STATE EX REL STANDEN v. NORTH RIDGEVILLE (2026)

{¶ 1} In this original action, relators, Mark Standen and Matthew Standen (collectively, “the Standens”), seek a writ of mandamus to compel respondent, the City of North Ridgeville, to commence appropriation proceedings for a taking of their real property for a roadway-construction project. Even though there has already been an appropriation trial for a partial taking of the Standens’ property for the project, the Standens contend that the city should commence a second action to compensate them for the deprivation of roadway access from their remaining property. The Standens have also filed a motion for leave to file rebuttal evidence in this case.

{¶ 2} We deny the motion for leave to file rebuttal evidence because it is procedurally defective. And because the Standens have already exhausted their adequate remedy in the ordinary course of the law, we deny the writ.

I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

A. The City Takes Property to Build a Roundabout

{¶ 3} In 2003, Mark Standen purchased a 2.67-acre parcel at the northwest corner of State Route 83 and Chestnut Ridge Road in North Ridgeville, Ohio. Mark purchased the parcel as an investment, believing that someone would eventually want to buy the property from him for commercial development. Upon acquiring the property, Mark tore down an existing house and kept the land vacant thereafter, with no intention of developing it. Mark's brother, Matthew Standen, later became a joint owner of the property.

{¶ 4} According to the Standens, the property enjoyed “unfettered physical access” to Chestnut Ridge Road and State Route 83 at every point along the property's frontage to those roadways; that is, no curb existed at any point along the property's frontage to either road. In addition, there was an existing driveway running from Chestnut Ridge Road to the part of the property where the house had previously stood.

{¶ 5} In 2023, the city determined that it would construct a traffic roundabout at the intersection of Chestnut Ridge Road and State Route 83, also known as Avon Belden Road. The city offered the Standens $236,400 for a portion of their property. According to the Standens, the city determined that $236,400 was the fair market value for the portion to be used for the project and that there would be no damage to the residual property. The Standens rejected the city's offer.

{¶ 6} On November 29, 2023, the city effectuated a “quick take” of the Standens’ property needed for the roundabout project.¹ On the same day, the city commenced appropriation proceedings against the Standens in the Lorain County Probate Court. N. Ridgeville v. Standen, Lorain C.P. No. 2023 PC 00050. Attached to the city's appropriation petition was a legal description of the property being taken as well as the plans and specifications for the roundabout project. Those plans and specifications do not show curb-cut access to either State Route 83 or Chestnut Ridge Road from the portion of the Standens’ property that would remain after the partial taking—i.e., the residue; to the contrary, the plans and specifications show a six-inch-high curb along the entire length of the property. In its prayer for relief in the appropriation case, the city asked that a jury “assess compensation to be paid by [the city] for the [property], and damag[e] to the residue (if any).” (Emphasis added.)

B. The Damages Trial

{¶ 7} The probate court held a two-day trial on March 5 and 6, 2025. The Standens and the city called their respective appraisers as witnesses. Charles E. Kirk, the city's appraiser, valued the Standens’ property at $700,800 before the partial taking for the roundabout project, with the part taken valued at $236,400. These figures were based on a pretaking value of $300,000 an acre. Based on the same per-acre valuation, Kirk appraised the residue at $464,400 before the partial taking. Kirk testified that this valuation of the residue did not change after the partial taking; Kirk opined that no damages arose from the taking. Thus, Kirk determined, the total damages due the Standens was $236,400—i.e., the value of the part taken.

{¶ 8} Kirk acknowledged that no access from the residue to either State Route 83 or Chestnut Ridge Road was depicted on the construction plans. But he understood the reason for that to be that the city did not want to dictate where the access would eventually be. On cross-examination, Kirk testified that his determination of damages would not have changed if he had known that no access to either State Route 83 or Chestnut Ridge Road would be allowed after the project. This testimony appeared inconsistent with previous deposition testimony in which Kirk had indicated that the residue's value would be affected if roadway access were restricted.

{¶ 9} The Standens’ appraiser, James Horner, agreed with Kirk's valuation of the Standens’ property at $300,000 an acre before the partial taking. Based on that valuation, Horner—like Kirk—appraised the property at $700,800 before the taking, with the part taken valued at $236,400. Horner parted ways with Kirk, however, on the issue of residue damages. Horner appraised the residue at $154,800 after the partial taking, which was $309,600 less than its value before the taking. Horner therefore calculated the Standens’ total damages to be $546,000.

{¶ 10} Horner testified that in reaching his damages figure, he assumed that the Standens would have access from the residue to Chestnut Ridge Road but that access to State Route 83 would not be feasible after the construction of the roundabout. Without the possibility of access to Chestnut Ridge Road, Horner testified, the Standens’ remaining property “would be a landlocked parcel.”

{¶ 11} Mark Standen also testified at trial. According to Mark, during the negotiation process with the city, he pointed out that the plans and specifications of the project showed no roadway access to the residue upon completion of the roundabout. In contrast, Mark testified, before the partial taking, there was “[u]nlimited access” to the Standens’ property from either State Route 83 or Chestnut Ridge Road because there were no curbs or other barriers to prevent the Standens from putting in another driveway at any spot.

{¶ 12} At the time of trial, there were still no construction plans that showed access to the property from either road. Due in large part to that lack of access, Mark estimated the Standens’ total damages to be between $800,000 and $850,000. This estimate coincides with Mark's opinion that the value of the entire property as of November 29, 2023 (i.e., the date of the quick take) was $800,000 to $850,000. In other words, Mark considered the residue's value to be zero after the partial taking because he considered the residue to be undevelopable due to the lack of roadway access.

{¶ 13} The city's engineer, Christina Eavenson, was also called as a witness. Eavenson did not dispute that the plans and specifications for the roundabout project show no curb cut anywhere on the Standens’ property. She testified, however, that the absence of a curb cut on the plans and specifications did not mean that there would be no roadway access to the residue upon completion of the roundabout. An owner can obtain roadway access, she explained, either by requesting a curb cut for access from a preexisting driveway or by applying for a permit to construct a driveway where there was not one previously. To construct a new driveway, Eavenson further explained, the Standens would have to go through the same process after the partial taking as they would have had to before the taking. In other words, even if the taking had not occurred, the Standens would have had to obtain a permit to construct a new driveway anywhere on their property.

C. The Jury's Verdict

{¶ 14} In its jury instructions, the trial court expressly charged the jury with its responsibility to determine the amount of compensation to be awarded for any damage to the residue:

In addition to the compensation for property taken, the owner is entitled to [recovery for] any decrease in the fair market value of the residue or remaining land that is a direct result of the appropriation of part of the land. If the remaining land is less valuable because of the severance from the part taken, then you must consider such injury and determine the amount of such decrease in fair market value caused by the severance of the parts taken. This will be the amount awarded for damag[e] to the residue.

If the value of the residue is not reduced because of the appropriation, then there is no damage to the residue. But if you find from the evidence that the remaining portion of the property has been injured and is less valuable from the parts taken, then you should inquire into such injury and determine in dollars and cents the amount of such loss or depreciation caused by the injury. This will be the amount [for] damag[e] caused to the residue of the property.

In considering whether or not the residue of the property has sustained any damag[e], elements of inconvenience, internal circuity of travel, interference with access, interference with visibility, and interference with enjoyment and use of the property, particularly affecting its market value, should be considered.

{¶ 15} The court further instructed the jury on how to calculate compensation for any damage to the residue. The jury was to determine the fair market value of the entire property before the taking, then to “subtract the fair market value of the property after the appropriation from the value of the property before the appropriation,” with that difference in value being the total compensation for damage to the residue.

{¶ 16} After an hour of deliberation, the jury awarded the Standens a total of $700,800, which consisted of (1) $236,400 for the property taken and (2) $464,400 for damage to the residue. Thus, the jury awarded the pre-appropriation fair market value of the entire property, as valued by both appraisers who testified at trial. With this award, the jury necessarily found the post-appropriation fair market value of the residue to be zero.

{¶ 17} The city filed a motion for a new trial, which the trial court denied. The court entered judgment on the jury's verdict on June 18, 2025.²

D. The Standens Commence This Action Seeking a Second Damages Trial

{¶ 18} The Standens commenced this action in this court on April 4, 2025. In their complaint, the Standens allege that because of the roundabout project, the residue of their property has been “landlocked, with no means of lawful vehicular ingress or egress” since November 29, 2023. Thus, the Standens allege, the city has effectuated a total taking of their property without just compensation for damage to the residue. The Standens seek a writ of mandamus ordering the city to initiate appropriation proceedings for “its total taking, including the [residue].”

{¶ 19} We granted an alternative writ, setting a schedule for the submission of evidence and briefs. 2025-Ohio-4796, 269 N.E.3d 414. The parties have submitted evidence and merit briefing, and the Standens have also filed a motion for leave to file rebuttal evidence.

II. MOTION FOR LEAVE TO FILE REBUTTAL EVIDENCE

{¶ 20} In their motion for leave to file rebuttal evidence under S.Ct.Prac.R. 12.06(B), the Standens proffer the affidavit of their counsel Dennis O'Toole and the transcript of the pretrial deposition of Eavenson, the city engineer. The Standens submit the evidence as purported rebuttal to the city's argument, raised in its merit brief, that res judicata bars a second appropriation action.

{¶ 21} Rebuttal evidence “is that given to explain, refute, or disprove new facts introduced into evidence by the adverse party; it becomes relevant only to challenge the evidence offered by the opponent, and its scope is limited by such evidence.” State v. McNeill, 1998-Ohio-293, ¶ 44, 83 Ohio St.3d 438, 700 N.E.2d 596. We have discretion in determining whether to allow rebuttal evidence. Id.

{¶ 22} We deny the Standens’ motion because the rebuttal affidavit of O'Toole, which attests to certain facts and authenticates the deposition transcript attached thereto, is defective. O'Toole, the affiant, did not sign the affidavit; rather, it was signed by his cocounsel, Stephen M. Bosak, “by proxy.” In this case, Bosak's signature did not comply with the statute allowing for such signing.

{¶ 23} R.C. 147.59(B) states that “[a]n individual whose physical characteristics limit the individual's ability to sign a document presented for notarization may direct a designated alternative signer to sign on the individual's behalf” provided that five enumerated requirements are met. One of these requirements is that “[t]he notarial certificate provided to the individual gives the name of the designated alternative signer and states that the document was signed under [R.C. 147.59] at the direction of the individual.” (Emphasis added.) R.C. 147.59(A)(5). The notarial certificate on O'Toole’s affidavit does not refer to the statute and is therefore noncompliant with its requirements for proxy signing. We therefore deny the motion for leave to file rebuttal evidence.

III. ANALYSIS

{¶ 24} The United States and Ohio Constitutions guarantee that private property shall not be taken for public use without just compensation. U.S. Const., amend. V and XIV; Ohio Const., art. I, § 19. A mandamus action is the appropriate action to compel a public authority to initiate appropriation proceedings when an involuntary taking of private property is alleged. State ex rel. Shemo v. Mayfield Hts., 2002-Ohio-1627, ¶ 21, 95 Ohio St.3d 59, 765 N.E.2d 345. To be entitled to a writ of mandamus, the Standens must establish a clear legal right to compel the city to initiate an action to appropriate the residue of their property, a clear legal duty on the part of the city to initiate such an action, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Doner v. Zody, 2011-Ohio-6117, ¶ 53, 130 Ohio St.3d 446, 958 N.E.2d 1235. The Standens bear the burden to prove their entitlement to the writ by clear and convincing evidence. Id. at ¶ 57.

{¶ 25} To establish a taking, the Standens must demonstrate “a substantial or unreasonable interference with a property right,” State ex rel. OTR v. Columbus, 1996-Ohio-411, ¶ 12, 76 Ohio St.3d 203, 667 N.E.2d 8. The interference “may involve the actual physical taking of real property, or it may include the deprivation of an intangible interest in the premises.” Id. In this case, there has been an actual physical taking: the city appropriated a portion of the Standens’ real property for purposes of constructing a roundabout at the intersection of State Route 83 and Chestnut Ridge Road. The parties do not dispute that the city must compensate the Standens for the actual physical taking of the portion used for the roundabout project. The Standens contend, however, that there remains a substantial and unreasonable interference with their remaining property—namely, the deprivation of roadway access to the residue.

{¶ 26} “One of the elemental rights growing out of the ownership of a parcel of real property is the right to access abutting public roadways.” Id. at ¶ 13. Thus, an owner of abutting property possesses “not only the right to the use of the highway in common with other members of the public, but also a private right or easement for the purpose of ingress and egress to and from his property.” State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53 (1955), paragraph one of the syllabus. Here, therefore, the city “may not take away, destroy or substantially impair that right of access without providing compensation,” State ex rel. New Wen, Inc. v. Marchbanks, 2020-Ohio-63, ¶ 17, 159 Ohio St.3d 15, 146 N.E.3d 545. Thus, the Standens are correct that the alleged deprivation of roadway access from the residue of their property—i.e., the portion not actually taken by the city—is a compensable property interest. See State ex rel. Balunek v. Marchbanks, 2023-Ohio-2517, ¶ 10-11, 173 Ohio St.3d 34, 227 N.E.3d 1124.

{¶ 27} Standing alone, however, the fact that a deprivation of roadway access from the residue of the Standens’ property is a compensable property interest does not mean that they are entitled to a writ of mandamus in this case. The city argues that the Standens cannot obtain the mandamus relief they seek here—i.e., a second trial to compensate them for a taking of the residue—because they had an adequate remedy in the ordinary course of the law. That is, the city contends, the Standens had the opportunity to raise the issue of compensation for the lack of roadway access to the residue in the previous appropriation action. The city also argues that the issue of compensation for the deprivation of access to the residue was actually litigated in the previous trial and, therefore, is res judicata.

{¶ 28} In a partial-takings case, the owner must be compensated for the portion of property taken and for any damage to the residue. Proctor v. NJR Properties, L.L.C., 2008-Ohio-745, ¶ 15, 175 Ohio App.3d 378, 887 N.E.2d 376 (12th Dist.); see also Cleveland Elec. Illum. Co. v. Astorhurst Land Co., 18 Ohio St.3d 268, 272, 480 N.E.2d 794 (1985) (“In an appropriation case, one of the issues for jury determination is that of damag[e] to the residue estate.”); R.C. 163.14(B) (“The jury, in its verdict, shall assess the compensation for the property appropriated and damag[e], if any, to the residue, to be paid to the owners.” [Emphasis added.]). Indeed, in accordance with the statutory and case law applicable to partial takings, the petition filed by the city in the trial court specifically asked for a jury trial to determine the compensation to be paid for the part taken by the city “and damag[e] to the residue (if any).”

{¶ 29} Accordingly, by filing a petition for a partial taking of the Standens’ property, the city placed at issue in the appropriation case the damage, if any, to the residue. And by law, the jury was required to assess compensation for the damage to the residue and include that amount in its verdict. R.C. 163.14(B). The jury's assessment of such damage includes such factors as the loss of ingress and egress to the residue. Proctor at ¶ 15. Moreover, if the Standens believed that the jury had not awarded them enough for the loss of roadway access resulting from the partial taking, they could have filed a cross-appeal after the city appealed the judgment entered on the jury's verdict. For these reasons, the Standens have already exhausted their adequate remedy in the ordinary course of the law to the extent that they seek damages for a loss of roadway access to the residue following the partial taking.

{¶ 30} Because the Standens have not proved their entitlement to a writ of mandamus compelling a second appropriation proceeding, we need not reach the issue whether the doctrine of res judicata bars the relief they seek in this case.

IV. CONCLUSION

{¶ 31} For the foregoing reasons, we deny the Standens’ motion for leave to file rebuttal evidence and deny the writ.

Writ denied.

FOOTNOTES

1.   The quick-take provision in R.C. 163.06(B) provides that “[a] public agency appropriating property for the purpose of making or repairing roads which shall be open to the public, without charge, ․ may deposit with the court at the time of filing the petition [for appropriation] the value of such property appropriated as determined by the public agency, and ․ thereupon take possession of and enter upon the property appropriated.”

2.   The city appealed the judgment to the Ninth District Court of Appeals. The court of appeals affirmed the probate court's judgment. N. Ridgeville v. Standen, 2026-Ohio-2234, 2026 WL 1728115 (9th Dist.).

Per Curiam.

The per curiam opinion below was joined by Kennedy, C.J., and Fischer, DeWine, Brunner, Deters, Hawkins, and Shanahan, JJ.