[Cite as Williamson v. Scioto Twp. Trustees, 2017-Ohio-1099.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             PICKAWAY COUNTY

MONTY R. WILLIAMSON,              :
                                  :   Case No. 16CA5
     Plaintiff-Appellant/Cross-   :
     Appellee,                    :
                                  :
     vs.                          :   DECISION AND JUDGMENT
                                  :   ENTRY
SCIOTO TOWNSHIP TRUSTEES, :
ET AL.,                           :
                                  :
     Defendants-Appellees/Cross- :
     Appellants.                  :   Released: 03/21/17
_____________________________________________________________
                            APPEARANCES:

James R. Kingsley, Circleville, Ohio, for Appellant/Cross-Appellee.

Edward J. Dowd and Kevin A. Lantz, Surdyk, Dowd & Turner Co., L.P.A.,
Dayton, Ohio, for Appellees/Cross-Appellants.
_____________________________________________________________

McFarland, J.

        {¶1} Appellant/Cross-Appellee Monty Williamson appeals from the

trial court’s decision granting summary judgment in favor of

Appellees/Cross-Appellants, Scioto Township Trustees, et al. On appeal,

Appellant contends that 1) the trial court committed prejudicial error when it

granted Appellees summary judgment finding governmental immunity

barred the claims of trespass and nuisance; and 2) the trial court committed

prejudicial error when it denied mandamus to force inverse condemnation.
Pickaway App. No. 16CA5                                                           2

Scioto Township Trustees, et al. have also filed a cross-appeal in this matter,

raising two assignments of error, contending that 1) the trial court erred to

their prejudice when it denied their motion for summary judgment on the

inverse condemnation claim because the trial court lacked subject matter

jurisdiction; and 2) the trial court erred to their prejudice when it denied their

motion for summary judgment on the issue of whether Cross-Appellee’s

state law claims were time-barred.

      {¶2} Because we have concluded that the trial court lacked

jurisdiction over Appellant’s claims, which were barred by the statute of

limitations, the trial court erred in denying Appellees’ motion to dismiss.

Further, because it lacked jurisdiction of the claims, the trial court's orders

granting summary judgment in favor of Appellees on the trespass and

nuisance claims, and rendering judgment in favor of Appellees on the

inverse condemnation claim, are both void. Accordingly, the trial court's

judgment denying Appellees' motion to dismiss is reversed and the

judgments on the trespass, nuisance and inverse condemnation claims are

hereby vacated.

                                     FACTS

      {¶3} A review of the record reflects that Appellant/Cross-Appellee

(hereinafter “Williamson”) initially filed a lawsuit, which included claims
Pickaway App. No. 16CA5                                                        3

for trespass, nuisance, inverse condemnation and punitive damages, against

Appellees/Cross-Appellants, Scioto Township, Michael Struckman and

Terry Brill (hereinafter “Township”) on October 25, 2010. The claims

stemmed from events related to the installation of a driveway culvert by the

Township on Williamson’s property, which allegedly caused eventual

flooding and water damage to Williamson’s property and an outbuilding he

owns. Without going into details which are not pertinent to this appeal, the

installation of the driveway culvert was performed by the Township at the

request of a contractor, who Williamson allegedly met with but did not

actually hire to construct a new residence on the property.

      {¶4} That action was dismissed by the trial court for failure to abide

by the court’s scheduling orders on August 30, 2011. Williamson refiled the

action on August 9, 2012, asserting the same claims against the same parties.

Then, on June 18, 2013, Williamson filed an amended complaint that

included the original claims and added new claims for negligent permit

process, unconstitutional culvert policy, ratification, abuse of office, and

willful destruction of evidence.

      {¶5} The Township removed the case to federal court on July 15,

2013 and a notice of removal was filed in the state trial court on July 16,

2013. The federal court thereafter issued an opinion and order on September
Pickaway App. No. 16CA5                                                      4

5, 2014, granting summary judgment to the Township on the

unconstitutional culvert policy, ratification and abuse of office claims,

noting that the claim for inverse condemnation appeared to have been

abandoned, and dismissing without prejudice Williamson’s remaining state

law claims. The federal court did not remand the matter to the state trial

court. Thereafter, on June 11, 2015, Williamson filed a “Motion To

Reinstate Case On Active Docket,” which the trial court granted on June 12,

2015.

        {¶6} In response, the Township filed a motion for summary judgment

on the remaining state law claims, followed by a motion to dismiss based

upon lack of subject matter jurisdiction. While the trial court denied the

Township’s motion to dismiss, it granted its motion for summary judgment

on all claims except the claim for inverse condemnation. Then, after holding

a bench trial on the inverse condemnation claim, the trial court ruled in favor

of the Township. It is from these orders that the parties now appeal,

assigning the following errors for our review.

               APPELLANT’S ASSIGNMENTS OF ERROR

“I.     THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
        WHEN IT GRANTED DEFENDANT SUMMARY JUDGMENT
        FINDING GOVERNMENTAL IMMUNITY BARRED THE
        CLAIMS OF TRESPASS AND NUISANCE.
Pickaway App. No. 16CA5                                                         5

II.   THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
      WHEN IT DENIED MANDAMUS TO FORCE INVERSE
      CONDEMNATION.”

           CROSS-APPELLANTS’ ASSIGNMENTS OF ERROR

“I.   THE TRIAL COURT ERRED TO THE PREJUDICE OF CROSS-
      APPELLANTS WHEN IT DENIED THEIR MOTION FOR
      SUMMARY JUDGMENT ON CROSS-APPELLEE’S INVERSE
      CONDEMNATION CLAIM BECAUSE THE COURT LACKED
      SUBJECT MATTER JURISDICTION.

II.   THE TRIAL COURT ERRED TO THE PREJUDICE OF CROSS-
      APPELLANTS WHEN IT DENIED THEIR MOTION FOR
      SUMMARY JUDGMENT ON THE ISSUE OF WHETHER CROSS-
      APPELLEE’S STATE-LAW CLAIMS WERE TIME-BARRED.”

                             LEGAL ANALYSIS

      {¶7} We initially note that although Williamson has filed an appeal

and set forth assignments of error based upon the merits of this case, the

Township has also filed a cross-appeal pursuant to App.R. 3(C)(1), which

provides, in pertinent part, as follows:

      “(C)(1) Cross Appeal Required. A person who intends to
      defend a judgment or order against an appeal taken by an
      appellant and who also seeks to change the judgment or order
      or, in the event the judgment or order may be reversed or
      modified, an interlocutory ruling merged into the judgment or
      order, shall file a notice of cross appeal within the time allowed
      by App.R. 4.”

In their Appellee brief, the Township states that they have filed a cross

appeal “in the event the judgment * * * is reversed or modified, [to receive]

an interlocutory ruling merged into the judgment or order * * *.”
Pickaway App. No. 16CA5                                                             6

      {¶8} Such a cross appeal has been considered to be a conditional

cross appeal. General Medicine, P.C. v. Manolache, M.D., 8th Dist.

Cuyahoga No. 94861, 2011-Ohio-340, ¶ 31 (“While unusual, such a

conditional request is not without precedent and is allowed by App.R. 3(C)).

In Manolache, the court decided it was unnecessary to reach the assignment

of error raised in the cross appeal as it affirmed the trial court’s order in its

entirety. Id; see also Cummings v. B.F. Goodrich Co., 86 Ohio App.3d 176,

188, 620 N.E.2d 209 (4th Dist.1993). Here, however, because the

arguments raised by the Township in their cross appeal relate to the trial

court’s jurisdiction of this matter, and because we conclude that the

resolution of these arguments is dispositive of the matter on appeal, we

address them first.

      {¶9} In their cross appeal, the Township challenges the trial court’s

denial of their motion to dismiss based upon lack of subject matter

jurisdiction, as well as the trial court’s grant of summary judgment, albeit in

the township’s favor, when it was without jurisdiction over the matter.

“When ruling on a Civ.R. 12(B)(1) motion to dismiss for lack of subject-

matter jurisdiction, trial courts must determine whether a claim raises any

action cognizable in that court.” Dargart v. ODOT, 171 Ohio App.3d 439,

2006-Ohio-6179, 871 N.E.2d 608, ¶ 12; citing State ex rel. Bush v. Spurlock,
Pickaway App. No. 16CA5                                                           7

42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989); Roll v. Edwards, 156 Ohio

App.3d 227, 2004-Ohio-767, 805 N.E.2d 162, ¶ 15. “Appellate courts

review trial court judgments regarding motions to dismiss for lack of

subject-matter jurisdiction de novo.” Dargart at ¶ 12; citing Schetter v.

Frogameni, 6th Dist. Lucas No. L–05–1366, 2006-Ohio-3065, ¶ 4; citing

Hull v. Columbia Gas of Ohio, 160 Ohio App.3d 695, 2005-Ohio-2089, 828

N.E.2d 677, ¶ 11. Further, “[i]n making a determination under Civ.R.

12(B)(1), neither the trial court nor this court is confined to a consideration

of the allegations of the complaint, but may consider any material pertinent

to that inquiry.” Dargart at ¶ 12; citing Southgate Dev. Corp. v. Columbia

Gas Transmission Corp. (1976), 48 Ohio St.2d 211, 2 O.O.3d 393, 358

N.E.2d 526, paragraph one of the syllabus (subsequently reversed based

upon finding PUCO had exclusive jurisdiction to adjudicate rate disputes.).

      {¶10} Here, as set forth above, the record reflects that Williamson

filed his first action, which included claims for trespass, nuisance, inverse

condemnation and punitive damages, against Scioto Township, Michael

Struckman and Terry Brill on October 25, 2010. That action was

involuntarily dismissed by the trial court for failure to abide by the court’s

scheduling order on August 30, 2011. Williamson refiled the action on

August 9, 2012, asserting the same claims against the same parties. Then,
Pickaway App. No. 16CA5                                                        8

on June 18, 2013, Williamson filed an amended complaint that included the

original claims and added new claims for negligent permit process,

unconstitutional culvert policy, ratification, abuse of office, and willful

destruction of evidence.

        {¶11} The Township removed the case to federal court on July 15,

2013, and a notice of removal was filed in the state trial court on July 16,

2013. The federal court issued an opinion and order on September 5, 2014,

granting summary judgment to the Township on the unconstitutional culvert

policy, ratification and abuse of office claims, noting that the claim for

inverse condemnation appeared to have been abandoned, and dismissing

without prejudice Williamson’s remaining state law claims. The federal

court did not remand the matter to the state trial court. Then, approximately

nine months later, on June 11, 2015, Williamson filed a “Motion To

Reinstate Case On Active Docket,” which the trial court granted on June 12,

2015.

        {¶12} In response, the Township filed a motion for summary

judgment on the remaining state law claims, followed by a motion to dismiss

based upon lack of subject matter jurisdiction. While the trial court denied

the Township’s motion to dismiss, it granted its motion for summary

judgment on all claims except the claim for inverse condemnation. Then,
Pickaway App. No. 16CA5                                                         9

after holding a bench trial on the inverse condemnation claim, the trial court

ruled in favor of the Township.

      {¶13} Presently on appeal, Williamson argues that the trial court

erred in granting summary judgment in favor of the Township on his

trespass and nuisance claims, and erred in rendering judgment in favor of the

Township on the inverse condemnation claim. As set forth above, the

Township’s cross appeal asserts that the trial court lacked subject matter

jurisdiction over Williamson’s inverse condemnation and other state law

claims, which had been once dismissed by the state court, refiled within one

year, removed to federal court, dismissed without prejudice and then

“reinstated” on the state court docket nine months later. More specifically,

the Township argues that the state court lost subject matter jurisdiction when

the case was removed to federal court, and did not reacquire jurisdiction

following the federal court’s dismissal. For the following reasons, we agree

with the Township.

      {¶14} Contrary to the trial court’s position that it retained jurisdiction

over this matter when it was removed to federal court because it simply

placed the matter on its inactive docket, we note that “[f]ederal courts have

consistently held ‘the state court loses all jurisdiction to proceed

immediately upon the filing of the petition in the federal court and a copy in
Pickaway App. No. 16CA5                                                           10

the state court.’ ” Borkowski v. Borkowski, 6th Dist. Fulton No. F-04-020,

2005-Ohio-2212, ¶ 14; citing South Carolina v. Moore (C.A.4, 1970), 447

F.2d 1067, 1073 (other citations omitted). Ohio courts have likewise found,

interpreting federal law, that “the mere filing of a proper removal petition in

state court divests the court of jurisdiction and vests jurisdiction in the

federal court.” Borkowski at ¶ 14; citing Shunk v. Shunk Mfg. Co., 75 Ohio

App. 253, 256, 61 N.E.2d 896 (1945); interpreting former 28 U.S.C.S. § 72.

Further, “ ‘any proceedings in the state court after the filing of the petition

and prior to a federal remand order are absolutely void, despite subsequent

determination that the removal petition was ineffective.’ ” Borkowski at

¶ 14; quoting South Carolina v. Moore, supra.

      {¶15} We also must note here that Williamson represented to the trial

court in his motion to reinstate that the federal court had remanded the

matter to the state court. However, that was not accurate. Our review of the

federal filings contained within the record before us indicate that the federal

court dismissed Williamson’s state law claims without prejudice, but did not

remand the matter to the state court.

      {¶16} In Harris v. O’Brien, 8th Dist. Cuyahoga Nos. 86218 and

86323, 2006-Ohio-109, the Eighth District Court of Appeals addressed a

situation nearly identical, procedurally, to the present case. Harris filed his
Pickaway App. No. 16CA5                                                           11

initial lawsuit in state court and then voluntarily dismissed it pursuant to

Civ.R. 41(A). Id. at ¶ 1. Harris refiled the lawsuit within one year and

because he added a federal cause of action the case was removed to federal

court. Id. at ¶ 2. Two years later the federal court declined to exercise

supplemental jurisdiction over Harris’ state law claims and dismissed them

without prejudice. Id. Six months later, Harris moved the state court to

“reinstate” his state law claims, which the trial court did, but then later

vacated after “realizing that it was without jurisdiction to reinstate the

Second Action because it was removed to federal court and later dismissed.”

Id. at ¶ 3. Thereafter, Harris filed a third action in the state court. Id. The

appellees in that case moved the trial court for judgment on the pleadings,

arguing Harris’ claims were barred by the one-year statute of limitations,

and the trial court granted the motion. Id. at ¶ 4.

      {¶17} On appeal, Harris argued that his claims survived because the

Ohio savings statute “allowed him an additional year to refile his state law

claims after the federal court dismissed them without prejudice.” Id. at ¶ 5.

The appellate court rejected Harris’ argument, reasoning that “Harris was

precluded from utilizing the Ohio saving’s statute to refile a Third Action, as

R.C. 2305.19(A) may only be used once to refile a case and only once to

extend the statute of limitations[,]” and that the statutes of limitations on all
Pickaway App. No. 16CA5                                                                                    12

of his claims, except one, had expired. Id. at ¶ 15.1 The Harris court further

found Harris did not timely refile his Third Action within 30 days of the

federal court’s dismissal without prejudice of his state law claims, which is

provided for in Section 1367(D), Title 28, U.S. Code, but rather he waited

six months “to reinstate his claims.” Id. at ¶ 16.2 “Savings statutes operate to

give a plaintiff a limited period of time in which to refile a dismissed claim

that would otherwise be time-barred.” Hamrick v. Ramalia, 8th Dist.

Cuyahoga No. 97385, 2012-Ohio-1953, ¶ 21; citing Internatl. Periodical

Distrib. v. Bizmart, 95 Ohio St.3d 452, 2002-Ohio-2488, 768 N.E.2d 1167,

¶ 7. Further, “the savings statute can be used only once.” Id.

         {¶18} We find the reasoning of Harris, while not binding, to be both

instructive and persuasive with respect to the facts presently before us.

Much like Harris, Williamson filed an initial lawsuit in state court that was

dismissed and then refiled within one year pursuant to the Ohio Savings

Statute.3 Thus, when his state claims were dismissed for a second time by


1
  R.C. 2305.19(A), commonly referred to as Ohio’s Savings Statute, provides as follows: “In any action
that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or
if the plaintiff fails otherwise than upon the merits, the plaintiff or, if the plaintiff dies and the cause of
action survives, the plaintiff's representative may commence a new action within one year after the date of
the reversal of the judgment or the plaintiff's failure otherwise than upon the merits or within the period of
the original applicable statute of limitations, whichever occurs later. This division applies to any claim
asserted in any pleading by a defendant.”
2
  Section 1367, Title 28, U.S. Code provides for a tolling of the statute of limitations for thirty days for
claims dismissed by the federal court, in order that the claims may be refiled in state court.
3
  The only difference, which will be discussed in more detail herein, is that Harris voluntarily dismissed his
first lawsuit pursuant to Civ.R. 41(A), and Williamson’s first lawsuit was involuntarily dismissed by the
state court.
Pickaway App. No. 16CA5                                                        13

the federal court, Williamson, having already utilized the Ohio Savings

Statute, could only avail himself of the additional thirty-day federal tolling

period provided by Section 1367, Title 28, U.S. Code.

        {¶19} Because he waited nine months to either refile his claim or

request that the state court “reinstate” his claims, just as in Harris, the

statutes of limitations had expired. Again, of importance is the fact that the

federal court did not remand the matter back to the state court. Absent a

remand order, in our view Williamson would have had to refile, not

reinstate, his claims in the state court, and would have had to do it within

thirty days in light of the fact he had already used the Ohio Savings Statute

once.

        {¶20} The Township also seems to contend that the “double-

dismissal rule” barred Williamson from proceeding with his claims after the

federal court dismissal without prejudice of his state law claims; however,

we disagree. The “double-dismissal rule” is contained in the last sentence of

Civ.R. 41(A)(1) and provides that dismissal under Civ.R. 41(A) is generally

without prejudice. However, the last sentence contains an exception to the

rule, stating that “a notice of dismissal operates as an adjudication upon the

merits of any claim that the plaintiff has once dismissed in any court.”

Civ.R. 41(A).
Pickaway App. No. 16CA5                                                     14

      {¶21} As explained by the Supreme Court of Ohio in Olynyk v.

Scoles, 114 Ohio St.3d 56, 2007-Ohio-2878, 868 N.E.2d 254, ¶ 10:

      “It is well established that when a plaintiff files two unilateral
      notices of dismissal under Civ.R. 41(A)(1)(a) regarding the
      same claim, the second notice of dismissal functions as an
      adjudication of the merits of that claim, regardless of any
      contrary language in the second notice stating that the dismissal
      is meant to be without prejudice. See, e.g., EMC Mtge. Corp. v.
      Jenkins, 164 Ohio App.3d 240, 2005-Ohio-5799, 841 N.E.2d
      855, ¶ 32; Robinson v. Allstate Ins. Co., 8th Dist. No. 84666,
      2004-Ohio-7032, 2004 WL 2980489, ¶ 29; Forshey v. Airborne
      Freight Corp. (2001), 142 Ohio App.3d 404, 408, 755 N.E.2d
      969; Mays v. Kroger Co. (1998), 129 Ohio App.3d 159, 161-
      162, 717 N.E.2d 398; Internatl. Computing & Electronic Eng.
      Corp. v. Ohio Dept. of Adm. Servs. (May 9, 1996), 10th Dist.
      No. 95API11–1475, 1996 WL 239590. In that situation, the
      second dismissal is with prejudice under the double-dismissal
      rule, and res judicata applies if the plaintiff files a third
      complaint asserting the same cause of action. See 1970 Staff
      Note to Civ.R. 41 **257 (when a dismissal is with prejudice,
      “the dismissed action in effect has been adjudicated upon the
      merits, and an action based on or including the same claim may
      not be retried”).”

      {¶22} Civ.R. 41(A)’s double-dismissal rule only applies when a

plaintiff files two unilateral voluntary notices of dismissal, and is not

invoked when a court involuntary dismisses a case. Olynyk at ¶ 31; Forshey

v. Airborne Freight Corp., 142 Ohio App.3d 404, 408, 755 N.E.2d 969 (12th

Dist.2001) (“Civ. R. 41(A)(1) provides that a plaintiff may voluntarily and

unilaterally dismiss an action without prejudice by simply filing notice with

the trial court at any time before the trial. Such dismissals are also known as
Pickaway App. No. 16CA5                                                         15

‘notice dismissals.’ ”). The matter at issue presently before us was

originally filed back in 2010 and was involuntarily dismissed by the trial

court, presumably under Civ.R. 41(B)(1), for failure to abide by the court’s

scheduling order. It was refiled in state court in 2012 and then removed to

federal court. Later it was dismissed without prejudice by the federal court.

As neither of the dismissals were notice dismissals by Williamson, Civ.R.

41(A)’s double dismissal rule did not apply to bar Williamson from

proceeding with his claims after the dismissal by the federal court.

      {¶23} However, despite the fact that the double dismissal rule does

not act as a bar, as alluded to above, the fact that Ohio’s Savings Statute can

only be used once and the fact that it was already utilized by Williamson

after he initially dismissed and then refiled his case in state court, does act as

a bar. Hamrick, supra. In Hamrick, the plaintiff filed suit which was later

jointly dismissed by stipulation of both parties. Hamrick at ¶ 3. The plaintiff

then refiled within one year, but subsequently filed a voluntary notice of

dismissal. Id. at ¶ 4. The plaintiff refiled again, for a third time. Id. The trial

court dismissed the third filing on the motion of defendant, which argued

that the third filing was beyond the statute of limitations, as well as the

additional one year provided under the savings statute. Id. at ¶ 5. Hamrick

appealed.
Pickaway App. No. 16CA5                                                         16

      {¶24} On appeal, the court upheld the dismissal, reasoning that

“when Hamrick filed Hamrick II, she reaped the benefits of the Ohio

Savings Statute, event [sic] though the statute of limitations had been

expired for almost three years. In addition, * * * when Hamrick III was

filed, the statute of limitations had been expired for almost five years.” Id. at

¶ 20. The Hamrick court stated that “[t]he savings statute can be used only

once, because otherwise, a plaintiff could infinitely refile her action, and

effectively eliminate statutes of limitations.” Id. at ¶ 21; citing Duncan v.

Stephens, 8th Dist. Cuyahoga No. 83238, 2004-Ohio-2402, ¶ 21.

      {¶25} Here, Williamson had already availed himself of Ohio’s

Savings Statute when he refiled his complaint in 2012. Thus, it was

unavailable to him after the federal court dismissal of his state law claims.

So unless there was another savings statute available to him, such as the

thirty-day federal tolling period contained in Section 1367, Title 28, U.S.

Code, he could not refile, or as in this case and Harris, supra, “reinstate” his

case. As we have discussed, Williamson did not seek to reinstate his state

law claims in the state trial court until nine months after the federal court

dismissed them, which was well outside the thirty-day tolling period. See

Koslen v. American Red Cross, 8th Dist. Cuyahoga No. 71733, 1997 WL
Pickaway App. No. 16CA5                                                         17

547838, *2 (“If the savings statute used [sic] once, the third action relates

back to the second action, which was untimely.”)

      {¶26} Williamson attempted to circumvent the statute of limitations

problem by arguing in his memorandum in opposition to the Township’s

motion for summary judgment, and now on appeal, that the torts of trespass

and nuisance were continuing torts and thus, that the statutes of limitations

for those claims had not expired. The Township responded by arguing that

Williamson had not alleged continuing torts in any of his previously filed

complaints or his amended complaint. The record supports the Township’s

argument and we find that Williamson did not allege continuing torts of

trespass and nuisance in the pleadings.

      {¶27} As pointed out by the Township, the statutes of limitations for

trespass, nuisance and inverse condemnation are all four years. R.C.

2305.09. Thus, all of these statutes of limitations had expired at the time

Williamson requested that the state trial court reinstate his claims. Having

availed himself once already of Ohio’s Savings Statute and having failed to

refile his case, or as here, file for reinstatement, within the thirty-day federal

tolling period discussed above, Williamson’s claims were barred and the

trial court lacked jurisdiction to reinstate the case.
Pickaway App. No. 16CA5                                                         18

      {¶28} As such, the trial court erred in denying the Township’s motion

to dismiss based upon lack of jurisdiction and further acted outside of its

authority when it exercised jurisdiction over the matter and rendered

summary judgment in favor of the Township on the merits. The court

further erred when it held a bench trial on the inverse condemnation claim

and rendered judgment in favor of the Township on that claim. In fact, it

could be argued that the trial court’s decisions on these motions are void.

Borkowski v. Borkowski at ¶ 19; Jacobs v. Acacia Chattanooga Vehicle

Auction, Inc., et al., 10th Dist. Franklin No. 10AP-1071, ¶ 7. Instead, we

conclude the trial court should have denied Williamson’s motion to reinstate,

or at the very least, it should have granted the Township’s motion to dismiss

for lack of subject matter jurisdiction, and stopped there.

      {¶29} This discussion brings us to the question of this Court’s

jurisdiction over this matter considering that the trial court lacked

jurisdiction. The Supreme Court of Ohio has determined that “an appellate

court acts properly in reversing a state trial court’s judgment where the trial

court rendered judgment after the defendant filed his notice of removal with

the state trial court pursuant to 28 U.S.C. 1446(d).” Jacobs, supra, at ¶ 21;

citing Borkowski v. Abood, 117 Ohio St.3d 347, 2008-Ohio-857, 884 N.E.2d

7, ¶ 13. The Jacobs court further reasoned that “an appellate court retains
Pickaway App. No. 16CA5                                                          19

jurisdiction in this specific situation to reverse and vacate an entry of the

trial court where the trial court purported to act following a properly effected

removal to federal court * * *.”

      {¶30} In light of the fact that this matter was removed to federal

court, was dismissed without prejudice and was not remanded, and that

Williamson failed to refile or reinstate his claims within the federal thirty-

day tolling period, the trial court was without jurisdiction over the matter.

As such, the trial court erred in denying the Township's motion to dismiss

based upon lack of jurisdiction. Further, the trial court's grant of summary

judgment and judgment in the Township’s favor on the trespass, nuisance

and inverse condemnation claims are all void. Accordingly, the trial court's

denial of the motion to dismiss is reversed and its grant of summary

judgment and judgment on the trespass, nuisance and inverse condemnation

claims are hereby vacated. Jacobs at ¶ 22.

                              JUDGMENT REVERSED AND VACATED.
Pickaway App. No. 16CA5                                                         20

                           JUDGMENT ENTRY


      It is ordered that the JUDGMENT BE REVERSED AND VACATED
and that Appellant shall recover costs from Appellees.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Pickaway County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J. & Hoover, J.: Concur in Judgment Only.


                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge




                          NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
