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IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO
GENERAL DIVISION
JAMES BRENT HAYES, et al.,
Plaintiffs, : Case No. 12 CVH-11-13835
v. : Judge: Guy L. Reece, IT
JERRY WRAY, DIRECTOR, OHIO
DEPARTMENT OF TRANSPORTATION,
Defendant.
DECISION AND ENTRY
CONVERTING DEFENDANT’S DECEMBER 5, 2012
CORRECTED MOTION TO DISMISS
INTO A MOTION FOR SUMMARY JUDGMENT
AND
NOTICE TO PARTIES OF ADDITIONAL TIME
WITHIN WHICH TO RESPOND TO SAID MOTION
AND
NOTICE OF NEW TRIAL DATE
REECE, J.
This matter is before the Court on Defendant Jerry Wray, Director, Ohio Department of
Transportation’s (“Defendant”) December 3, 2012 Motion to Dismiss; Defendant’s December 5,
2012 Corrected Motion to Dismiss; Plaintiffs James Brent Hayes and Cynthia L. Hayes’s
(collectively “Plaintiffs”) January 7, 2013 Memorandum Contra Defendant’s Motion to Dismiss;
Defendant’s January 10, 2013 Reply to Plaintiffs’ Memorandum Contra Defendant’s Motion to
Dismiss; Plaintiffs’ October 9, 2013 Supplemental Memorandum Contra Defendant’s Motion to
Dismiss and Defendant’s October 16, 2013 Reply Memorandum to Plaintiffs’ Supplemental
Memorandum Contra Defendant’s Motion to Dismiss.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-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.
aK
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 declaration action,
seeking a declaration of their rights, duties and responsibilities under the February 1, 2002
letter/agreement.
On December 3, 2012, Defendant filed a Motion to Dismiss, urging 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 property at issue here 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
Plaintiff’ s 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 the design of the project, higher
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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 2000 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 2000 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
additional procedures to be followed including the establishment of a fair market value by an
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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,
RC. §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 respect
to the same in the Athens County case, not through an entirely different action seeking
declaratory relief related to that property.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835
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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 January 7, 2013, Plaintiffs filed their Memorandum Contra Defendant’s Motion to
Dismiss. Plaintiffs first argue that a motion to dismiss pursuant to Civ.R. 12(B)(6) tests the
sufficiency of the allegations in the Complaint, and Defendant cannot introduce for the Court’s
consideration evidence outside the four corners of the Complaint. Because they have sufficiently
pled their cause of action in their Complaint, and because Defendant has impermissibly brought
in outside materials that cannot be considered in the context of a motion pursuant to
Civ.R. 12(B)(6), Plaintiffs argue the Court should deny Defendant’s motion to dismiss.
Plaintiffs maintain 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.
Plaintiffs argue the Court cannot consider the extraneous materials that ODOT has
presented, including the original project plans and how they have changed since 2000, or the fact
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that Plaintiffs conveyed their land to The Athens Conservancy, because none of those things were
pled in the Complaint. In addition, Plaintiffs argue the various ODOT employees’ qualifications
to appraise property likewise should not be considered because they were not included in
Plaintiffs’ Complaint. Despite those arguments related to extraneous materials, 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
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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
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 to Dismiss. 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.)
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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
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 to Dismiss. Plaintiffs again argue that the February 1, 2002 letter was in writing, it
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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, 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. In any event, Plaintiffs
argue the Court must presume that all requisite steps were followed because, in the context of a
motion to dismiss pursuant to Civ.R. 12(B)(6), the Court must assume all allegations to be true
and construe them in favor of the non-moving party
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
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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.
Finally, on October 16, 2013, Defendant filed a Reply Memorandum to Plaintiffs’
Supplemental Memorandum Contra Defendant’s Motion to Dismiss. Defendant takes issue with
Plaintiffs’ argument that, because the current version of O.A.C. §5501:2-5-6(B)(3)(b) does not
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
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$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
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, that 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.
LAW & ANALYSIS
In assessing the merits of a motion to dismiss pursuant to Civ.R. 12(B)(6), a trial court
must presume all factual allegations of the complaint to be true and draw all reasonable
inferences derived therefrom in favor of the non-moving party. Mitchell vy. Lawson Milk Co., 40
Ohio St.3d 190, 192, 532 N.E.2d 753 (1988); Bridges v. National Engineering & Contracting
Co., 49 Ohio St.3d 108, 112, 551 N.E.2d 163 (1990). Therefore, to dismiss a complaint for
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failure to state a claim upon which relief can be granted, it must appear beyond doubt from the
face of the complaint that the plaintiff can prove no set of facts entitling him/her to relief.
O'Brien vy. University Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753
(1975), paragraph one of the syllabus.
When considering a motion to dismiss pursuant to Civ.R. 12(B)(6), a trial court can look
only to matters contained in the complaint “or, in a proper case, the copy of a written instrument
upon which a claim is predicated, to determine whether the allegations are legally sufficient to
state a claim.” Springfield Fireworks, Inc. v. Ohio Dept. of Commerce, 10" Dist. No. 03AP-330,
2003-Ohio-6940, 12, citing Slife v. Kundtz Properties, 40 Ohio App.2d 179, 185-186, 318
NE.2d 557 (8" Dist. 1974). See, also, DVCC, Inc. v. Medical College, 10" Dist. No. 05AP-237,
2006-Ohio-945, 18. A motion to dismiss is properly granted when the court has accepted all
factual allegations set forth in the complaint as true, draws all reasonable inferences in favor of
the non-movant, and still concludes beyond a reasonable doubt that no set of facts alleged therein
warrants relief. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664
N.E.2d 931 (1996), citing Lin v. Gatehouse Construction Co., 84 Ohio App.3d 96, 99, 616
N.E.2d 519 (8"" Dist. 1992)
Having reviewed the parties’ respective arguments and filings, the Court notes that both
Plaintiffs and Defendant have presented to the Court documents and matters extraneous to the
Complaint. ODOT attached to its various motions and memoranda the following documents
1.) a copy of the Petition to Appropriate Property and to Fix Compensation filed in the Athens
County appropriation action (Case No. 12 CI 0173); 2.) a copy of the November 7, 2012 Journal
Entry Granting Defendants’ Motion to Stay issued by Judge Ward in the Athens County
appropriation action; 3.) a copy of the February 1, 2002 letter signed by ODOT employee
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Kenneth L. Dollison; and 4.) a sample ODOT file of a property acquired in Athens County in
2002 that was valued at $249.00. Meanwhile, Plaintiffs attached to their various memoranda the
following documents: 1.) 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;
2.) a copy of the General Warranty Deed related to the railbed and a legal description of the
property that was conveyed to The Athens Conservancy; 3.) an affidavit from James Brent
Hayes, dated October 8, 2013, also related to the conveyance of land to The Athens Conservancy;
4.) 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 5.) a copy of the 2002 version of O.A.C
§5501:2-5-06.
Again, when considering a motion to dismiss pursuant to Civ.R. 12(B)(6), a trial court
can look only to matters contained in the complaint to determine whether the allegations are
legally sufficient to state a claim. Festi v. Ohio Adult Parole Authority, 10" Dist. No. 04AP-
1372, 2005-Ohio-3622, 99, citing Springfield Fireworks, Inc., 2003-Ohio-6940, at 412. “[T]he
movant may not rely on allegations or evidence outside the complaint; otherwise, the motion
must be treated, with reasonable notice, as a Civ.R. 56 motion for summary judgment.” State ex
rel. Hanson v. Guernsey County Board of Commissioners, 65 Ohio St.3d 545, 548, 605 N.E.2d
378 (1992), citing Civ.R. 12(B); State ex rel. Natalina Food Co. v. Ohio Civil Rights
Commission, 55 Ohio St.3d 98, 99, 562 N.E.2d 1383 (1990).
Civ.R. 12(B) provides that “ *** [w]hen a motion to dismiss for failure to state a claim
upon which relief can be granted presents matters outside the pleading and such matters are not
excluded by the court, the motion shall be treated as a motion for summary judgment and
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disposed of as provided in Rule 56. Provided, however, that the court shall consider only such
matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be
given reasonable opportunity to present all materials made pertinent to such a motion by Rule
56.” Furthermore, “[uJnder Civ.R. 12(B) and 56(C), a court must notify all parties at least
fourteen days before the time fixed for hearing when it converts a motion to dismiss for failure to
state a claim into a motion for summary judgment.” State ex rel. V Cos. v. Marshall, 81 Ohio
St.3d 467, 470, 692 N.E.2d 198 (1998), citing Petrey v. Simon, 4 Ohio St.3d 154, 447 N.E.2d
1285 (1983), paragraphs one and two of the syllabus; Civ.R. 56(C).
Because Plaintiffs and Defendant have presented to the Court matters outside the four
corners of Plaintiffs’ Complaint, the Court finds it appropriate to convert Defendant’s Motion to
Dismiss into a motion for summary judgment in order to be able to properly consider the
information provided through the parties’ respective memoranda. Accordingly, the Court hereby
gives notice to the parties that Defendant’s Motion to Dismiss is CONVERTED into a motion
for summary judgment.
The parties shall have fourteen days from the date of this Decision and Entry to file
additional responses, if any, to said motion.
In light of the foregoing, the trial in this case is hereby CONTINUED to March 26,
2014, at 9:00 a.m.
IT IS SO ORDERED.
Copies to:
John Lavelle (all electronically)
Robert Rittenhouse
Nicole Zell
Counsel for Plaintiffs
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Shirley Chapman (electronically)
Counsel for Defendant
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Franklin County Court of Common Pleas
Date: 11-27-2013
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 2013-Nov-27 page 17 of 170B503 Ly rankin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835
Court Disposition
Case Number: 12CV013835
Case Style: JAMES B HAYES -VS- OHIO STATE DEPT
TRANSPORTATION DIRECTOR
Motion Tie Off Information:
1. Motion CMS Document Id: 12CV0138352012-12-0399970000
Document Title: 12-03-2012-MOTION TO DISMISS
Disposition: MOTION CONVERTED
2. Motion CMS Document Id: 12CV0138352012-12-0599980000
Document Title: 12-05-2012-MOTION TO DISMISS
Disposition: MOTION CONVERTED
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K83 IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO GENERAL DIVISION JAMES BRENT HAYES, et al., Plaintiffs, : Case No. 12 CVH-11-13835 v. : Judge: Guy L. Reece, IT JERRY WRAY, DIRECTOR, OHIO DEPARTMENT OF TRANSPORTATION, Defendant. DECISION AND ENTRY CONVERTING DEFENDANT’S DECEMBER 5, 2012 CORRECTED MOTION TO DISMISS INTO A MOTION FOR SUMMARY JUDGMENT AND NOTICE TO PARTIES OF ADDITIONAL TIME WITHIN WHICH TO RESPOND TO SAID MOTION AND NOTICE OF NEW TRIAL DATE REECE, J. This matter is before the Court on Defendant Jerry Wray, Director, Ohio Department of Transportation’s (“Defendant”) December 3, 2012 Motion to Dismiss; Defendant’s December 5, 2012 Corrected Motion to Dismiss; Plaintiffs James Brent Hayes and Cynthia L. Hayes’s (collectively “Plaintiffs”) January 7, 2013 Memorandum Contra Defendant’s Motion to Dismiss; Defendant’s January 10, 2013 Reply to Plaintiffs’ Memorandum Contra Defendant’s Motion to Dismiss; Plaintiffs’ October 9, 2013 Supplemental Memorandum Contra Defendant’s Motion to Dismiss and Defendant’s October 16, 2013 Reply Memorandum to Plaintiffs’ Supplemental Memorandum Contra Defendant’s Motion to Dismiss.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K84 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- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K85 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. aK 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 declaration action, seeking a declaration of their rights, duties and responsibilities under the February 1, 2002 letter/agreement. On December 3, 2012, Defendant filed a Motion to Dismiss, urging 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 property at issue here 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 Plaintiff’ s 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 the design of the project, higher 3Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K86 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 2000 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 2000 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 additional procedures to be followed including the establishment of a fair market value by an 4Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K87 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, RC. §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 respect to the same in the Athens County case, not through an entirely different action seeking declaratory relief related to that property.Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K88 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 January 7, 2013, Plaintiffs filed their Memorandum Contra Defendant’s Motion to Dismiss. Plaintiffs first argue that a motion to dismiss pursuant to Civ.R. 12(B)(6) tests the sufficiency of the allegations in the Complaint, and Defendant cannot introduce for the Court’s consideration evidence outside the four corners of the Complaint. Because they have sufficiently pled their cause of action in their Complaint, and because Defendant has impermissibly brought in outside materials that cannot be considered in the context of a motion pursuant to Civ.R. 12(B)(6), Plaintiffs argue the Court should deny Defendant’s motion to dismiss. Plaintiffs maintain 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. Plaintiffs argue the Court cannot consider the extraneous materials that ODOT has presented, including the original project plans and how they have changed since 2000, or the fact 6Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K89 that Plaintiffs conveyed their land to The Athens Conservancy, because none of those things were pled in the Complaint. In addition, Plaintiffs argue the various ODOT employees’ qualifications to appraise property likewise should not be considered because they were not included in Plaintiffs’ Complaint. Despite those arguments related to extraneous materials, 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 7Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - kK90 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 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 to Dismiss. 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.) 8Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K91 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 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 to Dismiss. Plaintiffs again argue that the February 1, 2002 letter was in writing, it 9Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K92 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, 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. In any event, Plaintiffs argue the Court must presume that all requisite steps were followed because, in the context of a motion to dismiss pursuant to Civ.R. 12(B)(6), the Court must assume all allegations to be true and construe them in favor of the non-moving party 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 10Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K93 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. Finally, on October 16, 2013, Defendant filed a Reply Memorandum to Plaintiffs’ Supplemental Memorandum Contra Defendant’s Motion to Dismiss. Defendant takes issue with Plaintiffs’ argument that, because the current version of O.A.C. §5501:2-5-6(B)(3)(b) does not 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 11Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K94 $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 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, that 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. LAW & ANALYSIS In assessing the merits of a motion to dismiss pursuant to Civ.R. 12(B)(6), a trial court must presume all factual allegations of the complaint to be true and draw all reasonable inferences derived therefrom in favor of the non-moving party. Mitchell vy. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988); Bridges v. National Engineering & Contracting Co., 49 Ohio St.3d 108, 112, 551 N.E.2d 163 (1990). Therefore, to dismiss a complaint for 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K95 failure to state a claim upon which relief can be granted, it must appear beyond doubt from the face of the complaint that the plaintiff can prove no set of facts entitling him/her to relief. O'Brien vy. University Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), paragraph one of the syllabus. When considering a motion to dismiss pursuant to Civ.R. 12(B)(6), a trial court can look only to matters contained in the complaint “or, in a proper case, the copy of a written instrument upon which a claim is predicated, to determine whether the allegations are legally sufficient to state a claim.” Springfield Fireworks, Inc. v. Ohio Dept. of Commerce, 10" Dist. No. 03AP-330, 2003-Ohio-6940, 12, citing Slife v. Kundtz Properties, 40 Ohio App.2d 179, 185-186, 318 NE.2d 557 (8" Dist. 1974). See, also, DVCC, Inc. v. Medical College, 10" Dist. No. 05AP-237, 2006-Ohio-945, 18. A motion to dismiss is properly granted when the court has accepted all factual allegations set forth in the complaint as true, draws all reasonable inferences in favor of the non-movant, and still concludes beyond a reasonable doubt that no set of facts alleged therein warrants relief. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996), citing Lin v. Gatehouse Construction Co., 84 Ohio App.3d 96, 99, 616 N.E.2d 519 (8"" Dist. 1992) Having reviewed the parties’ respective arguments and filings, the Court notes that both Plaintiffs and Defendant have presented to the Court documents and matters extraneous to the Complaint. ODOT attached to its various motions and memoranda the following documents 1.) a copy of the Petition to Appropriate Property and to Fix Compensation filed in the Athens County appropriation action (Case No. 12 CI 0173); 2.) a copy of the November 7, 2012 Journal Entry Granting Defendants’ Motion to Stay issued by Judge Ward in the Athens County appropriation action; 3.) a copy of the February 1, 2002 letter signed by ODOT employee 13Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K96 Kenneth L. Dollison; and 4.) a sample ODOT file of a property acquired in Athens County in 2002 that was valued at $249.00. Meanwhile, Plaintiffs attached to their various memoranda the following documents: 1.) 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; 2.) a copy of the General Warranty Deed related to the railbed and a legal description of the property that was conveyed to The Athens Conservancy; 3.) an affidavit from James Brent Hayes, dated October 8, 2013, also related to the conveyance of land to The Athens Conservancy; 4.) 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 5.) a copy of the 2002 version of O.A.C §5501:2-5-06. Again, when considering a motion to dismiss pursuant to Civ.R. 12(B)(6), a trial court can look only to matters contained in the complaint to determine whether the allegations are legally sufficient to state a claim. Festi v. Ohio Adult Parole Authority, 10" Dist. No. 04AP- 1372, 2005-Ohio-3622, 99, citing Springfield Fireworks, Inc., 2003-Ohio-6940, at 412. “[T]he movant may not rely on allegations or evidence outside the complaint; otherwise, the motion must be treated, with reasonable notice, as a Civ.R. 56 motion for summary judgment.” State ex rel. Hanson v. Guernsey County Board of Commissioners, 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992), citing Civ.R. 12(B); State ex rel. Natalina Food Co. v. Ohio Civil Rights Commission, 55 Ohio St.3d 98, 99, 562 N.E.2d 1383 (1990). Civ.R. 12(B) provides that “ *** [w]hen a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and 14Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K97 disposed of as provided in Rule 56. Provided, however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.” Furthermore, “[uJnder Civ.R. 12(B) and 56(C), a court must notify all parties at least fourteen days before the time fixed for hearing when it converts a motion to dismiss for failure to state a claim into a motion for summary judgment.” State ex rel. V Cos. v. Marshall, 81 Ohio St.3d 467, 470, 692 N.E.2d 198 (1998), citing Petrey v. Simon, 4 Ohio St.3d 154, 447 N.E.2d 1285 (1983), paragraphs one and two of the syllabus; Civ.R. 56(C). Because Plaintiffs and Defendant have presented to the Court matters outside the four corners of Plaintiffs’ Complaint, the Court finds it appropriate to convert Defendant’s Motion to Dismiss into a motion for summary judgment in order to be able to properly consider the information provided through the parties’ respective memoranda. Accordingly, the Court hereby gives notice to the parties that Defendant’s Motion to Dismiss is CONVERTED into a motion for summary judgment. The parties shall have fourteen days from the date of this Decision and Entry to file additional responses, if any, to said motion. In light of the foregoing, the trial in this case is hereby CONTINUED to March 26, 2014, at 9:00 a.m. IT IS SO ORDERED. Copies to: John Lavelle (all electronically) Robert Rittenhouse Nicole Zell Counsel for Plaintiffs 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K98 Shirley Chapman (electronically) Counsel for Defendant 16Franklin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 0B503 - K99 Franklin County Court of Common Pleas Date: 11-27-2013 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 2013-Nov-27 page 17 of 170B503 Ly rankin County Ohio Clerk of Courts of the Common Pleas- 2013 Nov 27 10:39 AM-12CV013835 Court Disposition Case Number: 12CV013835 Case Style: JAMES B HAYES -VS- OHIO STATE DEPT TRANSPORTATION DIRECTOR Motion Tie Off Information: 1. Motion CMS Document Id: 12CV0138352012-12-0399970000 Document Title: 12-03-2012-MOTION TO DISMISS Disposition: MOTION CONVERTED 2. Motion CMS Document Id: 12CV0138352012-12-0599980000 Document Title: 12-05-2012-MOTION TO DISMISS Disposition: MOTION CONVERTED