[Cite as State ex rel. Doner v. Zehringer, 134 Ohio St.3d 326, 2012-Ohio-5637.]




          THE STATE EX REL. DONER ET AL. v. ZEHRINGER, DIR., ET AL.
[Cite as State ex rel. Doner v. Zehringer, 134 Ohio St.3d 326, 2012-Ohio-5637.]
Mandamus—Contempt—Clear and convincing evidence of contempt of writ
        requiring     respondents        to   commence       appropriation        proceedings
        immediately—Respondents ordered to complete all appraisals, file all
        appropriation cases, and institute declaratory-judgment actions.
 (No. 2009-1292—Submitted December 4, 2012—Decided December 5, 2012.)
                                      IN MANDAMUS.
                                _____________________
        Per Curiam.
        {¶ 1} This is an original action by relators, owners of land located
downstream from the western spillway of Grand Lake St. Marys, for a writ of
mandamus to compel respondents, the Ohio Department of Natural Resources and
its director, to initiate appropriation proceedings for the physical taking of their
property resulting from flooding caused by a spillway constructed by respondents
and the state’s lake-level-management practices. On December 1, 2011, the court
granted a writ of mandamus “to compel respondents to commence appropriation
proceedings to determine the amount of their taking of the property.” State ex rel.
Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 86. In
a writ issued by the court that same day, respondents were ordered to comply with
the court’s order “immediately upon receipt of the writ.”
        {¶ 2} Following         failed    settlement    negotiations,     the     state   filed
appropriation cases for the property of relators the Doners and the Ebbings. On
September 6, 2012, all of the relators with the exception of the Doners and the
Ebbings filed a motion for an order for respondents to show cause why they
should not be held in contempt of the court’s December 1, 2011 writ of
                             SUPREME COURT OF OHIO




mandamus. We granted the motion and scheduled a show-cause hearing for
December 4, 2012.
       {¶ 3} Upon considering the parties’ evidence and arguments, we hold
that relators have established by the requisite clear and convincing evidence that
respondents are in contempt of the court’s December 1, 2011 writ. See Pugh v.
Pugh, 15 Ohio St.3d 136, 139, 472 N.E.2d 1085 (1984). We order respondents to
complete all appraisals on relators’ parcels for the 2003-flood-level cases within
90 days and to file all appropriation cases for these parcels within 120 days. For
the remaining 20 parcels that respondents claim they have not yet surveyed
because they involve flooding above the 2003 flood level, respondents are ordered
to institute declaratory-judgment actions in the Mercer County Common Pleas
Court within 30 days to determine the legal rights of the parties for those parcels.
We deny relators’ request for attorney fees and for a fine.
                                                              Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, BELFANCE, and MCGEE
BROWN, JJ., concur.
       LUNDBERG STRATTON and LANZINGER, JJ., dissent.
       EVE V. BELFANCE, J., of the Ninth Appellate District, sitting for CUPP, J.
                              __________________
       LUNDBERG STRATTON, J., dissenting.
       {¶ 4} The burden of proof for the moving party in a civil contempt action
is clear and convincing evidence. See Brown v. Executive 200, Inc., 64 Ohio
St.2d 250, 253, 416 N.E.2d 610 (1980). I would find that relators have failed to
meet their burden of proof. Therefore, I dissent.
       {¶ 5} While respondents may be proceeding at a pace that is
unacceptable to relators, our only mandate to respondents was to proceed
“immediately.” We did not set forth any guidelines, let alone a deadline, as to
when the appropriations must be completed.



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                                January Term, 2012




       {¶ 6} Respondents have hired surveyors and property appraisers. The
surveyors have begun surveying the properties at issue, and the appraisers have
begun appraising the properties as the surveys are completed. Both are necessary
for appropriation proceedings.     Further, respondents attempted to negotiate a
global settlement with relators, albeit without success. This hardly constitutes
clear and convincing evidence that respondents are in contempt of the writ merely
because they are proceeding at a pace that is slower than relators and the court
desire. Therefore, I respectfully dissent.
       LANZINGER, J., concurs in the foregoing opinion.
                             _____________________
       Vorys, Sater, Seymour and Pease, L.L.P., Bruce L. Ingram, Joseph R.
Miller, Thomas H. Fusonie, and Martha C. Brewer, for relators.
       Michael DeWine, Attorney General, and William J. Cole, Mindy Worley,
Jennifer S. M. Croskey, Michael L. Stokes, Dale T. Vitale, Daniel J. Martin, and
Tara L. Paciorek, Assistant Attorneys General, for respondents.
                            ____________________________




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