Williamson v. Scioto Twp. Trustees

[Cite as Williamson v. Scioto Twp. Trustees, 2017-Ohio-1099.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
MONTY R. WILLIAMSON, :
: Case No. 16CA5
Plaintiff-Appellant/Cross- :
Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
SCIOTO TOWNSHIP TRUSTEES, :
ET AL., :
:
Defendants-Appellees/Cross- :
Appellants. : Released: 03/21/17
_____________________________________________________________
APPEARANCES:
James R. Kingsley, Circleville, Ohio, for Appellant/Cross-Appellee.
Edward J. Dowd and Kevin A. Lantz, Surdyk, Dowd & Turner Co., L.P.A.,
Dayton, Ohio, for Appellees/Cross-Appellants.
_____________________________________________________________
McFarland, J.
{¶1} Appellant/Cross-Appellee Monty Williamson appeals from the
trial court’s decision granting summary judgment in favor of
Appellees/Cross-Appellants, Scioto Township Trustees, et al. On appeal,
Appellant contends that 1) the trial court committed prejudicial error when it
granted Appellees summary judgment finding governmental immunity
barred the claims of trespass and nuisance; and 2) the trial court committed
prejudicial error when it denied mandamus to force inverse condemnation.
Pickaway App. No. 16CA5 2
Scioto Township Trustees, et al. have also filed a cross-appeal in this matter,
raising two assignments of error, contending that 1) the trial court erred to
their prejudice when it denied their motion for summary judgment on the
inverse condemnation claim because the trial court lacked subject matter
jurisdiction; and 2) the trial court erred to their prejudice when it denied their
motion for summary judgment on the issue of whether Cross-Appellee’s
state law claims were time-barred.
{¶2} Because we have concluded that the trial court lacked
jurisdiction over Appellant’s claims, which were barred by the statute of
limitations, the trial court erred in denying Appellees’ motion to dismiss.
Further, because it lacked jurisdiction of the claims, the trial court's orders
granting summary judgment in favor of Appellees on the trespass and
nuisance claims, and rendering judgment in favor of Appellees on the
inverse condemnation claim, are both void. Accordingly, the trial court's
judgment denying Appellees' motion to dismiss is reversed and the
judgments on the trespass, nuisance and inverse condemnation claims are
hereby vacated.
FACTS
{¶3} A review of the record reflects that Appellant/Cross-Appellee
(hereinafter “Williamson”) initially filed a lawsuit, which included claims
Pickaway App. No. 16CA5 3
for trespass, nuisance, inverse condemnation and punitive damages, against
Appellees/Cross-Appellants, Scioto Township, Michael Struckman and
Terry Brill (hereinafter “Township”) on October 25, 2010. The claims
stemmed from events related to the installation of a driveway culvert by the
Township on Williamson’s property, which allegedly caused eventual
flooding and water damage to Williamson’s property and an outbuilding he
owns. Without going into details which are not pertinent to this appeal, the
installation of the driveway culvert was performed by the Township at the
request of a contractor, who Williamson allegedly met with but did not
actually hire to construct a new residence on the property.
{¶4} That action was dismissed by the trial court for failure to abide
by the court’s scheduling orders on August 30, 2011. Williamson refiled the
action on August 9, 2012, asserting the same claims against the same parties.
Then, on June 18, 2013, Williamson filed an amended complaint that
included the original claims and added new claims for negligent permit
process, unconstitutional culvert policy, ratification, abuse of office, and
willful destruction of evidence.
{¶5} The Township removed the case to federal court on July 15,
2013 and a notice of removal was filed in the state trial court on July 16,
2013. The federal court thereafter issued an opinion and order on September
Pickaway App. No. 16CA5 4
5, 2014, granting summary judgment to the Township on the
unconstitutional culvert policy, ratification and abuse of office claims,
noting that the claim for inverse condemnation appeared to have been
abandoned, and dismissing without prejudice Williamson’s remaining state
law claims. The federal court did not remand the matter to the state trial
court. Thereafter, on June 11, 2015, Williamson filed a “Motion To
Reinstate Case On Active Docket,” which the trial court granted on June 12,
2015.
{¶6} In response, the Township filed a motion for summary judgment
on the remaining state law claims, followed by a motion to dismiss based
upon lack of subject matter jurisdiction. While the trial court denied the
Township’s motion to dismiss, it granted its motion for summary judgment
on all claims except the claim for inverse condemnation. Then, after holding
a bench trial on the inverse condemnation claim, the trial court ruled in favor
of the Township. It is from these orders that the parties now appeal,
assigning the following errors for our review.
APPELLANT’S ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN IT GRANTED DEFENDANT SUMMARY JUDGMENT
FINDING GOVERNMENTAL IMMUNITY BARRED THE
CLAIMS OF TRESPASS AND NUISANCE.
Pickaway App. No. 16CA5 5
II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN IT DENIED MANDAMUS TO FORCE INVERSE
CONDEMNATION.”
CROSS-APPELLANTS’ ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED TO THE PREJUDICE OF CROSS-
APPELLANTS WHEN IT DENIED THEIR MOTION FOR
SUMMARY JUDGMENT ON CROSS-APPELLEE’S INVERSE
CONDEMNATION CLAIM BECAUSE THE COURT LACKED
SUBJECT MATTER JURISDICTION.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF CROSS-
APPELLANTS WHEN IT DENIED THEIR MOTION FOR
SUMMARY JUDGMENT ON THE ISSUE OF WHETHER CROSS-
APPELLEE’S STATE-LAW CLAIMS WERE TIME-BARRED.”
LEGAL ANALYSIS
{¶7} We initially note that although Williamson has filed an appeal
and set forth assignments of error based upon the merits of this case, the
Township has also filed a cross-appeal pursuant to App.R. 3(C)(1), which
provides, in pertinent part, as follows:
“(C)(1) Cross Appeal Required. A person who intends to
defend a judgment or order against an appeal taken by an
appellant and who also seeks to change the judgment or order
or, in the event the judgment or order may be reversed or
modified, an interlocutory ruling merged into the judgment or
order, shall file a notice of cross appeal within the time allowed
by App.R. 4.”
In their Appellee brief, the Township states that they have filed a cross
appeal “in the event the judgment * * * is reversed or modified, [to receive]
an interlocutory ruling merged into the judgment or order * * *.”
Pickaway App. No. 16CA5 6
{¶8} Such a cross appeal has been considered to be a conditional
cross appeal. General Medicine, P.C. v. Manolache, M.D., 8th Dist.
Cuyahoga No. 94861, 2011-Ohio-340, ¶ 31 (“While unusual, such a
conditional request is not without precedent and is allowed by App.R. 3(C)).
In Manolache, the court decided it was unnecessary to reach the assignment
of error raised in the cross appeal as it affirmed the trial court’s order in its
entirety. Id; see also Cummings v. B.F. Goodrich Co., 86 Ohio App. 3d 176,
188, 620 N.E.2d 209 (4th Dist.1993). Here, however, because the
arguments raised by the Township in their cross appeal relate to the trial
court’s jurisdiction of this matter, and because we conclude that the
resolution of these arguments is dispositive of the matter on appeal, we
address them first.
{¶9} In their cross appeal, the Township challenges the trial court’s
denial of their motion to dismiss based upon lack of subject matter
jurisdiction, as well as the trial court’s grant of summary judgment, albeit in
the township’s favor, when it was without jurisdiction over the matter.
“When ruling on a Civ.R. 12(B)(1) motion to dismiss for lack of subject-
matter jurisdiction, trial courts must determine whether a claim raises any
action cognizable in that court.” Dargart v. ODOT, 171 Ohio App. 3d 439,
2006-Ohio-6179, 871 N.E.2d 608, ¶ 12; citing State ex rel. Bush v. Spurlock,
Pickaway App. No. 16CA5 7
42 Ohio St. 3d 77, 80, 537 N.E.2d 641 (1989); Roll v. Edwards, 156 Ohio
App.3d 227, 2004-Ohio-767, 805 N.E.2d 162, ¶ 15. “Appellate courts
review trial court judgments regarding motions to dismiss for lack of
subject-matter jurisdiction de novo.” Dargart at ¶ 12; citing Schetter v.
Frogameni, 6th Dist. Lucas No. L–05–1366, 2006-Ohio-3065, ¶ 4; citing
Hull v. Columbia Gas of Ohio, 160 Ohio App. 3d 695, 2005-Ohio-2089, 828
N.E.2d 677, ¶ 11. Further, “[i]n making a determination under Civ.R.
12(B)(1), neither the trial court nor this court is confined to a consideration
of the allegations of the complaint, but may consider any material pertinent
to that inquiry.” Dargart at ¶ 12; citing Southgate Dev. Corp. v. Columbia
Gas Transmission Corp. (1976), 48 Ohio St. 2d 211, 2 O.O.3d 393, 358
N.E.2d 526, paragraph one of the syllabus (subsequently reversed based
upon finding PUCO had exclusive jurisdiction to adjudicate rate disputes.).
{¶10} Here, as set forth above, the record reflects that Williamson
filed his first action, which included claims for trespass, nuisance, inverse
condemnation and punitive damages, against Scioto Township, Michael
Struckman and Terry Brill on October 25, 2010. That action was
involuntarily dismissed by the trial court for failure to abide by the court’s
scheduling order on August 30, 2011. Williamson refiled the action on
August 9, 2012, asserting the same claims against the same parties. Then,
Pickaway App. No. 16CA5 8
on June 18, 2013, Williamson filed an amended complaint that included the
original claims and added new claims for negligent permit process,
unconstitutional culvert policy, ratification, abuse of office, and willful
destruction of evidence.
{¶11} The Township removed the case to federal court on July 15,
2013, and a notice of removal was filed in the state trial court on July 16,
2013. The federal court issued an opinion and order on September 5, 2014,
granting summary judgment to the Township on the unconstitutional culvert
policy, ratification and abuse of office claims, noting that the claim for
inverse condemnation appeared to have been abandoned, and dismissing
without prejudice Williamson’s remaining state law claims. The federal
court did not remand the matter to the state trial court. Then, approximately
nine months later, on June 11, 2015, Williamson filed a “Motion To
Reinstate Case On Active Docket,” which the trial court granted on June 12,
2015.
{¶12} In response, the Township filed a motion for summary
judgment on the remaining state law claims, followed by a motion to dismiss
based upon lack of subject matter jurisdiction. While the trial court denied
the Township’s motion to dismiss, it granted its motion for summary
judgment on all claims except the claim for inverse condemnation. Then,
Pickaway App. No. 16CA5 9
after holding a bench trial on the inverse condemnation claim, the trial court
ruled in favor of the Township.
{¶13} Presently on appeal, Williamson argues that the trial court
erred in granting summary judgment in favor of the Township on his
trespass and nuisance claims, and erred in rendering judgment in favor of the
Township on the inverse condemnation claim. As set forth above, the
Township’s cross appeal asserts that the trial court lacked subject matter
jurisdiction over Williamson’s inverse condemnation and other state law
claims, which had been once dismissed by the state court, refiled within one
year, removed to federal court, dismissed without prejudice and then
“reinstated” on the state court docket nine months later. More specifically,
the Township argues that the state court lost subject matter jurisdiction when
the case was removed to federal court, and did not reacquire jurisdiction
following the federal court’s dismissal. For the following reasons, we agree
with the Township.
{¶14} Contrary to the trial court’s position that it retained jurisdiction
over this matter when it was removed to federal court because it simply
placed the matter on its inactive docket, we note that “[f]ederal courts have
consistently held ‘the state court loses all jurisdiction to proceed
immediately upon the filing of the petition in the federal court and a copy in
Pickaway App. No. 16CA5 10
the state court.’ ” Borkowski v. Borkowski, 6th Dist. Fulton No. F-04-020,
2005-Ohio-2212, ¶ 14; citing South Carolina v. Moore (C.A.4, 1970), 447
F.2d 1067, 1073 (other citations omitted). Ohio courts have likewise found,
interpreting federal law, that “the mere filing of a proper removal petition in
state court divests the court of jurisdiction and vests jurisdiction in the
federal court.” Borkowski at ¶ 14; citing Shunk v. Shunk Mfg. Co., 75 Ohio
App. 253, 256, 61 N.E.2d 896 (1945); interpreting former 28 U.S.C.S. § 72.
Further, “ ‘any proceedings in the state court after the filing of the petition
and prior to a federal remand order are absolutely void, despite subsequent
determination that the removal petition was ineffective.’ ” Borkowski at
¶ 14; quoting South Carolina v. Moore, supra.
{¶15} We also must note here that Williamson represented to the trial
court in his motion to reinstate that the federal court had remanded the
matter to the state court. However, that was not accurate. Our review of the
federal filings contained within the record before us indicate that the federal
court dismissed Williamson’s state law claims without prejudice, but did not
remand the matter to the state court.
{¶16} In Harris v. O’Brien, 8th Dist. Cuyahoga Nos. 86218 and
86323, 2006-Ohio-109, the Eighth District Court of Appeals addressed a
situation nearly identical, procedurally, to the present case. Harris filed his
Pickaway App. No. 16CA5 11
initial lawsuit in state court and then voluntarily dismissed it pursuant to
Civ.R. 41(A). Id. at ¶ 1. Harris refiled the lawsuit within one year and
because he added a federal cause of action the case was removed to federal
court. Id. at ¶ 2. Two years later the federal court declined to exercise
supplemental jurisdiction over Harris’ state law claims and dismissed them
without prejudice. Id. Six months later, Harris moved the state court to
“reinstate” his state law claims, which the trial court did, but then later
vacated after “realizing that it was without jurisdiction to reinstate the
Second Action because it was removed to federal court and later dismissed.”
Id. at ¶ 3. Thereafter, Harris filed a third action in the state court. Id. The
appellees in that case moved the trial court for judgment on the pleadings,
arguing Harris’ claims were barred by the one-year statute of limitations,
and the trial court granted the motion. Id. at ¶ 4.
{¶17} On appeal, Harris argued that his claims survived because the
Ohio savings statute “allowed him an additional year to refile his state law
claims after the federal court dismissed them without prejudice.” Id. at ¶ 5.
The appellate court rejected Harris’ argument, reasoning that “Harris was
precluded from utilizing the Ohio saving’s statute to refile a Third Action, as
R.C. 2305.19(A) may only be used once to refile a case and only once to
extend the statute of limitations[,]” and that the statutes of limitations on all
Pickaway App. No. 16CA5 12
of his claims, except one, had expired. Id. at ¶ 15.1 The Harris court further
found Harris did not timely refile his Third Action within 30 days of the
federal court’s dismissal without prejudice of his state law claims, which is
provided for in Section 1367(D), Title 28, U.S. Code, but rather he waited
six months “to reinstate his claims.” Id. at ¶ 16.2 “Savings statutes operate to
give a plaintiff a limited period of time in which to refile a dismissed claim
that would otherwise be time-barred.” Hamrick v. Ramalia, 8th Dist.
Cuyahoga No. 97385, 2012-Ohio-1953, ¶ 21; citing Internatl. Periodical
Distrib. v. Bizmart, 95 Ohio St. 3d 452, 2002-Ohio-2488, 768 N.E.2d 1167,
¶ 7. Further, “the savings statute can be used only once.” Id.
{¶18} We find the reasoning of Harris, while not binding, to be both
instructive and persuasive with respect to the facts presently before us.
Much like Harris, Williamson filed an initial lawsuit in state court that was
dismissed and then refiled within one year pursuant to the Ohio Savings
Statute.3 Thus, when his state claims were dismissed for a second time by
1
R.C. 2305.19(A), commonly referred to as Ohio’s Savings Statute, provides as follows: “In any action
that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or
if the plaintiff fails otherwise than upon the merits, the plaintiff or, if the plaintiff dies and the cause of
action survives, the plaintiff's representative may commence a new action within one year after the date of
the reversal of the judgment or the plaintiff's failure otherwise than upon the merits or within the period of
the original applicable statute of limitations, whichever occurs later. This division applies to any claim
asserted in any pleading by a defendant.”
2
Section 1367, Title 28, U.S. Code provides for a tolling of the statute of limitations for thirty days for
claims dismissed by the federal court, in order that the claims may be refiled in state court.
3
The only difference, which will be discussed in more detail herein, is that Harris voluntarily dismissed his
first lawsuit pursuant to Civ.R. 41(A), and Williamson’s first lawsuit was involuntarily dismissed by the
state court.
Pickaway App. No. 16CA5 13
the federal court, Williamson, having already utilized the Ohio Savings
Statute, could only avail himself of the additional thirty-day federal tolling
period provided by Section 1367, Title 28, U.S. Code.
{¶19} Because he waited nine months to either refile his claim or
request that the state court “reinstate” his claims, just as in Harris, the
statutes of limitations had expired. Again, of importance is the fact that the
federal court did not remand the matter back to the state court. Absent a
remand order, in our view Williamson would have had to refile, not
reinstate, his claims in the state court, and would have had to do it within
thirty days in light of the fact he had already used the Ohio Savings Statute
once.
{¶20} The Township also seems to contend that the “double-
dismissal rule” barred Williamson from proceeding with his claims after the
federal court dismissal without prejudice of his state law claims; however,
we disagree. The “double-dismissal rule” is contained in the last sentence of
Civ.R. 41(A)(1) and provides that dismissal under Civ.R. 41(A) is generally
without prejudice. However, the last sentence contains an exception to the
rule, stating that “a notice of dismissal operates as an adjudication upon the
merits of any claim that the plaintiff has once dismissed in any court.”
Civ.R. 41(A).
Pickaway App. No. 16CA5 14
{¶21} As explained by the Supreme Court of Ohio in Olynyk v.
Scoles, 114 Ohio St. 3d 56, 2007-Ohio-2878, 868 N.E.2d 254, ¶ 10:
“It is well established that when a plaintiff files two unilateral
notices of dismissal under Civ.R. 41(A)(1)(a) regarding the
same claim, the second notice of dismissal functions as an
adjudication of the merits of that claim, regardless of any
contrary language in the second notice stating that the dismissal
is meant to be without prejudice. See, e.g., EMC Mtge. Corp. v.
Jenkins, 164 Ohio App. 3d 240, 2005-Ohio-5799, 841 N.E.2d
855, ¶ 32; Robinson v. Allstate Ins. Co., 8th Dist. No. 84666,
2004-Ohio-7032, 2004 WL 2980489, ¶ 29; Forshey v. Airborne
Freight Corp. (2001), 142 Ohio App. 3d 404, 408, 755 N.E.2d
969; Mays v. Kroger Co. (1998), 129 Ohio App. 3d 159, 161-
162, 717 N.E.2d 398; Internatl. Computing & Electronic Eng.
Corp. v. Ohio Dept. of Adm. Servs. (May 9, 1996), 10th Dist.
No. 95API11–1475, 1996 WL 239590. In that situation, the
second dismissal is with prejudice under the double-dismissal
rule, and res judicata applies if the plaintiff files a third
complaint asserting the same cause of action. See 1970 Staff
Note to Civ.R. 41 **257 (when a dismissal is with prejudice,
“the dismissed action in effect has been adjudicated upon the
merits, and an action based on or including the same claim may
not be retried”).”
{¶22} Civ.R. 41(A)’s double-dismissal rule only applies when a
plaintiff files two unilateral voluntary notices of dismissal, and is not
invoked when a court involuntary dismisses a case. Olynyk at ¶ 31; Forshey
v. Airborne Freight Corp., 142 Ohio App. 3d 404, 408, 755 N.E.2d 969 (12th
Dist.2001) (“Civ. R. 41(A)(1) provides that a plaintiff may voluntarily and
unilaterally dismiss an action without prejudice by simply filing notice with
the trial court at any time before the trial. Such dismissals are also known as
Pickaway App. No. 16CA5 15
‘notice dismissals.’ ”). The matter at issue presently before us was
originally filed back in 2010 and was involuntarily dismissed by the trial
court, presumably under Civ.R. 41(B)(1), for failure to abide by the court’s
scheduling order. It was refiled in state court in 2012 and then removed to
federal court. Later it was dismissed without prejudice by the federal court.
As neither of the dismissals were notice dismissals by Williamson, Civ.R.
41(A)’s double dismissal rule did not apply to bar Williamson from
proceeding with his claims after the dismissal by the federal court.
{¶23} However, despite the fact that the double dismissal rule does
not act as a bar, as alluded to above, the fact that Ohio’s Savings Statute can
only be used once and the fact that it was already utilized by Williamson
after he initially dismissed and then refiled his case in state court, does act as
a bar. Hamrick, supra. In Hamrick, the plaintiff filed suit which was later
jointly dismissed by stipulation of both parties. Hamrick at ¶ 3. The plaintiff
then refiled within one year, but subsequently filed a voluntary notice of
dismissal. Id. at ¶ 4. The plaintiff refiled again, for a third time. Id. The trial
court dismissed the third filing on the motion of defendant, which argued
that the third filing was beyond the statute of limitations, as well as the
additional one year provided under the savings statute. Id. at ¶ 5. Hamrick
appealed.
Pickaway App. No. 16CA5 16
{¶24} On appeal, the court upheld the dismissal, reasoning that
“when Hamrick filed Hamrick II, she reaped the benefits of the Ohio
Savings Statute, event [sic] though the statute of limitations had been
expired for almost three years. In addition, * * * when Hamrick III was
filed, the statute of limitations had been expired for almost five years.” Id. at
¶ 20. The Hamrick court stated that “[t]he savings statute can be used only
once, because otherwise, a plaintiff could infinitely refile her action, and
effectively eliminate statutes of limitations.” Id. at ¶ 21; citing Duncan v.
Stephens, 8th Dist. Cuyahoga No. 83238, 2004-Ohio-2402, ¶ 21.
{¶25} Here, Williamson had already availed himself of Ohio’s
Savings Statute when he refiled his complaint in 2012. Thus, it was
unavailable to him after the federal court dismissal of his state law claims.
So unless there was another savings statute available to him, such as the
thirty-day federal tolling period contained in Section 1367, Title 28, U.S.
Code, he could not refile, or as in this case and Harris, supra, “reinstate” his
case. As we have discussed, Williamson did not seek to reinstate his state
law claims in the state trial court until nine months after the federal court
dismissed them, which was well outside the thirty-day tolling period. See
Koslen v. American Red Cross, 8th Dist. Cuyahoga No. 71733, 1997 WL
Pickaway App. No. 16CA5 17
547838, *2 (“If the savings statute used [sic] once, the third action relates
back to the second action, which was untimely.”)
{¶26} Williamson attempted to circumvent the statute of limitations
problem by arguing in his memorandum in opposition to the Township’s
motion for summary judgment, and now on appeal, that the torts of trespass
and nuisance were continuing torts and thus, that the statutes of limitations
for those claims had not expired. The Township responded by arguing that
Williamson had not alleged continuing torts in any of his previously filed
complaints or his amended complaint. The record supports the Township’s
argument and we find that Williamson did not allege continuing torts of
trespass and nuisance in the pleadings.
{¶27} As pointed out by the Township, the statutes of limitations for
trespass, nuisance and inverse condemnation are all four years. R.C.
2305.09. Thus, all of these statutes of limitations had expired at the time
Williamson requested that the state trial court reinstate his claims. Having
availed himself once already of Ohio’s Savings Statute and having failed to
refile his case, or as here, file for reinstatement, within the thirty-day federal
tolling period discussed above, Williamson’s claims were barred and the
trial court lacked jurisdiction to reinstate the case.
Pickaway App. No. 16CA5 18
{¶28} As such, the trial court erred in denying the Township’s motion
to dismiss based upon lack of jurisdiction and further acted outside of its
authority when it exercised jurisdiction over the matter and rendered
summary judgment in favor of the Township on the merits. The court
further erred when it held a bench trial on the inverse condemnation claim
and rendered judgment in favor of the Township on that claim. In fact, it
could be argued that the trial court’s decisions on these motions are void.
Borkowski v. Borkowski at ¶ 19; Jacobs v. Acacia Chattanooga Vehicle
Auction, Inc., et al., 10th Dist. Franklin No. 10AP-1071, ¶ 7. Instead, we
conclude the trial court should have denied Williamson’s motion to reinstate,
or at the very least, it should have granted the Township’s motion to dismiss
for lack of subject matter jurisdiction, and stopped there.
{¶29} This discussion brings us to the question of this Court’s
jurisdiction over this matter considering that the trial court lacked
jurisdiction. The Supreme Court of Ohio has determined that “an appellate
court acts properly in reversing a state trial court’s judgment where the trial
court rendered judgment after the defendant filed his notice of removal with
the state trial court pursuant to 28 U.S.C. 1446(d).” Jacobs, supra, at ¶ 21;
citing Borkowski v. Abood, 117 Ohio St. 3d 347, 2008-Ohio-857, 884 N.E.2d
7, ¶ 13. The Jacobs court further reasoned that “an appellate court retains
Pickaway App. No. 16CA5 19
jurisdiction in this specific situation to reverse and vacate an entry of the
trial court where the trial court purported to act following a properly effected
removal to federal court * * *.”
{¶30} In light of the fact that this matter was removed to federal
court, was dismissed without prejudice and was not remanded, and that
Williamson failed to refile or reinstate his claims within the federal thirty-
day tolling period, the trial court was without jurisdiction over the matter.
As such, the trial court erred in denying the Township's motion to dismiss
based upon lack of jurisdiction. Further, the trial court's grant of summary
judgment and judgment in the Township’s favor on the trespass, nuisance
and inverse condemnation claims are all void. Accordingly, the trial court's
denial of the motion to dismiss is reversed and its grant of summary
judgment and judgment on the trespass, nuisance and inverse condemnation
claims are hereby vacated. Jacobs at ¶ 22.
JUDGMENT REVERSED AND VACATED.
Pickaway App. No. 16CA5 20
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED AND VACATED
and that Appellant shall recover costs from Appellees.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Pickaway County Common Pleas Court to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. & Hoover, J.: Concur in Judgment Only.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
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.