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Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835
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IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO
GENERAL DIVISION
JAMES BRENT HAYES, et al.,
Plaintiffs, 2 Case No. 12 CVH-11-13835
vy. : Judge: Guy L. Reece, II
JERRY WRAY, DIRECTOR, OHIO
DEPARTMENT OF TRANSPORTATION,
Defendant.
DECISION AND ENTRY
GRANTING DEFENDANT’S DECEMBER 5, 2012
MOTION [FOR SUMMARY JUDGMENT]
REECE, J.
This matter is before the Court on Defendant Jerry Wray, Director, Ohio Department of
Transportation’s (“Defendant”) December 5, 2012 Corrected Motion to Dismiss, which was
recently converted into a Motion for Summary Judgment; Plaintiffs James Brent Hayes and
Cynthia L. Hayes’s (collectively “Plaintiffs”) January 7, 2013 Memorandum Contra Defendant’s
Motion [for Summary Judgment]; Defendant’s January 10, 2013 Reply to Plaintiffs’
Memorandum Contra Defendant’s Motion [for Summary Judgment]; Plaintiffs’ October 9, 2013
Supplemental Memorandum Contra Defendant’s Motion [for Summary Judgment]; Defendant’s
October 16, 2013 Reply Memorandum to Plaintiffs’ Supplemental Memorandum Contra
Defendant’s Motion [for Summary Judgment] and Plaintiffs’ December 11, 2013 Supplemental
Memorandum in Opposition to Defendant’s Motion for Summary Judgment.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835
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Defendant’s motion has been fully briefed and is deemed submitted to the Court pursuant
to Loc.R. 21.01.
BACKGROUND
Plaintiffs commenced this declaratory judgment action on November 2, 2012. Plaintiffs
own a parcel of land in Athens County, Ohio. Defendant Ohio Department of Transportation
(“ODOT”) filed a land appropriation petition with the Court of Common Pleas in Athens County,
Ohio, pertaining to that parcel of land and deposited $2,085.00 as fair market compensation for
the same. Plaintiffs, who were defendants in the Athens County case, filed an Answer and
Counterclaim in response to ODOT’s petition, alleging they entered into an agreement with
ODOT for the acquisition of that land on February 1, 2002. Thereafter, ODOT argued that suits
against its Director may only be filed in the Franklin County Common Pleas Court, and the
Athens County Common Pleas Court dismissed the counterclaim and stayed the appropriation
case pending the outcome of the proposed case to be filed in Franklin County, i.e., this action.
In their Complaint in this case, Plaintiffs allege that, prior to February 2002, authorized
agents for ODOT, including Saleh El-Dabaja, Kenneth L. Dollison, John Coen and George
Collins, negotiated with Plaintiffs over the value of the real estate that is the subject of the
Athens County appropriation action. Plaintiffs maintain that, on February 1, 2002, Saleh El-
Dabaja and Kenneth L. Dollison sent Plaintiff James Brent Hayes a letter outlining the terms of a
settlement with respect to the value of the subject real estate. That letter, signed by Kenneth L.
Dollison, ODOT District Real Estate Administrator, reads as follows:
Dear Mr. Hayes,
This letter is in response to your request that we provide you with some evidence of
ODOT’s intent to make the bridge beams from this bridge location available to you when
and as our project to abandon and demolish this existing bridge carrying U.S. route 50
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over the abandoned railroad near Torch, progresses. In consideration of your cooperation
with ODOT and the transfer of a part of your property, in the form of the abandoned
railroad property beneath and around the bridge, to ODOT, ODOT hereby agrees to
permit you to salvage the existing structural steel beams from this bridge. The contractor
selected to accomplish the demolition of this bridge will be instructed to set these beams
aside for your use and possession, and you are asked to cooperate with the contractor in
removing these items from the work area at his direction. You should be advised that this
bridge removal and demolition project is currently scheduled for letting during fiscal year
2009 and the bridge beams will not be available to you prior to that time.
I trust that this letter will serve as the evidence of ODOT’s intent you are seeking and will
permit the completion of our negotiations with respect to the land trade we have initiated.
oe
Plaintiffs maintain that, in reliance upon this letter, which they argue represents their
agreement related to the conveyance of the property in exchange for the bridge beams, Plaintiff
James Brent Hayes thereafter sold portions of his land and obtained from ODOT a legal
description of what portion of the land should be exempted from the conveyance. Plaintiffs
maintain that, after a recent meeting with ODOT representatives, they are under the impression
that ODOT is now reneging on the agreement and they have brought this declaratory judgment
action, seeking a declaration of their rights, duties and responsibilities under the February 1, 2002
letter/agreement.
Tn its December 3, 2012 Motion to Dismiss and December 5, 2012 Corrected Motion to
Dismiss, Defendant urges the Court to dismiss this action pursuant to Civ.R. 12(B)(6) for failure
to state a claim upon which relief can be granted. Defendant explains that the subject property is
located under a bridge that ODOT owns by aerial easement on U.S. route 50 in Athens County,
Ohio. Defendant further explains that the original project in 2000 aimed to eliminate bridge
maintenance and would have taken Plaintiffs’ property under the bridge and filled it in with soil
and pavement. However, ODOT maintains it decided not to proceed with the 2000 project
related to the bridge, explaining that often projects are changed or abandoned due to a change in
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the design of the project, higher priority for other projects, or simply lack of funding. ODOT
argues it never took dominion and control over Plaintiffs’ property in this case because it did not
proceed with the 2002 project.
On November 23, 2010, Plaintiffs conveyed to The Athens Conservancy a portion of their
property, including land where the subject property is located, with the exception of, among other
things, 1.389 acres under the bridge.
ODOT explains that a new project is now in place, and this project differs from the
original 2002 project to eliminate bridge maintenance. This project, according to ODOT, will
accommodate The Athens Conservancy in its efforts to construct a bicycle and horse trail on the
land deeded to it by Plaintiffs on both sides of U.S. 50. ODOT explains that a box culvert will be
provided in the space where the bridge is located and the Athens Conservancy’s bicycle and
horse trail will continue through the box culvert without having to cross the pavement of U.S. 50.
Defendant argues this action should be dismissed because: 1.) the February 1, 2002 letter
does not constitute a contract for the acquisition of land because it does not contain necessary
terms, including a description of the land to be conveyed, quantity of consideration, and
signatures of acceptance; 2.) ODOT representatives cannot execute contracts outside the
authority given to them by statute; and 3.) actions for declaratory judgment are not appropriate
where special statutory proceedings would be bypassed. ODOT explains that its representatives
could not have entered into an agreement as outlined in the letter that Plaintiffs cite to because
the terms of the letter are contrary to the procedures that must be followed when acquiring
property. ODOT notes that it is a state administrative agency, and a creature of statute, and its
authority to purchase property for transportation projects is expressly conferred by R.C. §5501.31
and §163.041. It further notes that §5501:2-5-06 of the Ohio Administrative Code outlines
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additional procedures to be followed including the establishment of a fair market value by an
appraiser. Defendant argues the steps for determining just compensation for a parcel of land
were not followed by the supervisor who ordered his employees to send Plaintiffs the February 1,
2002 letter. Defendant argues the supervisor was neither qualified to prepare an appraisal of the
property to determine just compensation, nor qualified to determine real estate values, and no
waiver of appraisal was prepared as required. Therefore, ODOT argues it could not have entered
into a contract for the trading of steel beams, in 3-foot sections, with an estimated salvage value
of $57,280.00, in exchange for the at-issue property, when the proper procedures for the
acquisition of property, as outlined in the Revised Code and the Administrative Code, were not
followed.
Defendant further argues that an action for declaratory judgment is not appropriate when
special statutory proceedings would be bypassed by the issuance of the same, directing the
Court’s attention to State ex rel. Albright v. Delaware County Court of Common Pleas, 60 Ohio
St.3d 40, 42, 572 N.E.2d 1387 (1991), and State ex rel. Smith v. Frost, 74 Ohio St.3d 107, 656
N.E.2d 673 (1995), in support thereof. ODOT explains that R.C. §5519.01 through §5519.04,
R.C. §163.01 through §163.22, and O.A.C. Chapter 5501:2-5096 provide the framework and
procedures to be followed when taking property by eminent domain and assessing fair market
value, while also allowing landowners to challenge that value. ODOT explains that, when the
parties could not agree on the fair market value of the property to be taken pursuant to the current
project related to the bridge on U.S. 50, it filed an appropriation action in Athens County
pursuant to those statutes and administrative rules. ODOT argues that, if Plaintiffs believe a
different value should be assigned to the subject property, they may submit evidence with respectFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835
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to the same in the Athens County case, not through an entirely different action seeking
declaratory relief related to that property.
ODOT attached to its Motion to Dismiss a copy of the Petition to Appropriate Property
and to Fix Compensation filed in the Athens County appropriation action (Case No. 12 CI. 0173),
a copy of the November 7, 2012 Journal Entry Granting Defendants’ Motion to Stay issued by
Judge Ward in the Athens County appropriation action, and a copy of the February 1, 2002 letter
signed by ODOT employee Kenneth L. Dollison.
On December 5, 2012, ODOT filed a Corrected Motion to Dismiss, as the original
Motion to Dismiss omitted page 3.
On November 27, 2013, the Court notified the parties of its intent to convert these
motions to dismiss into motions for summary judgment. Accordingly, the Court will hereinafter
refer to the motions as motions for summary judgment, and will note the different standard of
review that applies to the same. Furthermore, the Court’s decision to convert these motions into
motions for summary judgment moots Plaintiffs’ arguments related to the documents attached
thereto, as the Court may now properly consider those documents.
In their January 7, 2013 Memorandum Contra Defendant’s Motion [for Summary
Judgment], Plaintiffs argue the February 1, 2002 letter contains the necessary terms of offer,
acceptance and mutual assent, and the letter qualifies as an agreement regarding the exchange of
property for steel beams, even though the letter may not contain all of the details of the
agreement. Plaintiffs maintain the property was sufficiently identified and the quantity of the
steel beams to be traded, being limited to the existing structural steel beams, was sufficiently
identified. Plaintiffs maintain the fact that they did not sign the letter does not alter the fact that
the letter constitutes an agreement.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835
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Plaintiffs attached to their Memorandum Contra an affidavit from Plaintiff James Brent
Hayes, dated January 3, 2013, related to Plaintiffs’ conveyance of the railbed on either side of the
bridge to The Athens Conservancy and the circumstances surrounding the appropriation action in
Athens County. Attached to the affidavit are a General Warranty Deed related to the railbed and
a legal description of the property that was conveyed to The Athens Conservancy.
Plaintiffs contend R.C. §5502.31 does not limit an ODOT employee’s ability to bind
ODOT to a contract, and even if the ODOT employees involved in this transaction did not have
actual authority to bind ODOT to a contract, Plaintiffs argue the employees had apparent
authority to do so. Plaintiffs argue these employees held themselves out as having authority to
act on behalf of ODOT and Plaintiffs, in good faith, reasonably believed that the employees had
authority to act on ODOT’s behalf and were following ODOT procedures in so acting. Plaintiffs
argue that, in reliance on the employees’ representations, and the legal description they provided,
Plaintiffs conveyed property on either side of the bridge to The Athens Conservancy.
With respect to Defendant’s argument that a declaratory judgment action in this case is
improper, Plaintiffs acknowledge that a declaratory judgment action is not an alternative remedy,
but argue it is an alternative in cases where the action is within the spirit of the Declaratory
Judgment Act. Plaintiffs maintain this action is premised on R.C. §5501.22, §2721.03 and
§2721.04. They acknowledge that an appropriation action was filed in Athens County but
maintain they were denied the opportunity to assert their counterclaim and conduct discovery in
that case. Plaintiffs acknowledge there are procedures to be followed pursuant to R.C. §163.01-
163.22, but argue there is no avenue through those procedures through which they can assert a
breach of contract claim; they can only challenge how much ODOT has to pay for the property.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835
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Plaintiffs argue the statutory proceedings are not being bypassed but are stayed until this Court
determines whether a contract exists between Plaintiffs and ODOT related to the steel beams.
On January 10, 2013, ODOT filed a Reply to Plaintiffs’ Memorandum Contra
Defendant’s Motion [for Summary Judgment]. ODOT again reiterates that it is a creature of
statute and has no common law powers other than those granted to it by statute. It explains that it
can and it does stop highway projects due to various reasons, including lack of funding or change
in design or priority of project, and it has stopped the 2002 project that would have necessitated
the acquisition of Plaintiffs’ property, as discussed in the letter. It further explains that there is
now a new project, with a new federal identification number and a different design, and
Plaintiffs’ property will need to be acquired due to this new project. Defendant maintains it tried
to negotiate with Plaintiffs over the fair market value of the 1.390 acres of subject property, and
has done so pursuant to the statutes and rules that designate the procedures to be followed when
ODOT acquires property due to a project. Defendant argues it does not and cannot acquire
property that is not needed for a project. Because negotiations with Plaintiffs were unsuccessful,
Defendant explains it commenced the appropriation action in Athens County in accordance with
Chapter 163 of the Ohio Revised Code and deposited $2,085.00 with the Clerk of Courts for the
fair market value of the property. However, ODOT argues Plaintiffs are trying, through this
action, to get “a windfall of taxpayers’ money in the amount of $57,280.00, which is the salvage
amount of the steel beams that are contained in [the] bridge that is an aerial easement over 1.390
acres of the property at issue.” (Deft. Reply, at 3.)
Defendant argues that the supervisor who ordered that the 2002 letter be issued failed to
follow the procedure that is required by law whenever ODOT acquires property for a project. It
further notes that various documents should have been sent to Plaintiffs in 2002, prior to the
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letter and before negotiations could have commenced, if the proper procedures were actually
followed, yet Plaintiffs have failed to provide copies of any such documents that should have
been sent to them. Defendant notes that Plaintiff James Brent Hayes is a sophisticated owner of
sizeable amounts of land in Athens County, he has dealt with ODOT in the past, and he should
know that ODOT cannot trade steel beams for land. Defendant further argues Mr. Hayes also
knows the fair market value of the subject property is not $57,280.00. ODOT further points out
that Plaintiffs have not produced a single document that specifies the fair market value
determined for the property in 2002.
Because the required procedures set forth in Chapter 163 of the Revised Code and
Section 5501:2-5-06 of the Administrative Code were not followed in 2002, ODOT argues no
contract was actually entered into in 2002. Even if the 2002 letter were found to constitute a
contract, ODOT argues the contract would be void because the proper procedures were not
followed. Defendant again argues that an appropriation is a special statutory procedure that
cannot be bypassed through a declaratory judgment action. ODOT directs the Court’s attention
to Shampton v. City of Springboro, 98 Ohio St.3d 457, 2013-Ohio-1913, 786 N.E.2d 883, State
ex rel. Albright v. Delaware County Court of Common Pleas, 60 Ohio St.3d 40, 42, 572 N.E.2d
1387 (1991), and State ex rel. Smith v. Frost, 74 Ohio St.3d 107, 656 N.E.2d 673 (1995), in
support of its arguments.
On October 9, 2013, Plaintiffs filed a Supplemental Memorandum Contra Defendant’s
Motion [for Summary Judgment]. Plaintiffs again argue that the February 1, 2002 letter was in
writing, it identified the subject of the conveyance and the consideration for the conveyance — the
existing steel beams — and it was signed by the party to be charged with the writing. Therefore,Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835
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the argument continues, the writing satisfies the Statute of Frauds and constitutes a valid contract
for the conveyance of the subject property.
Plaintiffs further argue that the 2002 version of O.A.C. §5501:2-5-6(B)(3)(b) did not
require an appraisal of a property that was to be acquired if the property had a low fair market
value estimate, and the 2012 version of that section does not require an appraisal if the fair
market value estimate of the property is less than $10,000.00. They also maintain that a waiver
of appraisal was not required in 2002. Therefore, the argument continues, ODOT’s position that
the requisite procedures were not followed is without merit.
Plaintiffs further argue that ODOT’s failure to follow the procedures set forth in the Ohio
Revised Code and the Ohio Administrative Code does not affect the validity of the parties’
agreement. In support of their argument, Plaintiffs cite to R.C. §163.52, which indicates that the
failure of an acquiring agency to satisfy a requirement of R.C. §163.59 does not affect the
validity of any property that is acquired by purchase or by condemnation.
Plaintiffs attached to their Supplemental Memorandum an affidavit from James Brent
Hayes, dated October 8, 2013, related to the conveyance of land to The Athens Conservancy and
the obtaining of a legal description, for that purpose, from ODOT. Plaintiffs also attached
another copy of the February 1, 2002 letter, a copy of the General Warranty Deed related to the
2010 conveyance to The Athens Conservancy, a copy of the Petition to Appropriate Property and
to Fix Compensation filed in the Athens County appropriation action (Case No. 12 CI 0173), and
a copy of the 2002 version of O.A.C. §5501:2-5-06.
On October 16, 2013, Defendant filed a Reply Memorandum to Plaintiffs’ Supplemental
Memorandum Contra Defendant’s Motion [for Summary Judgment]. Defendant takes issue with
Plaintiffs’ argument that, because the current version of O.A.C. §5501:2-5-6(B)(3)(b) does not
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require an appraisal if the property to be acquired is estimated to have a fair market value of less
than $10,000.00, and because the 2002 version of that section did not require an appraisal of a
property to be acquired if it had a low fair market value estimate, then the ODOT employees in
2002 did not violate the established rules and procedures when they offered to trade steel beams
for land. Defendant explains that the 2002 version of O.A.C. §5501:2-5 required that a verifiable
basis be established for the fair market value of the property to be acquired for a public project.
It notes that, according to O.A.C. §5501:2-5-06(B)(5), in addition to a written purchase offer, the
property owner was to be provided with a written statement of the basis for the offer of just
compensation. Although the Court allowed Plaintiffs to discover relevant documents through the
depositions of three ODOT employees, ODOT argues Plaintiffs were unable to obtain any of the
documents identified in O.A.C. §5501:2-5 because the employees were unable, after an extensive
electronic search and physical search of ODOT’s records, to find any such documents to have
ever existed.
Defendant explains that it followed the applicable rules and procedures for the acquisition
of property with low fair market value in 2002. ODOT maintains that, even when a property was
estimated to be worth less than $5,000.00, ODOT would prepare a Value Analysis for that
property by looking at comparable sales and analyzing them to determine the basis for the offer
for just compensation. ODOT contends that, even if property was estimated to be worth less than
$5,000.00, it would still perform a Value Analysis and it would pay no less than $300 for the
property. The file for the low value property, ODOT explains, would also contain a title report,
including a deed that showed ownership, and any deeds of easement, mortgages, or liens. The
file would also contain a letter to the owner, alerting him/her that the property would be impacted
by a project, and a second letter informing the owner about the value ODOT determined and the
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money it would pay as just compensation for acquiring the property. Finally, ODOT explains the
file would contain Negotiator Notes detailing the dates and places of meetings held to negotiate,
any offer(s) and counter-offer(s), and an ultimate discussion of whether an agreement was
reached or if the file was referred to the Attorney General’s Office for the commencement of an
appropriation action.
ODOT attached to its Reply, as a sample, a copy of the 39-page file of a property
acquired by ODOT in Athens County in 2002, which property was valued at $249.00 and
acquired for $300.00. By comparison, ODOT argues the only document its employees could find
related to this case is “a letter dictated by a supervisor who was ignorant of the laws and
regulations that govern a governmental agency’s acquisition of property for a public purpose.”
(Deft. Reply, at unnumbered page 5.) Defendant also attached to its Reply a copy of the 2002
version of O.A.C. §5501:2-5-06.
Finally, on December 11, 2013, Plaintiffs filed a Supplemental Memorandum in
Opposition to Defendant’s Motion for Summary Judgment. Plaintiffs argue summary judgment
should not be granted because genuine issues of material fact exist with respect to, among other
things, whether the 2002 letter constitutes a valid contract for the conveyance of the subject
property, and whether the ODOT employees who authored the letter had actual or apparent
authority to enter into such a contract. In response to ODOT’s argument related to the absence of
documents that would have been created and provided to Plaintiffs if all appropriate steps were
followed in 2002 related to the alleged conveyance of the subject property, Plaintiffs argue
genuine issues of material fact also exist with respect to whether the 2002 Administrative Code
contains exceptions “for the lack of paperwork that the Defendant[] cite[s] to as insufficiencies,”
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and whether the absence of such paperwork is the result of ODOT having misplaced or
“negligently never created” the paperwork in the first place. (Pltfs. Suppl. Memo., at 3.)
Plaintiffs also argue that genuine issues of material fact exists with respect to whether ODOT
should be estopped from even making such an argument in light of Plaintiffs’ reliance on the
2002 letter in conveying their property to The Athens Conservancy District and the legal
description of the subject property that ODOT provided to Plaintiffs.
LAW & ANALYSIS
1 MOTION FOR SUMMARY JUDGMENT
Civ.R. 56 provides that, before summary judgment may be granted, a trial court must
determine that: 1.) there is no genuine issue as to any material fact that remains to be litigated;
2.) the moving party is entitled to judgment as a matter of law; and 3.) it appears from the
evidence that reasonable minds can come to but one conclusion, and that conclusion, when
viewing the evidence in a light most favorable to the party against whom the motion for summary
judgment is made, is adverse to that same party. Temple v. Wean United, Inc., 50 Ohio St.2d
317, 327, 364 N.E.2d 267 (1977). While “[s]ummary judgment is a procedural device to
terminate litigation and to avoid a formal trial where there is nothing to try,” Ohio courts have
warned that summary judgment “must be awarded with caution, resolving doubts and construing
evidence against the moving party, and granted only when it appears from the evidentiary
material that reasonable minds can reach only an adverse conclusion as to the party opposing the
motion.” Norris v. Ohio Standard Oil Co., 70 Ohio St.2d 1, 2-3, 433 N.E.2d 615 (1982), citing
Morris v. First National Bank & Trust Co., 21 Ohio St.2d 25, 28, 254 N.E.2d 683 (1970).
Furthermore, when considering the merits of a motion for summary judgment, a trial
court must pay particular attention to the shifting burdens between the moving and non-moving
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parties. The moving party bears an initial burden of informing the court of the basis for its
motion and of “identifying those portions of the record that demonstrate the absence of a genuine
issue of material fact on the essential element(s) of the non-moving party’s claim.” Dresher v.
Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). If the moving party does not point to
some evidence of the type listed in Civ.R. 56(C), which demonstrates that the non-moving party
has no evidence to support its claims, a motion for summary judgment must be denied. Id.
However, once the moving party meets its initial burden, the burden then shifts to the non-
moving party to bring to the court’s attention facts showing a genuine issue for trial, and if this
reciprocal burden is not met, summary judgment must be granted. Id.
In determining whether there are genuine issues as to any material fact(s), a trial court
must examine the applicable substantive law. Miller v. Loral Defense Systems, 109 Ohio App.3d
379, 383, 672 N.E.2d 227 (9" Dist. 1996). “A ‘material fact’ depends on the substantive law of
the claim being litigated.” Hoyt, Inc. v. Gordon & Associates, Inc., 104 Ohio App.3d 598, 603,
662 N.E.2d 1088 (8" Dist. 1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248,
106 S.Ct. 2505 (1986). “[T]he substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Miller, 109 Ohio App.3d at 383, citing Anderson, 477 U.S.
at 248.
Il. DECLARATORY JUDGMENT
To be entitled to declaratory relief, a plaintiff must demonstrate that: 1.) a real
controversy exists between the parties; 2.) the controversy is justiciable in character; and
3.) speedy relief is necessary to preserve the rights of the parties. Burger Brewing Co. v. Liquor
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Control Comm., 34 Ohio St.2d 93, 97, 296 N.E.2d 261 (1973), citing American Life & Accident
Ins. Co. v. Jones, 152 Ohio St. 287, 296, 89 N.E.2d 301 (1949); Therapy Partners of Am. v.
Richards Healthcare, 10" Dist. No. 97APE09-1257, 1998 Ohio App. LEXIS 1707, *3-4 (April
21, 1998), citing Ohio Assn. of Life Underwriters, Inc. v. Duryee, 95 Ohio App.3d 532, 534, 642
N.E.2d 1145 (10" Dist. 1994).
When a party seeks relief via a declaratory judgment, the court is asked to “declare rights,
status, and other legal relations whether or not further relief is or could be claimed.” R.C.
§2721.02(A). Such a declaration can be “either affirmative or negative in form and effect.” Id.
According to R.C. §2721.03, “ *** any person whose rights, status, or other legal relations are
affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised
Code, municipal ordinance, township resolution, contract, or franchise may have determined any
question of construction or validity arising under the instrument, constitutional provision, statute,
tule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or
other legal relations under it.”
Although the parties have presented to the Court a plethora of arguments related to the
subject property and the alleged agreement to convey the same, the Court finds the main question
here is whether Plaintiffs can use this declaratory judgment action in place of an appropriation
action related to the subject property. The Court answers the question in the negative.
As the Ohio Supreme Court explained in State ex rel. Albright v. Court of Common
Pleas, 60 Ohio St.3d 40, 572 N.E.2d 1387 (1991),
actions for declaratory judgment and injunction are inappropriate where special statutory
proceedings would be bypassed. Dayton Street Transit Co. v. Dayton Power & Light Co.
(1937), 57 Ohio App. 299, 10 0.0. 500, 13 N.E. 2d 923; State, ex rel. Iris Sales Co., v.
Voinovich (1975), 43 Ohio App. 2d 18, 72 0.0. 2d 162, 332 N.E. 2d 79; Wagner v.
Krouse (1983), 7 Ohio App. 3d 378, 7 OBR 479, 455 N.E. 2d 717; Beasley v. East
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Cleveland (1984), 20 Ohio App. 3d 370, 20 OBR 475, 486 N.E. 2d 859; and Arbor
Health Care Co. v. Jackson (1987), 39 Ohio App. 3d 183, 530 N.E. 2d 928. *** since it
is always inappropriate for courts to grant declaratory judgments and injunctions that
attempt to resolve matters committed to special statutory proceedings, their decisions
should always be reversed on appeal, except when they dismiss the actions. We find this
tantamount to a holding that courts have no jurisdiction to hear the actions in the first
place, and now so hold.
State ex rel. Albright, 60 Ohio St.3d at 42. See, also, State ex rel. Smith v. Frost, 74 Ohio St.3d
107, 111, 656 N.E.2d 673 (1995).
ODOT correctly argues that R.C. §5519.01 through §5519.04,' R.C. §163.01 through
§$163.22,? and O.A.C. Chapter 5501:2-5° provide the framework and procedures to be followed
when taking property by eminent domain and assessing fair market value, and those
" RC. §5519.01 provides, in pertinent part, as follows:
If the director of transportation is unable to purchase property for any purpose related to highways, roads, or
bridges *** the director shall issue, or the commission shall enter on the records of the commission, a
finding that it is necessary, for the public convenience and welfare, to appropriate such property as the
director or commission considers needed for such purposes. The finding shall contain a definite, accurate,
and detailed description of the property, and the name and place of residence, if known or with reasonable
diligence ascertainable, of the owner of the property appropriated. The commission shall submit to the
director a copy of its record finding that the appropriation of property is necessary. The commission shall
not proceed with the appropriation unless it is first approved by the director.
The director or commission, in such finding, shall fix what the director or commission considers to be the
value of such property appropriated, together with damages to the residue, and deposit the value thereof,
together with the damages, with the probate court or the court of common pleas of the county within which
the property, or a part thereof, is situated. The power to appropriate property for any purpose authorized by
such chapters shall be exercised in the manner provided in sections 163.01 to 163.22 of the Revised Code.
Any instrument by which real property is acquired pursuant to this section shall identify the agency of the
state that has the use and benefit of the real property as specified in section 5301.012 of the Revised Code.
R.C. §5519.02 and §5519.03 have been repealed, and R.C. §5519.04 provides, in pertinent part, as follows:
The costs and expenses in connection with the purchase and appropriation of property for highway purposes
shall be payable by the director of transportation out of any funds of the department of transportation
available for the establishment, construction, improvement, maintenance, and repair of highways.
> RC. $163.01 through §163.22 outline the procedures to be followed during the appropriation of property. They
provide for various notices to the property owners, an appraisal of the property, and an opportunity for a hearing
when the parties are unable to agree on the appropriation. The statutes also provide for an appeal.
* Administrative Code Chapter 5501:2-5-06 outlines the procedure to be followed in the acquisition of real property.
16Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835
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statutes also allow landowners to challenge that value. Indeed, there is already an appropriation
action in Athens County, Case No. 12 CI 0173, related to this exact same property.
Plaintiffs themselves have even acknowledged that a declaratory judgment is not an
alternative remedy, but they argue nonetheless that the statutory procedures in place would not be
bypassed by this declaratory judgment action because the appropriation action is stayed until this
Court determines whether a valid contract exists related to the subject property. The Court is not
convinced by that argument. The Court finds that the appropriation action is the proper vehicle
through which issues related to the appropriation of the subject action, and the fair market value
thereof, should be determined.
Plaintiffs argue this action is premised on R.C. §5501.22, §2721.03 and §2721.04. In
their Complaint, they allege that jurisdiction is premised on those statutes. Indeed, R.C.
§5501.22 provides that the Director of ODOT “shall not be suable” in any court outside of
Franklin County “except in actions brought by *** a property owner to prevent the taking of
property without due process of law, in which case suit may be brought in the county where such
property is situated ***,.”
R.C. §2721.03 provides that
Subject to division (B) of section 2721.02 of the Revised Code, any person interested
under a deed, will, written contract, or other writing constituting a contract or any person
whose rights, status, or other legal relations are affected by a constitutional provision,
statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance,
township resolution, contract, or franchise may have determined any question of
construction or validity arising under the instrument, constitutional provision, statute,
tule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status,
or other legal relations under it. ***
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Meanwhile, R.C. §2721.04 provides that “[s]ubject to division (B) of section 2721.02 of
the Revised Code, a contract may be construed by a declaratory judgment or decree either before
or after there has been a breach of the contract.”
Thus, Plaintiffs correctly cite to those statutes in support of their allegation that
jurisdiction is proper in Franklin County and that relief via declaratory judgment may be pursued
as outlined in R.C. §2721.03 and §2721.04. But the fact that jurisdiction may be proper in
Franklin County does not mean that Plaintiffs may also use this declaratory judgment action to
bypass the already filed appropriation action in Athens County related to the appropriation of the
subject property and the value to be assigned to the same.
In light of the foregoing, the Court hereby GRANTS Defendant’s December 5, 2012
Motion [for Summary Judgment].
IT IS SO ORDERED.
Copies to:
John Lavelle (all electronically)
Robert Rittenhouse
Nicole Zell
Lavelle & Associates
Counsel for Plaintiffs
L. M. Cordero (electronically)
Attorney General’s Office
Counsel for Defendant
18Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835
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Franklin County Court of Common Pleas
Date: 03-21-2014
Case Title: JAMES B HAYES -VS- OHIO STATE DEPT TRANSPORTATION
DIRECTOR
Case Number: 12CV013835
Type: DECISION/ENTRY
It Is So Ordered.
Aye
/s/ Judge Guy L. Reece, II
Electronically signed on 2014-Mar-21 page 19 of 19Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835
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Court Disposition
Case Number: 12CV013835
Case Style: JAMES B HAYES -VS- OHIO STATE DEPT
TRANSPORTATION DIRECTOR
Case Terminated: 18 - Other Terminations
Final Appealable Order: Yes
Motion Tie Off Information:
1. Motion CMS Document Id: 12CV0138352013-03-0699980000
Document Title: 03-06-2013-MOTION TO COMPEL DISCOVERY
Disposition: MOTION RELEASED TO CLEAR DOCKET
2. Motion CMS Document Id: 12CV0138352013-07-2299980000
Document Title: 07-22-2013-MOTION FOR JUDGMENT ON
PLEADINGS
Disposition: MOTION RELEASED TO CLEAR DOCKET
3. Motion CMS Document Id: 12CV0138352013-08-0999960000
Document Title: 08-09-2013-MOTION TO STRIKE
Disposition: MOTION RELEASED TO CLEAR DOCKET
4. Motion CMS Document Id: 12CV0138352013-1 1-2299980000
Document Title: 11-22-2013-MOTION FOR CONTINUANCE
Disposition: MOTION RELEASED TO CLEAR DOCKET
5. Motion CMS Document Id: 12CV0138352014-03-1799980000
Document Title: 03-17-2014-MOTION FOR CONTINUANCE
Disposition: MOTION RELEASED TO CLEAR DOCKETFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835
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Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q41 IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO GENERAL DIVISION JAMES BRENT HAYES, et al., Plaintiffs, 2 Case No. 12 CVH-11-13835 vy. : Judge: Guy L. Reece, II JERRY WRAY, DIRECTOR, OHIO DEPARTMENT OF TRANSPORTATION, Defendant. DECISION AND ENTRY GRANTING DEFENDANT’S DECEMBER 5, 2012 MOTION [FOR SUMMARY JUDGMENT] REECE, J. This matter is before the Court on Defendant Jerry Wray, Director, Ohio Department of Transportation’s (“Defendant”) December 5, 2012 Corrected Motion to Dismiss, which was recently converted into a Motion for Summary Judgment; Plaintiffs James Brent Hayes and Cynthia L. Hayes’s (collectively “Plaintiffs”) January 7, 2013 Memorandum Contra Defendant’s Motion [for Summary Judgment]; Defendant’s January 10, 2013 Reply to Plaintiffs’ Memorandum Contra Defendant’s Motion [for Summary Judgment]; Plaintiffs’ October 9, 2013 Supplemental Memorandum Contra Defendant’s Motion [for Summary Judgment]; Defendant’s October 16, 2013 Reply Memorandum to Plaintiffs’ Supplemental Memorandum Contra Defendant’s Motion [for Summary Judgment] and Plaintiffs’ December 11, 2013 Supplemental Memorandum in Opposition to Defendant’s Motion for Summary Judgment.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q42 Defendant’s motion has been fully briefed and is deemed submitted to the Court pursuant to Loc.R. 21.01. BACKGROUND Plaintiffs commenced this declaratory judgment action on November 2, 2012. Plaintiffs own a parcel of land in Athens County, Ohio. Defendant Ohio Department of Transportation (“ODOT”) filed a land appropriation petition with the Court of Common Pleas in Athens County, Ohio, pertaining to that parcel of land and deposited $2,085.00 as fair market compensation for the same. Plaintiffs, who were defendants in the Athens County case, filed an Answer and Counterclaim in response to ODOT’s petition, alleging they entered into an agreement with ODOT for the acquisition of that land on February 1, 2002. Thereafter, ODOT argued that suits against its Director may only be filed in the Franklin County Common Pleas Court, and the Athens County Common Pleas Court dismissed the counterclaim and stayed the appropriation case pending the outcome of the proposed case to be filed in Franklin County, i.e., this action. In their Complaint in this case, Plaintiffs allege that, prior to February 2002, authorized agents for ODOT, including Saleh El-Dabaja, Kenneth L. Dollison, John Coen and George Collins, negotiated with Plaintiffs over the value of the real estate that is the subject of the Athens County appropriation action. Plaintiffs maintain that, on February 1, 2002, Saleh El- Dabaja and Kenneth L. Dollison sent Plaintiff James Brent Hayes a letter outlining the terms of a settlement with respect to the value of the subject real estate. That letter, signed by Kenneth L. Dollison, ODOT District Real Estate Administrator, reads as follows: Dear Mr. Hayes, This letter is in response to your request that we provide you with some evidence of ODOT’s intent to make the bridge beams from this bridge location available to you when and as our project to abandon and demolish this existing bridge carrying U.S. route 50 2Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q43 over the abandoned railroad near Torch, progresses. In consideration of your cooperation with ODOT and the transfer of a part of your property, in the form of the abandoned railroad property beneath and around the bridge, to ODOT, ODOT hereby agrees to permit you to salvage the existing structural steel beams from this bridge. The contractor selected to accomplish the demolition of this bridge will be instructed to set these beams aside for your use and possession, and you are asked to cooperate with the contractor in removing these items from the work area at his direction. You should be advised that this bridge removal and demolition project is currently scheduled for letting during fiscal year 2009 and the bridge beams will not be available to you prior to that time. I trust that this letter will serve as the evidence of ODOT’s intent you are seeking and will permit the completion of our negotiations with respect to the land trade we have initiated. oe Plaintiffs maintain that, in reliance upon this letter, which they argue represents their agreement related to the conveyance of the property in exchange for the bridge beams, Plaintiff James Brent Hayes thereafter sold portions of his land and obtained from ODOT a legal description of what portion of the land should be exempted from the conveyance. Plaintiffs maintain that, after a recent meeting with ODOT representatives, they are under the impression that ODOT is now reneging on the agreement and they have brought this declaratory judgment action, seeking a declaration of their rights, duties and responsibilities under the February 1, 2002 letter/agreement. Tn its December 3, 2012 Motion to Dismiss and December 5, 2012 Corrected Motion to Dismiss, Defendant urges the Court to dismiss this action pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted. Defendant explains that the subject property is located under a bridge that ODOT owns by aerial easement on U.S. route 50 in Athens County, Ohio. Defendant further explains that the original project in 2000 aimed to eliminate bridge maintenance and would have taken Plaintiffs’ property under the bridge and filled it in with soil and pavement. However, ODOT maintains it decided not to proceed with the 2000 project related to the bridge, explaining that often projects are changed or abandoned due to a change in 3Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q44 the design of the project, higher priority for other projects, or simply lack of funding. ODOT argues it never took dominion and control over Plaintiffs’ property in this case because it did not proceed with the 2002 project. On November 23, 2010, Plaintiffs conveyed to The Athens Conservancy a portion of their property, including land where the subject property is located, with the exception of, among other things, 1.389 acres under the bridge. ODOT explains that a new project is now in place, and this project differs from the original 2002 project to eliminate bridge maintenance. This project, according to ODOT, will accommodate The Athens Conservancy in its efforts to construct a bicycle and horse trail on the land deeded to it by Plaintiffs on both sides of U.S. 50. ODOT explains that a box culvert will be provided in the space where the bridge is located and the Athens Conservancy’s bicycle and horse trail will continue through the box culvert without having to cross the pavement of U.S. 50. Defendant argues this action should be dismissed because: 1.) the February 1, 2002 letter does not constitute a contract for the acquisition of land because it does not contain necessary terms, including a description of the land to be conveyed, quantity of consideration, and signatures of acceptance; 2.) ODOT representatives cannot execute contracts outside the authority given to them by statute; and 3.) actions for declaratory judgment are not appropriate where special statutory proceedings would be bypassed. ODOT explains that its representatives could not have entered into an agreement as outlined in the letter that Plaintiffs cite to because the terms of the letter are contrary to the procedures that must be followed when acquiring property. ODOT notes that it is a state administrative agency, and a creature of statute, and its authority to purchase property for transportation projects is expressly conferred by R.C. §5501.31 and §163.041. It further notes that §5501:2-5-06 of the Ohio Administrative Code outlines 4Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q45 additional procedures to be followed including the establishment of a fair market value by an appraiser. Defendant argues the steps for determining just compensation for a parcel of land were not followed by the supervisor who ordered his employees to send Plaintiffs the February 1, 2002 letter. Defendant argues the supervisor was neither qualified to prepare an appraisal of the property to determine just compensation, nor qualified to determine real estate values, and no waiver of appraisal was prepared as required. Therefore, ODOT argues it could not have entered into a contract for the trading of steel beams, in 3-foot sections, with an estimated salvage value of $57,280.00, in exchange for the at-issue property, when the proper procedures for the acquisition of property, as outlined in the Revised Code and the Administrative Code, were not followed. Defendant further argues that an action for declaratory judgment is not appropriate when special statutory proceedings would be bypassed by the issuance of the same, directing the Court’s attention to State ex rel. Albright v. Delaware County Court of Common Pleas, 60 Ohio St.3d 40, 42, 572 N.E.2d 1387 (1991), and State ex rel. Smith v. Frost, 74 Ohio St.3d 107, 656 N.E.2d 673 (1995), in support thereof. ODOT explains that R.C. §5519.01 through §5519.04, R.C. §163.01 through §163.22, and O.A.C. Chapter 5501:2-5096 provide the framework and procedures to be followed when taking property by eminent domain and assessing fair market value, while also allowing landowners to challenge that value. ODOT explains that, when the parties could not agree on the fair market value of the property to be taken pursuant to the current project related to the bridge on U.S. 50, it filed an appropriation action in Athens County pursuant to those statutes and administrative rules. ODOT argues that, if Plaintiffs believe a different value should be assigned to the subject property, they may submit evidence with respectFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q46 to the same in the Athens County case, not through an entirely different action seeking declaratory relief related to that property. ODOT attached to its Motion to Dismiss a copy of the Petition to Appropriate Property and to Fix Compensation filed in the Athens County appropriation action (Case No. 12 CI. 0173), a copy of the November 7, 2012 Journal Entry Granting Defendants’ Motion to Stay issued by Judge Ward in the Athens County appropriation action, and a copy of the February 1, 2002 letter signed by ODOT employee Kenneth L. Dollison. On December 5, 2012, ODOT filed a Corrected Motion to Dismiss, as the original Motion to Dismiss omitted page 3. On November 27, 2013, the Court notified the parties of its intent to convert these motions to dismiss into motions for summary judgment. Accordingly, the Court will hereinafter refer to the motions as motions for summary judgment, and will note the different standard of review that applies to the same. Furthermore, the Court’s decision to convert these motions into motions for summary judgment moots Plaintiffs’ arguments related to the documents attached thereto, as the Court may now properly consider those documents. In their January 7, 2013 Memorandum Contra Defendant’s Motion [for Summary Judgment], Plaintiffs argue the February 1, 2002 letter contains the necessary terms of offer, acceptance and mutual assent, and the letter qualifies as an agreement regarding the exchange of property for steel beams, even though the letter may not contain all of the details of the agreement. Plaintiffs maintain the property was sufficiently identified and the quantity of the steel beams to be traded, being limited to the existing structural steel beams, was sufficiently identified. Plaintiffs maintain the fact that they did not sign the letter does not alter the fact that the letter constitutes an agreement.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q47 Plaintiffs attached to their Memorandum Contra an affidavit from Plaintiff James Brent Hayes, dated January 3, 2013, related to Plaintiffs’ conveyance of the railbed on either side of the bridge to The Athens Conservancy and the circumstances surrounding the appropriation action in Athens County. Attached to the affidavit are a General Warranty Deed related to the railbed and a legal description of the property that was conveyed to The Athens Conservancy. Plaintiffs contend R.C. §5502.31 does not limit an ODOT employee’s ability to bind ODOT to a contract, and even if the ODOT employees involved in this transaction did not have actual authority to bind ODOT to a contract, Plaintiffs argue the employees had apparent authority to do so. Plaintiffs argue these employees held themselves out as having authority to act on behalf of ODOT and Plaintiffs, in good faith, reasonably believed that the employees had authority to act on ODOT’s behalf and were following ODOT procedures in so acting. Plaintiffs argue that, in reliance on the employees’ representations, and the legal description they provided, Plaintiffs conveyed property on either side of the bridge to The Athens Conservancy. With respect to Defendant’s argument that a declaratory judgment action in this case is improper, Plaintiffs acknowledge that a declaratory judgment action is not an alternative remedy, but argue it is an alternative in cases where the action is within the spirit of the Declaratory Judgment Act. Plaintiffs maintain this action is premised on R.C. §5501.22, §2721.03 and §2721.04. They acknowledge that an appropriation action was filed in Athens County but maintain they were denied the opportunity to assert their counterclaim and conduct discovery in that case. Plaintiffs acknowledge there are procedures to be followed pursuant to R.C. §163.01- 163.22, but argue there is no avenue through those procedures through which they can assert a breach of contract claim; they can only challenge how much ODOT has to pay for the property.Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q48 Plaintiffs argue the statutory proceedings are not being bypassed but are stayed until this Court determines whether a contract exists between Plaintiffs and ODOT related to the steel beams. On January 10, 2013, ODOT filed a Reply to Plaintiffs’ Memorandum Contra Defendant’s Motion [for Summary Judgment]. ODOT again reiterates that it is a creature of statute and has no common law powers other than those granted to it by statute. It explains that it can and it does stop highway projects due to various reasons, including lack of funding or change in design or priority of project, and it has stopped the 2002 project that would have necessitated the acquisition of Plaintiffs’ property, as discussed in the letter. It further explains that there is now a new project, with a new federal identification number and a different design, and Plaintiffs’ property will need to be acquired due to this new project. Defendant maintains it tried to negotiate with Plaintiffs over the fair market value of the 1.390 acres of subject property, and has done so pursuant to the statutes and rules that designate the procedures to be followed when ODOT acquires property due to a project. Defendant argues it does not and cannot acquire property that is not needed for a project. Because negotiations with Plaintiffs were unsuccessful, Defendant explains it commenced the appropriation action in Athens County in accordance with Chapter 163 of the Ohio Revised Code and deposited $2,085.00 with the Clerk of Courts for the fair market value of the property. However, ODOT argues Plaintiffs are trying, through this action, to get “a windfall of taxpayers’ money in the amount of $57,280.00, which is the salvage amount of the steel beams that are contained in [the] bridge that is an aerial easement over 1.390 acres of the property at issue.” (Deft. Reply, at 3.) Defendant argues that the supervisor who ordered that the 2002 letter be issued failed to follow the procedure that is required by law whenever ODOT acquires property for a project. It further notes that various documents should have been sent to Plaintiffs in 2002, prior to the 8Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q49 letter and before negotiations could have commenced, if the proper procedures were actually followed, yet Plaintiffs have failed to provide copies of any such documents that should have been sent to them. Defendant notes that Plaintiff James Brent Hayes is a sophisticated owner of sizeable amounts of land in Athens County, he has dealt with ODOT in the past, and he should know that ODOT cannot trade steel beams for land. Defendant further argues Mr. Hayes also knows the fair market value of the subject property is not $57,280.00. ODOT further points out that Plaintiffs have not produced a single document that specifies the fair market value determined for the property in 2002. Because the required procedures set forth in Chapter 163 of the Revised Code and Section 5501:2-5-06 of the Administrative Code were not followed in 2002, ODOT argues no contract was actually entered into in 2002. Even if the 2002 letter were found to constitute a contract, ODOT argues the contract would be void because the proper procedures were not followed. Defendant again argues that an appropriation is a special statutory procedure that cannot be bypassed through a declaratory judgment action. ODOT directs the Court’s attention to Shampton v. City of Springboro, 98 Ohio St.3d 457, 2013-Ohio-1913, 786 N.E.2d 883, State ex rel. Albright v. Delaware County Court of Common Pleas, 60 Ohio St.3d 40, 42, 572 N.E.2d 1387 (1991), and State ex rel. Smith v. Frost, 74 Ohio St.3d 107, 656 N.E.2d 673 (1995), in support of its arguments. On October 9, 2013, Plaintiffs filed a Supplemental Memorandum Contra Defendant’s Motion [for Summary Judgment]. Plaintiffs again argue that the February 1, 2002 letter was in writing, it identified the subject of the conveyance and the consideration for the conveyance — the existing steel beams — and it was signed by the party to be charged with the writing. Therefore,Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q50 the argument continues, the writing satisfies the Statute of Frauds and constitutes a valid contract for the conveyance of the subject property. Plaintiffs further argue that the 2002 version of O.A.C. §5501:2-5-6(B)(3)(b) did not require an appraisal of a property that was to be acquired if the property had a low fair market value estimate, and the 2012 version of that section does not require an appraisal if the fair market value estimate of the property is less than $10,000.00. They also maintain that a waiver of appraisal was not required in 2002. Therefore, the argument continues, ODOT’s position that the requisite procedures were not followed is without merit. Plaintiffs further argue that ODOT’s failure to follow the procedures set forth in the Ohio Revised Code and the Ohio Administrative Code does not affect the validity of the parties’ agreement. In support of their argument, Plaintiffs cite to R.C. §163.52, which indicates that the failure of an acquiring agency to satisfy a requirement of R.C. §163.59 does not affect the validity of any property that is acquired by purchase or by condemnation. Plaintiffs attached to their Supplemental Memorandum an affidavit from James Brent Hayes, dated October 8, 2013, related to the conveyance of land to The Athens Conservancy and the obtaining of a legal description, for that purpose, from ODOT. Plaintiffs also attached another copy of the February 1, 2002 letter, a copy of the General Warranty Deed related to the 2010 conveyance to The Athens Conservancy, a copy of the Petition to Appropriate Property and to Fix Compensation filed in the Athens County appropriation action (Case No. 12 CI 0173), and a copy of the 2002 version of O.A.C. §5501:2-5-06. On October 16, 2013, Defendant filed a Reply Memorandum to Plaintiffs’ Supplemental Memorandum Contra Defendant’s Motion [for Summary Judgment]. Defendant takes issue with Plaintiffs’ argument that, because the current version of O.A.C. §5501:2-5-6(B)(3)(b) does not 10Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q51 require an appraisal if the property to be acquired is estimated to have a fair market value of less than $10,000.00, and because the 2002 version of that section did not require an appraisal of a property to be acquired if it had a low fair market value estimate, then the ODOT employees in 2002 did not violate the established rules and procedures when they offered to trade steel beams for land. Defendant explains that the 2002 version of O.A.C. §5501:2-5 required that a verifiable basis be established for the fair market value of the property to be acquired for a public project. It notes that, according to O.A.C. §5501:2-5-06(B)(5), in addition to a written purchase offer, the property owner was to be provided with a written statement of the basis for the offer of just compensation. Although the Court allowed Plaintiffs to discover relevant documents through the depositions of three ODOT employees, ODOT argues Plaintiffs were unable to obtain any of the documents identified in O.A.C. §5501:2-5 because the employees were unable, after an extensive electronic search and physical search of ODOT’s records, to find any such documents to have ever existed. Defendant explains that it followed the applicable rules and procedures for the acquisition of property with low fair market value in 2002. ODOT maintains that, even when a property was estimated to be worth less than $5,000.00, ODOT would prepare a Value Analysis for that property by looking at comparable sales and analyzing them to determine the basis for the offer for just compensation. ODOT contends that, even if property was estimated to be worth less than $5,000.00, it would still perform a Value Analysis and it would pay no less than $300 for the property. The file for the low value property, ODOT explains, would also contain a title report, including a deed that showed ownership, and any deeds of easement, mortgages, or liens. The file would also contain a letter to the owner, alerting him/her that the property would be impacted by a project, and a second letter informing the owner about the value ODOT determined and the 11Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q52 money it would pay as just compensation for acquiring the property. Finally, ODOT explains the file would contain Negotiator Notes detailing the dates and places of meetings held to negotiate, any offer(s) and counter-offer(s), and an ultimate discussion of whether an agreement was reached or if the file was referred to the Attorney General’s Office for the commencement of an appropriation action. ODOT attached to its Reply, as a sample, a copy of the 39-page file of a property acquired by ODOT in Athens County in 2002, which property was valued at $249.00 and acquired for $300.00. By comparison, ODOT argues the only document its employees could find related to this case is “a letter dictated by a supervisor who was ignorant of the laws and regulations that govern a governmental agency’s acquisition of property for a public purpose.” (Deft. Reply, at unnumbered page 5.) Defendant also attached to its Reply a copy of the 2002 version of O.A.C. §5501:2-5-06. Finally, on December 11, 2013, Plaintiffs filed a Supplemental Memorandum in Opposition to Defendant’s Motion for Summary Judgment. Plaintiffs argue summary judgment should not be granted because genuine issues of material fact exist with respect to, among other things, whether the 2002 letter constitutes a valid contract for the conveyance of the subject property, and whether the ODOT employees who authored the letter had actual or apparent authority to enter into such a contract. In response to ODOT’s argument related to the absence of documents that would have been created and provided to Plaintiffs if all appropriate steps were followed in 2002 related to the alleged conveyance of the subject property, Plaintiffs argue genuine issues of material fact also exist with respect to whether the 2002 Administrative Code contains exceptions “for the lack of paperwork that the Defendant[] cite[s] to as insufficiencies,” 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q53 and whether the absence of such paperwork is the result of ODOT having misplaced or “negligently never created” the paperwork in the first place. (Pltfs. Suppl. Memo., at 3.) Plaintiffs also argue that genuine issues of material fact exists with respect to whether ODOT should be estopped from even making such an argument in light of Plaintiffs’ reliance on the 2002 letter in conveying their property to The Athens Conservancy District and the legal description of the subject property that ODOT provided to Plaintiffs. LAW & ANALYSIS 1 MOTION FOR SUMMARY JUDGMENT Civ.R. 56 provides that, before summary judgment may be granted, a trial court must determine that: 1.) there is no genuine issue as to any material fact that remains to be litigated; 2.) the moving party is entitled to judgment as a matter of law; and 3.) it appears from the evidence that reasonable minds can come to but one conclusion, and that conclusion, when viewing the evidence in a light most favorable to the party against whom the motion for summary judgment is made, is adverse to that same party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). While “[s]ummary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try,” Ohio courts have warned that summary judgment “must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion.” Norris v. Ohio Standard Oil Co., 70 Ohio St.2d 1, 2-3, 433 N.E.2d 615 (1982), citing Morris v. First National Bank & Trust Co., 21 Ohio St.2d 25, 28, 254 N.E.2d 683 (1970). Furthermore, when considering the merits of a motion for summary judgment, a trial court must pay particular attention to the shifting burdens between the moving and non-moving 13Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q54 parties. The moving party bears an initial burden of informing the court of the basis for its motion and of “identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the non-moving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). If the moving party does not point to some evidence of the type listed in Civ.R. 56(C), which demonstrates that the non-moving party has no evidence to support its claims, a motion for summary judgment must be denied. Id. However, once the moving party meets its initial burden, the burden then shifts to the non- moving party to bring to the court’s attention facts showing a genuine issue for trial, and if this reciprocal burden is not met, summary judgment must be granted. Id. In determining whether there are genuine issues as to any material fact(s), a trial court must examine the applicable substantive law. Miller v. Loral Defense Systems, 109 Ohio App.3d 379, 383, 672 N.E.2d 227 (9" Dist. 1996). “A ‘material fact’ depends on the substantive law of the claim being litigated.” Hoyt, Inc. v. Gordon & Associates, Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8" Dist. 1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505 (1986). “[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Miller, 109 Ohio App.3d at 383, citing Anderson, 477 U.S. at 248. Il. DECLARATORY JUDGMENT To be entitled to declaratory relief, a plaintiff must demonstrate that: 1.) a real controversy exists between the parties; 2.) the controversy is justiciable in character; and 3.) speedy relief is necessary to preserve the rights of the parties. Burger Brewing Co. v. Liquor 14Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q55 Control Comm., 34 Ohio St.2d 93, 97, 296 N.E.2d 261 (1973), citing American Life & Accident Ins. Co. v. Jones, 152 Ohio St. 287, 296, 89 N.E.2d 301 (1949); Therapy Partners of Am. v. Richards Healthcare, 10" Dist. No. 97APE09-1257, 1998 Ohio App. LEXIS 1707, *3-4 (April 21, 1998), citing Ohio Assn. of Life Underwriters, Inc. v. Duryee, 95 Ohio App.3d 532, 534, 642 N.E.2d 1145 (10" Dist. 1994). When a party seeks relief via a declaratory judgment, the court is asked to “declare rights, status, and other legal relations whether or not further relief is or could be claimed.” R.C. §2721.02(A). Such a declaration can be “either affirmative or negative in form and effect.” Id. According to R.C. §2721.03, “ *** any person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, tule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.” Although the parties have presented to the Court a plethora of arguments related to the subject property and the alleged agreement to convey the same, the Court finds the main question here is whether Plaintiffs can use this declaratory judgment action in place of an appropriation action related to the subject property. The Court answers the question in the negative. As the Ohio Supreme Court explained in State ex rel. Albright v. Court of Common Pleas, 60 Ohio St.3d 40, 572 N.E.2d 1387 (1991), actions for declaratory judgment and injunction are inappropriate where special statutory proceedings would be bypassed. Dayton Street Transit Co. v. Dayton Power & Light Co. (1937), 57 Ohio App. 299, 10 0.0. 500, 13 N.E. 2d 923; State, ex rel. Iris Sales Co., v. Voinovich (1975), 43 Ohio App. 2d 18, 72 0.0. 2d 162, 332 N.E. 2d 79; Wagner v. Krouse (1983), 7 Ohio App. 3d 378, 7 OBR 479, 455 N.E. 2d 717; Beasley v. East 1SFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q56 Cleveland (1984), 20 Ohio App. 3d 370, 20 OBR 475, 486 N.E. 2d 859; and Arbor Health Care Co. v. Jackson (1987), 39 Ohio App. 3d 183, 530 N.E. 2d 928. *** since it is always inappropriate for courts to grant declaratory judgments and injunctions that attempt to resolve matters committed to special statutory proceedings, their decisions should always be reversed on appeal, except when they dismiss the actions. We find this tantamount to a holding that courts have no jurisdiction to hear the actions in the first place, and now so hold. State ex rel. Albright, 60 Ohio St.3d at 42. See, also, State ex rel. Smith v. Frost, 74 Ohio St.3d 107, 111, 656 N.E.2d 673 (1995). ODOT correctly argues that R.C. §5519.01 through §5519.04,' R.C. §163.01 through §$163.22,? and O.A.C. Chapter 5501:2-5° provide the framework and procedures to be followed when taking property by eminent domain and assessing fair market value, and those " RC. §5519.01 provides, in pertinent part, as follows: If the director of transportation is unable to purchase property for any purpose related to highways, roads, or bridges *** the director shall issue, or the commission shall enter on the records of the commission, a finding that it is necessary, for the public convenience and welfare, to appropriate such property as the director or commission considers needed for such purposes. The finding shall contain a definite, accurate, and detailed description of the property, and the name and place of residence, if known or with reasonable diligence ascertainable, of the owner of the property appropriated. The commission shall submit to the director a copy of its record finding that the appropriation of property is necessary. The commission shall not proceed with the appropriation unless it is first approved by the director. The director or commission, in such finding, shall fix what the director or commission considers to be the value of such property appropriated, together with damages to the residue, and deposit the value thereof, together with the damages, with the probate court or the court of common pleas of the county within which the property, or a part thereof, is situated. The power to appropriate property for any purpose authorized by such chapters shall be exercised in the manner provided in sections 163.01 to 163.22 of the Revised Code. Any instrument by which real property is acquired pursuant to this section shall identify the agency of the state that has the use and benefit of the real property as specified in section 5301.012 of the Revised Code. R.C. §5519.02 and §5519.03 have been repealed, and R.C. §5519.04 provides, in pertinent part, as follows: The costs and expenses in connection with the purchase and appropriation of property for highway purposes shall be payable by the director of transportation out of any funds of the department of transportation available for the establishment, construction, improvement, maintenance, and repair of highways. > RC. $163.01 through §163.22 outline the procedures to be followed during the appropriation of property. They provide for various notices to the property owners, an appraisal of the property, and an opportunity for a hearing when the parties are unable to agree on the appropriation. The statutes also provide for an appeal. * Administrative Code Chapter 5501:2-5-06 outlines the procedure to be followed in the acquisition of real property. 16Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q57 statutes also allow landowners to challenge that value. Indeed, there is already an appropriation action in Athens County, Case No. 12 CI 0173, related to this exact same property. Plaintiffs themselves have even acknowledged that a declaratory judgment is not an alternative remedy, but they argue nonetheless that the statutory procedures in place would not be bypassed by this declaratory judgment action because the appropriation action is stayed until this Court determines whether a valid contract exists related to the subject property. The Court is not convinced by that argument. The Court finds that the appropriation action is the proper vehicle through which issues related to the appropriation of the subject action, and the fair market value thereof, should be determined. Plaintiffs argue this action is premised on R.C. §5501.22, §2721.03 and §2721.04. In their Complaint, they allege that jurisdiction is premised on those statutes. Indeed, R.C. §5501.22 provides that the Director of ODOT “shall not be suable” in any court outside of Franklin County “except in actions brought by *** a property owner to prevent the taking of property without due process of law, in which case suit may be brought in the county where such property is situated ***,.” R.C. §2721.03 provides that Subject to division (B) of section 2721.02 of the Revised Code, any person interested under a deed, will, written contract, or other writing constituting a contract or any person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, tule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it. *** 17Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q58 Meanwhile, R.C. §2721.04 provides that “[s]ubject to division (B) of section 2721.02 of the Revised Code, a contract may be construed by a declaratory judgment or decree either before or after there has been a breach of the contract.” Thus, Plaintiffs correctly cite to those statutes in support of their allegation that jurisdiction is proper in Franklin County and that relief via declaratory judgment may be pursued as outlined in R.C. §2721.03 and §2721.04. But the fact that jurisdiction may be proper in Franklin County does not mean that Plaintiffs may also use this declaratory judgment action to bypass the already filed appropriation action in Athens County related to the appropriation of the subject property and the value to be assigned to the same. In light of the foregoing, the Court hereby GRANTS Defendant’s December 5, 2012 Motion [for Summary Judgment]. IT IS SO ORDERED. Copies to: John Lavelle (all electronically) Robert Rittenhouse Nicole Zell Lavelle & Associates Counsel for Plaintiffs L. M. Cordero (electronically) Attorney General’s Office Counsel for Defendant 18Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q59 Franklin County Court of Common Pleas Date: 03-21-2014 Case Title: JAMES B HAYES -VS- OHIO STATE DEPT TRANSPORTATION DIRECTOR Case Number: 12CV013835 Type: DECISION/ENTRY It Is So Ordered. Aye /s/ Judge Guy L. Reece, II Electronically signed on 2014-Mar-21 page 19 of 19Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q60 Court Disposition Case Number: 12CV013835 Case Style: JAMES B HAYES -VS- OHIO STATE DEPT TRANSPORTATION DIRECTOR Case Terminated: 18 - Other Terminations Final Appealable Order: Yes Motion Tie Off Information: 1. Motion CMS Document Id: 12CV0138352013-03-0699980000 Document Title: 03-06-2013-MOTION TO COMPEL DISCOVERY Disposition: MOTION RELEASED TO CLEAR DOCKET 2. Motion CMS Document Id: 12CV0138352013-07-2299980000 Document Title: 07-22-2013-MOTION FOR JUDGMENT ON PLEADINGS Disposition: MOTION RELEASED TO CLEAR DOCKET 3. Motion CMS Document Id: 12CV0138352013-08-0999960000 Document Title: 08-09-2013-MOTION TO STRIKE Disposition: MOTION RELEASED TO CLEAR DOCKET 4. Motion CMS Document Id: 12CV0138352013-1 1-2299980000 Document Title: 11-22-2013-MOTION FOR CONTINUANCE Disposition: MOTION RELEASED TO CLEAR DOCKET 5. Motion CMS Document Id: 12CV0138352014-03-1799980000 Document Title: 03-17-2014-MOTION FOR CONTINUANCE Disposition: MOTION RELEASED TO CLEAR DOCKETFranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Mar 21 3:05 PM-12CV013835 0B720 - Q61