[Cite as State ex rel. Lillis v. Summit, 2017-Ohio-1539.]


STATE OF OHIO                      )                             IN THE COURT OF APPEALS
                                   )ss:                          NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO ex rel.                                            C.A. No.   28307
MONICA LILLIS, et al.

         Appellants
                                                                 APPEAL FROM JUDGMENT
         v.                                                      ENTERED IN THE
                                                                 COURT OF COMMON PLEAS
COUNTY OF SUMMIT, et al.                                         COUNTY OF SUMMIT, OHIO
                                                                 CASE No.   CV 2013-07-3400
         Appellees

                                  DECISION AND JOURNAL ENTRY

Dated: April 26, 2017



         CALLAHAN, Judge.

         {¶1}    Monica Lillis, David Horvath, and James Horvath appeal a decision of the

Summit County Court of Common Pleas dismissing their petition for a writ of mandamus against

the City of Akron for lack of standing. This Court reverses.

                                                            I.

         {¶2}    Because this matter comes before this Court following the grant of a motion to

dismiss, this Court relates the facts as alleged in the amended complaint.1

         {¶3}    Ms. Lillis and Messrs. Horvath (“the Owners”) own real property at 2139

Glenmount Avenue in Coventry Township. This property was improved with two apartment

buildings. In July 2011, Brewster Creek overflowed and its southern tributary flooded one of the




1
    The initial complaint was amended before the motion to dismiss.
                                              2


apartment buildings.   A portion of the building’s foundation and its first floor collapsed.

Ultimately, the Owners had that building demolished.

       {¶4}   In 2013, the Owners filed suit against the Ohio Department of Transportation, the

County of Summit, the City of Akron (“Akron”), Coventry Crossing Community Association,

and Coventry Crossing P.U.D. Owners’ Association. They alleged that the defendants and

respondents “own and/or otherwise bear responsibility for maintaining storm water management

systems and structures that have an impact upon the amount of water that drains into the

Brewster Creek,” that construction has increased the storm water burdens on the “Brewster

Creek system,” and that the defendants and respondents had not maintained the storm water

management systems so as to minimize flooding. They contended that the result was “repeated

and worsening flooding” on their property and particularly described the July 2011 flooding.

They further alleged that “the public agency [r]espondents have acted in such a way as to

constitute a taking of [the Owners’] property.” With respect to Akron, the Owners also alleged

“Akron is a home-rule city * * * and possesses the power to appropriate land through eminent

domain under R.C. Chap[ter] 719 and R.C. 163.01 et seq.” They sought damages for a private

nuisance and a writ of mandamus to compel eminent domain proceedings.

       {¶5}    As the case proceeded, all of the defendants except Akron were dismissed. In

addition, the private nuisance count against Akron was dismissed. Consequently, by the time of

trial, all that remained was a petition for a writ of mandamus to compel Akron to institute

eminent domain proceedings concerning the subject property.

       {¶6}   On the day of the trial, Akron orally moved to dismiss the amended complaint for

lack of standing. The trial court proceeded with the trial, after which the parties briefed the

standing issue. Akron argued that the Owners’ claim was not redressable because it “has no
                                                3


authority (under either the Ohio Constitution or the Revised Code) to initiate appropriation

proceedings in response to [the Owners’] complaint in mandamus alleging a taking-by-flooding

claim, given that it is undisputed that [the Owners’] property is located outside the City’s

municipal limits.”

       {¶7}    The trial court dismissed the action for lack of standing. The court reasoned,

“Ohio law is clear that property owners do not have standing to bring a mandamus action to

compel a municipality to appropriate property outside the municipality’s jurisdiction” and “none

of the enumerated purposes listed in R.C. 719.01 include appropriating property for an alleged

taking.” Noting that the Owners’ property is located outside of Akron in Coventry Township,

the court concluded that the Owners “have no redressable claim against the City of Akron and

are without standing.”

       {¶8}    The Owners appeal raising one assignment of error.

                                               II.

                                 ASSIGNMENT OF ERROR

       THE [OWNERS] HAVE STANDING UNDER THE U.S. CONSTITUTION
       AND THE LAWS AND CONSTITUTION OF THE STATE OF OHIO TO
       BRING A MANDAMUS ACTION IN INVERSE CONDEMNATION
       AGAINST THE CITY OF AKRON FOR A PHYSICAL TAKING OF THE
       [OWNERS’] PROPERTY IN COVENTRY TOWNSHIP, AND THE TRIAL
       COURT COMMITTED REVERSIBLE ERROR WHEN IT DECIDED THEY
       LACKED STANDING.

       {¶9}    In their sole assignment of error, the Owners argue that the trial court erred in

finding they lacked a redressable claim and, therefore, lacked standing. This Court agrees.

       {¶10} The trial court construed Akron’s motion to dismiss for lack of standing as a

motion to dismiss under Civ.R. 12(B)(6). Akron did not move to dismiss until after it filed its

answer to the amended complaint.       Consequently, its motion was, in effect, a motion for
                                                 4


judgment on the pleadings under Civ.R. 12(C). See Savoy v. Kramer, 9th Dist. Summit No.

27418, 2015-Ohio-437, ¶ 5. This Court reviews the granting of a motion under either subsection

de novo. Id.

        {¶11} “A motion for judgment on the pleadings is akin to a delayed motion to dismiss

for failure to state a claim.”     Cashland Fin. Servs., Inc. v. Hoyt, 9th Dist. Lorain No.

12CA010232, 2013-Ohio-3663, ¶ 7. The standard applied by a trial court in resolving motions

under Civ.R. 12(B)(6) and Civ.R. 12(C) is similar. State ex rel. Midwest Pride IV, Inc. v.

Pontious, 75 Ohio St.3d 565, 569-570 (1996). “Under Civ.R. 12(C), dismissal is appropriate

where a court (1) construes the material allegations in the complaint, with all reasonable

inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond a

doubt, that the plaintiff can prove no set of facts in support of his claim that would entitle him to

relief.” Id. at 570.

        {¶12} Standing is a preliminary issue that is decided before a court considers the merits

of a claim. Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, ¶ 9. It is an issue of

law that is reviewed de novo on appeal. Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-

3897, ¶ 20. Standing requires (1) an injury; (2) that is fairly traceable to the defendant; and (3)

that the relief sought in the complaint is likely to redress. Id. at ¶ 22, citing Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-561 (1992).

        {¶13} Akron’s motion to dismiss focused on the issue of redressability and the trial

court’s decision was based on that issue. Consequently, this Court reviews the narrow issue of

whether the Owners’ alleged injury was likely to be redressed by the relief sought in their

complaint. This Court does not address whether the Owners met the other requirements for

standing or the merits of the Owners’ claim.
                                                  5


       {¶14} “‘Mandamus is the appropriate action to compel public authorities to institute

appropriation proceedings where an involuntary taking of private property is alleged.’” State ex

rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio-1473, ¶ 14, quoting State ex rel.

Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63 (2002). Inverse condemnation is “‘a cause of

action against the government to recover the value of property taken by the government without

formal exercise of the power of eminent domain.’” State ex rel. Doner v. Zody, 130 Ohio St.3d

446, 2011-Ohio-6117, ¶ 62, quoting Moden v. United States, 404 F.3d 1335, 1342

(Fed.Cir.2005). “Two main theories exist for establishing a taking, one based on land-use or

zoning regulations and the other, on physical invasions by the government.” State ex rel. River

City Capital v. Clermont Cty. Bd. of Commrs., 12th Dist. Clermont No. CA2010-07-051, 2011-

Ohio-4039, ¶ 25. While regulatory takings generally impact an owner’s use of his or her land,

physical takings involve a direct encroachment on the land. See id.

       {¶15} To be entitled to a writ of mandamus for inverse condemnation, an owner “must

establish a clear legal right to compel the city to commence appropriation, a corresponding legal

duty on the part of the city to institute that action, and the lack of an adequate remedy * * * in the

ordinary course of law.” Gilbert at ¶ 15. The parties and the trial court focused on whether

Akron had the authority to appropriate the Owners’ property. Both the Owners’ right to compel

appropriation and Akron’s duty to institute an action depend on the existence of this authority.

Whether a municipality has the authority to appropriate property for a particular purpose and

whether a property owner has a redressable claim where such a taking occurs without

compensation are in essence opposite sides of the same coin.

       {¶16} In determining that the Owners’ claim was not redressable, the trial court relied

on Clifton v. Blanchester, 131 Ohio St.3d 287, 2012-Ohio-780, and Moore, 133 Ohio St.3d 55,
                                                6


2012-Ohio-3897.    Both of those cases involved property owners who sought to compel a

municipality to institute eminent domain proceedings concerning their property that was located

outside of the municipality based on zoning changes within the municipality.

       {¶17} The issue in Clifton was “whether a property owner has standing to compel a

government entity to initiate appropriation proceedings for an alleged regulatory taking when the

affected property lies outside the limits of the government entity.” Clifton at ¶ 1. The Moore

court noted that it “expressly cautioned in Clifton that the decision should not be construed too

broadly beyond the facts and posture of that case.” Moore at ¶ 29, citing Clifton at ¶ 30-32.

Clifton “does not stand for the proposition that a property owner always lacks standing to bring a

mandamus claim against a municipality when the affected property is outside the municipality’s

corporate limits.” Moore at ¶ 30. “Rather, Clifton must be understood in conjunction with the

unique facts and circumstances upon which it rests * * * including the fact that it was a

mandamus claim against a foreign municipality by a property owner who attempted to challenge

the rezoning of contiguous land from one industrial use to another.” (Emphasis added.) Id.

       {¶18} There were two “unique facts” in Clifton. First, the property that was alleged to

have been taken was outside of the municipality. Clifton at ¶ 32. Second, the alleged taking

occurred by a zoning change within the municipality. Id. at ¶ 31. The present case is similar in

that the Owners’ property is outside of Akron. But, it is dissimilar in that the Owners alleged a

physical taking based on flooding, not a regulatory taking based on zoning.

       {¶19} The trial court noted that municipalities have inherent and statutory power to

appropriate property. Addressing a municipality’s inherent authority, the trial court quoted

portions of Clifton and Moore indicating a municipality’s inherent authority is based on the

home-rule amendment to the Ohio Constitution and, as such, is generally restricted to a
                                                 7


municipality’s corporate limits. See Clifton at ¶ 27, and Moore at ¶ 27, both citing Britt v.

Columbus, 38 Ohio St.2d 1 (1974), paragraph one of the syllabus.

        {¶20} Addressing a municipality’s statutory authority, the trial court noted that R.C.

719.02 provides: “In the appropriation of property for any of the purposes named in section

719.01 of the Revised Code, the municipal corporation may, when reasonably necessary, acquire

property outside the limits of the municipal corporation.” The court then quoted the purposes

listed in R.C. 719.01(A) through (O) and concluded, “[n]one of the enumerated purposes listed in

R.C. 719.01 include appropriating property for an alleged taking.” The Owners argue that, in

doing so, the trial court “misread[]” Clifton. Akron, on the other hand, argues that the trial court

merely “echoe[d]” the Ohio Supreme Court’s language in Clifton. Neither of these propositions

is entirely correct.

        {¶21} The trial court recognized that a municipality has statutory authority to

appropriate property outside of its boundaries. Before addressing that authority, the court quoted

Clifton. “The General Assembly has also provided municipalities with statutory authority to use

eminent-domain powers to acquire property that lies outside the municipality’s corporate limits

‘when reasonably necessary,’ but only for certain enumerated public purposes.” Clifton at ¶ 28,

quoting R.C. 719.02 and citing R.C. 719.01. Although the court did not fully analyze the

purposes enumerated in R.C. 719.01, it did not “misread[]” Clifton’s finding that R.C. 719.01

and 719.02 empower a municipality to appropriate property outside of its corporate limits.

Rather, it concluded that the statutory purposes did not apply to the present case because it was

“an alleged taking.”

        {¶22} Akron argues that, in reaching this conclusion, the trial court “echoe[d]” the

Clifton court’s finding that “none of the enumerated purposes listed in R.C. 719.01 include
                                                8


appropriating property for an alleged regulatory taking.” (Emphasis added.) Clifton at ¶ 28. In

the present case, however, the trial court did not include the word “regulatory.” Rather, the trial

court found that “none of the enumerated purposes listed in R.C. 719.01 include appropriating

property for an alleged taking.” (Emphasis added.). Under the trial court’s language, an inverse

condemnation action could never be brought based on one of the purposes listed in R.C. 719.01

when a municipality takes property without the formal exercise of its eminent domain power.

Thus, the trial court’s broad language does not “echo[]” Clifton, which specified “an alleged

regulatory taking.” (Emphasis added.) Clifton at ¶ 28.

       {¶23} A review of the purposes listed in R.C. 719.01 shows that each one involves a

physical, as opposed to a regulatory, taking of property. For example, a municipality may

appropriate property for “streets,” “public halls,” and “sewers.” R.C. 719.01(A), (C), and (J).

Unlike Clifton and Moore, the current case does not involve an alleged regulatory taking.

Rather, the Owners claimed that Akron physically took their property without formally

instituting appropriation proceedings. The Owners cite three sections of R.C. 719.01 in support

of their argument that Akron was empowered to appropriate property for the type of taking they

experienced, namely R.C. 719.01(I), (J), and (M).

       {¶24} Initially, Akron points out that the Owners did not argue below that R.C.

719.01(M) applied. “Arguments that were not raised in the trial court cannot be raised for the

first time on appeal.” JPMorgan Chase Bank, Natl. Assn. v. Burden, 9th Dist. Summit No.

27104, 2014-Ohio-2746, ¶ 12. The Owners did not mention R.C. 719.01(M) in their brief to the

trial court, nor did they make any argument concerning that provision. Therefore, the Owners’

argument concerning R.C. 719.01(M) is not properly before this Court. The Owners, however,
                                                 9


did argue to the trial court that R.C. 719.01(I) and (J) applied. Consequently, this Court will

address the applicability of those provisions.

       {¶25} R.C. 719.01(I) permits a municipality to appropriate land

       [f]or constructing, opening, excavating, improving, or extending any canal or
       watercourse, located in whole or in part within the limits of the municipal
       corporation or adjacent and contiguous thereto, and which is not owned in whole
       or in part by the state, or by a company or individual authorized by law to make
       such improvement.

The Owners contend that this section empowers Akron to appropriate their property because the

“consistent and uncontroverted evidence in this case was * * * that most of the Brewster Creek’s

course runs through the City of Akron” and “the City [of Akron], not the State, owns the water in

Brewster Creek.”

       {¶26} When deciding a motion for judgment on the pleadings under Civ.R. 12(C), “[t]he

trial court must confine its inquiry to the material allegations in the pleadings.” Cashland Fin.

Servs., Inc., 2013-Ohio-3663, at ¶ 7. The Owners reference to “evidence in this case” goes

beyond the facts alleged in the pleadings. The amended complaint does not allege Akron owns

the Brewster Creek watercourse or its southern tributary to the exclusion of State. Consequently,

the amended complaint does not allege a redressable claim under R.C. 719.01(I).

       {¶27} R.C. 719.01(J) provides a municipality may appropriate land “[f]or sewers,

drains, ditches, public urinals, bathhouses, water closets, and sewage and garbage disposal plants

and farms.”    In its brief to the trial court, Akron argued that the Owners’ claim was not

redressable under this provision because the term “sewer” does not include storm water

management and collection systems. By contrast, the Owners contended R.C. 719.01(J) is not

limited to sanitary sewers.
                                                 10


       {¶28} A court’s primary concern when analyzing a statute is to ascertain and give effect

to the intentions of the General Assembly. State v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-

236, ¶ 7. If a statute is unambiguous, it is applied as written “giving effect to all of its language,

without adding or deleting any words chosen by the General Assembly.” Id. “Ambiguity exists

if the language is susceptible of more than one reasonable interpretation.” State v. Jordan, 89

Ohio St.3d 488, 492 (2000). In the current case, the word “sewers” is ambiguous as it can be

read either as limited to sanitary sewers or as also including storm water sewers.

       {¶29} When words have a technical or legislative definition, they are construed in

accordance with that definition. R.C. 1.42. Otherwise, “[w]ords and phrases shall be read in

context and construed according to the rules of grammar and common usage.” Id. The term

“sewers” is not defined in R.C. Chapter 719, so this Court looks to its common usage. A sewer

is “an artificial usu[ally] subterranean conduit to carry off sewage and sometimes surface water

(as from rainfall).”    Merriam-Webster’s Collegiate Dictionary 1140 (11th Ed.2004).             The

definition explicitly includes both “sewage” and “surface water (as from rainfall).” Thus, the

common usage of the term “sewers” includes both sanitary and storm water sewers.

       {¶30} Moreover, the legislature did not use the term “sewers” in isolation in R.C.

719.01(J).    Along with “sewers,” the legislature listed “drains, ditches, public urinals,

bathhouses, water closets, and sewage and garbage disposal plants and farms.” R.C. 719.01(J).

Some of these terms, such as “sewage * * * disposal plants,” are commonly associated with

sanitary sewers.    Others, such as “ditches,” are commonly associated with storm water

management.

       {¶31} Indeed, other appellate districts have found that R.C. 719.01(J) authorizes the

appropriation of property for storm water management and flood control purposes. For instance,
                                              11


the First District found statutory authority based on R.C. 719.01(J) to appropriate land for a

“storm water sewer.” Boehle v. Colerain Twp. 1st Dist. Hamilton No. C-840678, 1985 WL

11468, *2 (Sept. 18, 1985). Similarly, the Seventh District found the statute permitted

appropriation to construct a “storm water retention system” for flood control purposes.

Boardman Twp. Bd. of Trustees v. Fleming, 110 Ohio App.3d 539, 544 (7th Dist.1996). The

Eighth District, likewise, found a “proposed ‘retention basin’ comes clearly within the term

‘sewers and drains’ as authorized under this section [R.C. 719.01(J)].” Doering v. City of South

Euclid, 112 Ohio App. 177, 183 (8th Dist. June 18, 1960), reconsidered on other grounds 112

Ohio App. 177 (8th Dist. Nov. 3, 1960).

       {¶32} This Court concludes that R.C. 719.01(J) is not limited to sanitary sewers.

Rather, the terms used in the statute including “sewers, drains, [and] ditches” also encompass

various elements of a storm water management system. The Owners contend that Akron took

their property for this purpose without instituting formal appropriation proceedings or

compensating them for the taking. Assuming the allegations in the complaint are true, as is

required when deciding a motion to dismiss, the Owners alleged a redressable claim for inverse

condemnation.

       {¶33} Finally, the Owners make arguments concerning the United States and Ohio

Constitutions and common law riparian rights. Akron contends that these arguments were not

raised below and cannot be raised for the first time on appeal. Akron further contends that the

Owners’ constitutional and common law arguments concern the injury prong, not the

redressability prong, for standing.   Having already determined that the Owners alleged a

redressable claim based on R.C. 719.01(J), this Court finds it unnecessary to address these

additional arguments.
                                                12


       {¶34} This Court expresses no opinion on the merits of the Owners’ claim, but holds

simply that they met the redressability prong for standing to bring their claim. See Moore, 133

Ohio St.3d 55, 2012-Ohio-3897, at ¶ 23 (“It is well settled that standing does not depend on the

merits of the plaintiff’s contention * * *.”). Consequently, the Owners’ assignment of error is

sustained.

                                                III.

       {¶35} The Owners’ assignment of error is sustained. The judgment of the Summit

County Court of Common Pleas is reversed and this matter is remanded for further proceedings

consistent with this opinion.

                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                    13


      Costs taxed to Appellee.




                                         LYNNE S. CALLAHAN
                                         FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

JACQUENETTE S. CORGAN, WILLIAM H. CORGAN, and GEORGE J. EMERSHAW,
Attorneys at Law, for Appellants.

EVE V. BELFANCE, Director of Law, and SEAN W. VOLLMAN and BRIAN D. BREMER,
Assistant Directors of Law, for Appellee.
