rs. Of Cleveland
Metropolitan Park Dist., 104 Ohio St. 447, 453-454, 135 N.E. 635 (1922)
(“The right of eminent domain is an attribute of sovereignty, and only the
sovereign power, or one to whom it has delegated the right, can take
property without the consent of the owner, and, when this right has been
granted to a subdivision of the state, a person, or a corporation, the terms of
the grant must be strictly pursued. When the matter is in doubt, it must be
15
resolved in favor of the property owner. These principles are firmly
established”).
Ohio Revised Code Chapter 163
{¶17} Title I of the Ohio Revised Codes governs state government and
Chapter 163 of the Ohio Revised Code is entitled “Appropriation of Property,” or
eminent domain, which is the taking of private property for public use. Here, the
Park District adopted two resolutions regarding the necessity of creating a bikeway
over property owned by Less and Green Valley. Both Less and Green Valley
denied the necessity of the appropriation below and now also challenge the
necessity determination on appeal.
{¶18} Pursuant to R.C. 163.021(A), “No agency shall appropriate real
property except as necessary and for a public use. In any appropriation, the taking
agency shall show by a preponderance of the evidence that the taking is necessary
and for a public use.” Importantly, according to R.C. 163.09(B)(1)(a), “A
resolution or ordinance of the governing or controlling body, council, or board of
the agency declaring the necessity for the appropriation creates a rebuttable
presumption of the necessity for the appropriation if the agency is not
appropriating the property because it is a blighted parcel or part of a blighted area
or slum.” In this case, as explained above, the Park District passed two resolutions
indicating that the appropriation actions for the construction of the bikeway were
16
necessary for public use. Thus, based on R.C. 163.09(B)(1)(a), there was a
rebuttable presumption that the appropriation was, in fact, necessary.
{¶19} As explained in City of Dublin v. Beatley, 2018-Ohio-3354, 119
N.E.3d 826, ¶ 15 (5th Dist.):
* * * under R.C. §163.09(B), the burden of proof fell upon
[Appellant] to demonstrate that the appropriation was not
necessary. In order to find that there was no necessity for the
appropriation, the trial court would have had to determine that
Appellee * * *abused its discretion. In reviewing the trial court's
conclusion that there was no such abuse of discretion, we are
limited to determining whether the decision was supported by
competent and credible evidence. City of Toledo v. Kim's Auto
& Truck Service, Inc., 6th Dist. No. L-02-1318, 2003-Ohio-5604[2003 WL 22390102], at ¶ 10; Erie–Ottawa–Sandusky Regional
Airport Authority v. Orris (Sept. 13, 1991), 6th Dist. No. 90–OT–
039 [1991 WL 254227], at *4.
Thus, in order to overcome the rebuttable presumptions that the appropriations at
issue were not necessary, Less had to demonstrate that the Park District had abused
its discretion in the passage of its resolutions. “An ‘abuse of discretion’ is ‘an
unreasonable, arbitrary, or unconscionable use of discretion[.] * * *’ ” State v.
Curtis, 4th Dist. Meigs No. 20CA6, 2021-Ohio-1145, ¶ 10, quoting State v. Brady,
119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23.
Legal Analysis
{¶20} The record before us indicates that the Park District filed a
petition/complaint to appropriate property against Green Valley Wood Products,
LLC and others, including Diane Less, on February 12, 2019. The Park District
17
filed another complaint/petition to appropriate property against Diane Less and
several others on March 8, 2019. In both petitions/complaints, the Park District
referenced that it had passed a resolution on February 25, 1993, “resolving that the
public interest demanded the construction of a bicycle path on a railroad right-of-
way abandoned by Conrail” and that it had already constructed, during years 2000
and 2001, “10.6 miles of bikeway trail * * * which construction comprised Phases
I and II of the Mill Creek MetroParks Bikeway project (the ‘Bikeway’).” The
petitions/complaints went on to state the Park District’s intention to acquire a
perpetual easement and right of way on Less’s and Green Valley’s property “for
the purposes of completing a 6.4-mile extension of the existing Mill Creek
MetroParks Bikeway in Mahoning County, Ohio, which will provide a safe,
uniformly designed, multi-use, off-road trail facility dedicated to public
transportation and recreational purposes (herein ‘Phase III’).”
{¶21} The Park District alleged that a feasibility study had been conducted
that “resulted in a determination that the option to align and construct Phase III of
the Bikeway along the former railroad corridor was the preferred alignment.” This
“alignment” runs through property owned by both Less and Green Valley. The
Park District further alleged that “[o]n or about September 10, 2018, by resolution
of the Board of Park Commissioners, Mill Creek resolved that it is necessary and
in the best public interest that Mill Creek be authorized to complete Phase III of the
18
Bikeway project” and that for the property necessary for inclusion in Phase III that
it be “authorized to appropriate such property by power of eminent domain and
initiate legal proceedings pursuant to Ohio Revised Code Chapter 163.” As set
forth above, the Park District alleged that its actions were authorized by R.C.
1545.11 and R.C. Chapter 163. Exhibits attached to the petitions stated that the
Park District would need to appropriate 2.4780 acres of Less’s property and 1.1199
acres of Green Valley’s property. The record further indicates that Less claims to
own a perpetual easement across the portion of Green Valley’s property sought to
be taken by the Park District.
{¶22} In the present case, R.C. 1545.11 and R.C. 163.01 et seq., together
govern the purpose and procedure related to a park district’s authority to
appropriate private property. Further, per R.C. 163.04, a park district may only
commence appropriation proceedings if it is unable to agree with the owner to a
purchase of the property. Here, the Park District claims it has authority under R.C.
1545.11 to appropriate private property for the creation of a bikeway, more
commonly referred to in case law as a bike path, recreational trail, multi-use trail,
or linear park. Less contends, however, that the Park District is limited to
appropriating property for purposes of conversion into forest reserves and
conservation of natural resources, as expressly stated in R.C. 1545.11, and that the
creation of the bikeway at issue does not constitute either. Thus, Less argues that
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the Park District lacked statutory authority for the appropriation at issue and
therefore abused its discretion in passing a resolution to go forward with
appropriation under R.C. 163.01 et seq.
{¶23} The trial court found that the Park District enacted a resolution
demonstrating the necessity of the appropriation of the property at issue for the
purpose of the bikeway, that the Park District complied with the appropriation
requirements contained in R.C. 163.01 et seq., that the resolution constituted prima
facie evidence of the necessity, and that Less and Green Valley failed to
demonstrate an abuse of discretion on the part of the Park District. In reaching its
decision, the trial court cited prior reasoning from the Supreme Court of Ohio for
the proposition that “R.C. 1545.11 authorizes all boards of park commissioners,
including the Plaintiff, to appropriate property for the construction and use of a
recreational trail.” State ex rel. Coles v. Granville, 116 Ohio St.3d 231, 2007-
Ohio-6057, 877 N.E.2d 968. It does not appear, however, that the trial court
considered the question of whether the creation of the bikeway actually constituted
conversion into forest reserves or conservation of natural resources for purposes of
R.C. 1545.11. Instead, the trial court appears to have simply relied on the fact that
the Park District passed a resolution stating the public demanded a bikeway and
that the creation of such bikeway served a sufficient public purpose to allow the
private property at issue to be appropriated.
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{¶24} Although there are several cases which have addressed issues related
to the creation of recreational trails by park districts, we have found no cases in our
research which directly address the question of whether R.C. 1545.11 actually
authorizes park districts to create these types of trails. Although the trial court
cited the reasoning of the Supreme Court of Ohio in State ex rel. Coles v.
Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, 877 N.E.2d 968, in support of its
decision, we believe the statement contained in that case was obiter dictum. See
State ex rel Gordon v. Barthalow, 150 Ohio St. 499, 505-506, 83 N.E.2d 393(1948), quoting Webster's New International Dictionary (2d Ed.) (defining “obiter
dictum” as “ ‘an incidental and collateral opinion uttered by a judge, and therefore
[as not material to his decision or judgment] not binding * * * Hence, any
incidental remark, reflection, comment, or the like’ ”).
{¶25} In State ex rel. Coles, the Court granted a writ of mandamus to
compel a park district’s board of commissioners to begin an appropriation
proceeding to compensate relators for the taking of property for the construction of
a recreational trail that had already taken place. State ex rel. Coles at ¶ 1. In
Coles, the property owners questioned the park district’s authority to appropriate
property, in general, because the park district at issue was established after April
16, 1920, and because R.C. 1545.11 states that “[t]his section applies to districts
created prior to April 16, 1920.” Id. at ¶ 23. The Court found that “R.C. 1545.11
21
* * * authorizes all boards of park commissioners to appropriate property,
regardless of the date of any park district’s creation.” Id. at ¶ 25. The Court
reasoned that “[t]his statutory provision was, of course, necessitated by the historic
presumption applied by the courts of this state that the legislature intends statutes
enacted by it to operate prospectively rather than retroactively.” Id. at ¶ 26. We
agree with the Court’s reasoning up to this point; however, the Court made another
summary statement before concluding. The Court stated as follows:
Therefore, the board of park commissioners is authorized under
R.C. 1545.11 to appropriate property for the construction and use
of a recreational trail, and a mandamus claim to compel the board
to commence an appropriation proceeding is viable as long as
relators establish an involuntary taking of their property by the
board.
Coles, supra, at ¶ 29.
{¶26} Because the question of whether the park district had authority to
appropriate private property specifically for the purpose of creating a recreational
trail was not a question before the Court, we conclude this summary statement was
not material to the judgment of the Court and thus constituted obiter dictum that is
not binding upon this Court.
{¶27} Having found we are not bound by the language contained in State ex
rel. Coles, we now turn to the specific question of whether R.C. 1545.11 authorizes
a park district to appropriate private property for use as a public bikeway, or
recreational trial, which is a question of law. It appears to be well-settled, and Less
22
concedes, that R.C. 1545.11 authorizes park districts to appropriate property.
However, as set forth above, Less argues that such appropriations must be “for
conversion into forest reserves and for the conservation of the natural resources of
the state, including streams, lakes, submerged lands, and swamplands,” as
expressly stated in the statute. The statute goes on to state that “to those ends” (the
conversion of forest reserves and the conservation of natural resources), park
districts “may create parks, parkways, * * * and promote the use of same in such a
manner as the board deems conducive to the general welfare.” It appears to be
generally accepted that the creation of recreational trails for public use benefits the
general welfare of the public; however, such a public use certainly does not
constitute conversion into forest reserves for purposes of R.C. 1545.11.3 The
primary question, in our view, is whether the creation of bikeways or recreational
trails, which are for public use, constitute the conservation of natural resources of
the state, a purpose which is required under R.C. 1545.11 in order for a park
district to appropriate private property for a park or parkway.
{¶28} 41 Ohio Jur.3d Environmental Protection §25 addresses the definition
of “natural resources” and provides as follows:
3
The Ohio Department of Natural Resources currently has a program called “The Recreational Trails Program &
Clean Ohio Trails Fund.” This program provides grant funding for the creation of new recreational trails and the
maintenance and restoration of existing recreational trails. Funding is available to cities and villages and other
entities, including park districts. However, projects that involve the appropriation of property through the exercise
of eminent domain are not eligible for the grants. Ohiodnr.gov/wps/portal/gove/odnr/buy-and-apply/apply-for-
grants/grants/recreational-trails-program
23
The phrase, “natural resources,” is not restricted to timber, gas,
oil, coal, minerals, lakes, and submerged land; any given area, to
the extent that it possesses features that supply human needs and
contribute to the health, welfare, and benefit of a community,
constitutes a “natural resource.” Thus, the scope of regulation
concerning the “conservation of natural resources” is not limited
to such subjects as land, water, forests, and minerals.
This section of Ohio Jur.3d cites to two cases from nearly a century ago, in
support: MacNAB v. Board of Park Com’rs of Metropolitan Park Dist. in
Cleveland, 108 Ohio St. 497, 1 Ohio L. Abs. 780, 141 N.E. 332 (1923) and Snyder
v. Board of Park Com’rs of Cleveland Metropolitan Park Dist., 125 Ohio St. 336,
181 N.E. 483 (1932).
{¶29} In MacNAB, the question presented was whether various sections of
the acts of the General Assembly, specifically 2976.7 (the general code precursor
to R.C. 1545.11), which resulted in the creation of the board of park
commissioners of Cleveland metropolitan park district, were in conflict with any
provision of the Ohio Constitution, section 36 of article II in particular, and
whether the board of park commissioners exceeded its statutory powers in creating
parks and parkways. MacNAB at syllabus, 499. The Court ultimately held they
were not in conflict. Id. at syllabus. With respect to the question of whether the
board of park commissioners had exceeded its authority, the Court observed as
follows:
The General Assembly of Ohio at a very early date sought to
confer upon municipalities the power to create parks and
24
parkways, and that power has never been seriously questioned,
and it is too late to question such power in this twentieth century.
If the General Assembly could confer that power upon a
municipality, it is self-evident that it could likewise confer it
upon any district or other political subdivision of the state. The
usefulness or the serviceableness of public parks, with the
necessary or appropriate driveways and boulevards, bears such a
reasonable relation to the public health, recreation, and welfare
that to hold otherwise would be the sheerest of nonsense.
{¶30} The Court went on to discuss the constitutional amendment of 1912
(section 36, article II) which dealt with conservation policy and which reads, in
pertinent part, as follows:
“Laws may be passed to encourage forestry * * *. Laws may
also be passed to provide for converting into forest reserves such
lands or parts of lands as have been or may be forfeited to the
state, and to authorize the acquiring of other lands for that
purpose; also, to provide for the conservation of natural resources
of the state, including streams, lakes, submerged and swamp
lands and the development and regulation of water power and the
formation of drainage conservation districts; and to provide for
the regulation of methods of mining, weighing, measuring and
marketing coal, oil, gas and all other minerals.”
The MacNAB court further reasoned as follows regarding the language contained
in section 36, article II:
“Laws may also be passed * * *to provide for the conservation
of natural resources of the state * * * is so broad and
comprehensive that any natural tract of land bearing a reasonable
relation to these words is clearly comprehended within the terms
of this constitutional amendment.”
{¶31} In reaching its decision, the MacNAB Court reasoned that “police
power must be as expansive as the public needs.” Id. at 502. Importantly,
25
however, the Court also observed that “[i]t is obvious that those public needs, as
interpreted and applied to the public welfare of densely populated districts, are
quite different than the public needs of rural communities.” Id. Here, at issue is
the creation of a bikeway, or recreational trail, through the middle of extensive
acreage of family-owed farm land. Thus, it appears the area at issue here is a rural
area, not a densely-populated urban area.
{¶32} In Snyder, the Supreme Court of Ohio again considered an
appropriation action filed by a park district seeking to acquire a 100-foot tract of
land which was situated in between two public parks. Snyder at 336. Snyder
argued “that the park board was without authority to take this land because there
were no natural resources to be conserved.” Id. at 339. The Court, however,
disagreed with the property owner’s “limited construction” of the words “natural
resources” as only encompassing timber, gas, oil, coal, minerals, lakes and
submerged land, and instead reasoned as follows:
* * * to the extent to which a given area possesses elements or
features which supply human need and contribute to the health,
welfare, and benefit of a community, and are essential for the
well being of such community and the proper enjoyment of its
property devoted to park and recreational purposes, the same
constitute natural resources.
Id.
{¶33} The Court ultimately found in favor of the appropriating agency, in
part based upon its reliance on MacNAB, supra, for the proposition that the power
26
granted by the General Assembly to pass laws to provide for the conservation of
natural resources was “broad and comprehensive” and was a “broad blanket
power.” Id. at 340. The Court noted that the property at issue therein was situated
between two public parks and, as such, “[t]he recreational value of the both these
parks will be conserved by the acquisition of plaintiff’s property, as such
acquisition is essential to the enjoyment thereof.” Id. at 339. Importantly,
however, in determining that the board of park commissioners’ appropriation
action was authorized, the Court noted the fact that the resolution of necessity filed
by the board was “sufficient in law, declaring, as it did, the necessity of
appropriating plaintiff’s property to be used ‘for the purpose of conserving the
natural resources of the Cleveland Metropolitan Park District, by the creation of
parks, parkways and other reservations of land.’ ” Id. at 338.
{¶34} In our view, despite the reasoning set forth in both MacNAB and
Snyder, characterizing essentially anything that serves the public and contributes to
the health and welfare of the community as the “conservation of natural resources”
is a bit of a stretch, especially when considering that the statutory grant of authority
contained in R.C. 1545.11 should be strictly construed and it should be construed
in favor of the property owner. We believe our concerns that a
bikeway/recreational trail is not within the current contemplation of R.C. 1545.11
is further supported by the fact that in 1972, a new statute was enacted charging the
27
Department of Natural Resources with the duty of planning and developing
recreational trails, and giving the department the right to appropriate land for such
purposes. See R.C. 1519.02.
{¶35} Upon reading R.C. 1519.02, it is clear that the Department of Natural
Resources has the right and duty to develop these trails. Reading such right into
R.C. 1545.11 requires a lot of effort, interpretation, and reference to cases from
one hundred years ago.4 Reading these two statutes together—although it is clear
that park districts possess statutory authority to appropriate private property for
uses that include conversion into forest reserves and the conservation of natural
resources—in our view, the Department of Natural Resources is the state agency
with the authority to appropriate private property for the development of
recreational trails, or in this case, bikeways.
{¶36} Nonetheless, we are constrained to apply the reasoning of these prior
Ohio cases to hold that the creation of a bikeway, to the extent it “supplies a human
need,” “contributes to the health, welfare, and benefit of the community,” and is
“essential for the well-being of such community and the proper enjoyment of its
4
For instance, in California, it has been held that park districts have authority to develop recreational trails and to
appropriate land for such purposes. See Golden Gate Land Holdings LLC v. East Bay Regional Park Districts, 215
Cal.App.4th 353, 155 Cal.Rptr.3d 546, *358. However, unlike Ohio’s statute, the applicable statute there clearly
provides that park districts may “plan, adopt, lay out, plant, develop, and otherwise improve, extend, control,
operate, and maintain a system of public parks, playgrounds, golf courses, beaches, trails, natural areas, ecological
and open space preserves, parkways, scenic drives, boulevards, and other facilities for public recreation, for the use
and enjoyment of all the inhabitants of the district, and it may select, designate, and acquire land, or rights in land,
within or without the district, to be used and appropriated for such purposes.” Id. at fn. 3, quoting section 5541 of
the California Public Resources Code.
28
property,” constitutes the conservation of natural resources. We do not agree with
these principles, however, especially when applied to a rural area where it appears
the public need is speculative at best and the harm to the private property owners is
great.
{¶37} It is these points that lead us to conclude that the resolutions passed
by the Park District here were insufficient. In Snyder, the Court’s decision was
based, in part, on the fact that the park district at issue passed a resolution which
alleged that the private property sought to be appropriated would serve to conserve
natural resources, a purpose which is expressly set forth in R.C. 1545.11. Here,
however, the Park District’s two resolutions are completely devoid of any such
language. The Park District’s 1993 resolution simply stated that “[t]he public
interest demands construction of a bicycle path * * *.” There is no language tying
the demand for the bicycle path to the general welfare of the public or the
conservation of natural resources. Further, the stated purpose of Phase III in the
Park District’s 2018 resolution was “to extend the existing Bikeway * * *” and that
completion of such “will provide local and regional users with a safe, uniformly-
designed, multi-use, off-road trail facility dedicated for public transportation and
recreational purposes * * *.” Although the 2018 resolution is more elaborate, it is
still devoid of any language tying the expansion of the bikeway to the general
health and welfare of the public or the conservation of natural resources. Many
29
things provide for public recreation: movie theaters, shopping malls, bowling
alleys, etc. However, just because those things provide recreation does not mean
they constitute the conservation of natural resources. We believe the same may be
said of a bikeway.
{¶38} Although there are other cases that seem to accept that these types of
trails may be created by park districts, there is nothing in the resolutions presently
before us which indicate that the creation of this particular trail or bikeway is
designed to promote the general health and welfare of the public, which we believe
requires more than that just a recreational purpose. Moreover, there is no
statement contained in either resolution even remotely tying the creation of this
bikeway to the conservation of natural resources. In this regard, the case sub
judice is factually distinguishable from Snyder, supra.
{¶39} For these reasons, we conclude that the resolutions passed by the Park
District purporting to establish the necessity of the taking of Less’s property lacked
a covered statutory purpose, which is a requirement for the appropriation of private
property. Thus, the Park District abused its discretion in passing the resolutions
authorizing itself to take Less’s property through the use of eminent domain, as set
forth in R.C. 163 et seq. As a result, we conclude the trial court erred in finding
that Less failed to demonstrate an abuse of discretion on the part of the Park
District in the passage of its resolutions and in denying her motions for summary
30
judgment. Accordingly, having found the trial court erred in denying Less’s
motions for summary judgment as to the necessity determination, Less’s first
assignment of error is sustained and the judgments of the trial courts denying her
motions for summary judgment are reversed. Furthermore, these matters are
remanded to the trial court with instructions to enter summary judgment in favor of
Less and also Green Valley, by default, on the issue of whether or not the Park
District was statutorily authorized to appropriate the property at issue.
ASSIGNMENT OF ERROR II
{¶40} In her second assignment of error, Less contends that the trial court
erred in denying her motions for summary judgment because the Park District did
not follow the mandatory requirements of R.C. 163.04, 163.041 and 163.05 in the
filing of its petition/complaint and leading up to the filing of its complaint.
However, in light of our disposition of Less’s first assignment of error, which has
already resulted in a reversal of the trial court’s denial of summary judgment in her
favor and a remand order with instructions to grant summary judgment in favor of
both Less and Green Valley on the issue of whether the Park District lacked
statutory authority to appropriate the property at issue, we conclude the arguments
raised under this assignment have been rendered moot. Therefore, we need not
address them.
JUDGMENT REVERSED AND CAUSE REMANDED.
31
Hess, J., dissenting.
{¶41} I respectfully dissent from the majority opinion because the orders here
are not final appealable orders. It is well-established that courts of appeals have
jurisdiction to “affirm, modify, or reverse judgments or final orders of the courts of
record inferior to the court of appeals within the district.” Section 3(B)(2), Article
IV, Ohio Constitution. If a trial court order is not final and appealable, an appellate
court must dismiss the appeal. Matter of Guardianship of Sammons, 2020-Ohio-563,
152 N.E.3d 336, ¶ 5 (4th Dist.). Although I agree with the holding reached in the
well-reasoned opinion, I believe we lack jurisdiction to address the merits and should
dismiss this consolidated appeal for lack of final appealable orders.
{¶42} This consolidated appeal involves two separate lawsuits brought under
Chapter 163 for the appropriation of property. In the first suit, the Park District sued
Green Valley and others that might have an interest in the Green Valley property,
including Diane Less and Columbia Gas of Ohio. In the second suit, the Park District
sued Diane Less and others that might have an interest in the Diane Less property.
In both lawsuits, the defendants filed answers pursuant to R.C. 163.08, and several
defendants challenged, among other issues, the Park District’s right to make the
32
appropriation, the inability of the parties to agree, and the necessity for the
appropriation. Thus, under R.C. 163.09(B)(1), the trial courts were each required to
set a hearing date to hear any of those matters challenged in the answers. If the trial
courts ruled in favor of the Park District, the cases would proceed to a jury trial on
compensation subject to the owner’s immediate right to appeal the trial court’s
decision under R.C. 163.09(B)(3). A trial court lacks jurisdiction to proceed with a
compensation trial if the owner appeals the trial court’s decision. See State ex rel.
Bohlen v. Halliday, 145 Ohio St.3d 121, 2021-Ohio-194, 172 N.E.3d 114, ¶ 2-3, 17.
{¶43} Here, the trial courts have not yet held a hearing under R.C.
163.09(B)(1). Before a hearing date was set and a hearing on those matters held,
Less and Green Valley filed motions for summary judgment asking that the
appropriation petitions be dismissed on several grounds, including that the Park
District failed to issue a valid letter of intent to take and lacked statutory authority
to make the appropriation. The Park District filed opposition memoranda in each
case arguing, “the evidence submitted by Mill Creek demonstrates that genuine
issues of material fact do exist, which warrant a complete denial of” the defendants’
summary judgment motions. The Park District asked that the motions be denied and
the Park District be permitted to proceed forward with the petitions. In keeping with
its position that genuine issues of material fact exist, the Park District did not file
33
cross motions for summary judgment or otherwise seek an order in its favor on any
of the matters challenged in the answers.
{¶44} The trial courts each separately denied the summary judgment motions
on the ground that there were genuine issues of material fact. The trial court in Case
No. 19CV485 issued a terse judgment entry denying the motion because “there are
genuine issues of material fact,” the defendant “is not entitled to judgment as a matter
of law,” and ordering the motion “is hereby overruled.” Likewise, in Case No.
19CV316, the trial court issued a judgment entry denying the motion. In a lengthier
decision, that court found that the Park District “did set forth specific facts showing
genuine issues for trial” and finding the defendants’ motions “are not well-taken and
are hereby overruled.” Although the trial court’s entry in Case No. 19CV316
included findings in favor of the Park District, these findings were part of the trial
court’s denial of summary judgment, were interlocutory in nature, and subject to
revision at any time under Civ.R. 54(B). Thus, the Park District did not seek or
receive an order in its favor; rather the trial courts denied the summary judgment
motions and, in Case No. 19CV316, made findings that it could revise at a
subsequent R.C. 163.09(B)(1) hearing.
{¶45} After the trial courts denied Less and Green Valley’s motions for
summary judgment, the cases should have proceeded forward on the Park District’s
petition with hearings under R.C. 163.09(B)(1) to hear the genuinely disputed factual
34
matters and legal defenses raised in the answers. However, Less appealed the denial
of the summary judgment motions, divesting each trial court of jurisdiction to
proceed with a hearing.
{¶46} “The denial of a motion for summary judgment generally is considered
an interlocutory order not subject to immediate appeal.” Stevens v. Ackman, 91 Ohio
St.3d 182, 186, 743 N.E.2d 901, 904 (2001). An interlocutory order denying
summary judgment is subject to revision by the trial court at any time prior to entry
of final judgment. Poluse v. Youngstown, 135 Ohio App.3d 720, 725, 735 N.E.2d
505, 508 (7th Dist.1999).
At the outset, it is noted that the denial of a motion for summary
judgment is a nonfinal order that can be reconsidered by the trial court
at any time. A court is not bound by its prior decision denying
summary judgment. To the contrary, a court may reconsider it either
by motion of one of the parties or sua sponte. It “is subject to revision
by the trial court at any time prior to entry of final judgment, and the
court may correct an error upon motion for reconsideration predicated
upon the same law and facts.” (Citations omitted.)
First Place Bank v. Blythe, 7th Dist. Columbiana No. 12 CO 27, 2013-Ohio-2550, ¶
18.
{¶47} No hearing under R.C. 163.09(B)(1) has yet been held and no order in
favor of the Park District has yet been issued. Thus, the provisions governing an
immediate appeal under R.C. 163.09(B)(3) are inapplicable as they have not yet been
triggered. An order denying an owner’s motion for summary judgment on the ground
35
that there are genuine issues of material fact is not the equivalent of a judgment in
favor of the Park District following a hearing under R.C. 163.09(B)(1).
{¶48} Additionally, although an appropriation proceeding is a “special
proceeding” under R.C. 2505.02(B)(2), neither judgment entry was an “order that
affects a substantial right made in a special proceeding.” R.C. 2505.02(B)(2); City
of Akron v. Carter, 190 Ohio App.3d 420, 2010-Ohio-5462, 942 N.E.2d 409, ¶ 11
(“An order in an appropriation proceeding instituted under R.C. Chapter 163 is an
order in a special proceeding as defined by R.C. 2505.02. Cincinnati Gas & Elec.
Co. v. Pope (1978), 54 Ohio St.2d 12, 16, 8 O.O.3d 7, 374 N.E.2d 406.”).
An order affects a substantial right for the purposes of R.C.
2505.02(B)(2) only if an immediate appeal is necessary to protect the
right effectively. Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60,
63, 616 N.E.2d 181 (To prevail in contending that an order affects a
substantial right, “appellants must demonstrate that in the absence of
immediate review of the order they will be denied effective relief in the
future”). Covered rights include any “right that the United States
Constitution, the Ohio Constitution, a statute, the common law, or a rule
of procedure entitles a person to enforce or protect.” R.C.
2505.02(A)(1).
Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d
516, ¶ 7. Although Chapter 163 appropriation proceedings are special proceedings,
the orders denying summary judgment do not affect a substantial right because they
merely found that genuine material factual issues existed that precluded judgment in
defendants’ favor as a matter of law. Terpenning v. Comfortrol, Inc., 10th Dist.
36
Franklin No. 09AP-315, 2009-Ohio-6418, ¶ 14 (order denying summary judgment
in special proceeding is not a final appealable order). Delaying review of the trial
courts’ decisions until after the hearings under R.C. 163.09(B)(1) will not deny
defendants full and complete relief. After the trial courts hold the hearings on the
denials set forth in the defendants’ answers, defendants will be entitled to an
immediate appeal under R.C. 163.09(B)(3) and R.C. 2505.02(B)(7) if the orders are
in favor of the Park District.
{¶49} The orders here are neither orders in favor of the Park District pursuant
to R.C. 163.09(B)(3) and R.C. 2505.02(B)(7), nor are they orders that affect a
substantial right made in a special proceeding under R.C. 2505.02(B)(2). For these
reasons, I respectfully dissent and would dismiss the consolidated appeal for lack of
jurisdiction.
37
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED. Costs shall be assessed to Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Mahoning County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J., concurs in Judgment and Opinion.
Hess, J., dissents with Dissenting Opinion.
For the Court,
_____________________________
Jason P. Smith
Seventh District Court of Appeals
Sitting By Assignment
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
38