THE CITY OF INDEPENDENCE, APPELLEE, v. OFFICE OF THE CUYAHOGA COUNTY EXECUTIVE, APPELLANT, ET AL.
No. 2013-0984
Supreme Court of Ohio
October 23, 2014
142 Ohio St.3d 125, 2014-Ohio-1650
FRENCH, J.
Submitted May 27, 2014
{¶ 1} In this appeal, we consider the extent of a county‘s responsibility for repairing and maintaining bridges under
Governing Statutes
{¶ 2}
{¶ 3} Despite that general rule,
Factual and Procedural Background
{¶ 4} In September 2010, Independence requested that the Cuyahoga County Board of County Commissioners (“board“), the predecessor to the county executive, recognize the Old Rockside Road bridge as a bridge of general and public utility. Independence represented that the Old Rockside Road bridge required significant repairs and asserted that the county was responsible for repairing it as a necessary bridge on an improved road of general and public utility.
{¶ 5} The Old Rockside Road bridge spans the Cuyahoga River and traverses the boundary between Independence and Valley View. After crossing the Cuyahoga River, Old Rockside Road connects with two dead-end roads and comes to a dead end itself in Independence. The Old Rockside Road bridge provides the sole means of access to the businesses and facilities, including a station for the Cuyahoga Valley Scenic Railroad, located off Old Rockside Road in Independence.
{¶ 6} In 1967, Cuyahoga County vacated Old Rockside Road as a county road, pursuant to
{¶ 7} At its regular meeting on December 2, 2010, the board determined that Old Rockside Road is not a road of general and public utility.
{¶ 8} Independence appealed the board‘s decision to the Cuyahoga County Court of Common Pleas, pursuant to
The Old Rockside Road bridge is found to be a bridge of “general and public utility” as it lies between two municipalities and is therefore not within the municipal corporation as required by
O.R.C. 723.01 andO.R.C. 5591 . The court finds that Cuyahoga County is responsible for the repair and maintenance of the Old Rockside Road bridge.
{¶ 10} This court accepted the county‘s discretionary appeal on the following proposition of law:
A county has no duty to repair or replace a bridge on [a] dead-end private drive serving a limited number of businesses. The county‘s duty to repair or replace such a bridge depends upon whether the road served by the bridge is a road of general and public utility, and such a road primarily serves a small number of special and private interests.
136 Ohio St.3d 1509, 2013-Ohio-4657, 995 N.E.2d 1212. Despite the phrasing of its proposition of law, the county does not argue that Old Rockside Road is a “private drive,” but maintains that since its vacation as a county road, Old Rockside Road has been a municipal street, a local road, or both.
{¶ 11} The county‘s proposition of law correctly states that its responsibility for repairing the Old Rockside Road bridge depends on whether Old Rockside Road is an improved road of general and public utility, see
{¶ 12} Despite the lower courts’ misstatement of the issue, the evidence before those courts goes to the nature of the road as much as it goes to the nature of the bridge. For example, the record contains evidence regarding the county‘s vacation of the road, a 2010 study of traffic using the road and the bridge, the nature of the businesses and facilities located off the road in Independence, the inability of those businesses to access their facilities without traveling over Old Rockside Road and the Old Rockside Road bridge, and the large number of visitors to the Cuyahoga Valley Scenic Railroad who rely on Old Rockside Road and the Old Rockside Road bridge to access the station in Independence. On the facts of this particular case, utility of the bridge and utility of the road cannot be separated, and we read the lower courts’ findings that the Old Rockside Road bridge is a bridge of general and public utility as a determination that Old Rockside Road is a road of general and public utility.
{¶ 13} In an
{¶ 14} The court of appeals’ standard of review under
{¶ 15} Here, the common pleas court concluded that the board‘s decision—that Old Rockside Road is not a road of general and public utility—was unreasonable and arbitrary. Implicit within that conclusion is a finding that the preponderance of reliable, probative, and substantial evidence does not support the board‘s decision. The court of appeals cited the appropriate standard of review and affirmed, concluding that a preponderance of reliable, probative, and substantial evidence supports the trial court‘s judgment.
Analysis
{¶ 16} Neither the county‘s vacation of Old Rockside Road nor Independence‘s responsibility for maintaining the road is determinative of whether the county or the city is responsible for maintaining and repairing the Old Rockside Road bridge. Any county responsibility for the bridge would arise from
{¶ 17} The Ohio attorney general has opined that “[t]he determination of whether a particular road is an improved road of general and public utility is a question of fact to be determined in the first instance by the county commissioners.” 1990 Ohio Atty.Gen.Ops. No. 90-079, at paragraph three of the syllabus. Nevertheless, the county argues that because the facts before the board were undisputed, whether this road is of general and public utility is strictly a legal determination.
{¶ 18} The county relies on a statement in Henley, 90 Ohio St.3d at 148, 735 N.E.2d 433, quoting Black‘s Law Dictionary 1260 (7th Ed.1999), that application of a zoning ordinance to the facts “is a ‘question of law‘—‘[a]n issue to be decided by the judge, concerning the application or interpretation of the law.‘” See also Brennaman v. R.M.I. Co., 70 Ohio St.3d 460, 466, 639 N.E.2d 425 (1994) (holding that whether a facility was an improvement to real property under
{¶ 19} Here, the meaning of “improved road of general and public utility” is a question of law, but the question whether Old Rockside Road qualifies under that statutory term requires a consideration of the underlying facts and circumstances regarding the use of the road. Regardless of whether that ultimate question is one of fact or one of law, the court of appeals appropriately considered whether, as a matter of law, the trial court properly reversed the board‘s decision on the grounds that it was not supported by reliable, probative, and substantial evidence.
{¶ 20} Statutory provisions analogous to
{¶ 21} Neither Piqua nor Interurban Ry. & Terminal Co. aids the county‘s cause. Although the Piqua syllabus suggests that county commissioners are not required to construct and keep in repair bridges on streets established by a city
{¶ 22} Interurban Ry. & Terminal Co. essentially asked whether the city of Cincinnati‘s annexation of land affected Hamilton County‘s statutory duty to maintain and repair a bridge located within the annexed land. A franchise from the Hamilton County commissioners to Interurban Railway and Terminal Company‘s predecessor required Interurban‘s predecessor to maintain, repair, and rebuild the bridge during the contract term, under the direction of the county engineer and commissioners, whenever the commissioners deemed it necessary.
{¶ 23} Cincinnati claimed that it succeeded to the county commissioners’ right to enforce Interurban‘s obligation to repair the bridge, but this court held that the annexation did not affect the county‘s preexisting obligation. This court concluded that the county‘s statutory duty to construct and maintain the bridge remained unchanged even though, after annexation, the bridge was located within the municipal boundaries and formed part of a city street. Interurban Ry. & Terminal Co. at 276-278.
{¶ 24} Neither Piqua nor Interurban Ry. & Terminal Co. speaks to the meaning of an improved road of general and public utility. The Revised Code does not define the phrase “general and public utility,” but we read those words in context, according to the rules of grammar and common usage.
{¶ 25} “The phrase ‘of general and public utility * * *’ has long been construed as creating a distinction based on the type of traffic using the street on which the bridge is located.” 1990 Ohio Atty.Gen.Ops. No. 90-079, 2-336. A county‘s obligation to maintain bridges on roads running into and through municipal corporations is related to the general, as distinguished from the local, use of those bridges. Dumford, 22 Ohio App.2d at 77, 258 N.E.2d 261; State ex rel. Moraine v. Montgomery Cty. Bd. of Commrs., 2d Dist. Montgomery No. 10033, 1987 WL 6638 (Feb. 12, 1987) (describing the purpose of
{¶ 26} Rather than focusing on the specific facts of this case as a basis for determining whether Old Rockside Road is an improved road of general and public utility, the county makes sweeping generalizations in an attempt to exclude categories of roads from that designation. For example, the county generalizes that dead-end roads rarely, if ever, qualify as roads of general and public utility. But the county offers no rationale for that assertion beyond its bare belief that traffic on a dead-end road is necessarily local, as opposed to general. In support of its general assertion, the county maintains that inclusion of dead-end roads as roads of general and public utility would impermissibly render the phrase “of general and public utility” meaningless. While courts should, of course, not read a statute in a manner that renders any part superfluous, see State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 373, 116 N.E. 516 (1917), a factual, case-by-case determination whether a dead-end road is of general and public utility pays heed to the statutory requirement without rendering any part of the statute superfluous. As with any other street or road, whether a particular dead-end road serves a general and public utility must be determined on a case-by-case basis upon the particular facts of each case.
{¶ 27} The county also generally asserts that bridges to isolated business enclaves are not “necessary” bridges under
{¶ 28} Finally, the county argues that judicial estoppel precludes Independence from arguing that Old Rockside Road is a road of general and public utility. The county bases this argument on Independence‘s alleged representation in a grant application to the Northeast Ohio Areawide Coordinating Agency (“NOACA“) that Independence was the sponsor for an approved project to repair the Old
{¶ 29} Judicial estoppel precludes a party from taking a position inconsistent with a position that it successfully and unequivocally asserted in a prior judicial proceeding. Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 25. It applies only when a party demonstrates that an opposing party took a contrary position under oath in a prior proceeding and that the court accepted the prior position. Id., quoting Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 380 (6th Cir.1998). Even then, judicial estoppel is an equitable doctrine that a court may invoke at its discretion. New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990).
{¶ 30} The county‘s judicial-estoppel argument fails here for several reasons. First, the county raises that argument for the first time in this court, even though an appellant generally may not raise an argument on appeal that the appellant has not raised in the lower courts or administrative proceedings. Greer-Burger at ¶ 30. Here, according to the county, the factual basis for its judicial-estoppel argument—Independence‘s NOACA application—occurred in February 2013, while this case was pending in the Eighth District, but the county did not raise the issue of estoppel in that court.
{¶ 31} Second, even were we inclined to consider the county‘s argument, the record contains no evidence of the grant application to NOACA containing Independence‘s alleged inconsistent position. Although the County Engineers Association of Ohio, as amicus curiae, has attached Independence‘s NOACA application to its amicus brief, the application was not filed in any prior proceeding in this case and is therefore not properly part of the record before this court.
{¶ 32} Furthermore, the county does not rely on, nor does the record reflect, a contrary position taken by Independence in either this or any prior judicial proceeding. In determining whether to invoke judicial estoppel, courts often consider whether the party to be estopped has persuaded a court to accept the party‘s earlier position, so that subsequent acceptance of an inconsistent position would create the risk of inconsistent court determinations. New Hampshire at 750, quoting United States of Am. ex rel. Am. Bank v. C.I.T. Constr. Inc. of Texas, 944 F.2d 253, 259 (5th Cir.1991). Throughout the four-year history of these proceedings, Independence‘s position has consistently been that Old Rockside Road is an improved road of general and public utility and that the county is, therefore, responsible for the maintenance and repair of the bridge located on it. Because Independence has not presented a contrary argument to any court, let alone succeeded on a contrary argument,
{¶ 33} Turning now from the county‘s general arguments to the specific facts of this case, we reiterate the limitation upon appellate review in this matter: like the court of appeals, we decline to reweigh the evidence. Our only concern is whether, as a matter of law, the preponderance of the reliable, probative, and substantial evidence supports a conclusion contrary to the trial court‘s determination that the road is one of general and public utility.
{¶ 34} The evidence regarding Old Rockside Road and the traffic that uses it is undisputed. The Old Rockside Road bridge provides the only means for accessing the portion of Old Rockside Road in Independence, the two streets to which Old Rockside Road connects in Independence, and the businesses and facilities located off those roads. Additionally, the road and bridge provide access to the Cuyahoga Valley National Park and the only motor-vehicle access to the Cuyahoga Valley Scenic Railroad‘s Rockside Station.
{¶ 35} Multiple businesses rely on Old Rockside Road and the Old Rockside Road bridge as the sole means of access to their facilities. Those businesses serve many customers outside of Independence—some serve national and international customers—and they would be cut off from any roads without the Old Rockside Road bridge.
{¶ 36} The county attempts to minimize the amount of traffic using Old Rockside Road in comparison with the traffic using new Rockside Road, but a two-day traffic study conducted by the county engineer‘s office in early November 2010 showed that 1,666 vehicles used the Old Rockside Road bridge one day and 1,780 vehicles used the bridge the other day. (The county maintains that those numbers must be halved because every vehicle that crosses the bridge into Independence must also cross the bridge to leave.) While those numbers are significantly less than the number of vehicles that used the new Rockside Road during the study period, they cannot be dismissed outright as mere local traffic primarily for the use and benefit of Independence.
{¶ 37} In addition to the traffic study, the record contains evidence that during 2010, approximately 75,000 passengers from across the state of Ohio and the United States used the road and the bridge to reach the Cuyahoga Valley Scenic
{¶ 38} Based on the evidence in the record, the court of appeals could not have concluded, as a matter of law, that a preponderance of reliable, probative, and substantial evidence did not support the trial court‘s conclusion that Old Rockside Road is an improved road of general and public utility.
Conclusion
{¶ 39} Unless the court of appeals found, as a matter of law, that a preponderance of reliable, probative, and substantial evidence did not support the common pleas court‘s reversal of the board‘s decision, it was bound to affirm. Dudukovich, 58 Ohio St.2d at 207-208, 389 N.E.2d 1113. The evidence does not demonstrate, as a matter of law, that Old Rockside Road lacks general and public utility. Rather, a preponderance of reliable, probative, and substantial evidence supports the determination that Old Rockside Road and the Old Rockside Road bridge facilitate general, as opposed to primarily local, traffic and that Old Rockside Road is, therefore, a road of general and public utility. Accordingly, we affirm the court of appeals’ judgment.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, and O‘NEILL, JJ., concur.
O‘DONNELL, J., dissents.
O‘DONNELL, J., dissenting.
{¶ 40} Respectfully, I dissent.
{¶ 41} This case concerns whether Cuyahoga County should bear the cost to repair the Old Rockside Road Bridge, which is located on Old Rockside Road, formerly a county road that the county vacated in 1967.
{¶ 42} In my view, based on the facts of this case, Cuyahoga County should not be required to pay for repairs to the bridge.
Facts and Procedural History
{¶ 43} On June 22, 1967, the Board of County Commissioners of Cuyahoga County vacated Old Rockside Road as a county road and adopted the county engineer‘s recommendation to leave the roadway as a municipal street. Inde-
{¶ 44} On December 2, 2010, upon the request of the Cuyahoga County prosecutor, the board adopted a resolution determining that “Old Rockside Road, located in the City of Independence and Village of Valley View, is not a road of general and public utility * * * as that term is used in Ohio Revised Code Sections
{¶ 45} The city of Independence appealed that decision to the Cuyahoga County Court of Common Pleas, and that court reversed the board‘s decision, stating:
The court reviewed the briefs and the record and finds that the decision of the Cuyahoga County Board of Commissioners was unreasonable and arbitrary [and] therefore reverses the board‘s decision. The Old Rockside Road Bridge is found to be a bridge of “general and public utility” as it lies between two municipalities and is therefore not within the municipal corporation as required by
O.R.C. 723.01 andO.R.C. 5591 . The court finds that Cuyahoga County is responsible for the repair and maintenance of the Old Rockside Road Bridge.
(Emphasis added.)
{¶ 46} The board and Cuyahoga County appealed to the Eighth District Court of Appeals, which affirmed the judgment of the court of common pleas. 8th Dist. Cuyahoga No. 97167, 2013-Ohio-1336, 2013 WL 1384880, ¶ 37. The Office of the Cuyahoga County Executive, the board‘s successor, appealed to this court, and we granted discretionary review. 136 Ohio St.3d 1509, 2013-Ohio-4657, 995 N.E.2d 1212.
Law and Analysis
{¶ 47}
{¶ 48} By way of comparison,
{¶ 49} The issue before the common pleas court focused on the board‘s determination that Old Rockside Road—not Old Rockside Road Bridge—is not a road of general and public utility. However, the court rendered judgment regarding the bridge, not the road. It therefore abused its discretion. See Doe v. Natl. Bd. of Med. Examiners, 199 F.3d 146, 154 (3d Cir.1999) (“A court abuses its discretion when its ruling is founded on an error of law or a misapplication of law to the facts“).
{¶ 50} The court of appeals also misidentified the pertinent issue when it stated that the “issue in this case * * * is whether the trial court‘s decision that the bridge is one of general and public utility is supported by a preponderance of reliable, probative, and substantial evidence.” (Emphasis added.) 2013-Ohio-1336, 2013 WL 1384880, ¶ 14.
{¶ 51} In Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984), we stated that in an appeal pursuant to
[
R.C. 2506.04 ] grants a more limited power to the court of appeals to review the judgment of the common pleas court only on “questions of law,” which does not include the same extensive power to weigh “the preponderance of substantial, reliable and probative evidence,” as is granted to the common pleas court. Within the ambit of “questions of law” for appellate court review would be abuse of discretion by the common pleas court.
{¶ 52} In this case, a preponderance of reliable, probative, and substantial evidence supports the board‘s decision that Old Rockside Road is not a road of general and public utility. See Webster‘s Third New International Dictionary 944 (1993) (defining “general” as “applicable or relevant to the whole rather than to a limited part, group, or section“); Black‘s Law Dictionary 1422, 1779 (10th Ed.2014) (defining “public” as “[o]pen or available for all to use, share, or enjoy” and “utility” as the “quality of serving some function that benefits society; meritoriousness“).
{¶ 54} The record further discloses that the results of an August 2010 traffic study of Old Rockside Bridge showed that the total two-way traffic that went over the bridge in a 24-hour period consisted of 1,666 vehicles on the first day and 1,780 vehicles on the second day, while the average daily traffic on the new Rockside Road Bridge was 24,300 vehicles.
{¶ 55} While the area near Old Rockside Road may have changed since 1967 and Old Rockside Road may be important to businesses that abut that roadway and that are located on streets that connect with it, these businesses constitute a limited part, group, or section when compared with the whole of the local surrounding area.
{¶ 56} Thus, the board‘s determination that Old Rockside Road is not a road of general and public utility is supported by the record.
{¶ 57} Notably, the board in its 2010 resolution did not render any decision regarding Old Rockside Road Bridge. Therefore, the issue of responsibility for repairs to the bridge is not properly before this court.
{¶ 58} Accordingly, I would reverse the judgment of the court of appeals and uphold the decision of the Board of County Commissioners that Old Rockside Road is not a road of general and public utility.
Taft, Stettinius & Hollister, L.L.P., and Gregory J. O‘Brien, Independence Law Director, and Thomas J. Lee and Jennifer Orr, for appellee.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Brian R. Gutkoski and David G. Lambert, Assistant Prosecuting Attorneys, for appellant.
Thomas L. Sherman, urging reversal for amicus curiae, County Engineers Association of Ohio.