State ex rel. New Wen, Inc. v. Marchbanks (Slip Opinion), 167 N.E.3d 934

Background

ODOT closed the Cherry Valley Rd. / SR 16 intersection in Licking County, eliminating direct access between New Wen’s Wendy’s property and SR 16.
New Wen (relator) filed a mandamus action; this Court granted a writ directing ODOT to commence appropriation (eminent-domain) proceedings, finding a compensable taking. 159 Ohio St.3d 15, 2020-Ohio-63.
After the writ, New Wen sought an award of reasonable attorney fees and expert-witness costs.
ODOT opposed, arguing no statutory basis for fee recovery and that claimed amounts were unreasonable.
The Court analyzed federal and state fee statutes, administrative rules, and 42 U.S.C. § 1988/§ 1983 arguments and concluded no authorization existed to award fees or the claimed expert costs.
The application for attorney fees and expert-witness costs was denied; a concurrence urged the legislature to consider whether fee-shifting should be authorized in such cases.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a prevailing party in a state mandamus action to compel appropriation can recover attorney fees absent state statutory authorization	New Wen: federal Uniform Relocation Act (42 U.S.C. 4654) and related federal rules authorize fees; Ohio adopted analogous provisions	ODOT: federal provisions apply only to federal agencies; no Ohio statute authorizes fees in a mandamus inverse-condemnation	Denied — American Rule controls; no statutory authorization for fees in this mandamus action
Whether federal Uniform Relocation Act obligations (because federal funds were involved) create a private right to fees against ODOT	New Wen: project involved federal funds and 42 U.S.C. 4655 obligations mean owners should recover attorney fees	ODOT: 42 U.S.C. 4654/4655 govern federal-agency condemnation and preapproval assurances, not a basis to award fees in state mandamus	Denied — federal URA provisions do not authorize fee awards in state mandamus proceedings against a state agency
Whether Ohio law or administrative rules (R.C. Chapter 163; Ohio Adm.Code 5501:2-5-06(G)(3)) authorize fee awards	New Wen: Ohio adopted federal-rule language in administrative code and some statutes authorize fees in related appropriation contexts	ODOT: administrative rules cannot create fee-shifting absent clear statutory grant; Ohio statutes cited apply in different contexts	Denied — administrative-code language cannot create statutory authorization; Ohio statutes do not authorize fees here
Whether New Wen can recover fees under 42 U.S.C. § 1988 as a prevailing § 1983 plaintiff	New Wen: alleged federal constitutional takings and invoked § 1983 in its complaint, so § 1988 fees follow	ODOT: this Court lacks original jurisdiction to adjudicate § 1983 claims; § 1988 cannot expand the Court's jurisdiction	Denied — mandamus was not a § 1983 action for which this Court can award § 1988 fees

Key Cases Cited

Sorin v. Warrensville Hts. School Dist. Bd. of Edn., 46 Ohio St.2d 177 (1976) (adopts American Rule: prevailing party cannot recover attorney fees absent statutory authorization)
Burger Brewing Co. v. Thomas, 42 Ohio St.2d 377 (1975) (administrative rules must be predicated on statutory grant of authority)
Doyle v. Ohio Bur. of Motor Vehicles, 51 Ohio St.3d 46 (1990) (same principle on rulemaking authority)
Vance v. Roedersheimer, 64 Ohio St.3d 552 (1992) (local rule or regulation cannot serve as statutory authorization for attorney fees)
State ex rel. Murphy v. Indus. Comm., 61 Ohio St.2d 312 (1980) (statutory authorization required for fee awards)
State ex rel. Cleveland Mun. Court v. Cleveland City Council, 34 Ohio St.2d 120 (1973) (statutes and rules cannot expand this Court’s original jurisdiction)
ProgressOhio.org, Inc. v. Kasich, 129 Ohio St.3d 449 (2011) (reinforces limits on this Court’s original-jurisdiction authority)
Conley v. Shearer, 64 Ohio St.3d 284 (1992) (discusses § 1983 as a vehicle to challenge state-action deprivation of federal rights)