[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Doner v. Zehringer, Slip Opinion No. 2014-Ohio-2102.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-2102
          THE STATE EX REL. DONER ET AL. v. ZEHRINGER, DIR., ET AL.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
                it may be cited as State ex rel. Doner v. Zehringer,
                         Slip Opinion No. 2014-Ohio-2102.]
Mandamus—Request to hold respondent in contempt denied.
      (No. 2009-1292—Submitted April 30, 2014—Decided May 21, 2014.)
                                    IN MANDAMUS.
                               ____________________
        {¶ 1} This cause came on for further consideration upon a show-cause
hearing held before the court on April 30, 2014. Upon consideration thereof,
relators’ request to hold respondents in contempt is denied.
        O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                               ____________________
        PFEIFER, J., concurring.
        {¶ 2} The parties are back before this court upon the relators’ motion for
an order for respondents to show cause why they should not be held in contempt
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and an order for court-supervised mediation.         Upon consideration of the
representations of respondent Ohio Department of Natural Resources (“ODNR”)
that it has available sufficient funds to fully compensate all relator-landowners’
claims as they may be determined by jury verdict or settlement and that it is able
to proceed to trial at an accelerated pace as may be determined by the Mercer
County Common Pleas Court with the possible assistance of visiting judges
appointed by the chief justice, I concur with this court’s decision to deny the
relators’ motion for a further contempt order.
       {¶ 3} This motion brought about the third proceeding before the court in
this dispute over flooding caused by the construction in 1997 of a new spillway on
the dam that created Grand Lake St. Marys. In 2011, this court found that a
taking of the disputed property below the spillway had occurred. This court
issued a writ of mandamus to compel ODNR to commence appropriation
proceedings to determine the amount of the taking. State ex rel. Doner v. Zody,
130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 86.                  The two
subsequent enforcement proceedings before this court relate to ODNR’s
prosecution, or lack thereof, of those ordered appropriation proceedings.
       {¶ 4} ODNR was brought before this court in December 2012 on a
motion to show cause why it should not be held in contempt for its delays in
instituting the appropriation cases.      In responding to the 2012 motion for
contempt, the state argued in briefing and oral argument that it was proceeding
with deliberate speed on the appropriation cases. The state represented to this
court that for one category of landowners, the extent of the taking had been
established but that appraisals needed to be completed before appropriation cases
could commence. This court concluded that ODNR was in contempt of the
court’s 2011 order to commence appropriation proceedings. To correct that state
of affairs, this court issued the following order:




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       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.


State ex rel. Doner v. Zehringer, 134 Ohio St.3d 326, 2012-Ohio-5637, 982
N.E.2d 864, ¶ 3.
       {¶ 5} The 2003-flood-level cases were so denominated because the
extent of the taking of those parcels had been established to be the level of the
2003 flood. We ordered appraisals for the 2003-flood-level cases because ODNR
stated that surveys establishing the extent of the taking had already been
completed. The other 20 parcels were not reached by the level of the 2003
flood—thus, the extent of the take had not been established—so the state was
ordered to determine the rights of the owners of those 20 parcels.
       {¶ 6} Now, relators are back before this court upon the filing of another
contempt motion, alleging, among other things, that the state has abandoned the
2003 flood level as establishing the extent of the taking. There is no doubt that
the state represented to this court in the 2012 proceeding that the 2003 flood level
set the extent of the taking for the parcels that were affected by that flood.
       {¶ 7} In its brief before the 2012 hearing, in an attempt to demonstrate
the progress it had made in prosecuting appropriations cases, ODNR stated,
“ODNR developed a professional and consistent basis for conducting the more




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than 90 surveys needed to delineate the extent of the flowage easements, and that
survey work is virtually complete.”
       {¶ 8} By the time of the hearing on the motion for contempt, counsel for
ODNR reported to this court that the surveys of properties within the 2003 flood
level—undertaken to delineate the extent of the taking—were complete.
       {¶ 9} The state explained in its brief its method for determining the
extent of the taking:


               Although Relators provided rough drawings of the
       approximate area of flooding on their parcels in their petition for
       the Writ of Mandamus, this Court found only that a taking
       occurred, but did not determine the extent of flowage easements
       alleged to be taken on each of the parcels. Instead, this Court
       directed that the Mercer County Common Pleas Court should
       determine that issue. The State, cognizant of the trial court’s prior
       rulings in the previous landowner actions which had already [been]
       litigated, knew that the trial court had adopted the extent of the
       take as the height of the 2003 July flood event documented by the
       Mercer County Engineer. ODNR used this data from the County
       Engineer     and   airborne    laser   measurements   from    Ohio’s
       Geographically Referenced Information Program and GPS field
       measurements. * * * Further, in one of the earlier cases, the trial
       court held that a survey and metes and bounds legal description
       must be prepared so that a jury could accurately determine
       compensation.


(Footnote omitted.)




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                                January Term, 2014




       {¶ 10} At oral argument in December 2012 on the contempt motion,
counsel for ODNR explained the process required for bringing appropriation
cases to court. Justice Lanzinger asked ODNR’s counsel to relate what the
agency had done to demonstrate that it was fast-tracking the cases. Counsel stated
that establishing the extent of the taking came first:


               Immediately, what happened was deciding what even needs
       to be surveyed. What does the department think the taking is?
       What does the department think the borderline should be between
       the flowage easement and the unencumbered property? So that
       was the first point. The second point was then getting the surveys
       done to create legal descriptions for those flowage easements.


       {¶ 11} ODNR’s counsel told this court that surveys established the extent
of the taking and that the surveys were based on the extent of the 2003 flood:


               [ODNR Counsel:] The first effort had to be surveys * * *.
       First off to determine what possibly the taking even is. Because
       that was an issue that this court left up to the trial court in Mercer
       County to determine—the extent of the taking on each individual
       parcel. So the first effort of the department was to do surveys and
       create legal descriptions for those takes on each parcel.
               [Justice Pfeifer:] And how did you determine that? Was
       there a hearing in Mercer County to determine the extent of the
       take or—
               [ODNR Counsel:] No, the department relied on some
       earlier litigation. There was an earlier set of cases involving the




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       spillway in which it had been determined that the 2003 flood level
       was the extent of the taking.


       {¶ 12} ODNR’s statements at the show-cause hearing and in its brief
conclusively showed that ODNR had completed all the surveys of property
involving the 2003 flood, thus establishing the extent of the taking of those
properties.
       {¶ 13} In explaining to Justice O’Donnell why the 20 parcels in the
declaratory-judgment cases had not been surveyed, counsel acknowledged that it
was because for those parcels only, the extent of a taking had not been
established—unlike the 2003-flood-level cases:


               Because there is a legal issue. * * * Because they need to
       know where is the flood level. Well, the flood level that was
       established by the Mercer County Common Pleas Court was the
       level of the 2003 flood, so that’s the extent of the taking. If you
       have parcels whose elevations are above that flood level, then what
       do you survey?


       {¶ 14} This court ordered appraisals in the 2003-flood-level cases because
ODNR represented to this court that the surveys establishing the extent of the
taking in those cases had been completed.        All that was left to do was the
appraisals before appropriation proceedings could begin in earnest. This court,
working from the representation of the state that the extent of the takings had been
established, ordered an aggressive schedule to get appropriation proceedings
underway.
       {¶ 15} An efficient, orderly, and prompt resolution of all of the relators’
claims continues to be our intent and expectation. It appears from the exhibits



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filed in this matter that the Mercer County Common Pleas Court has a
comprehensive understanding of both the legal and factual issues that ODNR is
attempting to litigate and relitigate; that court represents the proper forum to
determine those matters in an expeditious manner. Accordingly, I concur.
       O’NEILL, J., concurs in the foregoing opinion.
                            ____________________
       Vorys, Sater, Seymour & Pease, L.L.P., Bruce L. Ingram, Joseph R.
Miller, Thomas H. Fusonie, and Martha Brewer Motley, for relators.
       Frost Brown Todd, L.L.C., Scott D. Phillips, Brian W. Fox, Frank J. Reed
Jr., and Matthew C. Blickensderfer, for respondents.
                         _________________________




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