COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68064 VILLAGE OF HIGHLAND HILLS : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION CITY OF CLEVELAND, ET AL. : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 2, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Probate Division, Case No. 1099145. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Thomas P. O'Donnell, Law Director, Village of Highland Hills, Suite 700, Skylight Office Tower, 1660 West Second Street, Cleveland, Ohio, 44113. For Defendant-appellant: Sharon Sobol Jordan, Director of Law, Solomon F. Balraj, Assistant Director of Law, City of Cleveland, Law Department, Room 106, City Hall, 601 Lakeside Avenue, Cleveland, Ohio, 44114-1077. Other Appearances: John P. Susany, Esq., Calfee Halter & Griswold, 800 Superior Avenue, #1800, Cleveland, Ohio, 44114, attorney for Figgie International, Inc.; Stephanie Tubbs Jones, Cuyahoga County Prosecutor, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio, 44113, attorney for Timothy McCormack, et al.; M.T. Lawler, Esq., 5491 Scioto Darby Road, Hilliard, Ohio, 43026, attorney for Monarch Energy Corporation. JAMES D. SWEENEY, P.J.: Defendant-appellant City of Cleveland appeals from the trial court's adverse pre-trial ruling on the City's motion to dismiss for lack of subject matter jurisdiction pursuant to Civ.R. 12(B)(1). For the reasons adduced below, we affirm. A review of the record on appeal indicates that plaintiff- appellee Village of Highland Hills, as the political subdivision successor to Warrensville Township, occupied several buildings and parcels of real property situated within the physical boundaries of the Village but which were owned by the City of Cleveland. This occupation was pursuant to a lease which expired in 1984. Thereafter, the Village continued its use of the Cleveland property as the parties negotiated for the sale and purchase of the property. In April of 1991, with the parties unable to reach a settlement, Cleveland filed eviction actions against the Village. See Cuyahoga County Common Pleas Case Numbers 215946 and 230709. On September 8, 1992, the Village adopted resolution 1992-12 which declared its intent to appropriate a fee simple interest in one of the properties. This resolution was made effective on September 9, 1992, as an emergency measure when the mayor of the Village signed it. In October of 1992, the common pleas court issued its judgment in favor of Cleveland on the eviction actions. The Village appealed the eviction judgment. On November 9, 1992, the Village passed appropriation ordinance 1992-48, thereby - 3 - appropriating the Cleveland-owned property for Village administrative purposes. No action was taken on this ordinance due to ongoing negotiations between the parties. The eviction judgment was affirmed by this Court. See City of Cleveland v. Village of Highland Hills (June 24, 1993), Cuyahoga App. Nos. 64604 and 64605, unreported, 1993 Ohio App. LEXIS 3187. Thereafter, the common pleas court trial judge in case number 230709 granted a writ of execution to enforce eviction of the 1 Village from the property effective 12:01 a.m. on May 21, 1994 . With eviction from their Cleveland-owned municipal office space pending, the Village adopted the following on March 9, 1994: 1. Resolution 1994-5, which declared the necessity and intent to appropriate one of the Cleveland-owned parcels for the purpose of using the building on that parcel as temporary municipal offices until an alternative site which had been purchased in December of 1993 could be made usable for municipal administrative office purposes; 2. Ordinance No. 1994-11, which implemented Resolution 1994-5. On March 23, 1994, two weeks after the passage of the appropriation resolution and ordinance, Cleveland received from the Village a notice of passage of resolution 1994-5 of intent to appropriate land. On March 25, 1994, the Village filed in probate court a Petition for Appropriation by Quick Take pursuant to R.C. 163.05 1 This eviction was ultimately executed successfully. - 4 - relative to two parcels of land totalling three acres located at the intersection of Northfield and Harvard Roads. This Petition was served on the City of Cleveland on April 4, 1994, via certified mail, pursuant to R.C. 163.07. On April 11, 1994, the Village filed a motion for quick take pursuant to R.C. 163.06 relative to the property contained in the Petition. On April 28, 1994, Cleveland filed: (1) its brief in opposition to the motion for quick take; and, (2) a motion to dismiss pursuant to Civ.R. 12(B)(1). On April 29, 1994, the Village filed a reply brief to the arguments presented in Cleveland's brief in opposition to the motion for quick take. On May 6, 1994, the Village filed its brief in opposition (mistitled as a reply brief) to Cleveland's motion to dismiss. On May 13, 1994, Cleveland filed a reply brief to its motion to dismiss. The motions for quick take and for dismissal were heard on May 16-18, 1994. On May 26, 1994, the trial court denied the motion to dismiss and denied the motion for quick take. Cleveland filed its answer on May 27, 1994, to the petition for appropriation. On September 26, 1994, the parties filed an agreed judgment entry settling the case. As part of the settlement, the Village agreed to pay Cleveland $128,000.00 as compensation for the property sought in the petition for appropriation while Cleveland reserved the right to appeal the ruling on the motion to dismiss. This $128,000.00 was deposited with the trial court. - 5 - On October 21, 1994, Cleveland filed: (1) its notice of appeal from the order of September 26, 1994; and, (2) an application for distribution of the $128,000.00 to the City of Cleveland. On November 28, 1994, subsequent to a hearing, the trial court ordered that the $128,000.00 (less approximately eight dollars owed to the County for taxes on the property) be distributed to the City of Cleveland. In this appeal, Cleveland's sole assignment of error provides: THE TRIAL COURT ACTED ARBITRARILY AND UNREASONABLY WHEN IT CONFERRED SUBJECT MATTER JURISDICTION ON THE CASE WHEN VILLAGE OF HIGHLAND HILLS DID NOT COMPLY WITH R.C. 719.05. In this assignment of error, Cleveland argues that the trial court was lacking subject matter jurisdiction due to the Village's non-compliance with R.C. 719.05 in that written notice of the appropriation resolution was not provided Cleveland prior to the March 9, 1994, passage of the ordinance authorizing the 2 appropriation. The question which is paramount is whether this 2 R.C. 719.05 provides: 719.05 Proceedings on passage of appropriation resolution. The mayor of a municipal corporation shall, immediately upon the passage of a resolution under section 719.04 of the Revised Code, declaring an intent to appropriate property, for which but one reading is necessary, cause written notice to be given to the owner of, person in possession of, or person having an interest of record in, every piece of property sought to be appropriated, or to his authorized agent. Such notice shall be served by a - 6 - clear non-compliance with R.C. 719.05's notice requirement is fatal to the trial court's jurisdiction over the subject matter of the petition for appropriation in this case. In addressing this assignment we are mindful that appropriation of real estate within a municipal corporation's corporate limits is permitted pursuant to R.C. 719.01. Under the present facts, the Village's appropriation was based on the projected permitted use of public halls and offices. R.C. 719.01(C). The purpose for written notice of the appropriation resolution is so that the party who owns the subject property can present defenses, if any, to the appropriation. R.C. 719.05. These defenses can be presented, indeed are required to be presented, in the property owner's answer to the petition for appropriation. R.C. 163.08. Additionally, R.C. 719.01 provides that: The powers conferred upon municipal corporations by this section shall be exercised for the purposes and in the manner provided in sections 163.01 to 163.22, inclusive, of the Revised Code. person designated for the purpose and return made in the manner provided for the service and return of summons in civil actions. If such owner *** cannot be found, notice shall be given by publication once a week for three consecutive weeks in a newspaper of general circulation in the municipal corporation, and the legislative authority may thereupon pass an ordinance by a two-thirds vote of all members elected thereto, directing such appropriation to proceed. (Emphasis added.) - 7 - R.C. 163.01-.22 govern appropriation of real property by a governmental unit for public purposes. R.C. 163.12 provides in pertinent part as follows: The court may amend any defect or informality in proceedings under sections 163.01 to 163.22, inclusive, of the Revised Code. The court may cause new parties to be added, and direct such further notice to be given to a party in interest as the court deems proper. (Emphasis added.) In the present case, appellant relies upon In re Appropriation of Easement for Highway Purposes (Richland, 1954), 99 Ohio App. 251, for the proposition that the failure to comply with a statutory condition precedent precludes the trial court from obtaining subject matter jurisdiction. We find In re Appropriation to be distinguishable on the facts. In In re Appropriation, where the notice of the appropriation resolution was served on the landowner prior to the petition being filed and which notice played no role in the appellate resolution of that case, the appellate court ruled that the trial court erred following the filing of the petition in having the question of compensation for the property determined by a regular jury, rather than a special jury, outside the time period for such a trial as required under Section 1178-38 3 of the General Code. This failure to follow the trial and jury venire procedure for appropriation actions in In re Appropriation caused the appellate court to rule that the trial court had abused 3 The trial and jury provisions in appropriation actions, as contained in Section 1178-38 of the General Code, are now provided in R.C. 163.09, .10 and .14. - 8 - the due process rights of the landowner which deprived the trial court of subject matter jurisdiction. In the present case, unlike In re Appropriation, the procedure followed by the trial court following the filing of the petition is not under attack. Since the trial court is able to cure any defect in the appropriation process, including notice to a party in interest, through the application of R.C. 163.12, thereby protecting the due process rights of the landowner, it cannot be said that non- compliance with the notice provision contained in R.C. 719.05 divests the trial court of subject matter jurisdiction. Assignment overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court, Probate Division, 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. Exceptions. JAMES M. PORTER, J., and ANN DYKE, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .