Summary
upholding R.C. 163.09 and holding that a jury should be empaneled even where the property owner fails to answer if the state does not disclose its monetary offer in a court filing within a reasonable time prior to the answer deadline
Summary of this case from Wray v. Allied Industrial DevelopmentOpinion
No. 68-512
Decided July 16, 1969.
Appropriation of property — Value of property taken determined, how — Condemner's failure to set forth value of property — Property owner's answer — Purpose of — Failure to file — Condemner's motion to declare value — Court not required to sustain, when — Issue of proper valuation — Right to trial by jury — Sections 163.08 and 163.09, Revised Code.
1. Where a property owner, in a proceeding to appropriate real property, has been served with summons and a copy of the petition for appropriation, and neither the petition nor any document on file with the clerk of courts sets forth the value of the property to be taken, the property owner's failure to file an answer, as provided in Section 163.08, Revised Code, does not impose a duty on the court, under Section 163.09, Revised Code, to sustain a public agency's motion to declare the value of the property to be as set forth in a document filed with the court by the public agency two days subsequent to answer day.
2. One of the purposes of the provision of Section 163.08, Revised Code, that a property owner may file an answer is to put in issue the question of proper valuation of the property to be appropriated.
3. If a public agency in an appropriation proceeding fails to file, prior to answer day, any document having the purpose of informing the property owner of the value assigned to the property by the agency, the issue of proper valuation cannot be raised unilaterally by the agency after the time for filing an answer has passed so as to defeat the property owner's constitutional guarantee of a jury trial as provided by Section 19 of Article I, and Section 5 of Article XIII of the Ohio Constitution.
4. Where a property owner has failed to timely file an answer, within the time prescribed by Section 163.08, Revised Code, the court may refuse to grant a public agency's motion to declare the value of property appropriated and damages to the residue where such agency has failed to set forth the value of the property in any document filed within a reasonable time prior to the expiration of the time for filing an answer.
APPEAL from the Court of Appeals for Summit County.
On September 8, 1967, the Board of Education of the Cuyahoga Falls City School District filed a petition in the Court of Common Pleas for the appropriation of real property, owned by appellees, for school purposes. A praecipe was filed, and all appellees were served with summons which stated that an answer must be filed by October 7, 1967, or the petition would be taken as true, and judgment rendered accordingly. Thereafter, the attorneys for the parties discussed the case, but without mentioning monetary amounts which could have been a basis for settlement negotiations.
Neither the petition nor exhibit A, a resolution attached thereto, sets forth a sum as value assigned by appellant for the property to be appropriated.
The appellant, Board of Education, on October 9, 1967, filed a motion stating that appellees had not filed an answer and moved the court to declare the value of the property taken as provided in Section 163.09(A), Revised Code. On the same date, appellant filed with the clerk of the Court of Common Pleas a letter from James H. Nobil, stating that, in his opinion, the fair market value of the property was $30,000.
On November 28, 1967, after hearing, the Court of Common Pleas overruled appellant's motion and ordered that a defense to the action could be made without answer. Later, the cause was tried to a jury, which returned a verdict for appellees in the sum of $54,400, and judgment was entered upon the verdict.
The Court of Appeals for Summit County affirmed the judgment. The cause is now before this court as an appeal as of right and pursuant to the allowance of a motion to certify the record.
Mr. William B. Pike, director of law, and Mr. William P. Holder, Jr., for appellant.
Mr. Max W. Johnstone and Mr. Richard V. Zurz, for appellees.
In Cincinnati v. Bossert Machine Co., 16 Ohio St.2d 76, we clearly announced the mandate under the provisions of Section 163.08, Revised Code, that no extension of time for filing an answer shall be granted to a defendant whose property is the subject of a petition for appropriation by a public agency. In comment regarding Sections 5519.02 and 163.08, Schneider, J., at page 78, reasoned: "In either case, the purpose of the responsive pleading is to raise the issue of proper valuation." In the Bossert Machine Co. case, the petition stated an alleged value of the property to be appropriated.
Have appellees herein, by failing to file an answer, waived their rights under Section 19, Article I of the Constitution, to have a jury fix the compensation of property sought to be appropriated?
Section 163.09(A), Revised Code, provides in part that "if no answer is filed pursuant to Section 163.08 of the Revised Code * * * the court on motion of a public agency shall declare the value of the property taken and the damages, if any, to be as set forth in any document properly filed with the clerk of courts, by the public agency." (Emphasis supplied.)
Admittedly, the board of education did not set forth in any document properly filed with the clerk of courts the value of the property taken until two days after answer day.
The procedure provided in Section 163.09(A), supra, is different from that regularly used when judgment by default is entered. The ordinary procedure allows the trial court discretion as to the manner in which damages are assessed or value established. See Section 2323.11, Revised Code.
We believe that the special legislative departure from the usual rule concerning default was intended to accomplish an important objective. In proceedings under Section 163.09, Revised Code, the General Assembly specially provided a means whereby a property owner may consult documents filed with the clerk of courts and immediately determine the value he will be paid for the property appropriated. He may choose to answer or decline to answer, knowing that he will receive an amount certain. If an appropriating agency does not reveal the value it places on the property until answer day passes, the property owner would have no means by which to intelligently decide whether to forego a jury determination. Appellees, and those similarly situated, have a right to rely on Section 163.09(A), Revised Code. To allow a public agency, in an appropriation proceeding, to assign no monetary value to the property, await the passing of answer day, and thereafter provide a unilateral appraisal and obligate the property owner to accept that amount by operation of law, would be grossly unfair. The failure to timely place a value on the property cannot be relied upon by the appropriating agency to remove that item from issue to its advantage. The agency's right to have the court declare the value of the property, where no answer is filed, as provided by Section 163.09(A), supra, of necessity, is conditioned upon its setting forth an assigned value of the property in a document, properly filed with the clerk of courts a reasonable time before answer day. Failure to meet this requirement constitutes a waiver of the right to have the court declare the value of property and the damages on motion.
In the instant case, only after appellees had gained knowledge of the value assigned by the board of education was the issue of proper valuation raised. Thereafter, appellees were entitled to their right under Section 19, Article I of the Constitution, to have a jury fix the amount of compensation for the property.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., MATTHIAS, O'NEILL, LEACH and HERBERT, JJ., concur.
This decision was made after the death of JUSTICE ZIMMERMAN and before the appointment of a successor.
LEACH, J., of the Tenth Appellate District, sitting for SCHNEIDER, J.