[Cite as Riveredge Dentistry Partnership v. Cleveland, 2026-Ohio-2713.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
RIVEREDGE DENTISTRY :
PARTNERSHIP,
:
Plaintiff-Appellee,
: No. 115385
v.
:
CITY OF CLEVELAND,
:
Defendant-Appellant.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 16, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-932884
Appearances:
The Dolan Law Firm, LLC, and Michael A. Dolan, for
appellees.
Mark D. Griffin, Cleveland Director of Law, James R.
Russell, Jr., Chief Assistant Director of Law, and Carli R.
Young, Assistant Director of Law, for appellant.
MICHAEL JOHN RYAN, J.:
Defendant-appellant the City of Cleveland (“appellant”) appeals the
trial court’s decision to deny its partial motion for summary judgment and grant summary judgment in favor of plaintiffs-appellees, Riveredge Dentistry Limited
Partnership and Riveredge Dentistry, Inc. (collectively “Riveredge”); West Valley
Condominium Association (“WVCA”); the Darshana A. Shah Trust (“Shah Trust”);
Dr. Benedict Kim (“Dr. Kim”); and Kamm Property, LLC (“Kamm Property”)
(collectively referred to as “appellees”), which granted a writ of mandamus in their
favor. For the reasons that follow, we affirm.
I. Background
This case concerns repeated flooding and water damage to the
basement of a commercial building located at 3865 Rocky River Drive in the West
Park neighborhood of Cleveland, Ohio. West Park sits on the western border of
Cleveland and contains the popular Kamm’s Corners retail and entertainment
district.
In 1925, appellant initiated construction of a storm sewer culvert in
West Park, known as the “Albers sewer.” The Albers sewer is a 60-inch brick storm
sewer that sits between the boundary of Kamm’s municipal parking lot (“parking
lot”) and the appellees’ property and crosses through the northeast boundary of the
property. The Albers sewer empties, discharges, and drains into the Northeast Ohio
Regional Sewer District (“NEORSD”) combined sewer system, which is located on
Rocky River Drive. Between 1925 and May 2019, stormwater from the parking lot
was discharged directly into the Albers sewer. A curb constructed along the
property’s western property line separated the building from the parking lot and diverted the parking lot’s stormwater away from the building and into catch basins
connected to the Albers sewer.
In 1996, appellant acquired the parking lot. By 2015, the parking lot
had fallen into disrepair, but nothing was done at that time. In 2018, appellant
worked with NEORSD to apply for a grant for improvements to the parking lot. In
May 2019, appellant contracted with Cook Paving & Construction Company (“Cook
Paving”) to complete construction of five new bio-retention basins to divert
stormwater away from the Albers sewer.
Prior to the 2019 construction, when the parking lot’s catch basins
clogged with silt and debris, stormwater flowed along a curb at the western end of
the lot, discharging onto the properties of popular bars and restaurants located
immediately north of the subject building. The new basins were constructed to
accept diverted parking lot stormwater and discharge it into the ground. Two of the
basins (Basins 4 and 5) are interconnected and located on the property line of the
parking lot and the appellees’ building. The basins extend along the entire length of
the building and are located within ten feet of the foundation of the building. Basins
4 and 5 replaced the curb that had previously separated the parking lot from the
appellees’ property. The curb separating the parking lot from the Basins 4 and 5 was
cut out in front of each basin, so that the curb no longer divided the parking lot from
the basins.
Appellees have varying property interests in the subject building. The
building consists of two stories and a basement; there are six office units, including two in the basement. The building was occupied with commercial tenants including
Riveredge, which had an office on the second floor and two offices in the basement.
Riveredge occupied the basement of the building from 1990 until 2019. During that
time, stormwater backed up in the building at least twice, including a 2011 sump
pump failure and a 2016 backup caused by a blockage in the Albers sewer.
Since late May 2019, the basement of the subject building has
experienced repeated intermittent flooding. According to appellees, stormwater
flooded the building over 80 times between late May 2019 and mid-October 2024.
Appellees alleged that the flooding caused them to incur lost rents and damage to
paint, paper, carpet, drywall, as well as the accumulation of mold in the basement
units.
In June 2019, appellees notified appellant of the flooding, which they
attributed to the stormwater run-off from the parking lot into Basins 4 and 5, located
next to appellees’ property. In response, appellant had Cook Paving construct curbs
in the parking lot attempting to direct some of the stormwater into the other three
retention basins.
In May 2020, Riveredge filed suit against appellant and Cook Paving
alleging appellant intentionally diverted the parking lot’s stormwater away from the
Albers sewer and into the five bio-retention basins, causing flooding to the building’s
basement. The complaint alleged that appellant and Cook Paving “jointly, severally,
intentionally, recklessly, and/or negligently” caused, diverted, or allowed ground
and surface water from appellant’s parking lot to be discharged onto appellees’ property.1 Riveredge alleged that the repeated floodings have caused further
damage making the condominium units unusable and unsaleable and has resulted
in the loss of all fair market value to their property.
Riveredge filed a first and second amended complaint, adding the
NEORSD as a defendant. In the second amended complaint, Riveredge alleged that
appellant and NEORSD recklessly and/or negligently diverted stormwater from the
sewer system and onto Riveredge’s property, causing the building to flood.
NEORSD moved to dismiss pursuant to Civ.R. 12(B)(6), alleging
immunity. The court granted the motion. Riveredge appealed and this court
affirmed the trial court. See Riveredge Dentistry Partnership v. Cleveland, 2021-Ohio-3817 (8th Dist.). The case was remanded to the trial court. Riveredge filed a
third amended complaint and added a takings claim pursuant to the United States
and Ohio Constitutions.
In June 2022, appellant filed a notice of removal to federal district
court. Riveredge subsequently filed a fourth amended complaint in federal court,
adding the remaining appellees as plaintiffs. The claims against NEORSD were
eventually dismissed. The parties filed cross motions for summary judgment. The
court dismissed the federal takings claim as to WVCA, the Shah Trust, Dr. Kim, and
Kamm Property, finding that their claims were barred by the applicable two-year
statute of limitations. Riveredge Dentistry Partnership v. Cleveland, 2024 U.S.
1 In April 2022, Riveredge filed a voluntary dismissal of all claims against Cook
Paving.
Dist. LEXIS 26292, *56 (N.D. Ohio Feb. 15, 2024). As to Riveredge, the court
determined that there were genuine issues of material fact concerning the character
of the land and whether the flooding was intended or foreseeable and denied
summary judgment in favor of either party on its federal takings claim. Id. at *60,
*69. The court remanded the state takings claim and stayed the remainder of the
case pending adjudication in state court. Id. at *88.
In state court, appellees filed a verified petition for a writ of
mandamus. The parties also filed cross motions for summary judgment, and a
hearing was held on the motions. Appellees claimed that the recurring flooding
resulted from appellant’s stormwater diversion and constituted a taking of private
property in violation of the Ohio Const., art. I, § 19, entitling them to a writ of
mandamus compelling the initiation of appropriation proceedings under R.C. Ch.
163. Appellant’s motion requested summary judgment against all appellees except
Riveredge, asserting that the parties could not demonstrate a lack of an adequate
remedy at law, WVCA lacked standing, and their claims were barred by the statute
of limitations.
The trial court denied appellant’s motion for summary judgment and
granted the appellees’ motion for summary judgment, determining that appellees
were entitled to a writ of mandamus.
This appeal followed.
II. Assignments of Error
I. The trial court erred as a matter of law by granting summary
judgment to all Relators and issuing a writ of mandamus to compel
appropriation proceedings.
II. The trial court erred as a matter of law by denying the City’s motion
for partial summary judgment because there are Relators that lack
standing, cannot meet their burden, and the applicable statute of
limitation bars their claims for a writ of mandamus.
III. Law and Analysis
In the first assignment of error, appellant argues that the trial court
erred in granting summary judgment in favor of appellees and issuing a writ of
mandamus to compel appropriation proceedings.
Summary judgment is a burden-shifting exercise. Initially, the
moving party must point to evidentiary materials to show there are no genuine
issues of material fact and it is entitled to judgment as a matter of law. Dresher v.
Burt, 75 Ohio St.3d 280, 292-293 (1996). If the moving party meets this burden, a
reciprocal burden is placed on the nonmoving party. Id. at 293. The nonmovant
may not rest upon the mere allegations or denials of pleadings, but its response, by
affidavit or as otherwise provided in the rule, must set forth specific facts showing
that there is a genuine issue for trial. Id., citing Civ.R. 56(E).
The Ohio Const., art. I, § 19, guarantees that private property shall not
be taken for public use without just compensation. Boggs v. Cleveland, 2025-Ohio5094, ¶ 23-30. When private property is involuntarily taken by government action,
“[m]andamus is the appropriate action to compel public authorities to institute
appropriation proceedings.” Boggs at ¶ 29, 30. The trial court “acts as the trier of fact and law and determines whether private property ha[s] been taken by the public
authority.” Id. If the court determines a taking has occurred, a writ of mandamus
issues compelling the public authority to commence an appropriation proceeding in
probate court. Id.
In order to be entitled to a writ of mandamus, appellees must
establish a clear right to compel the government actor to commence the
appropriation action, a corresponding clear legal duty of the government actor to
institute that action, and a lack of an adequate remedy at law. State ex rel. Doner v.
Zody, 2011-Ohio-6117, ¶ 53. “[T]he appropriate standard of proof in mandamus
cases is proof by clear and convincing evidence.” Doner at ¶ 55.
Any direct encroachment upon land, which subjects it to a public use
that excludes or restricts the dominion and control of the owner over it, is a taking
for which a right of compensation is guaranteed under the Ohio Const., art. I, § 19.
Id. at ¶ 59, citing Norwood v. Sheen, 126 Ohio St. 482 (1933), paragraph one of the
syllabus.
Inverse condemnation “is ‘a cause of action against the government
to recover the value of property taken by the government without formal exercise of
the power of eminent domain.’” Doner at ¶ 62, quoting Moden v. United States, 404
F.3d 1335, 1342 (2005). “‘Not every “invasion” of private property resulting from
government activity amounts to an appropriation.’” Doner at ¶ 64, quoting
Columbia Basin Orchard v. United States, 132 Ct. Cl. 445, 449 (1955). Appellees
must show that the government intended to invade a protected property interest or that the government invasion is or was the direct, natural, or probable result of the
government conduct (the causation prong). Id. at ¶ 64. The nature and magnitude
of the government action must also be considered (the appropriation prong). Id.
Even where the effects of the government action are predictable, to
constitute a taking, an invasion must appropriate a benefit to the
government at the expense of the property owner or at least preempt
the owner’s right to enjoy his [or her] property for an extended period
of time, rather than merely inflict an injury that reduces its value.
(Cleaned up.) Id.
In cases “involving claims of government-induced flooding,” a taking
may be established
when the evidence shows that (1) the flooding is either intended by the
government or that the flooding is the direct, natural, or probable result
of government-authorized activity and (2) the flooding is either a
permanent invasion or creates a permanent liability because of
intermittent, but inevitably recurring overflows.
Id. at ¶ 65.
To satisfy the causation prong, appellees
need not allege or prove that defendant specifically intended to take
property. There need be only a governmental act, the natural and
probable consequences of which effect such an enduring invasion of
[r]elators’ property so as to satisfy all other elements of a compensable
taking. In essence, relators must prove both that respondents’ actions
caused the flooding and that the flooding was a foreseeable result of
their actions.
Id. at ¶ 67.
Thus, as it applies to this case, the first prong of the Doner test
requires that appellant either intended the flooding or that the flooding was the
direct, natural, or probable result of appellant’s activity. Appellees claim both — that appellant intended to cause the flooding through its actions or inaction in
addressing the flooding and the flooding was the direct, natural, or probable result
of appellant’s construction of the basins.
The Doner Court specifically addressed situations involving flooding
caused by the construction of storm sewers:
In cases of flooding caused by actions of the government . . . “the
construction and operation of a municipal storm sewer system so as to
cause material damage to a down-stream landowner, as a result of
flooding from rains or other causes which are reasonably foreseeable,
is a direct encroachment upon that land which subjects it to public use
that excludes or restricts the landowner’s dominion and control over
his [or her] land and such owner has a right to compensation for the
property . . . .”
Doner at ¶ 60, quoting Masley v. Lorain, 48 Ohio St.2d 334 (1976), syllabus.
Doner requires the trial court to determine if the flooding is a
permanent invasion or creates a permanent liability because of intermittent, but
inevitably recurring, overflows. Id. at ¶ 65. In considering the appropriation prong
— the nature and magnitude of the government action — we note that it is
undisputed that the flooding was intermittent and inevitably recurring. The
flooding rendered the building’s basement unusable, and the foundation of the
building suffered structural damage. Appellees submitted an estimate to cure the
structural and other damage caused by the flooding in the amount of $458,629 and
an estimate for mold abatement in the amount of $71,292.93. The building was
valued at $850,000 prior to the installation of the basins. An updated valuation
showed the building was currently valued at $240,000. This demonstrates a
decrease in the fair market value.
On appeal, appellant argues that the trial court erred in applying the
two-prong Doner test. Appellant argues that the trial court was required to apply
the multi-factor test set forth in Ark. Game & Fish Comm. v. United States, 568 U.S.
23 (2012). In Ark. Game, the U.S. Army Corps of Engineers periodically authorized
flooding of forest land owned and managed by the commission over a period of
seven years, resulting in a loss of a substantial amount of timber. The commission
brought an action alleging a taking under the Fifth Amendment of the United States
Constitution. Id. at 26. The Court stated the question presented was “whether a
taking may occur, within the meaning of the Takings Clause, when governmentinduced flood invasions, although repetitive, are temporary.” Id. The Court
concluded “recurrent floodings, even if of finite duration, are not categorically
exempt from Takings Clause liability.” Id. at 27. The Court pointed to a number of
factors to consider, including the time or duration of the alleged taking, “the degree
to which the invasion is intended or is the foreseeable result of authorized
government action[,]” the character of the land, the owner’s reasonable investmentbacked expectations for the use of the land, and the severity of the interference with
that use. Id. at 38-39.
Appellant argues that the trial court failed to consider the Ark. Game
factors. According to appellant, if the trial court had applied the proper test, the
court would have found that “there is at least [an] issue of fact for the factors
required to find a compensable taking by flooding.” (Respondent’s brief on appeal,
p. 15.)
Ark. Game is inapplicable. Unlike the periodic and temporary
flooding in Ark. Game, the flooding that occurred here was intermittent, but
recurring. And although the district court determined that Ark. Game was
applicable, that finding was in relation to a federal takings claim brought pursuant
to 42 U.S.C. 1983. Our concern here is appellees’ state takings claim.
Appellees direct this court to several instructive cases, and we take
note of a long line of Ohio Supreme Court cases that hold that a taking may result
where sewage or stormwater from a governmental authority causes damage to a
property owner. In Doner, 2011-Ohio-6117, the construction of a new spillway to
facilitate the discharge of lake waters intermittently overflowed onto privately
owned property. The Ohio Supreme Court cited United States v. Cress, 243 U.S. 316
(1917), where the Court determined that “[t]here is no difference of kind, but only of
degree, between a permanent condition of continual overflow by backwater and a
permanent liability to intermittent but inevitably recurring overflows; and, on
principle, the right to compensation must arise in the one case as in the other.” Id.
at ¶ 60, citing Cress at 328. See also Gilbert v. Cincinnati, 125 Ohio St.3d 385 (2010)
(city-owned pump station that discharged sanitary sewage into a creek running
through private property on “79 days between 1998 and 2008” was held to be a
physical taking that violated the downstream property owners’ constitutional
rights); Masley, 48 Ohio St.2d 334, at the syllabus (“The construction and operation
of a municipal storm sewer system so as to cause material damage to a downstream
landowner, as a result of flooding from rains or other causes which are reasonably foreseeable, is a direct encroachment upon that land which subjects it to a public use
that excludes or restricts the landowner’s dominion and control over his [or her]
land, and such owner has a right to compensation for the property taken under
Section 19, Article I of the Ohio Constitution.”); Lucas v. Carney, 167 Ohio St. 416
(1958), syllabus (construction of public improvement on county-owned land that
caused stormwaters to flood landowner’s property and deprived owners of use and
enjoyment of property constituted a taking “for which [the] county is liable, and the
owner of such property is entitled to institute an action and have a jury empaneled
to determine the compensation due [the landowner] from the county for the
appropriation pro tanto of [the landowner’s] property”); Norwood, 126 Ohio St. 482
(1933) (a petition that set forth that a sewer constructed by private parties, but
subsequently controlled and maintained by city, that caused flooding and pollution
on land, stated a cause of action for temporary appropriation of private property to
a public use); Mansfield v. Balliett, 65 Ohio St. 451 (1902), paragraph three of the
syllabus (“Where a municipal corporation, without a legal appropriation in which
the riparian owner is afforded an opportunity to obtain compensation, causes its
sewage to be emptied into a natural watercourse, thereby creating a nuisance
inflicting special and substantial damages on such proprietor, it is liable to an action
for the damages so sustained.”).
Appellees showed, by clear and convincing evidence, that the flooding
was the direct, natural, or probable result of appellant’s construction of the bioretention basins. Appellant counters that they offered evidence that the building had a history of flooding. But the evidence shows that there were only two historical
occurrences of flooding, once in 2011 that was the result of a failed sump pump and
again in 2016, which was caused by a backup of the Albers sewer. Since the
construction of the basins in 2019, there have been more than 80 flooding events.2
Appellees performed dye tests, which showed that the stormwater from Basins 4 and
5 flowed into the basement of building. Appellant did no testing of its own or offer
evidence to counter the conclusions of the appellees’ tests.
In 2021, appellees retained a structural engineer to inspect the
basement after a basement exit door became inoperable. The engineer, Christopher
Jasinski, reported that the repeated flooding of property and building with
stormwater caused mold, damage to the interior basement walls, and cracks in the
exterior basement foundation walls and basement floor. Jasinski concluded that the
basins were the cause of the frequent flooding of the basement level of the building.
Michael McAndrews (“McAndrews”), a landscape architect employed
by appellant, was responsible for the design, drafting, and implementation of the
basins. He also supervised the construction. According to McAndrews, he
intentionally designed the basins to maximize stormwater discharge into the basins
and intentionally placed Basins 4 and 5 within ten feet of the building. R.E. Warner
& Associates (“R.E. Warner”), an engineering firm, contracted with appellant for
general engineering and architectural services. Jennifer Kalin, director of business
2 At the time of the hearing on the motions for summary judgment, there had been
more than 90 flooding events.
development at R.E. Warner, stated that although the company’s proposal to
appellant included 26 hours of engineering services on the project, the only services
provided were pre- and post-construction drainage calculations, i.e., identifying the
volume of stormwater runoff prior to and after the improvements were made, and
surveying services. R.E. Warner did not provide any design or post-construction
services.
Appellant does not contest that the new basins discharge stormwater
from the parking lot into the ground within ten feet of the building and that it
constructed the basins knowing that the basement of the building was downstream
and lower than the basins. Appellant also offered no evidence to counter the
evidence appellees provided that the new storm basins caused the flooding to
appellees’ building.
Given the construction of the basins, which did not include barriers
to prevent water from infiltrating the ground, the high volume of stormwater flowing
from the parking lot, the downhill direction of the water flow, and the close
proximity of the basins to the building, the flooding of appellees’ property was a
foreseeable result of appellant’s actions.
Based on the evidence before this court, appellees have shown by
clear and convincing evidence that appellant’s action in constructing the basins
constituted a compensable taking.
The first assignment of error is overruled.
In the second assignment of error, appellant argues that the trial
court erred in denying their motion for partial summary judgment because the
claims are barred by the statute of limitations as to all appellees (except for
Riveredge), certain appellees lack standing, and appellees cannot meet their
summary-judgment burden. We consider each argument in turn.
Appellant contends that appellees, save Riveredge, filed their claims
outside the two-year statute of limitation that applied to this case —
R.C. 2744.04(A). Appellees counter that the appropriate statute of limitations is
four years, pursuant to R.C. 2305.09(E). In Doner, 2011-Ohio-6117, the Ohio
Supreme Court held that the four-year statute of limitations found in
R.C. 2305.09(E) is applicable to a takings claim. “‘Under R.C. 2305.09(E), an action
for relief on the grounds of a physical or regulatory taking of real property must
generally be brought within four years after the cause accrued.’” Id. at ¶ 34, quoting
State ex rel. Nickoli v. Erie MetroParks, 2010-Ohio-606, ¶ 29. “[T]he four-year
statute of limitations in R.C. 2305.09(E), which was expressly promulgated by the
General Assembly to address takings claims, is generally applicable to such claims.”
Doner at ¶ 35. Appellant has not convinced us otherwise.
The construction of the retention basins was substantially completed
in May 2019. Appellant was notified about the flooding in June 2019. Appellees
brought their takings claims on May 10, 2022. Assuming that the statute of
limitations began to run in June 2019 when flooding first started, appellees timely
asserted their claims.
Even if we determined that R.C. 2744.04(A) controlled, the Doner
Court found that ongoing control by a government entity can toll the running of the
limitations period. “‘[T]he defendant’s ongoing conduct or retention of control is
the key’ to distinguishing a continuing trespass, which tolls a statute of limitations,
from a permanent trespass, which does not.” Id. at ¶ 44, quoting Sexton v. Mason,
2008-Ohio-858, ¶ 45. “‘[A] continuing trespass in this context occurs when there is
some continuing or ongoing allegedly tortious activity attributable to the defendant.
A permanent trespass occurs when the defendant’s allegedly tortious act has been
fully accomplished.’” Doner at id., quoting Sexton at id. Even if we were to assume
appellant’s position that the two-year statute of limitations in R.C. 2744.04(A)
applied to appellees’ claims, “[w]hen an act carried out on the actor’s own land
causes continuing damage to another’s property and the actor’s conduct or retention
of control is of a continuing nature, the statute of limitations is tolled.” Doner at
paragraph two of the syllabus. Thus, under the facts of this case, their claims would
be tolled.
Accordingly, the appellees’ claim was timely filed.
Next, appellant claims that WVCA does not have standing to seek a
writ of mandamus because the association does not own the subject property. We
disagree.
In Riveredge, 2024 U.S. Dist. LEXIS 26292, the district court found
that WVCA had standing to bring a state takings claim:
[T]he court finds the [WVCA] has standing to assert a takings/inverse
condemnation claim. Under [R.C. 5311.20], a condominium owner’s
association has authority to sue as a separate legal entity in any action
relating to the “common elements.” [R.C. 5311.20]. In relevant part,
“common elements” are defined as “[a]ll other areas, facilities, places,
and structures that are not part of a unit,” which includes: “(a)
Foundations, columns, girders, beams, supports, supporting walls,
roofs, halls, corridors, lobbies, stairs, stairways, fire escapes, entrances,
and exits of buildings; [and] (b) Basements, yards, gardens, parking
areas, garages, and storage spaces; . . .” [R.C. 5311.01(F)]. “Further,
‘pursuant to R.C. 5311.20, the unit owners association, on behalf of all
unit owners and for each of them, is the proper party to bring an action
for damages pertaining to the common areas sustained by any or all of
the unit owners.’”
(Cleaned up.) Id. at *32 – 33.
The court concluded that because WVCA’s claim includes allegations
“concerning the common elements of the building, with flooding alleged to have
caused damages to common areas of the Building’s basement, foundation, and
structural elements,” WVCA had standing to assert a state-law takings claim. Id. at
*33. We agree with the reasoning of the district court and find that WVCA has
standing to assert a takings claim.
Moreover, as noted by the trial court, both R.C. 5311.081(B)(2) and
5311.20 grant a condominium association standing to commence a civil action on
any matter affecting the condominium property.3
Finally, appellant argues appellees, except for Riveredge, have an
adequate remedy at law.
3 R.C. 5311.081(B)(2) provides, in part, that a condominium association may exercise all powers of the association, including the power to commence any civil action that is in the name of the association and relates to matters affecting the condominium property.
“Mandamus will not issue if there is a plain and adequate remedy in
the ordinary course of law.” State ex rel. Mackey v. Blackwell, 2005-Ohio-4789,
¶ 21. Appellant relies on Mackey, in which the Court found that mandamus was
inappropriate because appellees had an adequate remedy at law — the availability
of a 42 U.S.C. 1983 federal civil rights claim. Appellant’s reliance on Mackey is
misplaced; Mackey did not involve a state constitutional takings claim and nothing
in that decision holds that a federal civil rights action provides an adequate remedy
at law for a takings claim brought pursuant to state law.
In Doner, 2011-Ohio-6117, appellees raised both federal and state
takings claims in their writ of mandamus. As the trial court in this case noted, the
Doner Court did not dismiss the state takings claim despite the pending federal
takings claim. Because appellees’ state tort claims are barred by R.C. Ch. 2744
immunity, appellees are without an adequate remedy at law and are therefore
entitled to seek a writ of mandamus based upon a state takings claim.
Accordingly, the trial court’s judgment is affirmed. Case is remanded
for the court to issue a writ of mandamus to compel the initiation of appropriation
proceedings.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
MICHAEL JOHN RYAN, JUDGE
EILEEN T. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR