Dublin v. Wirchanski
2011 Ohio 2461
Ohio Ct. App.2011Background
- Dublin filed an appropriation action in 2008 seeking fee simple interests in Parcels 71-WD, 91-WL, and 92-WL for the US 33/161 project, all owned by Wirchanski.
- Dublin deposited a compensation payment totaling $6,881,128 allocated by parcel, giving Dublin possession rights to enter the land, though Wirchanski disputed Parcel 91-WL’s value.
- In 2010, Dublin sought to abandon Parcels 91-WL and 92-WL while continuing with Parcel 71-WD, arguing partial abandonment was permitted under R.C. 163.21(A).
- Wirchanski challenged the partial abandonment, arguing Dublin could not abandon any parcel because possession had been taken for 91-WL.
- An evidentiary hearing was held in July 2010 to determine whether Dublin had possessed Parcels 91-WL and 92-WL and thus could abandon them.
- The trial court found Dublin had taken possession of Parcel 91-WL but not Parcel 92-WL, concluding Dublin could abandon 92-WL but not 91-WL; the matter proceeded to value Parcel 91-WL.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Dublin possess Parcel 91-WL for purposes of R.C. 163.21(A)? | Dublin contends it did not possess 91-WL and may abandon it. | Wirchanski contends Dublin possessed 91-WL and cannot abandon it. | No; the court held Dublin possessed 91-WL, preventing abandonment of that parcel. |
Key Cases Cited
- Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142 (2008-Ohio-5276) (leave to amend when dismissing fewer than all claims under Civ.R. 15(A))
- Dorsey v. Donohoo, 83 Ohio App.3d 415 (1992) (amendment may not amount to abandonment depending on scope)
- Madison Cty. Bd. of Commrs. v. Bell, 2007-Ohio-1373 (12th Dist. 2007) (amendment of appropriation petition possible; abandonment considerations follow)
- Montgomery County v. McQuary, 26 Ohio Misc. 239 (1971) (amendment behavior in appropriation proceedings)
- Ohio Edison Co. v. Franklin Paper Co., Inc., 18 Ohio St.3d 15 (1985) (abandonment involves costs and when agency pursues or dismisses actions)
- Dept. of Natural Resources v. Sellers, 14 Ohio App.2d 132 (1968) (abandonment under R.C. 163.21(A) when dismissed without prejudice)