COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73504 CABLEVISION OF THE MIDWEST, INC. : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION ROBERT L. STARK ENTERPRISES, : INC.. et al. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT NOVEMBER 25, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-335058 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: ALAN G. STARKOFF, ESQ. Chatman Gaines & Stern 1400 Renaissance Center 1350 Euclid Avenue Cleveland, Ohio 44115-1817 For Defendant-Appellee: RUBIN GUTTMAN, ESQ. ANN MARIE STOCKMASTER, ESQ. Rubin Guttman Co. 55 Public Square, Ste. 2130 Cleveland, Ohio 44113 - i - For Appellant: CARLOS WARNER, ESQ. Assistant Public Defender For Amicus Curiae: DEBORAH C. COSTLOW, ESQ. Arent, Fox, Kintner, Plotkin & Kahn 1050 Connecticut Avenue., N.W. Washington, D.C. 20036 For Independent Cable & ALAN G. FISHEL, ESQ. Telecom. Assn.: Arent, Fox, Kentner, Plotkin & Kahn 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 For Nat'l Apartment Assn.: KATHRYN R. GUGLE, ESQ. Havens Willis Erney Skrobot & Fisher 250 E. Broad St., Ste. 1500 Columbus, Ohio 43215 For National Multi Housing WILLIAM L. WILLIS, ESQ. Council: Havens Willis Erney Skrobot & Fisher 250 E. Broad St., Ste. 1500 Columbus, Ohio 43215 Ohio Cable Television Assn.: STEPHEN M. HOWARD, ESQ. SCOTT J. ZIANCE, ESQ. Vorys Sater Seymour & Pease 52 East Gay Street Columbus, Ohio 43215 Ohio Public Utilities Comm.: DUANE W. LUCKEY, ESQ. THOMAS W. MCNAMEE, ESQ. STEVEN T. NOURSE, ESQ. Assistant Attorneys General 180 East Broad Street, 7th Floor Columbus, Ohio 43215-0573 - ii - Ohio Telecom. Ind. Assn.: THOMAS E. LODGE, ESQ. RAYMOND J. PROHASKA, ESQ. Thompson, Hine & Flory One Columbus, Ste. 700 10 West Broad Street Columbus, Ohio 43215-3435 ANN MARIE STOCKMASTER, ESQ. 55 Public Square, Ste. 2130 Cleveland, Ohio 44113 For Telecomm. Ind. Assn.: THOMAS A. LINTON, ESQ. 45 Erieview Plaza Room 1424 Cleveland, Ohio 44114 -2- PATRICIA ANN BLACKMON, A.J.: Appellant Cablevision of Midwest, Inc. appeals the trial court's dismissal of its declaratory judgment action seeking relief to appropriate an easement onto the land and in the buildings thereon of property identified as Terraces at Northridge. Appellant sued appellees Robert L. Stark Enterprises, Inc., the developer, and Terraces at Northridge, Ltd., the apartment building. The trial court held appellant failed to provide appellees with a description of the land to be appropriated, the interest to be appropriated, and failed to provide appellees, or file with county engineer, a description of the improvement or use sought. Appellant states it is a communications business with power to exercise appropriation as described under R.C. 4931.04 and its petition to appropriate the easement was sufficient. See Cablevision of the Midwest, Inc. v. Gross (1994), 70 Ohio St.3d 541. As such, it argues its petition satisfied the procedural due process requirements of R.C. 163.04 and 163.05, which are conditions precedent to an R.C. 4931.04 appropriation action. Consequently, appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED IN CONCLUDING, AS A MATTER OF LAW, THAT CABLEVISION WAS NOT AUTHORIZED TO APPROPRIATE AREAS WITHIN BUILDINGS UNDER O.R.C. S4931.04. II. THE TRIAL COURT ERRED IN DETERMINING THAT THE PETITION FOR APPROPRIATION FILED BY CABLEVISION DID NOT COMPLY WITH THE REQUIRE- MENTS OF O.R.C. S163.05(A), O.R.C. S163.05(D) AND O.R.C. S163.05(H) AS CABLEVISION'S PETITION PROVIDED ADEQUATE NOTICE TO THE APPELLEES AS REQUIRED BY O.R.C. S163.05. -3- III. THE TRIAL COURT ERRED WHEN IT FAILED TO SCHEDULE AND CONDUCT A VALUATION HEARING WITHIN TWENTY (20) DAYS OF THE FILING OF APPELLEES' ANSWER AS REQUIRED BY O.R.C. S163.09(D), SINCE THE APPELLEES' ANSWER TO CABLEVISION'S PETITION FAILED TO ALLEGE FACTS SUPPORTING APPELLEES' DENIALS AS MANDATED BY O.R.C. S163.08. Having reviewed the record, the arguments, and the amicus curiae briefs1, we reverse the decision of the trial court and remand this case to the trial court for proceedings consistent with this opinion. Appellant's declaratory judgment action in the common pleas court alleged it was a communications business and that on May 12, 1997 it notified appellees of its intention to enter onto the premises of Terraces at Northridge to lay cable wire for prospective customers. Appellant stated it had been refused access and notified appellees that its conduct violated current law. In its complaint, appellant pointed out that it attempted to lay the wire in late April or early May 1997. Appellant alleged it intended to install the cable wiring alongside existing underground power lines. It described the interest as an easement. Appellant noted that the on-going development on the site could make its efforts difficult because of potential paving. Also, the complaint 1 The court received amicus curiae briefs from the following organizations: The Ohio Telecommunications Industry Association; The Ohio Cable Telecommunications Association; The Public Utilities Communications Commission of Ohio; The National Multi-Housing Council, The National Apartment Association, and the Ohio Apartment Association; and the Independent Cable and Telecommunications Association. -4- pointed out that internal construction could make the project impractical. In addition to the complaint, appellant filed a motion for preliminary injunction and a temporary restraining order seeking to delay construction until it had the opportunity to install the wiring. Both motions were granted and appellant was given access to install its underground wire. However, appellant was not permitted to complete the wiring inside the building or market its services to the tenants of Terraces. Appellant amended its complaint without objection on May 29, 1997 and included the additional paragraphs: 32. Plaintiff intends to install the noted cable wiring alongside easements allowing the installation of lines that convey telephone communications and conduct electricity to the individual apartment units at the Premises. 33. Plaintiff seeks to appropriate the limited space necessary to install its cable wiring in each individual apartment unit at the Premises in a manner substantially similar to the installation of the wiring that provides electricity and telephone services thereto. 34. The noted appropriation is necessary to provide cable television service to the residents at the Premises. In appellant's letter to appellees' lawyer the following paragraph outlined the property to be seized: During the last of three conversations between our representative, Kip Eiger, and your project superintendent, Paul Stimak, on May 12, 1997, Mr. Stimak instructed Mr. Eiger that he would not permit Cablevision to enter the property for the purpose of cabling the units being constructed. Our construction people have further advised me that the conduit trenches have been dug and that the -5- conduit will be placed some time during the week of May 19, soon to be followed by the paving of these areas. We also understand that the internal construction has proceeded to the point where it may soon be much more difficult and expensive for Cablevision to wire the individual units. Appellant holds a non-exclusive franchise from the city of Brooklyn where the property is located. As part of Terraces' standard rental agreement, it provides a comprehensive package of amenities to its residents, including satellite television service through arrangements with ResNet Communications, Inc. The satellite services Terraces provided were also integrally linked with Terraces' security camera hook-up and permited Terraces' residents and on-site personnel to monitor anyone seeking access to the Complex. No additional fees were charged to enjoy the security and entertainment opportunities that Terraces' cable system provided. Motion to Dismiss at 4. Appellees characterized appellant's requested entry onto the property as a pathway into, through and throughout Terraces' buldings. Appellees' brief at 9. Additionally, appellees urge that if appellant has its way, it could require that the developer maintain open walls until the wiring process was completed. Appellant submits that its initial goal was to lay its wires alongside existing underground lines, which it did. Appellant maintains that it will provide its cable services to only those customers in the complex who desire it. Appellant also maintained it would not interfere with the existing security system. -6- At the onset, we must recognize that a horrifying picture has been painted by the appellees. Appellees argue that if appellant is allowed the appropriation, it could enter individual tenants' units and invade walls and existing structures to the detriment of the tenants and ultimately appellees. We believe that if appellant is of a mind to engage in such an expensive endeavor it certainly would be at its own cost and not the appellees. One would think that appellant would think of a less costly way to expand its enterprise. Additionally, appellant cannot force its product upon an unwilling consumer. However, it does have a right to make that product available, and it may do so through appropriation, which brings us to appellant's first assigned error. As a matter of law, this court concludes that appellant is a communications business under R.C. S4931.11, and as such is entitled to all of the appropriations powers under R.C. S4931.04. Cablevision of the Midwest, Inc. v. Gross, supra. In Gross the chief justice defined the issue thusly: First, we must decide whether Cablevision is a communications business under R.C. S4931.11, thereby entitling it to exercise the power of eminent domain described in R.C. S4931.04. Id. at 543. The court went on to say: It is argued that cable television systems should not have the broad power of eminent domain described in R.C. S4931.04. (FN1) However, we should not ignore the plain language of the statute. The method of transmission employed by a cable television system is expressly mentioned in R.C. -7- S4931.11. Furthermore, the General Assembly included the broad term communications business in the statute and then left it undefined. A reasonable use of such broad language would be to reflect the General Assembly's belief that communications technology was subject to continued advancement and that the statute should be so broad as to include such advancement. Id. at 545. Based on this language in Gross, we conclude that appropriation powers are conferred upon appellant. However, appellees argue that R.C. S4931.04 speaks only to land and not to buildings. The court in Gross made no such distinction. In fact, by conferring cable television companies appropriation power, the court was keenly aware that this would include buildings, especially since cable companies by their nature enter upon buildings as well as land. The trial court, however, held in applying the linguistic cannons of construction, that if the legislature intended to include buildings, it would have specifically stated such, thus, invoking the doctrine of expressio unius est exclusio alterius. As a rule, if an item is not explicitly mentioned in the statute, the law concludes that it is excluded. Vincent v. Zanesville Civ. Serv. Com.(1990), 54 Ohio St.3d 30, 33. However, that concept does not apply when a term generic in usage is generally believed to include others. The consistent meaning of the word land has also included structures. In fact, the district court of Ohio concluded that once a brick was incorporated into a building, it became affixed to realty and was therefore real property. Adcor Realty Corp v. Millon-Stuart Co.(N.D. Ohio 1978), 450 F.Supp 769. To rule as the -8- trial court has done, that buildings do not come within the meaning of land, is inconsistent with history. Consequently, appellant's first assigned error is well taken. In its second assignment of error, appellant argues the trial court erred in determining that its appropriation petition was defective. We agree. R.C. S163.04 provides that appropriations shall be commenced after an agency cannot agree with an owner for any reason or when the agency is unable to contact the owner after reasonable diligence. Thus, when R.C. S163.04 is triggered a petition may be filed under R.C. S163.05. The petition must be verified and each section of R.C. S163.05 must be met. This trial court held that appellant failed to meet Sections (A), (D) and (H). They are as follows: (A) A description of each parcel of land or interest or right therein sought to be appropriated, such as will permit ready identification of the land involved; (D) A statement of the estate or interest sought to be appropriated; (H) * * * In the event of the appropriation of less than the fee of any parcel or of a fee in less than the whole of any parcel of property, the agency shall either make available to the owner or shall file in the office of the county engineer, a description of the nature of the improvement or use which requires the appropriation, including any specifications, elevations, and grade changes already determined at the time of the filing of the petition, in sufficient detail to permit a determination of the nature, extent, and effect of the taking and improvement. Upon reading appellant's complaint, this court is of the opinion that the trial court erred. Appellant specifically informed -9- appellees that it intended to lay cable wire along existing communication lines. The property identified was the development at Terraces at Northridge. It is true that appellant did not provide the specifications, grade changes, and elevations as required under Section (H). However, the complaint is not defective as a result. Section S163.05(H) provides that this information may be provided to either the owner or county engineer. This requirement is designed to give the court sufficient detail to permit it to establish the nature, extent, and effect of the use. In this case, that information would not have been required for the court to determine the necessary use because the ground and walls were open at the time of the request and the extent of the easement was clear. Besides, appellant was able to lay the cable during the injunction. Appellant now argues it needs an easement to enter into the building to market to customers. This is sufficiently described in the complaint. Consequently, grading, elevations, and specifica- tions were not required. Finally, as to the issue of R.C. S163.05(D), the use required in this taking is an easement. To pretend otherwise defies the record. Even the trial court in its opinion referred to the use as an easement. Appellant's second assigned error is well taken. Appellant's third assigned error lacks merit and is overruled. The trial court does not have to hold a hearing within twenty (20) days, pursuant to R.C. 163.09(C), when it is contemplating a dismissal under Civ.R. 12(B). -10- Accordingly, this matter is reversed and remanded for proceedings consistent herein. This cause is reversed and remanded. It is, therefore, considered that said Appellant recover of said appellees its costs herein. 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. Exceptions. NAHRA, J., and SPELLACY, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .