2013 Ohio 3651
Ohio Ct. App.2013Background
- MacConnell owned property on West Grand Avenue in Dayton; the City of Dayton previously pursued partial appropriation in 2010 CV 663 and settlement compensated him for the taking.
- In August 2012 MacConnell, pro se, sued to compel the city to purchase the remainder of his property, alleging the appropriation and subsequent zoning decisions left the property valueless.
- The complaint claims road extensions and campus-institutional zoning prevent any feasible commercial use and denied requests to use the remainder (high/low-rise signs, cemetery, used car parts business).
- The trial court dismissed under Civ.R. 12(B)(6), noting the Settlement Entry from 2010 CV 663 approved by the court and concluding the suit sought additional appropriation damages barred by the settlement and/or failed to state a claim.
- On appeal, the court affirmed the dismissal, holding the complaint does not allege a legally cognizable right to relief and that relief would require an administrative appeal or declaratory-judgment action, not the instant suit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint states a cognizable claim for relief. | MacConnell seeks purchase of the remainder due to zoning-imposed value loss. | Settlement in 2010 CV 663 bars further appropriation damages; zoning validity defeats claim. | Yes; no legally cognizable claim; dismissal proper. |
| Whether the trial court could consider the 2010 settlement entry on a Civ.R. 12(B)(6) motion. | Settlement entry should not be treated as governing the new claim; attached evidence not required. | Settlement entry governs and bars the new damages claim. | Yes; proper to consider, but error to convert without notice is not prejudicial here. |
| Whether MacConnell exhausted administrative remedies for zoning challenges. | Exhaustion not required for this action. | Administrative-exhaustion requirement applies; not satisfied. | Yes; the failure to exhaust is not fatal because the claim lacks a cognizable legal basis. |
| Whether the settlement agreement covers the remainder as well as the appropriated portion. | Settlement only covered the land taken, not the residue. | Settlement pertains to both the appropriated property and the residue. | Yes; settlement plainly relates to both, baring further appropriation damages. |
Key Cases Cited
- Tulloh v. Goodyear Atomic Corp., 62 Ohio St.3d 541, 584 N.E.2d 729 (1992) (definition of a 'right to sue' and standard for claims)
- City of Englewood v. Wagoner, 41 Ohio App.3d 324, 535 N.E.2d 736 (2d Dist.1987) (damages to residue in partial takings; measurement approach)
- Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977 (Supreme Court of Ohio 2012) (appropriate means to challenge zoning resolutions)
- State ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 119 Ohio St.3d 11, 891 N.E.2d 320 (2008) (mandamus and proceedings to compel appropriation—pathways clarified)
- Avon Lake City School Dist. v. Ohio Dept. of Taxation, 55 Ohio App.3d 171, 563 N.E.2d 754 (10th Dist.1989) (framework for administrative challenges to zoning)
- Fox v. Morrison Motor Freight, Inc., 25 Ohio St.2d 193, 267 N.E.2d 405 (1971) (definition of 'right to relief' and pleading requirements)
- Thomas v. Progressive Cas. Ins. Co., 2011-Ohio-6712, 969 N.E.2d 1284 (2d Dist. 2011) (de novo review on Civ.R. 12(B)(6) where facts assumed true)
- Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977 (Supreme Court of Ohio 2012) (administrative/ declaratory paths to challenge zoning)