       [Cite as Queensgate Terminals, L.L.C. v. Cincinnati, 2013-Ohio-4219.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



QUEENSGATE TERMINALS, LLC,                         :      APPEAL NOS. C-110653
                                                                      C-110671
       Plaintiff-Appellant/Cross-                  :      TRIAL NOS. A-0708182
       Appellee,                                                     A-0907363
                                                   :                 A-0909060
       vs.
                                                   :
THE CITY OF CINCINNATI,                                            O P I N I O N.
                                                   :
       Defendant-Appellee/Cross-
       Appellant.                                  :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Dismissed

Date of Judgment Entry on Appeal: September 27, 2013


Taft, Stettinius & Hollister LLP, W. Stuart Dornette and Emily C. McNicholas, for
Plaintiff-Appellant/Cross-Appellee,

Terrance A. Nestor, Chief Counsel, City of Cincinnati Solicitor’s Office, for
Defendant-Appellee/Cross-Appellant.


Please note:    these consolidated cases have been removed from the accelerated
calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

         {¶1}   Appellant/cross-appellee Queensgate Terminals, LLC (“Queensgate”),

and appellee/cross-appellant the city of Cincinnati each appeal from the trial court’s

entries of judgment in these cases to determine the measure of damages due

Queensgate for the city’s denial of access to an abutting public road. Because the

judgments have been satisfied, we dismiss the appeals as moot.

         {¶2}   The Ohio Supreme Court affirmed this court’s granting of a writ of

mandamus to compel the city to institute an appropriation proceeding to determine

the compensation due to Queensgate for the city’s September 12, 2005 taking. See

State ex rel. Hilltop Basic Resources, Inc. v. Cincinnati, 118 Ohio St.3d 131, 2008-

Ohio-1966, 886 N.E.2d 839, ¶ 41. The city had denied Queensgate and its lessor,

Hilltop Basic Resources, Inc., a curb cut, denying them access to their riverfront

property from an abutting public road. The city initiated the appropriation action,

and it was consolidated with other litigation in the trial court under the case

numbered A-0708182.

         {¶3}   On March 2, 2010, the trial court ordered the city to deposit $1,680,783

with the court to secure the recovery of Queensgate’s anticipated damages. From March

15 to March 21, 2011, the trial court conducted a jury trial on the matter. On March 22,

2011, the jury returned a verdict of $500,000 for Queensgate. The same day, the trial

court issued an order of distribution of the deposited funds. Queensgate received the full

amount of its judgment plus interest. And the city received the remainder of the deposited

funds.

         {¶4}   The gravamen of each appeal is that the trial court erred in

instructing the jury on how to compute the damages due to Queensgate for the city’s

taking. Queensgate argued that the trial court erred in admitting evidence of the city’s

$5 million settlement with Hilltop, and in admitting evidence of events that took place



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                      OHIO FIRST DISTRICT COURT OF APPEALS



after the date of the taking. The city argued, inter alia, that Queensgate’s rights in the

appropriation action had been determined by its lease, which contained a condemnation

clause limiting its recovery to its improvements, equipment, and relocation expenses.

       {¶5}    But the satisfaction of a judgment renders an appeal from a judgment

moot. See Blodgett v. Blodgett, 49 Ohio St.3d 243, 245, 551 N.E.2d 1249 (1990); see

also Wiest v. Wiegele, 170 Ohio App.3d 700, 2006-Ohio-5348, 868 N.E.2d 1040, ¶

12 (1st Dist.); Art’s Rental Equip., Inc. v. Bear Creek Constr., LLC, 1st Dist. Hamilton

Nos. C-110544, C-110555, C-110558, C-110559, C-110564, C-110785, C-110792, C-

110797, C-110798, C-110799, C-110800, C-110801, C-110808, and C-120309, 2012-

Ohio-5371, ¶ 7.      Absent a fraud upon the court, where a judgment has been

voluntarily paid and satisfied, that payment puts an end to the controversy. It takes

away “the right to appeal or prosecute error or even to move for vacation of

judgment.” Blodgett at 245, quoting Rauch v. Noble, 169 Ohio St. 314, 316, 159

N.E.2d 451 (1959).

       {¶6}    A party acts voluntarily in satisfying a judgment when it fails to obtain

a stay of the trial court’s judgment pending appeal. See Wiest at ¶ 12. If a party

seeking an appeal fails to obtain a stay of the judgment, and the judgment is

satisfied, the appeal must be dismissed because the issues in the case have become

moot. See id., citing Hagood v. Gail, 105 Ohio App.3d 780, 664 N.E.2d 1373 (11th

Dist.1995). In Rauch, a highway-appropriation action under former R.C. Chapter

5519, the director of highways had placed funds with the clerk of courts to cover the

judgment awarded to a landowner. After the full amount of the judgment had been

distributed to the landowner, the Ohio Supreme Court dismissed the director’s

appeal, holding that because the judgment had been distributed to the landowner by




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                      OHIO FIRST DISTRICT COURT OF APPEALS



order of the court, “[t]he litigation was, therefore, terminated, and the cause [had]

become moot.” Rauch at 316.

         {¶7}   Here, on the same day that the jury returned a verdict awarding

Queensgate $500,000 in damages, Queensgate and the city appeared before the trial

court.    Queensgate sought distribution of its award from the deposited funds.

Queensgate offered a suggested amount of interest due, and the city did not oppose

Queensgate’s calculations. Although the city initially suggested that the court hold

the funds or require a bond to be posted, it did not pursue the matter. The city’s

principal response to Queensgate’s request was that if the court released the funds,

the city “would like the balance of funds [already deposited] released to the City of

Cincinnati.” The court agreed and journalized its order of distribution providing an

immediate distribution of $667,038 to Queensgate with the balance to the city.

         {¶8}   The certified copy of the trial court’s docket and journal entries reflects

that on the same day, March 22, 2011, the clerk of court issued checks to Queensgate

in the amount of $667,038 and to the city in the amount of $936,837.17.

         {¶9}   Although the trial court did not enter judgment on the jury’s verdict

until July 6, 2011, at no time after the March 22 order of distribution did Queensgate

or the city seek a stay or post a supersedeas bond in either the trial court or in this

court.

         {¶10} In its reply brief, the city argued that the appeals had become moot

with the distribution of the funds. At oral argument, Queensgate’s counsel argued

that the appeals were not moot because, under R.C. 163.06(C), withdrawal of the

deposited funds would not “interfere with the action.” But it is clear that R.C.

163.06(C) does not abrogate the general rule that satisfaction of a judgment renders

an appeal moot.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11} R.C. 163.06 provides a procedure whereby a public agency

appropriating contested property deposits with the court the value of the property

appropriated. The property owner may receive withdrawals as needed, for example,

to maintain the property during the litigation. R.C. 163.06(C) permits the owner to

withdraw those funds during the action, “except that the sum so withdrawn shall be

deducted from the sum of the final verdict or award.” Thus the ability to withdraw

funds ends with the entry of judgment or the award of damages.

       {¶12} From that point on, R.C. 163.19 provides that appealing parties must

follow the general rule: “any party may prosecute appeals as in other civil actions

from the judgment of the court. The owner may request, and the court may grant, a

stay on appeal, provided that the owner posts a supersedeas bond in an amount the

court determines.”

       {¶13} Here, the jury awarded Queensgate $500,000 in compensation for the

taking that occurred on September 12, 2005. The deposited proceeds have been

distributed. Neither party has sought a stay of the trial court’s order of distribution

or of its judgment. Neither party has posted an appeal bond. The jury’s award has

been satisfied, and the funds deposited by the city to secure Queensgate’s anticipated

recovery are no longer under the jurisdiction and control of the court. Therefore, the

appeals must be dismissed as moot. See Art’s Rental Equip., 2012-Ohio-5371, at

¶ 13; see also Rauch, 169 Ohio St. at 316, 159 N.E.2d 451.

                                                                   Judgment dismissed.

HILDEBRANDT, P.J., HENDON and CUNNINGHAM, JJ.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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