State ex rel. Hensley v. Columbus

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-3311

Case Date: 06/30/2011

Plaintiff: State ex rel. Hensley

Defendant: Columbus

Preview:[Cite as State ex rel. Hensley v. Columbus, 2011-Ohio-3311.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Dorothy Hensley et al.,                                                          :
Petitioners-Appellants,                                                                        :
                                                                                                                                   No. 10AP-840
v.                                                                                             :                                   (C.P.C. No. 07CVH02-2208)
City of Columbus,                                                                              :                                   (REGULAR CALENDAR)
Respondent-Appellee.                                                                           :
D    E    C    I    S    I    O    N
Rendered on June 30, 2011
Steve J. Edwards, for appellants.
Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker, City
Prosecutor, Janet Hill Arbogast and Jennifer S. Gams, for
appellee.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶1}   Petitioners-appellants,  Dorothy  Hensley                                               ("Hensley")  and  other  property
owners (collectively "appellants"), appeal from a judgment of the Franklin County Court of
Common Pleas overruling appellants' objections and adopting a magistrate's decision
granting  summary  judgment  in  favor  of  respondent-appellee,  City  of  Columbus
("appellee"), on appellants' claim for a writ of mandamus.   For the reasons that follow, we
affirm.
{¶2}   This court's decision in Hensley v. New Albany Co. (Dec. 31, 1997), 10th
Dist. No. 97AP-189 ("Hensley II"), details the underlying dispute between the parties.  We

No. 10AP-840                                                                                                  2
will briefly summarize the facts before turning to the procedural history leading to the
present appeal.   The dispute stems from appellee's construction of a storm sewer system
to  service  the  northeast  Columbus  and  Plain  Township—New  Albany  areas.
Construction on the project lasted from approximately September 1990 through February
1992.    Part of the construction involved the use of a well-point dewatering system to
temporarily lower the water table and allow installation of the sewer lines.   Appellants
allege that the dewatering process and the construction of the sewer line diverted and
controlled the flow of groundwater, thereby drying up appellants' water wells.
{¶3}   On August 21, 1992, Hensley and other property owners filed suit in the
Franklin County Court of Common Pleas asserting that they had been damaged by the
dewatering conducted by appellee and various contractors and subcontractors on the
sewer line project.   The property owners sought damages under Cline v. Am. Aggregates
Corp. (1984), 15 Ohio St.3d 384, and sought to have the case certified as a class action.
The trial court denied class certification, and on appeal this court affirmed the denial of
class certification.   Hensley v. New Albany Co. (Aug. 25, 1994), 10th Dist. No. 93AP-1562
("Hensley I").
{¶4}   Following this court's decision in Hensley I, the property owners voluntarily
dismissed their claims.   On the same day, August 10, 1995, the plaintiffs from Hensley I
filed a new complaint in the Franklin County Court of Common Pleas.   The new complaint
added additional plaintiffs and defendants, but the substance of the claims mirrored the
1992 complaint.1  On January 31, 1997, the trial court granted summary judgment in favor
1 For purposes of our analysis, we will refer to the 1992 and 1995 cases collectively as the "initial state
claim."

No. 10AP-840                                                                                       3
of the defendants, holding that sovereign immunity shielded the defendants from liability.
An appeal followed, and on December 31, 1997, this court affirmed the grant of summary
judgment, although the decision on appeal was "grounded on slightly different reasoning"
than the trial court's decision.  Hensley II.
{¶5}   On September 30, 1999, some of the property owners who had participated
as plaintiffs in the initial state claim filed a complaint in federal court against appellee and
some  of  the  contractors  and  subcontractors  on  the  sewer  construction  project  (the
"federal claim").   Hensley v. Columbus (C.A.6, 2006), 433 F.3d 494, 495 ("Hensley III").
The  plaintiffs  asserted  a  federal  takings  claim  and  procedural  and  substantive  due
process claims.   Id.   The federal trial court granted summary judgment for the defendants,
based  on  its  conclusion  that  Ohio  law  did  not  recognize  a  property  interest  in
groundwater.   Id.   On appeal, the Sixth Circuit Court of Appeals certified a question of law
to the Supreme Court of Ohio as to whether a homeowner has a property interest in the
groundwater  beneath  the  homeowner's  property.    Id.  at  496.    The  Supreme  Court
responded by ruling that "Ohio recognizes that landowners have a property interest in the
groundwater underlying their land and that governmental interference with that right can
constitute an unconstitutional taking."   McNamara v. Rittman, 107 Ohio St.3d 243, 2005-
Ohio-6443, ¶10.   On January 10, 2006, the Sixth Circuit remanded the case to the trial
court for proceedings consistent with the Supreme Court's decision.  Hensley III at 496.
{¶6}   After the remand, on October 1, 2007, the federal trial court granted the
defendants' motion for summary judgment, holding that the statute of limitations barred
the plaintiffs' claims.   Hensley v. Columbus (Oct. 1, 2007), S.D. Ohio No. 2:99-CV-00888.
On appeal, the Sixth Circuit affirmed the trial court's ruling, holding that the plaintiffs'

No. 10AP-840                                                                                     4
claims accrued in 1991 or 1992 and that, therefore, the two-year statute of limitations for
those types of claims under Ohio law expired before the plaintiffs filed their federal lawsuit
in 1999.   Hensley v. Columbus (C.A.6, 2009), 557 F.3d 693, 697 ("Hensley IV").   The
court also rejected the plaintiffs' claim that there was a continuing violation that would
extend the limitations period.  Id. at 697-98.
{¶7}   On February 14,  2007, while the federal claim was pending on remand,
appellants  filed  the  present  action  in  the  Franklin  County  Court  of  Common  Pleas.
Appellants asserted that appellee took their property—i.e., the groundwater beneath their
land—without compensation, in violation of Section 19, Article I, of the Ohio Constitution,
and the Fifth and Fourteenth Amendments to the United States Constitution.   Appellants
sought an alternative writ of mandamus compelling appellee to institute appropriation
proceedings under R.C. Chapter 163.   Appellee moved for summary judgment, asserting
that the statute of limitations and the doctrine of res judicata barred appellants' claims.
The trial court referred the case to a magistrate for a hearing on appellee's motion for
summary judgment.   The magistrate granted appellee's motion for summary judgment,
finding that appellants' claims were barred by the statute of limitations and by the doctrine
of res judicata.   Appellants filed objections to the magistrate's decision; the trial court
overruled appellants' objections and adopted the magistrate's decision granting summary
judgment for appellee.
{¶8}   Appellants  appeal from  the  trial  court's  order  adopting  the  magistrate's
decision granting summary judgment in favor of appellee, setting forth two assignments of
error:

No. 10AP-840                                                                                   5
[1.]  The  trial  court  erred  to  the  prejudice  of  Petitioners-
Appellants in affirming the Magistrate's decision granting City
of  Columbus'  Motion  for  Summary  Judgment  because
Petitioners' claims are barred by the statute of limitations at
R.C. 2305.09(E).
[2.]  The  trial  court  erred  to  the  prejudice  of  Petitioners-
Appellants in affirming the Magistrate's decision granting City
of  Columbus'  Motion  for  Summary  Judgment  because
Petitioners' claims are barred by res judicata.
{¶9}   "Appellate review of summary-judgment motions is de novo."   Capella III,
L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶16, citing Andersen v. Highland
House Co. (2001), 93 Ohio St.3d 547, 548.   "De novo appellate review means that the
court of appeals independently reviews the record and affords no deference to the trial
court's decision."   Holt v. State, 10th Dist. No. 10AP-214, 2010-Ohio-6529, ¶9 (internal
citations  omitted).                                                                           Summary  judgment  is  appropriate  where  "the  moving  party
demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is
entitled to judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion, and that conclusion is adverse to the party against whom the motion for
summary judgment is made."   Capella III at ¶16, citing Gilbert v. Summit Cty., 104 Ohio
St.3d  660,  2004-Ohio-7108,  ¶6.    Therefore, we undertake an independent review to
determine whether appellee was entitled to judgment as a matter of law.
{¶10}  We begin by considering appellants' second assignment of error, which
asserts that the trial court erred in adopting the magistrate's decision that appellee was
entitled to summary judgment because res judicata barred appellants' claims.
{¶11}  Res  judicata  encompasses  both  claim  preclusion  and  issue  preclusion.
Claim preclusion, which is at issue here, "provides that a valid, final judgment rendered on

No. 10AP-840                                                                                      6
the merits after a fair and full opportunity to litigate all claims bars all subsequent actions
between the same parties or their privities arising out of the transaction or occurrence that
gave rise to the prior action."   Rabin v. Anthony Allega Cement Contractor, Inc., 10th Dist.
No. 00AP-1200, 2001-Ohio-4057, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 382-
83, 1995-Ohio-331.   Res judicata applies where four elements are present: "(1) there was
a prior valid judgment on the merits; (2) the second action involved the same parties as
the first action; (3) the present action raises claims that were or could have been litigated
in the prior action; and (4) both actions arise out the same transaction or occurrence."
Reasoner v. Columbus, 10th Dist. No. 04AP-800, 2005-Ohio-468, ¶5.
{¶12}  The magistrate's decision, adopted by the trial court, found that res judicata
applied to appellants' claims, based on the summary judgment ruling issued in 1997 on
the initial state claim.   Appellants argue on appeal that their claims are not barred by res
judicata because the third and fourth elements of the test for res judicata are not met.
Appellants also claim that the doctrine of res judicata has never been applied to this type
of takings claim, except by the Ninth District Court of Appeals in State ex rel. McNamara
v. Rittman, 9th Dist. No. 08CA0011, 2009-Ohio-911, which appellants argue was wrongly
decided.
{¶13}  Generally, it is clear that res judicata may apply to a mandamus claim.  See,
e.g., State ex rel. Welsh v. Ohio State Medical Bd. (1964), 176 Ohio St. 136, paragraph
two of the syllabus; State ex rel. Mora v. Wilkinson, 105 Ohio St.3d 272, 2005-Ohio-1509,
¶15; State ex rel. Simpson v. Cooper,  120 Ohio St.3d  297,  2008-Ohio-6110,  ¶7.    In
Welsh, an individual sought a writ of mandamus ordering the state medical board to
restore his license to practice medicine.   Id. at 136.   The Supreme Court of Ohio found

No. 10AP-840                                                                                       7
that the individual had previously sought reinstatement of his license and had taken a
direct appeal from the medical board's denial of reinstatement.   Id. at 137.   The Supreme
Court found that "the same issues between the same parties were raised and determined
in that case as are presently being urged in this action in mandamus."   Id.   Accordingly,
the mandamus claim was barred by res judicata arising from the earlier decision.   Id. at
138.    Similarly, in Mora, a convicted prisoner sought a mandamus order compelling
various corrections officials to reduce his aggregate minimum term of imprisonment.   Id.
at ¶7.   The Supreme Court noted that a year earlier the prisoner had filed a complaint for
declaratory and injunctive relief seeking a correction of his minimum prison term, and that
the trial court had granted summary judgment for the defendants in that case.   Id. at ¶6.
The Supreme Court held that the prisoner's mandamus action was barred by res judicata
because it raised the same claim that had been at issue in his action for declaratory
judgment and injunctive relief.    Id. at  ¶15.    Finally, in Simpson, a convicted prisoner
sought a writ of mandamus to compel a common pleas court to vacate his conviction.   Id.
at ¶1.   The Supreme Court found that the prisoner had previously raised claims regarding
the sufficiency of the evidence supporting his conviction on direct appeal and that the
prior appeal functioned as res judicata for his later mandamus claim.   Id. at ¶7.   Thus,
where the elements of res judicata are present, the doctrine may bar a claim for writ of
mandamus.
{¶14}  There is no dispute that the first two elements of the res judicata test are
present  here.    The  trial  court  granted  summary  judgment  on  the  initial  state  claim.
Summary judgment, other than for lack of jurisdiction or failure to join a party under Civ.R.
19 or 19.1, " 'constitutes a judgment on the merits.' "  Stuller v. Price, 10th Dist. No. 03AP-

No. 10AP-840                                                                                       8
30, 2003-Ohio-6826, ¶19, quoting Bishop v. Miller (Mar. 26, 1998), 3d Dist. No. 4-97-30.
Likewise, each of the parties to the mandamus claim was a party to the initial state claim.
Appellants only challenge whether the third and fourth elements of the res judicata test
are satisfied.
{¶15}  Appellants argue that their mandamus claim is not barred by res judicata
because it was not and could not have been litigated in the same action as the initial state
claim.    Appellants did not seek a writ of mandamus in the initial state claim, when
originally filed in 1992 or when re-filed in 1995; therefore, we must determine whether
appellants could have sought a writ of mandamus as part of that earlier case.
{¶16}  Ohio law provides that mandamus is an extraordinary writ that "must not be
issued when there is a plain and adequate remedy in the ordinary course of the law."
R.C. 2731.05.   Before issuing a writ of mandamus, " 'a court must find that the relator has
a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to
perform the requested act, and that relator has no plain and adequate remedy at law.' "
State ex rel. Eliza Jennings, Inc. v. Noble (1990), 49 Ohio St.3d 71, 72, quoting Freshour
v. Radcliff (1988), 35 Ohio St.3d 181, 182 (internal citations omitted).
{¶17}  We acknowledge that, prior to 2006, the federal courts characterized Ohio
law regarding the method of obtaining compensation for a taking of private property by a
public authority as unclear or uncertain.   See Kruse v. Village of Chagrin Falls (C.A.6,
1996), 74 F.3d 694, 700 (characterizing Ohio case law on the issue of the method of
obtaining compensation for taking of private property by public authorities as "anything
but certain"); Coles v. Granville (C.A.6, 2006), 448 F.3d 853, 865 (finding that "Ohio has
'reasonable, certain, and adequate procedures' for plaintiffs to pursue compensation for

No. 10AP-840                                                                                                     9
an involuntary taking"); River City Capital, L.P., v. Bd. of Commrs. (C.A.6, 2007), 491 F.3d
301-07.   In Kruse, the court found significant the differentiation between a physical and a
regulatory taking, among other factors; whereas, in Coles and River City, the court held
that Ohio law does not differentiate between physical and regulatory takings for the
purpose of mandamus.2   Nevertheless, our review of the case law demonstrates that the
Supreme Court of Ohio clearly declared in  1994 that mandamus was the appropriate
means to compel statutory appropriations proceedings to compensate for a taking of
private property by a public entity similar to the taking in the instant case.   Moreover, even
prior to 1994, there was substantial case law indicating that mandamus was the proper
remedy for a taking, whether physical or regulatory.
{¶18}  In 1994, the Supreme Court of Ohio declared that "mandamus is the vehicle
for compelling appropriation proceedings by public authorities where an involuntary taking
of private property is alleged."   State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104,
108, 1994-Ohio-385.   The plaintiffs in Levin sought to compel appropriations proceedings
to compensate for flooding on their property, resulting from obstruction of a drainage
ditch.   The Supreme Court reviewed its prior decisions and held that "mandamus lies to
determine  if  property  has  been  appropriated  and  to  compel  initiation  of  statutory
proceedings."    Id. at  107.    In the years following Levin, this court issued decisions
consistent  with  the  Supreme  Court's  ruling.    See,  e.g.,  Consolidated  Rail  Corp.  v.
2 We note as well that the federal courts, in determining whether Ohio had a "reasonable, certain, and
adequate" procedure for plaintiffs to pursue compensation for a taking, were considering the larger question
of whether a federal claim of a taking was ripe for review.   Here, we consider a different question—the third
prong of our res judicata analysis—whether appellants could have brought a mandamus action with their
initial state claim.

No. 10AP-840                                                                                      10
Gahanna  (May  16,  1996),  10th Dist. No.  95AP-1578; State ex rel. Livingston Court
Apartments v. Columbus (Dec. 17, 1998), 10th Dist. No. 98AP-158.
{¶19}  Moreover, even before Levin, there was substantial case law indicating that
a  mandamus  claim  to  compel  statutory  appropriations  proceedings  was  the  proper
remedy for a taking of private property by a public entity.   In 1961, in Wilson v. Cincinnati
(1961), 172 Ohio St. 303, the Supreme Court of Ohio held that "[w]here a taking is made
by the state, the property owner's redress must be obtained by bringing an action in
mandamus  to  compel  the  director  [of  the  relevant  state  agency]  to  appropriate  the
property so taken."   Id. at 308.   In that case, the Supreme Court also noted that the
plaintiff "could have, by mandamus, compelled [an appropriation] proceeding" by the city
and state authorities involved in the case.   Id. at 306.   This court issued similar decisions
in takings cases after Wilson.   See, e.g., J.P. Sand & Gravel Co. v. State (1976), 51 Ohio
App.2d 83, 89 ("Where a property owner claims that his property in fact has been taken
by the state and that he has been damaged and appropriation proceedings have not been
instituted, the property owner may proceed to seek a writ of mandamus to compel the
initiation by the state of such appropriation proceedings."); Kermetz v. Cook-Johnson
Realty Corp. (1977), 54 Ohio App.2d 220, 228 ("[W]e hold that the property owner, who
alleges that the state has taken his property, may, in the alternative, still bring an original
action in mandamus in the courts having this original action jurisdiction.").   The Supreme
Court had also ruled, prior to Levin, that mandamus would lie against a city government to
compel appropriations proceedings for the taking of private property.   See State ex rel.
Royal v. Columbus (1965), 3 Ohio St.2d 154; State ex rel. Partlow v. Columbus (1970),
22 Ohio St.2d 1.

No. 10AP-840                                                                                         11
{¶20}  Appellants  became  aware  of  problems  with  their  wells  in  the  spring,
summer, and autumn of 1991.   Appellants knew that a government entity was involved in
the construction project allegedly causing the loss of groundwater and asserted a takings
claim against that government entity as part of the federal claim in 1999.   Thus, when
appellants re-filed the initial state claim in 1995 they were aware that the case implicated
a takings issue.   Only a year earlier, the Supreme Court had declared in Levin that a writ
of mandamus to compel appropriations proceedings was the proper remedy for a taking
of private property by a government entity.   Although Levin involved the flooding of the
landowners' property and appellants' claim involved the removal of water, the cases are
similar.   In both instances, private landowners sought recovery for a government entity's
interference with the use and enjoyment of their property.   The decision in Levin was
directly relevant to appellants' case.   At the time the initial state claim was re-filed in 1995,
the Levin precedent clearly established that a mandamus claim to compel appropriations
proceedings was the proper vehicle for the relief appellants sought.   The initial state claim
was not decided on summary judgment until January 1997, leaving ample opportunity for
appellants to amend their claim to seek alternative relief through a mandamus claim
before the case was terminated.   Further, as demonstrated by the decisions cited above
that were issued prior to Levin, when appellants originally filed the initial state claim in
1992, existing precedent strongly suggested that a mandamus claim was the proper
remedy to obtain compensation for the taking of their property.   Despite this, appellants
did not assert a mandamus claim as part of the initial state claim when it was originally
filed or when it was re-filed.

No. 10AP-840                                                                                     12
{¶21}  Appellants argue, however, that the mandamus claim could not have been
brought in the initial state claim, either when it was originally filed in 1992 or re-filed in
1995, because they had to unsuccessfully litigate both the initial state claim and the
federal claim to establish that they had no adequate remedy at law.   Appellants assert
that "[b]oth the state law tort claim and the federal civil rights claim were adequate
remedies that would have prevented the writ of mandamus from issuing if it had been
brought in the initial lawsuit."                                                                 (Appellant's brief at  23.)    Appellants cite State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 1996-Ohio-211, and State ex rel. Denton v.
Bedinghaus, 98 Ohio St.3d 298, 2003-Ohio-861, in support of this assertion.
{¶22}  By contrast, appellee argues that if appellants' contention is correct, then
mandamus would not be proper here.   Appellee notes that the Zimmerman decision also
declared that "[w]here a plain and adequate remedy at law has been unsuccessfully
invoked, a writ of mandamus will not lie to relitigate the same issue."   Zimmerman at 449,
citing State ex rel. Nichols v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities,
72 Ohio St.3d 205, 209, 1995-Ohio-215.   Thus, appellee argues, if recovery under the
initial state claim would have constituted an adequate remedy at law, appellants may not
relitigate the matter via a mandamus claim.
{¶23}  However, our analysis does not turn on application of the aforementioned
issue.   Rather, we find the present case analogous to State ex rel. Arcadia Acres v. Ohio
Dept. of Job & Family Servs., 123 Ohio St.3d 54, 2009-Ohio-4176.   In Arcadia Acres, two
nursing homes initially filed a complaint for declaratory relief seeking an adjustment in
certain reimbursement rates from the Ohio Department of Job and Family Services.   Id. at
¶4.   The trial court dismissed the declaratory judgment action based on lack of subject-

No. 10AP-840                                                                                        13
matter jurisdiction because mandamus was the "sole vehicle" for the relief sought.   This
court affirmed the dismissal based on its conclusion that the complaint failed to state a
viable claim for relief.   Id. at ¶4-5.   The nursing homes then filed an original action in this
court seeking a writ of mandamus compelling the same reimbursement adjustments
sought in the prior declaratory judgment claim.    This court dismissed the mandamus
claim, holding that it was barred by the doctrine of res judicata.   Id. at ¶9.   The Supreme
Court of Ohio affirmed, holding that res judicata barred a subsequent action based on any
claim arising out of the same transaction or occurrence as the prior declaratory judgment
claim.   Id. at ¶15.   The Supreme Court noted that the nursing homes "had a full and fair
opportunity to plead mandamus when they brought the declaratory judgment case."   Id. at
¶17.   At the time the nursing homes filed for declaratory judgment, multiple prior court
decisions indicated that mandamus was the proper vehicle for the relief sought.    Id.
Moreover, the Supreme Court declared that "nothing prevented the nursing homes from
adopting the cautious approach of pleading two alternative causes of action."  Id.
{¶24}  In Arcadia Acres, the nursing homes initially sought a declaratory judgment,
which may constitute a "plain and adequate remedy at law."    See State ex rel. Viox
Builders, Inc. v. Lancaster (1989), 46 Ohio St.3d 144, 145.   Likewise, here appellants
sought legal remedies under the initial state claim and the federal claim.   In both Arcadia
Acres and this case, judicial precedent indicated that a mandamus claim was the proper
vehicle for the relief sought.   Yet in Arcadia Acres, the Supreme Court of Ohio noted that
the nursing homes could have pursued alternative claims for declaratory judgment and
mandamus as part of their initial lawsuit, and the failure to do so meant that a subsequent
claim for mandamus was barred by res judicata.   Similarly, in the present case, "nothing

No. 10AP-840                                                                                      14
prevented                                                                                         [the  appellants]  from  adopting  the  cautious  approach  of  pleading  two
alternative causes of action."   Arcadia Acres at  ¶17.   Because appellants could have
included a mandamus claim as an alternative form of relief in the initial state claim, the
third element of res judicata has been satisfied in this case.
{¶25}  Appellants also argue that the fourth element of the test for res judicata has
not been met because their mandamus claim does not arise out of the same transaction
or occurrence as the initial state claim.   For the doctrine of res judicata to bar a claim, it
must "arise out of the same transaction or occurrence" that gave rise to the prior action.
Reasoner at ¶5.   Appellants argue that the taking of their groundwater in 1990 and 1991
gave rise to the initial state claim for tort damages, but that a mandamus claim did not
arise until they were denied compensation for that taking following the failure of the initial
state claim and the federal claim.                                                                (Appellants' brief at 23-24.)   Appellants cite Williamson
Cty. Regional Planning Comm. v. Hamilton Bank of Johnson City (1985), 473 U.S. 172,
105  S.Ct.  3108,  and  assert  that  "[u]ntil  one  is  denied  compensation  through  state
procedures, such as a state law tort claim, there has been no taking of property without
just compensation because just compensation can be provided through a state law tort
claim."                                                                                           (Appellants' brief at 24.)
{¶26}  Appellants' argument misconstrues the holding in Williamson Cty.    That
decision, which was accepted by the Supreme Court of Ohio in Karches v. Cincinnati
(1988), 38 Ohio St.3d 12, 15, dictates that if a state provides a "reasonable, certain, and
adequate provision for obtaining compensation" for a taking of private property, a property
owner may not assert a claim under the Fifth and Fourteenth Amendments until he has
"used the [state's] procedure and been denied just compensation."   Williamson Cty., 473

No. 10AP-840                                                                                        15
U.S. at 194-95, 105 S.Ct. at 3120-21.   This is because "no constitutional violation occurs
until just compensation has been denied."   Id., 473 U.S. at 194, 105 S.Ct. at 3120, fn.13.
Under Williamson Cty., a claimant who asserts that a government entity in Ohio has taken
his property must fully exhaust his state remedies by filing a mandamus claim to compel
appropriation proceedings before bringing a claim for Fifth and Fourteenth Amendment
violations.  See, e.g., River City Capital at 306-07.
{¶27}  The Williamson Cty. court acknowledged that "[t]he Fifth Amendment does
not proscribe the taking of property; it proscribes taking without just compensation."   Id.,
473 U.S. at 194, 105 S.Ct. at 3120.   Thus, a just compensation claim under the Fifth and
Fourteenth  Amendments  does  not  arise  until  the  property  has  been  taken  and  just
compensation for that taking is denied.  However, under Ohio law, the taking itself "occurs
when the state substantially or unreasonably interferes with a property right."  State ex rel.
Thieken v. Proctor, 180 Ohio App.3d 154, 2008-Ohio-6960, ¶14, citing State ex rel. OTR
v. Columbus (1996), 756 Ohio St.3d 203, 206.   The Williamson Cty. decision governs
when a plaintiff may bring a federal claim for redress of a taking without compensation,
not a state claim seeking to invoke the method of obtaining compensation under state
law.
{¶28}  The mandamus claim at issue seeks to compel appropriation proceedings
to compensate for a government taking of private property.   Because such a claim is the
vehicle for obtaining compensation for a taking, Levin at 108, the government taking of
the  property  necessarily  triggers  the  claim.    However,  if  taken  literally,  appellants'
interpretation of Williamson Cty. would provide that a property owner could never file a
claim for a writ of mandamus to compel appropriation proceedings to compensate for a

No. 10AP-840                                                                                    16
taking.  Appellants claim that such a cause of action does not arise until after property has
been taken and compensation has been denied.    In effect, appellants argue that a
property owner cannot sue in mandamus to compel appropriations to compensate for a
taking until he has been denied compensation for the taking—which must be sought via a
suit in mandamus to compel appropriation proceedings.  We cannot endorse this result.
{¶29}  The  alleged  taking  in  this  case  occurred  when  the  government  entity
"interfere[d] with a property right," Thieken at  ¶14—i.e., when appellants' wells were
dewatered during the original sewer construction project in 1990 and 1991.  The Supreme
Court recognized this in McNamara, when it held that "governmental interference with [a
landowner's property interest in the groundwater underlying his land] can constitute an
unconstitutional  taking."    McNamara  at                                                      ¶34.    Appellants  admit  that  the  dewatering
process formed the basis for their initial state claim.                                         (Appellant's brief at 23.)   Because
both the initial state claim and the mandamus claim arose from this same event, the
fourth element of the res judicata test has been satisfied.
{¶30}  Finally, appellants cite to four purportedly similar cases and argue that "[r]es
judicata has never been a defense when a second lawsuit is filed and presents a request
for a writ of mandamus after a first lawsuit attempting to exhaust the plain and adequate
remedies requirement in R.C. 2731.05."   (Appellants' brief at 25.)  However, each of those
cases is factually or procedurally distinguishable from the present matter and, therefore,
those cases do not preclude the application of res judicata to bar appellants' claims.
{¶31}  Appellants assert that State ex rel. BSW Dev. Group v. Dayton, 83 Ohio
St.3d 338, 1998-Ohio-287, and State ex rel. Shelly Materials, Inc. v. Clark Cty. Bd. of
Commrs., 115 Ohio St.3d 337, 2007-Ohio-5022, have "identical" procedural histories and

No. 10AP-840                                                                                         17
that res judicata was not applied to bar a mandamus claim following prior state and
federal  lawsuits  in  those  cases.                                                                 (Appellant's  brief  at   27-28.)    However,  appellants'
analysis neglects one key distinction between those cases and the present matter.   In
both BSW and Shelly Materials, the property owners initially sought permits to allow
certain uses of their property—in BSW, a permit to demolish an existing building, and in
Shelly Materials, a conditional-use permit for sand and gravel mining.   BSW at 339; Shelly
Materials at ¶4.   In each case, the initial court action resulted from an appeal of the denial
of the permit application.   BSW at 339; Shelly Materials at ¶10.   Under R.C. 2731.02, only
the  Supreme  Court, courts  of  appeals,  or common  pleas courts  may issue  writs  of
mandamus.    The  property  owners  in  those  two  cases  could  not  have  brought  a
mandamus  action  as  an  alternative  claim  to  their  permit  applications  because  the
administrative agencies considering the permit applications lacked authority to issue an
extraordinary writ.   They could not have sought mandamus in the appeal of denial of the
permit because that would have exceeded the scope of the court's review.   By contrast, in
this case, the initial action was a lawsuit filed in the common pleas court.   As explained
above, in this case appellants could have sought a writ of mandamus as an alternative
theory of recovery as part of the initial state claim.   Given this distinction, the fact that res
judicata was not applied in BSW or Shelly Materials does not preclude its application in
the present case.
{¶32}  Appellant further cites two additional cases, State ex rel. Coles v. Granville,
116 Ohio St.3d 231, 2007-Ohio-6057, and State ex rel. Nickoli v. Erie MetroParks, 124
Ohio St.3d 449, 2010-Ohio-606, as examples of property owners undertaking multiple
lawsuits in connection with a taking of their property and not being met by the defense of

No. 10AP-840                                                                                      18
res judicata.   Both those cases arose from the creation of a recreational trail by the Board
of Commissioners of Erie MetroParks ("MetroParks") and the claims of certain property
owners that MetroParks had taken their property to create the trail.   Because these cases
share a common history, we will analyze them together.
{¶33}  In  1997, Edwin and Lisa Coles filed an action for declaratory judgment
seeking to establish that they held title to certain property, including a portion of the land
where the recreational trail was to be built  (the "Coles declaratory judgment action").
Because the relevant portion of the land had been specifically excepted in the Coles'
deed, the trial court dismissed this case based on a finding that the property owners were
not real parties in interest.   Coles at ¶5.   In 1999, MetroParks filed a declaratory judgment
action seeking to establish its rights to certain property under a historical lease (the "Key
Trust declaratory judgment action").   That case resulted in a trial court judgment, appeal,
remand, and a second appeal; ultimately the courts determined that the lease was in
effect and that it covered certain specified property.  Id. at ¶7-13.
{¶34}  The Coles and other property owners then filed a federal lawsuit asserting
that  their  land  had  been  taken  without  compensation,  in  violation  of  the  Fifth  and
Fourteenth Amendments to the United States Constitution.   Id. at ¶17.   The federal court
dismissed the property owners' claims as not ripe for review because they had not sought
compensation for the taking through an action in mandamus to compel appropriation
proceedings, and the Sixth Circuit Court of Appeals affirmed the dismissal.  Id.
{¶35}  Following the Sixth Circuit's decision, the Coles and other property owners
filed a state court action for a writ of mandamus to compel MetroParks to commence
appropriation proceedings to compensate them for the taking or, in the alternative, to

No. 10AP-840                                                                                    19
relinquish the seized property and not pursue acquisition of the property through eminent
domain proceedings.   Id. at ¶18.   In the mandamus case, both sides claimed that the Key
Trust declaratory judgment action functioned as res judicata for any claims that could
have been, but were not, litigated in that action.   Id. at ¶36.   However, the Supreme Court
of Ohio noted that " 'a declaratory judgment determines only what it actually decides and
does not preclude other claims that might have been advanced.' "   Id. at ¶37, quoting
State ex rel. Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 69, 2002-Ohio-1627.   The court
further stated that " '[f]or a previous declaratory judgment, res judicata precludes only
claims that were actually decided.' "                                                           (Emphasis sic.)   Id., quoting State ex rel. Trafalgar
Corp.  v.  Miami  Cty.  Bd.  of  Commrs.,                                                       104  Ohio  St.3d  350,  2004-Ohio-6406,  ¶22.
Therefore, the Key Trust declaratory judgment action only functioned as res judicata with
respect to the claims that had actually been raised in that case.  Id. at ¶48.
{¶36}  In Nickoli, a separate group of property owners filed a claim for a writ of
mandamus to compel MetroParks to initiate appropriations proceedings to compensate
them for taking their land.   Nickoli at ¶16.   The Supreme Court of Ohio held that the Key
Trust declaratory judgment action did not function as res judicata for certain defenses that
the MetroParks sought to assert because those issues had not actually been settled in
that prior action.   Id. at ¶27.   The Supreme Court also held that the decision in the Coles
mandamus case did not function as res judicata because the relators in Nickoli were not
in privity with the relators in Coles.  Id. at ¶23-26.
{¶37}  Unlike Coles and Nickoli, the present action does not involve a declaratory
judgment action followed by a mandamus claim.    As explained above, in this case,
appellants filed a substantive state law claim, then a federal law claim, and then the

No. 10AP-840                                                                                     20
present mandamus claim.   Although this case is similar to Coles and Nickoli because all
three involve procedural histories with multiple lawsuits, the similarities end there.   The
res judicata effect of a prior declaratory judgment action is different from other types of
claims because it only precludes the claims that were actually decided.   Coles at ¶37;
Nickoli at ¶27.   The analysis of the res judicata doctrine in Coles and Nickoli does not
control our analysis in the present case because there was no declaratory judgment
action here.   Thus, although the four cases appellants cite have some similarities to the
present action, the fact that res judicata did not bar subsequent mandamus claims in
those cases does not bar the application of the doctrine to this case.
{¶38}  As explained above, the third element of the res judicata test has been
satisfied because appellants could have brought an alternative claim for mandamus relief
as part of the initial state claim.   The fourth element of the res judicata test is present
because the mandamus claim arises from the alleged dewatering of appellants' wells,
which was the same event underlying the initial state claim.    The trial court properly
concluded that appellants' mandamus claim is barred by the res judicata effect of the
summary judgment ruling on the initial state claim.    Appellee is therefore entitled to
judgment as a matter of law.   Accordingly, the second assignment of error is without merit
and is overruled.
{¶39}  Appellants' first assignment of error asserts that the trial court erred in
finding that the mandamus claim was barred by the statute of limitations.   Given our ruling
that the trial court did not err in finding that res judicata bars appellants' mandamus claim,
the statute of limitations issue is moot.

No. 10AP-840                                                                                  21
{¶40}  For the foregoing reasons, we overrule appellants' second assignment of
error and render appellants' first assignment of error moot.   The judgment of the Franklin
County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
BRYANT, P.J., and SADLER, J., concur.

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