State ex rel. Duncan v. Am. Transm. Sys., Inc. (Slip Opinion) , 2022 Ohio 323 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Duncan v. Am. Transm. Sys., Inc., Slip Opinion No. 2022-Ohio-323.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2022-OHIO-323THE STATE EX REL. DUNCAN, APPELLANT, v. AMERICAN TRANSMISSION
SYSTEMS, INC., ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Duncan v. Am. Transm. Sys., Inc., Slip Opinion
No. 2022-Ohio-323.]
Original jurisdiction—Mandamus—Takings—Article IV, Section 3(B) of Ohio
Constitution does not grant courts of appeals original jurisdiction to decide
nuisance claims or empower them to grant declaratory, injunctive, or
compensatory relief—Owner of land near construction of power lines failed
to allege risks of harm constituting an actionable taking—Court of appeals’
dismissal of complaint affirmed.
(No. 2021-0770—Submitted October 26, 2021—Decided February 9, 2022.)
APPEAL from the Court of Appeals for Portage County, No. 2021-P-0005, 2021-
Ohio-1697.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Appellant, Richard Duncan, appeals the judgment of the Eleventh
District Court of Appeals dismissing his complaint against appellees, American
Transmission Systems, Inc., and FirstEnergy Corp. (collectively, “ATSI”), the city
of Aurora, and Aurora Mayor Ann Womer Benjamin. The court of appeals
determined that Duncan’s claims asserting private and public nuisance and his
requests for declaratory, injunctive, and compensatory relief exceeded its original
jurisdiction and that his mandamus claim seeking the commencement of an
appropriation proceeding failed to state a claim upon which relief could be granted.
We affirm.
I. BACKGROUND
{¶ 2} Duncan alleges that in 1994, he purchased a landlocked, 0.10-acre
parcel of land next to an abandoned right-of-way. He hoped that Aurora would
acquire the right-of-way, convert it into a recreational use, and allow him to use it
to access a public road from his parcel.
{¶ 3} In 2017, Aurora learned that ATSI was interested in acquiring the
right-of-way for the purpose of installing transmission towers. Seeking to prevent
the construction of power lines on the right-of-way, Aurora sued to acquire it in
2019. In 2020, Duncan learned that Aurora was planning to settle the lawsuit with
ATSI, enabling the project to move forward. And Aurora apparently adopted an
ordinance that facilitated the settlement. According to Duncan, ATSI is now the
“purported * * * present owner of the abandoned right of way.”
{¶ 4} In 2021, Duncan filed a complaint in the Eleventh District Court of
Appeals. He alleged that if ATSI’s project had not been approved, he would likely
have acquired an easement from Aurora allowing him to use the right-of-way to
access the public road from his lot. And because of the “small size” of his lot and
its proximity to ATSI’s power lines, he claimed, “any personal or real property
placed on his lot * * * will become a safety hazard due to arcing problems.” In
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addition, he asserted, “any human beings or animals present on the lot will be [at]
a safety risk and also a health risk due to cancer concerns.” Duncan further alleged
that other, larger lots near the right-of-way will not be harmed in the same way.
Duncan’s complaint sought (1) a declaration that the power lines are a public and
private nuisance resulting in a taking of his property, (2) a preliminary and
permanent injunction halting the project’s construction, (3) a writ of mandamus
ordering appellees to commence appropriation proceedings, (4) compensatory
damages, and (5) other relief deemed necessary and reasonable.
{¶ 5} ATSI filed a motion to dismiss, which the court of appeals granted.
The court determined that its jurisdiction under Article IV, Section 3(B) of the Ohio
Constitution did not extend to Duncan’s nuisance claims or his requests for
declaratory, injunctive, or compensatory relief. And it declined to issue a writ of
mandamus ordering appropriation proceedings because Duncan had failed to allege
an actionable taking. Duncan then filed this appeal.
II. ANALYSIS
A. The court of appeals’ jurisdiction over Duncan’s nonmandamus claims
(Duncan’s proposition of law No. I)
{¶ 6} Our review of a dismissal under Civ.R. 12(B)(1) for lack of subject-
matter jurisdiction is de novo. State ex rel. Ohio Civ. Serv. Emps. Assn. v. State,
146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, ¶ 12.
{¶ 7} The Ohio Constitution vests the courts of appeals with original
jurisdiction in quo warranto, mandamus, habeas corpus, prohibition, or procedendo
and “[i]n any cause on review as may be necessary to complete its determination.”
Ohio Constitution, Article IV, Section 3(B)(1); see also State ex rel. Neer v. Indus.
Comm., 53 Ohio St.2d 22, 23-24, 371 N.E.2d 842 (1978). Because the Constitution
does not grant the courts of appeals original jurisdiction to decide nuisance claims
or empower them to grant declaratory, injunctive, or compensatory relief, the court
of appeals correctly dismissed those aspects of Duncan’s complaint. See Pratts v.
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Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 21. Although a
writ of mandamus is in the nature of a mandatory injunction, the injunctive relief
that Duncan seeks is a restraint on the construction of ATSI’s project. See State ex
rel. Gadell-Newton v. Husted, 153 Ohio St.3d 225, 2018-Ohio-1854, 103 N.E.3d
809, ¶ 9-10, 13. That type of relief is in the nature of a prohibitory injunction,
which the court of appeals lacks jurisdiction to grant. Id.{¶ 8} Notwithstanding these jurisdictional limits, Duncan argues that it was
proper for him to file an omnibus complaint to avoid the preclusive effects imposed
by the doctrines of collateral estoppel and res judicata. But Duncan cites no
authority to justify relaxing the jurisdictional limits of the courts of appeals under
these circumstances. And his fear that these preclusive doctrines will bar him from
raising claims in a later action is unfounded because the doctrines do not apply
when, as here, a court lacks subject-matter jurisdiction. See State ex rel. Donaldson
v. Athens City School Dist. Bd. of Edn., 68 Ohio St.3d 145, 150, 624 N.E.2d 709(1994) (“for collateral estoppel and res judicata to apply, the judgment to which
preclusive effect would be given must have been issued by a court with jurisdiction
over the subject matter”).
B. Aurora’s role in the alleged taking (Duncan’s proposition of law No. II)
{¶ 9} Duncan next makes a passing argument that because the court of
appeals’ opinion does not discuss his allegations against Aurora, we must reverse.
We reject this proposition of law given the lack of meaningful analysis in Duncan’s
brief. See Mason City School Dist. Bd. of Edn. v. Warren Cty. Bd. of Revision, 138
Ohio St.3d 153, 2014-Ohio-104, 4 N.E.3d 1027, ¶ 38 (determining that the
appellant’s failure to develop an argument or cite authority was sufficient grounds
for rejecting the argument).
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C. Mandamus and the law of takings (Duncan’s proposition of law
Nos. III through VII)
{¶ 10} In determining whether the court of appeals correctly dismissed
Duncan’s mandamus claim under Civ.R. 12(B)(6), we must presume the truth of
the complaint’s factual allegations and draw all reasonable inferences in Duncan’s
favor. State ex rel. Martre v. Reed, 161 Ohio St.3d 281, 2020-Ohio-4777, 162
N.E.3d 773, ¶ 8. “However, unsupported legal conclusions, even when cast as
factual assertions, are not presumed true for purposes of a motion to dismiss.” Id.
at ¶ 12. Our review of a decision granting a motion to dismiss under Civ.R.
12(B)(6) is de novo. Id. at ¶ 8.
{¶ 11} “The United States and Ohio Constitutions guarantee that private
property shall not be taken for public use without just compensation.” State ex rel.
Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63, 765 N.E.2d 345 (2002), judgment
modified in part on other grounds, 96 Ohio St.3d 379, 2002-Ohio-4905, 775 N.E.2d
493; Fifth and Fourteenth Amendments to the U.S. Constitution; Ohio Constitution,
Article I, Section 19. A property owner alleging a taking of private property may
institute a mandamus action to compel the state to commence appropriation
proceedings.1 State ex rel. New Wen, Inc. v. Marchbanks, 159 Ohio St.3d 15, 2020-
Ohio-63, 146 N.E.3d 545, ¶ 15. To be entitled to a writ of mandamus, the relator
must establish by clear and convincing evidence (1) a clear legal right to the
requested relief, (2) a clear legal duty on the part of the respondent to provide it,
and (3) the lack of an adequate legal remedy. Id. “In order to establish a taking, a
landowner must demonstrate a substantial or unreasonable interference with a
property right. Such an interference may involve the actual physical taking of real
1. Although a private party, ATSI does not dispute that it is authorized to institute appropriation
proceedings. See, e.g., R.C. 4933.15 (authorizing any company transmitting or distributing
electricity in Ohio to exercise the right of appropriation); Cincinnati Gas & Elec. Co. v. Pope, 54
Ohio St.2d 12, 374 N.E.2d 406 (1978) (appropriation action brought by public utilities to acquire
power-line easement).
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property, or it may include the deprivation of an intangible interest in the premises.”
(Citations omitted.) State ex rel. OTR v. Columbus, 76 Ohio St.3d 203, 206, 667
N.E.2d 8 (1996).
1. Risks of harm
{¶ 12} Duncan argues that he adequately pled a compensable taking by
alleging that his property “will become a safety hazard due to arcing problems” and
that “any human beings or animals present on the lot will be [at] a safety risk and
also a health risk due to cancer concerns.” Arcing is a phenomenon described as a
“sustained luminous discharge of electricity across a gap in a circuit or between
electrodes.” Merriam-Webster’s Collegiate Dictionary 64 (11th Ed.2020).
{¶ 13} The court of appeals rejected Duncan’s arcing argument based on
Smith v. Cent. Power Co., 103 Ohio St. 681, 137 N.E. 159 (1921), quoting the
following sentence: “The mere fact of the danger attendant upon the maintenance
of high voltage wires in front of the property is not a valid ground of objection,
unless it is also an interference with access, light, air, or view,” id. at 699 (Marshall,
C.J., concurring). In doing so, however, the court of appeals failed to specify that
it was quoting a concurring opinion.
{¶ 14} But even if the court of appeals improperly relied on the Smith
concurrence, we will not reverse a correct judgment supported by flawed reasoning.
See State ex rel. McGrath v. Ohio Adult Parole Auth., 100 Ohio St.3d 72, 2003-
Ohio-5062, 796 N.E.2d 526, ¶ 8. And “[w]e review a judgment of the court of
appeals in a mandamus action filed in that court ‘as if the action had been filed
originally in [this court].’ ” State ex rel. Dynamic Industries, Inc. v. Cincinnati,
147 Ohio St.3d 422, 2016-Ohio-7663, 66 N.E.3d 734, ¶ 7, quoting State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141, 164, 228 N.E.2d 631 (1967).
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January Term, 2022
{¶ 15} Here, the gravamen of Duncan’s allegation is that ATSI’s power
lines pose a risk of harm.2 But Duncan cites no authority establishing that
allegations of risks of harm stemming from the proximity of property to power lines
are enough to establish an actionable taking. He points to three decisions that, he
says, hold that “arcing or being near electric transmission lines is a real threat.” But
none of those decisions announced a rule of law within the context of a takings
analysis. See Otte v. Dayton Power & Light Co., 37 Ohio St.3d 33, 36, 523 N.E.2d
835 (1988) (considering whether a public utility could be held strictly liable for
damages in tort); Ohio Edison Co. v. Wilkes, 7th Dist. Mahoning No. 10 MA 174,
2012-Ohio-2718, ¶ 1-3 (considering whether an easement prohibited a landowner’s
shed in the utility’s right-of-way); Ogle v. Ohio Power Co., 180 Ohio App.3d 44,
2008-Ohio-7042, 903 N.E.2d 1284, ¶ 10 (4th Dist.) (holding that the plaintiff’s
complaint set forth a valid nuisance claim against a utility). And though Florida
Power & Light Co. v. Jennings, 485 So.2d 1374 (Fla.App.1986), quashed and
remanded on appeal, 518 So.2d 895 (Fla.1987)—cited in Duncan’s reply brief—
arose from a takings action, the question in that case was not whether a taking had
occurred but whether the public’s fear of power-line hazards could be accounted
for in determining the value of property already taken, id. at 1379.
{¶ 16} In summary, although the concurrence from Smith, 103 Ohio St. 681,
137 N.E. 159, does not by itself require dismissal of Duncan’s complaint, he has
otherwise failed to cite any authority showing that his alleged risks of harm
constitute an actionable taking.
2. Denial of access and right to exclude
{¶ 17} Duncan also argues that his allegations establish that he has suffered
a compensable taking by way of a denial of access to his lot. “One of the elemental
2. It is not obvious from the complaint how far along ATSI has progressed in constructing its power
lines. We presume that enough progress has been made to justify Duncan’s alleged fears. See
Martre, 161 Ohio St.3d 281, 2020-Ohio-4777, 162 N.E.3d 773, at ¶ 8.
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rights growing out of the ownership of a parcel of real property is the right to access
abutting public roadways.” OTR, 76 Ohio St.3d at 207, 667 N.E.2d 8. But Duncan
derives no benefit from this rule because he admits that his parcel was landlocked
when he bought it. Without any road access to begin with, it follows that appellees
have not caused the loss of any right of access. Nor is it obvious how Duncan’s
inability to access his lot deprives him of his right to exclude others; this is not a
case in which someone is attempting to force an easement across the landowner’s
property, as in Dolan v. Tigard, 512 U.S. 374, 385-386, 394, 114 S.Ct. 2309, 129
L.Ed.2d 304 (1994).
3. Regulatory takings
{¶ 18} In addition, Duncan contends that he has adequately alleged a
regulatory taking by way of Aurora’s ordinance approving ATSI’s project. But
Duncan has not alleged any facts establishing that Aurora’s ordinance regulates his
property in any way. Indeed, we have not been provided a copy of, let alone a
citation to, the ordinance.
{¶ 19} Duncan also borrows a legal term of art from Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 1016, 112 S.Ct. 2886, 120 L.Ed.2d 798(1992), claiming that he has been denied all “economically viable use” of his
property. But “unsupported legal conclusions” are not enough to withstand a
motion to dismiss. Martre, 161 Ohio St.3d 281, 2020-Ohio-4777, 162 N.E.3d 773,
at ¶ 12.
4. Consequential damages
{¶ 20} Next, Duncan argues that his description of damages that are
peculiar to his property adequately alleged a compensable taking.
{¶ 21} A taking may “be found where it is clear that the injury sustained by
a person differs substantially in kind from that sustained by others in the
neighborhood, even though there has been no physical displacement.” McKee v.
Akron, 176 Ohio St. 282, 285, 199 N.E.2d 592 (1964), overruled on other grounds,
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Haverlack v. Portage Homes, Inc., 2 Ohio St.3d 26, 442 N.E.2d 749 (1982). In
McKee, we determined that the plaintiff’s injury—odor emanating from a nearby
sewage-disposal plant—was not actionable, because it was common to everyone in
the vicinity. Id. at 286. As we explained, “the fact that property is rendered less
desirable as a result of the governmental activity does not in and of itself constitute
a taking.” Id. at 285.
{¶ 22} Although Duncan argues that unlike his property, neighboring
properties will not be “materially” affected by the presence of ATSI’s power lines,
injuries that differ in degree but not in kind are not actionable. See Richley v. Jones,
38 Ohio St.2d 64, 68-69, 310 N.E.2d 236 (1974); Smith v. Erie R.R. Co., 134 Ohio
St. 135, 145, 16 N.E.2d 310 (1938). And to the extent that Duncan claims that only
he will suffer the risks of arcing and cancer, he has not presented a cogent legal
argument that his fears of arcing and cancer present an actionable takings claim.
{¶ 23} Having failed to adequately allege an actionable taking, Duncan’s
allegations are reduced to a claim for consequential damages. Our caselaw has
repeatedly rejected such claims, and we follow it here. See, e.g., Smith at paragraph
two of the syllabus (“When there is no taking altogether or pro tanto, damages
consequential to the taking of other property in the neighborhood, or to the
construction of the improvement, are not recoverable; under such circumstances,
loss suffered by the owner is damnum absque injuria [damage for which there is no
legal remedy]”); State ex rel. Taylor v. Whitehead, 70 Ohio St.2d 37, 39, 434
N.E.2d 732 (1982) (“Even if [the landowners] could prove that their properties
decreased in value, diminution is not itself a taking”).
5. Procedural unfairness
{¶ 24} Duncan also argues that the court of appeals’ dismissal of his case
reflects procedural unfairness, claiming that he is entitled to a trial rather than
protracted litigation. In support of this argument, he invokes United States v.
Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947), in which the United
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States Supreme Court observed that the “Fifth Amendment expresses a principle of
fairness and not a technical rule of procedure,” id. at 748, and that an “owner is not
required to resort either to piecemeal or to premature litigation to ascertain the just
compensation for what is really ‘taken,’ ” id. at 749. Contrary to what Duncan
argues, Dickinson neither requires a trial in this case nor prohibits dismissal of his
complaint under Civ.R. 12.
6. Remaining arguments
{¶ 25} Two arguments remain. First, Duncan argues that if he can prove a
taking, then he will be entitled to just compensation as measured by the fair market
value associated with his loss. Second, Duncan urges us to account for Armstrong
v. United States, 364 U.S. 40, 48, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960), in which
the United States Supreme Court observed that the “Fifth Amendment’s guarantee
that private property shall not be taken for a public use without just compensation
was designed to bar Government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a whole.”
Duncan’s failure to allege an actionable taking obviates the need to consider these
arguments.
III. CONCLUSION
{¶ 26} For the foregoing reasons, we affirm the judgment of the court of
appeals.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
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Richard Duncan, pro se.
Roetzel & Andress, L.P.A., Stephen D. Jones, and Jeremy S. Young, for
appellees, American Transmission Systems, Inc., and FirstEnergy Corp.
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