[Cite as Maumee Watershed Conservancy Dist. v. Buescher, 2017-Ohio-9086.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             PUTNAM COUNTY


MAUMEE WATERSHED
CONSERVANCY DISTRICT,

        PLAINTIFF-APPELLEE,                                     CASE NO. 12-17-06

        v.

ROSALINE A. BUESCHER, ET AL.,

        DEFENDANTS-APPELLANTS,
        -and-

PUTNAM SOIL AND WATER                                           OPINION
CONSERVATION, ET AL.,

        DEFENDANTS-APPELLEES.


MAUMEE WATERSHED
CONSERVANCY DISTRICT,

        PLAINTIFF-APPELLEE,                                     CASE NO. 12-17-07

        v.

T & A PROPERTIES,

        DEFENDANT-APPELLANT,
        -and-

PUTNAM SOIL AND WATER                                           OPINION
CONSERVATION, ET AL.,

        DEFENDANTS-APPELLEES.
Case No. 12-17-06, 12-17-07




              Appeals from Putnam County Common Pleas Court
              Trial Court Nos. 2016 CV 00116 and 2016 CV 00117

                               Judgments Affirmed

                      Date of Decision:    December 18, 2017




APPEARANCES:

       Linde Hurst Webb and Matthew A. Cunningham for Appellants

       Meghan Anderson Roth and Thomas A. McWatters for Appellee,
          Maumee Watershed Conservancy District




ZIMMERMAN, J.

       {¶1} This matter comes before us upon two consolidated appeals. The

Defendants-Appellants in these appeals are: Rosaline A. Buescher, Dennis and

Marie Recker, and Alan and Theresa Kuhlman (collectively referred to as

“Appellants”).   Their appeals are from the judgments of the Putnam County

Common Pleas Court overruling their motions for judgment on the pleadings in

favor of the Plaintiff-Appellee, the Maumee Watershed Conservancy District (the

“District” or “Appellee”). On appeal, Appellants assert that: (1) the trial court erred


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by exercising jurisdiction because Appellee failed to provide Appellants “before and

after” real estate appraisals and offers of “just compensation” in the appropriation

proceedings; (2) the trial court erred by exercising jurisdiction because Appellee did

not comply with the conditions precedent required in the filing of a petition for

appropriation; and (3) the trial court erred by exercising jurisdiction because

Appellee failed to provide Appellants engineering plans prior to the filing of its

petition for appropriation. For the reasons that follow, we affirm the judgments of

the Putnam County Common Pleas Court.

                                         Factual Background

         {¶2} Rosaline A. Buescher and her children (collectively referred to as

“Bueschers”) are owners of real property located at 319 North Glandorf Road in

Ottawa, Ohio.1 T & A Properties, LLC2 (“T & A Properties”), is the owner of real

property located at 1146 Fairview Drive, in Ottawa, Ohio. To reduce flooding and

to regulate the flow of the Blanchard River in Putnam County, the District decided

to construct a diversion channel on a portion of the property owned by the Bueschers

and T & A Properties. Specifically, the District determined that it was necessary to




1
  Dennis and Marie Recker, along with various government and utility providers maintain easements on a
portion of property to be acquired and were named defendants.
2
  T & A Properties, LLC is owned by Alan and Theresa Kuhlman (the “Kuhlmans”), and while the Kuhlmans
are referred to as Appellants in their Appeal, the filings from the trial court all designate T & A Properties,
LLC as the Defendant herein. So, for ease of analysis and continuity we will reference the Kuhlmans by
their T & A Properties, LLC designation.

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Case No. 12-17-06, 12-17-07


acquire 19.004 acres3 of the Bueschers real estate and 16.115 acres of real estate

owned by T & A Properties to construct the diversion channel.

         {¶3} The District obtained appraisals for each property in April, 2016 from

Midwest Appraisal, Inc.             The appraised value of Bueschers’ real estate was

$7,492.10 per acre for the agricultural portion and $14,904.00 per acre for its non-

agricultural portion. T & A Properties farmland was valued at $7,504.56 per acre.

         {¶4} On June 15, 2016, the District sent to the Bueschers notice of its intent

to acquire their property together with a copy of its real estate appraisal. And on

June 20, 2016, the District sent a notice of its appropriation intent and real estate

appraisal to T & A Properties. Each notice contained the legal descriptions of the

land sought to be appropriated. And, per its appraisals, the District made a “good

faith offer,” pursuant to R.C. 163.04, to purchase the Bueschers land for

$146,234.00, and to purchase T & A Properties land for $120,943.08. However,

neither Bueschers nor T & A Properties accepted the offer or made a counteroffer.

As a result, and upon the expiration of the 30-day waiting period required by statute

to file an appropriation action, the District filed its petitions and complaints for

appropriation in the Putnam County Common Pleas Court against each landowner.




3
 Specifically, the 19.004 acres of the Bueschers’ land is comprised of 18.484 acres of agricultural land and
0.520 acres of the existing lane on the property.

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                              Procedural Background

                       Case No. 16 CV 116 – The Bueschers

       {¶5} On September 9, 2016, the District filed a “Petition and Complaint for

Appropriation of Real Property” (the “Buescher Petition”) in the Putnam County

Common Pleas Court. (Doc. No. 1). In its Buescher Petition, the District asserted

that it had the authority to appropriate a portion of Bueschers’ land for the purpose

of: “construction of a new diversion channel for the Blanchard River, the regulation

of the flow of the Blanchard River, the maintenance of open space for the

conservation of natural floodplain functions, recreational facilities, and related

improvements, and maintaining, operating, altering, replacing, and repairing the

diversion channel and recreational facilities.” (Id. at 2-3). The District’s request

was for the fee simple interest in a portion of land owned by the Bueschers, located

at 319 North Glandorf Road, Ottawa, Ohio, in Ottawa Township, Putnam County,

Ohio. (Id.). Along with providing the address subject to the appropriation, the

District attached the legal description of the 18.484 and 0.520 acreage (totaling

19.004 acres) sought from Bueschers’ property. (Id., Ex. A, B). The Buescher

Petition alleged that Bueschers’ property was appraised, and that the District made

a “good faith offer” (to the Bueschers) for the land being appropriated based upon

that appraisal. (Id.). The Buescher Petition stated that the District’s offer to

purchase was submitted to the Bueschers more than thirty (30) days prior to filing


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the appropriation action. (Id.). And, because the District and the Bueschers were

unable to agree on the appropriation, the petition set forth that the District passed a

Resolution on August 9, 2016, resolving the necessity of the appropriation and

authorizing the filing of the petition. Also named as Defendants in the Bueschers’

suit were the Village of Glandorf, Ohio; Ohio Power Company; the Putnam County

Treasurer; and the Putnam County Soil and Water Conservation District.

       {¶6} On November 8, 2016, the Bueschers filed a “Motion to Dismiss

Petition and Complaint for Appropriation for Failure to Comply with Conditions

Precedent Under Ohio Law and R.C. Chapter 163” in the trial court. (Doc. No. 19).

In the motion, the Bueschers asserted that the District did not comply with the

statutory and constitutional requirements for “just compensation,” resulting in the

District not having the authority to file a petition under R.C. Chapter 163.

       {¶7} On December 6, 2016, the District filed their “Opposition to Defendant

Bueschers’ Motion to Dismiss,” asserting that the requirements of R.C. Chapter 163

were satisfied prior to filing its Petition in the trial court. (Doc. No. 28). On January

26, 2017, the trial court issued its Decision on the Bueschers’ motion. (Doc. No.

31). In overruling the motion, the trial court found that R.C. 163.04 and 163.05 only

required the petition to contain a description of the land or property to be

appropriated, and a written good faith offer to purchase the property. (Id.).




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       {¶8} On February 13, 2017, the Bueschers filed a Motion for Judgment on

the Pleadings, asserting that the trial court lacked jurisdiction to hear the case

because the District failed to follow the conditions precedent to file the

appropriation. (Doc. No. 34). The trial court overruled the Bueschers’ motion for

judgment on the pleadings on April 20, 2017 and on May 19, 2017, the Bueschers

filed the instant notice of appeal in the trial court, pursuant to R.C. 2505.02(B)(7)

and R.C. 163.09(B)(3). (Doc. Nos. 41; 51).

                   Case No. 16 CV 117 – T & A Properties, LLC

       {¶9} On September 12, 2016, the District filed a “Petition and Complaint for

Appropriation of Real Property” (the “T & A Properties Petition”) in the Putnam

County Common Pleas Court. (Doc. No. 1). In its T & A Properties Petition, the

District asserted that it had the power and authority to appropriate real property for

the public purpose of: “(a) construction of a new diversion channel for the Blanchard

River; (b) regulation of the flow of the Blanchard River; (c) maintenance of open

space for the conservation of natural floodplain functions; (d) creation of

recreational facilities, and related improvements; and (e) maintaining, operating,

altering, replacing, and repairing the diversion channel and recreational facilities.”

(Id. at 2-3). The District requested to appropriate a fee simple interest in a portion

of the land owned by T & A Properties, located at 1146 Fairview Drive, in Ottawa,

Ohio. (Id.). Along with providing the address subject to the appropriation, the


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Case No. 12-17-06, 12-17-07


District attached the legal description of the 16.115 acreage from T & A Properties’

property sought to be appropriated. (Id., Ex. A). The District had the property

appraised, and provided T & A Properties a “good faith offer” based on that

appraisal. (Id.) The District provided T & A Properties a “good faith offer” more

than thirty days prior to the filing of its appropriation action. (Id.). And, after being

unable to reach an agreement on the conveyance or the terms of the conveyance of

the property, the District passed a Resolution on August 9, 2016, declaring the

necessity of the T & A Properties appropriation for a public purpose and authorized

the filing of the petition. The appropriation petition also named the Village of

Glandorf, Ohio, Ohio Power Company, the Putnam County Soil and Water

Conservation District, East Ohio Gas Company dba Dominion East, and the Putnam

County Treasurer as defendants.

       {¶10} On November 8, 2016, T & A Properties filed a “Motion to Dismiss

Petition and Complaint for Appropriation for Failure to Comply with Conditions

Precedent Under Ohio Law and R.C. Chapter 163” in the trial court. (Doc. No. 16).

In their motion, T & A Properties asserted that the District failed to comply with the

statutory and constitutional requirements for “just compensation,” which resulted in

the District not having authority to file a petition for appropriation against any

landowner. (Id. at 2). On December 6, 2016, the District filed their “Opposition to

Defendant T & A Properties, LLC’s Motion to Dismiss,” asserting that it satisfied


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Case No. 12-17-06, 12-17-07


the requirements of R.C. Chapter 163 prior to filing its petition in the trial court.

(Doc. No. 25). On January 26, 2017, the trial court issued its decision on T & A

Properties’ motion to dismiss. (Doc. No. 28). In overruling the motion, the trial

court found that R.C. 163.04 and 163.05 only required the appropriation petition to

contain a description of the land or property to be appropriated, and a written good

faith offer to purchase the property. (Id.). On February 13, 2017, T & A Properties

filed a Motion for Judgment on the Pleadings, asserting that the trial court lacked

jurisdiction to hear the case because the District failed to follow the conditions

precedent to file the case. (Doc. No. 32). The trial court overruled T & A Properties’

motion for judgment on the pleadings on April 20, 2017 and on May 19, 2017, T &

A Properties filed its notice of appeal in the trial court, pursuant to R.C.

2505.02(B)(7) and R.C. 163.09(B)(3). (Doc. Nos. 40; 48).

                                Appellants’ Appeals

       {¶11} The Bueschers and T & A Properties assert the following identical

assignments of error for our review in their consolidated appeals, which we address

together:

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED BY FINDING JURISDICTION
       AFTER APPELLEE FAILED TO PROVIDE A “BEFORE AND
       AFTER”    APPRAISAL     AND    OFFER     “JUST
       COMPENSATION.”



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Case No. 12-17-06, 12-17-07


                        ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED BY FINDING JURISDICTION
       AFTER APPELLEES FAILED TO COMPLY WITH THE
       CONDITIONS PRECEDENT NECESSARY TO FILE A
       PETITION FOR APPROPRIATION UNDER THE OHIO
       EMINENT DOMAIN ACT.

                        ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT ERRED BY FINDING JURISDICTION
       AFTER APPELLEES FAILED TO PROVIDE ACTUAL
       ENGINEERING PLANS PRIOR TO FILING THE PETITION
       FOR APPROPRIATION.

                Appellants’ First and Second Assignments of Error

       {¶12} While Appellants assert three separate assignments of error, their first

two assignments challenge the jurisdiction of the trial court stemming from the

District’s failure to complete a “before and after” appraisal prior to filing their

petitions for appropriation. Thus, we will address these assignments of error

together. And, for the reasons that follow, we overrule Appellants’ first and second

assignments of error.

                                Standard of Review

       {¶13} “A trial court reviews a Civ.R. 12(C) motion for judgment on the

pleadings using the same standard of review as a Civ.R. 12(B)(6) motion for failure

to state a claim upon which relief may be granted.” Walker v. City of Toledo, 6th

Dist. Lucas No. L-15-1240, 2017-Ohio-416, 84 N.E.3d 216, ¶ 18. A reviewing court

“‘must presume that all factual allegations of the complaint are true and make all

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Case No. 12-17-06, 12-17-07


reasonable inferences in favor of the nonmoving party.’” Id. quoting Mitchell v.

Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988).

         {¶14} “In ruling on the motion, a court is permitted to consider both the

complaint and the answer as well as any material incorporated by reference or

attached as exhibits to those pleadings.” Id. at ¶ 19.

         “In doing so, the court must construe the material allegations in the
         complaint, with all reasonable inferences drawn therefrom, as true and
         in favor of the non-moving party. A court granting the motion must
         find that the plaintiff can prove no set of facts in support of the claims
         that would entitle him or her to relief.”

Id. quoting Frazier v. Kent, 11th Dist. Portage Nos. 2004-P-0077, 2004-P-0096,

2005-Ohio-5413, ¶ 14.

         {¶15} “Because a Civ.R. 12(C) motion tests the legal basis for the claims

asserted in a complaint, our standard of review is de novo.”4 Id. at ¶ 20.

                                   Applicable Statutory Authority

         {¶16} Chapter 163 of the Ohio Revised Code, entitled “Appropriation of

Property,” provides the statutory framework for the appropriation of private land.

Relevant to the case before us are Revised Code sections 163.04 and 163.05, which

will be discussed, in turn.




4
  While Appellants assert that the Ohio Supreme Court requires “heightened” or strict scrutiny in reviewing
statutes that regulate the use of eminent domain powers, the basis for Appellants’ appeal is a denial of a 12(C)
Motion for Judgment on the Pleadings, and therefore strict scrutiny does not apply to the instant appeal.

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Case No. 12-17-06, 12-17-07




            R.C. 163.04: Notice; Good Faith Offer to Purchase; Appraisal;
            Inability to Agree; Limiting Effects of Projects that Will Disrupt
                      Flow of Traffic or Impede Access to Property

      {¶17} Pertinent to this appeal, R.C. 163.04 states, in part:

      (A) At least thirty days before filing a petition pursuant to section
      163.05 of the Revised Code, an agency shall provide notice to the
      owner of the agency's intent to acquire the property. The notice shall
      be substantially in the form set forth in section 163.041 of the Revised
      Code. The notice shall be delivered personally on, or by certified mail
      to, the owner of the property or the owner's designated representative.

      (B) Together with the notice that division (A) of this section
      requires, or after providing that notice but not less than thirty days
      before filing a petition pursuant to section 163.05 of the Revised
      Code, an agency shall provide an owner with a written good faith offer
      to purchase the property. The agency may revise that offer if before
      commencing an appropriation proceeding the agency becomes aware
      of conditions indigenous to the property that could not reasonably
      have been discovered at the time of the initial good faith offer or if the
      agency and the owner exchange appraisals prior to the filing of the
      petition.

      (C) An agency may appropriate real property only after the agency
      obtains an appraisal of the property and provides a copy of the
      appraisal to the owner or, if more than one, each owner or to the
      guardian or trustee of each owner. The agency need not provide an
      owner with a copy of the appraisal when that owner is incapable of
      contracting in person or by agent to convey the property and has no
      guardian or trustee or is unknown, or the residence of the owner
      cannot with reasonable diligence be ascertained. When the appraisal
      indicates that the property is worth less than ten thousand dollars, the
      agency need only provide an owner, guardian, or trustee with a
      summary of the appraisal. The agency shall provide the copy or
      summary of the appraisal to an owner, guardian, or trustee at or before
      the time the agency makes its first offer to purchase the property. A
      public utility or the head of a public agency may prescribe a procedure

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Case No. 12-17-06, 12-17-07


        to waive the appraisal in cases involving the acquisition by sale or
        donation of property with a fair market value of ten thousand dollars
        or less.

        (D) An agency may appropriate real property only after the agency
        is unable to agree on a conveyance or the terms of a conveyance, for
        any reason, with any owner or the guardian or trustee of any owner
        unless each owner is incapable of contracting in person or by agent to
        convey the property and has no guardian or trustee, each owner is
        unknown, or the residence of each owner is unknown to the agency
        and the residence of no owner can with reasonable diligence be
        ascertained.

        ***

R.C. 163.04.5

                           R.C. 163.05: Petition for Appropriation

        {¶18} Ohio’s statutory authority for the District’s petitions for appropriations

is found in R.C. 163.05. Specifically, R.C. 163.05 states that the requirements for

filing a petition for appropriation are as follows:

        An agency that has met the requirements of sections 163.04 and
        163.041 of the Revised Code, may commence proceedings in a proper
        court by filing a petition for appropriation of each parcel or contiguous
        parcels in a single common ownership, or interest or right therein. The
        petition of a private agency shall be verified as in a civil action. All
        petitions shall contain:

        (A) A description of each parcel of land or interest or right therein
        sought to be appropriated, such as will permit ready identification of
        the land involved;




5
 R.C. 163.041, entitled “Form of Notice” provides a form for the agency to provide each property owner.
The content and the compliance with R.C. 163.041 is not at issue in these appeals.

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Case No. 12-17-06, 12-17-07


      (B) (1) A statement that the appropriation is necessary, for a public
      use, and, in the case of a public agency, a copy of the resolution of the
      public agency to appropriate;

             (2) If the property being appropriated is a blighted parcel that
             is being appropriated pursuant to a redevelopment plan, a
             statement that shows the basis for the finding of blight and that
             supports that the parcel is part of a blighted area pursuant to the
             definition in section 1.08 of the Revised Code.

      (C)    A statement of the purpose of the appropriation;

      (D)    A statement of the estate or interest sought to be appropriated;

      (E) The names and addresses of the owners, so far as they can be
      ascertained;

      (F)   A statement showing requirements of section 163.04 of the
      Revised Code have been met;

      (G)    A prayer for the appropriation.

      In the event of an appropriation where the agency would require less
      than the whole of any parcel containing a residence structure and the
      required portion would remove a garage and sufficient land that a
      replacement garage could not be lawfully or practically attached, the
      appropriation shall be for the whole parcel and all structures unless,
      at the discretion of the owner, the owner waives this requirement, in
      which case the agency shall appropriate only the portion that the
      agency requires as well as the entirety of any structure that is in whole
      or in part on the required portion.

      In the event of the appropriation of less than the fee of any parcel or
      of a fee in less than the whole of any parcel of property, the agency
      shall either make available to the owner or shall file in the office of
      the county engineer, a description of the nature of the improvement or
      use which requires the appropriation, including any specifications,
      elevations, and grade changes already determined at the time of the
      filing of the petition, in sufficient detail to permit a determination of
      the nature, extent, and effect of the taking and improvement. A set of

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Case No. 12-17-06, 12-17-07


       highway construction plans shall be acceptable in providing such
       description for the purposes of the preceding sentence in the
       appropriation of land for highway purposes.

R.C. 163.05.

                                      Analysis

       {¶19} As set forth above, an agency seeking appropriation of private land

must comply first with Ohio Revised Code sections 163.04 and 163.041, then with

Ohio Revised Code Section 163.05. Appellants assert that the District erroneously

filed its appropriation petitions in the trial court and argue that since the District

based its good faith offer to purchase their land upon an invalid appraisal that did

not consider the “before and after” value of their respective properties, the District

failed to offer (each Appellant) “just compensation” for their real estate.

       {¶20} It is axiomatic that “where the language of a statute is plain and

unambiguous and conveys a clear and definite meaning there is no occasion for

resorting to the rules of statutory interpretation.” Wadsworth v. Dambach, 99 Ohio

App. 269, 272, 133 N.E.2d 158 (6th Dist.1954). Appellants do not argue that the

statute is ambiguous or convoluted, rather, they simply assert that the District’s

failure to conduct a “before and after” appraisal of their real estate is contrary to

Ohio law, the Ohio Constitution, and the Fifth and Fourteenth Amendments to the

U.S. Constitution.




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        {¶21} In support of this argument, Appellants direct us to the case law to

support their interpretation that “before and after” appraisals are required in

appropriation proceedings. Appellants rely upon Hilliard v. First Industrial, L.P.,

wherein the Tenth District Court of Appeals held that in eminent domain

proceedings, damage to the residue, which is the portion of property remaining after

the other portion is taken, is measured by the difference between the pre and post-

appropriation fair market value of the residue. Hilliard v. First Indus., L.P., 158

Ohio App.3d 792, 2004-Ohio-5836, 822 N.E.2d 411, ¶ 5 (10th Dist.). However, our

reading of Hilliard reveals that the matter of compensation therein was determined

by a jury, not by the trial court. (Emphasis added.) Id. at ¶ 1. See also, Wray v.

Stvartak, 121 Ohio App.3d 462, 475, 700 N.E.2d 347 (6th Dist.1997) (holding that

“it is well settled that a qualified witness must give his opinion as to the value of the

entire property before the taking and as to the value of the remainder of the property

after the taking”). As such, Appellants’ cited authority does not establish the

requirement of a “before and after” appraisal prior to the filing a petition for

appropriation.6 Rather, we find these cases stand for the proposition that the matter

of just compensation is a determination for the finder of fact. Thus, we find




6
  Appellants cite Wray v. Wessell, which specifically states as follows: “because the issue of just
compensation is a question of law each step of analysis likewise is a question of law.” Wray v. Wessell, 4th
Dist. Scioto Nos. 15CA3724, 15 CA 3725, 2016-Ohio-8584, ¶ 52. However, when read in context the
“question of law” for the trial court to decide involves determining whether damages are public or private,
and which are to be introduced to a jury.

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Appellants’ case law authority unpersuasive to their “before and after” appraisal

argument.

       {¶22} Appellants further direct us to R.C. 163.14(A) & (B) to support that a

“before and after” appraisal must be completed prior to filing an appropriation

petition. R.C. 163.14(A) specifically states: “[i]n appropriation proceedings, the

jury shall be sworn to impartially assess the compensation and damages, if any,

without deductions for general benefits as to the property of the owner.” (Emphasis

added). R.C. 163.14(A). And, R.C. 163.14(B) provides instructions for a jury’s

determination relative to compensation. More importantly, R.C. 163.14 is silent as

to the requirement that a “before and after” appraisal must be completed prior to the

filing of a petition.

       {¶23} Thus, since Appellants have failed to direct this Court to any authority

requiring that a “before and after” appraisal must be completed prior to the filing of

a petition for appropriation, we must analyze the plain language of R.C. 163.04 and

R.C. 163.05 in regards to each petition as to whether or not the ruling of the trial

court was correct.

                                 Buescher Petition

       {¶24} Under R.C. 163.04(A) an appropriation petition must provide notice

to a landowner of the “agency’s intent to acquire the property” at least thirty days

prior to filing an appropriation petition under to R.C. 163.05. In the Buescher


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Petition, it is undisputed that the District sent the Bueschers a Notice of Intent to

Acquire the Property more than thirty days prior to the filing of its petition. (16 CV

116, Doc. No. 1, at 3, Ex. E). Next, R.C. 163.04(B) requires that after providing

notice, but not less than thirty days before filing a petition, the agency seeking an

appropriation must provide the owner a written good faith offer7 to purchase the

property. Our review of the record reveals that the District provided the Bueschers

a written good faith offer of $146,234.00 to purchase their property more than thirty

days prior to the filing of its petition. (Id., Ex. D).

        {¶25} Next, R.C. 163.04(C) requires the appropriating agency to obtain an

appraisal of the property and provide a copy of it to the owner. The Buescher

Petition recites that the District had the Bueschers’ property appraised by Midwest

Appraisal, Inc., and attached a copy of the appraisal (that it sent to the Bueschers).

(Id., Ex. C).

        {¶26} Finally, R.C. 163.04(D) requires that an agency may appropriate real

property only after the agency is unable to agree on a conveyance or the terms of a

conveyance, for any reason, with any owner. The Buescher Petition contains the

allegation that the District attempted to negotiate with the Bueschers in order to

reach an agreement on the conveyance of the property, but were unable to reach an



7
 Under R.C. 163.01(J), a “good faith offer” “means the written offer that an agency that is appropriating
property must make to the owner of the property pursuant to division (B) of section 163.04 of the Revised
Code before commencing an appropriation proceeding.” R.C. 163.01(J).

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Case No. 12-17-06, 12-17-07


agreement (with the Bueschers) prior to the filing of the appropriation complaint.

(Id. at 4).

           {¶27} Thus, in our review of Revised Code Section 163.04(A) through (D),

we find that the Buescher Petition comports to the requisite requirements of the

statute.

           {¶28} Moving to R.C. 163.05 and the Buescher Petition, the legislature

promulgated (in R.C. 163.05) that an agency who has met the requirements of

sections 163.04 and 163.041 may commence proceedings in a court by filing a

petition for appropriation. R.C. 163.05 then sets forth the statutory requirements

that a petition for appropriation must contain. First, R.C. 163.05(A) requires a

description of each parcel of land or interest or right sought to be appropriated,

which was contained in the Buescher Petition by virtue of the 19.004 acre legal

description appended to the petition. (Id., Ex. A, B).

           {¶29} Next, R.C. 163.05(B)(1)8 requires the petition for appropriation

contain: a statement that the appropriation is necessary for a public use; and a copy

of the resolution of the agency authorizing the appropriation. Our review of the

Buescher Petition reveals that the District asserted that it was necessary to acquire

the fee simple interest in land owned by Rosaline Buescher and her children, “in

order to reduce flooding and regulate the flow of the Blanchard River.” (Id.). The



8
    As the Buescher property is not a “blighted parcel,” analysis of R.C. 163.05(B)(2) is unnecessary.

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Buescher Petition also included the District’s statement regarding the Resolution

passed (by the District) declaring the necessity of the appropriation for a public

purpose, together with a copy of the resolution. (Id. at 4, Ex. F).

       {¶30} Next, R.C. 163.05(C) requires a statement of the purpose of the

appropriation, which in our review, was set forth in the Buescher Petition as follows:

“[t]he purpose of the appropriation is for the purpose of reducing flooding and

regulating the flow of the Blanchard River so as to divert flood waters and for the

construction of public recreational facilities.” (Id. at 6).

       {¶31} Next, R.C. 163.05(D) and (E) require a statement of the estate or

interest sought to be appropriated and the names and addresses of the owners, so far

as they can be ascertained. Our review of the Buescher Petition reveals that the

District listed each ascertainable defendant’s name, address, and applicable interest

in the property sought to be appropriated by the District. (Id. at 4-6).

       {¶32} Next, R.C. 163.05(F) requires a statement by the appropriating agency

that contains an averment that the notice requirements set forth in R.C. 163.04 have

been met. In our review of the Buescher Petition, on page seven, the District

specifically avers that: “[t]he Plaintiff has complied with all applicable law,

including but not limited to R.C. 163.04, * * *.” (Id. at 7).

       {¶33} And finally, R.C. 163.05(G) requires that the agency include a prayer

for the appropriation in their petition. In the Buescher Petition, the District’s prayer


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Case No. 12-17-06, 12-17-07


for relief states as follows: “[w]herefore, Plaintiff prays: for the appropriation of the

right(s), interest(s) and estate in the Property as set forth above.”

       {¶34} In sum, our review of the Buescher Petition reveals that the District

complied with the statutory factors set forth in R.C. 163.04 and R.C. 163.05 in its

petition.

                              T & A Properties Petition

       {¶35} Next, we review the District’s petition for appropriation of the

property owned by T & A Properties (i.e. T & A Properties Petition) to determine if

the statutory requirements of R.C. 163.04 and R.C. 163.05 were satisfied.

       {¶36} As we noted herein before, R.C. 163.04(A) requires that the District

must provide notice to the owner of the District’s interest to acquire the property at

least thirty days prior to filing a petition pursuant to R.C. 163.05. In regards to the

T & A Properties Petition, it is undisputed that the District sent T & A Properties a

Notice of Intent to Acquire the Property more than thirty days prior to the filing of

the Petition. (16 CV 117, Doc. No. 1, at 3, Ex. D). Next, R.C. 163.04(B) requires

that after providing notice (under section A of R.C. 163.04) but not less than thirty

days before filing a petition, the District must provide the owner with a written good

faith offer to purchase the property. Our review of the record reveals that the District

provided T & A Properties a written good faith offer to purchase their property more




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Case No. 12-17-06, 12-17-07


than thirty days prior to the filing of its petition with its offer of $120,943.08. (Id.,

Ex. D).

       {¶37} R.C. 163.04(C) requires that the agency obtain an appraisal of the

property and provide a copy of the appraisal to the owner. In the T & A Properties

Petition, the District asserted that they had the property appraised and attached a

copy of the appraisal to the petition that was previously sent to T & A Properties.

(Id., Ex. B). And, finally, R.C. 163.04(D) requires that an agency may appropriate

real property only after the agency is unable to agree on a conveyance or the terms

of a conveyance, for any reason, with any owner. The T & A Properties Petition

sets forth that the District attempted to negotiate with T & A Properties in order to

come to an agreement on the conveyance of the property but was unable to reach an

agreement prior to the filing of the Petition. (Id. at 3-4).

       {¶38} Thus, our review of the record reveals that the District’s petition

complied with the statutory requirements set forth in R.C. 163.04(A)-(D). Having

found that the petition in question complied with R.C. 163.04, we now turn to

whether such petition comported with the statutory requirements of R.C. 163.05

       {¶39} R.C. 163.05(A) requires that a petition for appropriation must provide

a description of each parcel of land or interest or right sought in the appropriation.

As to the T & A Properties Petition, the District provided a legal description of the

16.115 acres at 1146 Fairview Dr. in Ottawa, Ohio subject to the appropriation, and


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Case No. 12-17-06, 12-17-07


attached the Brockrath & Associates Engineering and Surveying, LLC’s description

of the land to be appropriated, including a description for the 16.115 acres of

farmland sought. (Id. at 2, Ex. A).

           {¶40} Next, R.C. 163.05(B)(1)9 requires the petition for appropriation

contain: a statement that the appropriation is necessary for a public use; and a copy

of the resolution of the agency authorizing the appropriation. Our review of the T

& A Properties Petition reveals that the District asserted it was necessary to acquire

the fee simple interest in land owned by T & A Properties for public purposes,

including “construction of a new diversion channel for the Blanchard River and

regulation of the flow of the Blanchard River.” (Id.). The District also attached a

copy of the Resolution it passed declaring the necessity of the appropriation for a

public purpose. (Id. at 4, Ex. E).

           {¶41} Next, R.C. 163.05(C) requires a statement of the purpose of the

appropriation. The T & A Properties Petition, in its relevant part, clearly states

“[A]ppropriation of the Property is necessary for the following public purposes: (a)

construction of a new diversion channel for the Blanchard River; (b) regulation of

the flow of the Blanchard River; (c) maintenance of open space for the conservation

of natural floodplain functions; (d) creation of recreational facilities, and related




9
    As T & A Properties’ land is not a “blighted parcel,” analysis of R.C. 163.05(B)(2) is unnecessary.

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Case No. 12-17-06, 12-17-07


improvements; and (e) maintaining, operating, altering, replacing, and repairing the

diversion channel and recreational facilities.”    (Id. at 2-3).

       {¶42} Next, R.C. 163.05(D) requires a statement of the estate or interest

sought to be appropriated and R.C. 163.05(E) requires the names and addresses of

the owners, so far as they can be ascertained. In our review of the T & A Properties

Petition we find that the District listed each ascertainable defendant’s name, address,

and the applicable interest in the property sought to be appropriated. (Id. at 2, 4).

       {¶43} Next, R.C. 163.05(F) requires a statement asserting that the notice

requirements set forth in R.C. 163.04 have been met. On page five of the T & A

Properties Petition, the District specifically states that: “[t]he Plaintiff has complied

with all applicable law, including but not limited to R.C. 163.04, * * *.” (Id. at 5).

       {¶44} And finally, R.C. 163.05(G) requires that the agency include a prayer

for the appropriation in their petition. In the T & A Properties Petition, the District

stated: “[w]herefore, the Maumee Watershed Conservancy District prays for

judgment as follows: for the appropriation of the rights, interests, and estate in the

property.” Thus, in our review of the T & A Properties Petition we find that the

District complied with the enumerated statutory factors for filing a petition for

appropriation as set forth in R.C. 163.04 and R.C. 163.05. Accordingly, we overrule

the Appellants’ first and second assignments of error.




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Case No. 12-17-06, 12-17-07


                       Appellants’ Third Assignment of Error

       {¶45} In their third assignment of error, Appellants assert that the trial court

erred by exercising jurisdiction after the Appellee failed to provide them with actual

engineering plans prior to filing its petitions for appropriation. We disagree.

       {¶46} R.C. 163.05, in its pertinent part, provides as follows:

       In the event of the appropriation of less than the fee of any parcel or
       of a fee in less than the whole of any parcel of property, the agency
       shall either make available to the owner or shall file in the office of
       the county engineer, a description of the nature of the improvement or
       use which requires the appropriation, including any specifications,
       elevations, and grade changes already determined at the time of the
       filing of the petition, in sufficient detail to permit a determination of
       the nature, extent, and effect of the taking and improvement. A set of
       highway construction plans shall be acceptable in providing such
       description for the purposes of the preceding sentence in the
       appropriation of land for highway purposes.

R.C. 163.05.

       {¶47} However, this issue is not properly before this Court, because the

absence of providing engineering plans argument was not raised in Appellants’

Motion for Judgment on the Pleadings in the trial court. Even though Appellants

attempted to raise this issue (of engineering plans) in their “Additional Support for

Motion for Judgment on the Pleadings,” such motion was filed tardy with the trial

court on the day prior to the trial court issuing its Judgment Entry overruling

Appellants’ motion. (Doc. No. 40). “‘It is well-settled law that issues not raised in

the trial court may not be raised for the first time on appeal because such issues are


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Case No. 12-17-06, 12-17-07


deemed waived.” State v. Adams, 10th Dist. Franklin No. 14AP-623, 2015-Ohio-

868, ¶ 9 quoting State v. Barrett, 10th Dist. No. 11AP-375, 2011-Ohio-4986, ¶ 13.

Since this argument (i.e. engineering plans) was not considered by the trial court

due to Appellants’ ill-timed “Additional Support” memo, we will not consider it on

appeal.

       {¶48} However, even if we chose to consider this third assignment of error,

we find Appellants’ argument (regarding the lack of the District providing

engineering plans prior to filing its petitions for appropriation) to be harmless error.

“Generally, in order to find that substantial justice has been done to an appellant so

as to prevent reversal of a judgment for errors occurring at the trial, the reviewing

court must not only weigh the prejudicial effect of those errors but also determine

that, if those errors had not occurred, the jury or other trier of the facts would

probably have made the same decision.” Hallworth v. Republic Steel Corp., 153

Ohio St. 349, 91 N.E.2d 690 (1950), paragraph three of the syllabus. In this case,

we find no prejudicial effect to the Appellants regarding the timing of the filing of

the engineering plans, because the Appellants were provided with the plans during

the course of their litigation at the trial court level. (See Br. Of Appellants, App. 5).

       {¶49} Accordingly, we overrule Appellants’ third assignment of error.




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Case No. 12-17-06, 12-17-07


                                     Conclusion

         {¶50} In sum, because the District met the statutory requirements for notice

and for the filing its petitions for appropriations, Appellants’ Motion for Judgment

on the Pleadings was properly overruled by the trial court.

         {¶51} Having found no error prejudicial to the Appellants herein in the

particulars assigned and argued, we overrule Appellants’ first, second and third

assignments of error and affirm the judgments of the Putnam County Common Pleas

Court.

                                                               Judgments Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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