CLERK of COURT SUPREME COURT of 0H Pursuant to Supreme Court Practice Rule X1.V(4), R.C

^'^^:^:•^

IN THE SUPREME COURT OF OHIO

STATE OF OHIO EX REL> ESTATE OF VINCENT OTRUSINA : Case No.: 2006-1259

Relator,

JONATHAN A. GRANVILLE, ET AL.

Respondents.

RELATOR ESTATE OF OTRUSINA'S MOTION FOR CONTEMPT

John D. Latchncy (0046539) D. Jeffery Rengel (0029069) TOMINO & LATCHNEY, LPA djrC toast.net 803 East Washington Street, Suite 200 Thomas R. Lucas (0071916) Medina, Ohio 44256 [email protected] Tel.: (330) 723-4656 RENGEL LAw OFFICE Fax: (330) 723-5445 421 Jackson Street Sandusky, Ohio 44870 Thomas A. Young (0023070) Tel: (419) 627-0400 Porter, Wright, Motris & Arthur LLP Fax:(419) 627-1434 41 South High. Street Columbus, Ohio 43215 Attorneys for Relator Tel.: (614) 227-2137 Estate of Vincent Otrusina Fax: (614) 227-2100

Attorneys for Respondent

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JAN 16 ^ ^^ ^ 4 CLERK OF COURT SUPREME COURT OF 0H Pursuant to Supreme Court Practice Rule X1.V(4), R.C. § 2705.02(A), and the inherent

powers of this Court, Relator Estate of Vincent Otrusina (hereinafter "Otrusina") moves this

Court for an order holding Respondent Board of Park Commissioners, Erie MetroParks

(hereinafter "MetroParks") in contempt for willfully failing to comply with this Court's

unanimous order dated November 20,2007 ("Writ"), which granted Relatorsawritofmandamus

and commanded MetroParks to commence appropriation proceedings in order to compensate

Relators for MetroParks' taking of Relators' property. MetroParks has willfully disregarded this

Caurt's Writ with respect to Otrusina by waiting nearly two years to initiate any lawsuits, never initiating an eminent domain action for Otrusina's property, and then eventually settling with all other property owners except for Otrusina, which remains wholly uncompensated for the taking of its property. For these reasons, and those discussed in more detail in the attached

Memorandum in Support, Relator Otrusina respectfully requests that this Court find Respondents in Contempt, award attorneys' fees to Otrusina, order Respondents to pay a fine, and order

Respondents to commence within thirty (30) days, appropriation proceedings to compensate

Otrusina for all of its property at issue in this action; a) that in such appropriation proceeding, the compensation and damages to Otrusina shall be for a fee taking; b) that the compensation and damages to the Relators or their successors shall include compensation and damages for the full

150-foot wide area MetroParks originally took despite MetroParks' current position to abandon

84 feet of that area; c) that the date of take for valuation purposes shall be the date of trial in those proceedings; and d) that the compensation and damages to Otrusiaia shall be based on

1 before and after values, shall recognize the Relators' adjacent residual parcels, and shall include compensation for damage to the residue.

Respectfully subxnitted

------D. Jeffery Rengel (#0029069) Thomas R. Lucas (#0071916) RENGEL LAW OFFICE Attorneys for Estate of Vincent Otrusina

2 MEMORANDUM IN SUPPORT

1. INTRODUCTION

On November 20, 2007, this Court unanimously rejected MetroParks' "hypertechnical"

reading of the trial court's decision in the Key Trus.t Litigation, the original litigation between the

parties,' and held that the "Relators [i.e., including the Estate of Vincent Otrusina] have

established that by employing their private property for public use as a recreational trail,

[MetroParks] has taken their property", and ordered MetroParks to "cominence an appropriation

proceeding to compensate them for that taking." Stczte ex rel Coles v. Granville (2007), 116

Ohio St.3d 231, 231, 242 (hereinafter "Coles"). Nearly six years have now passed, and although

MetroParks have reached settlements with many of the original Relators herein, it has yet to complete eminent domain proceedings or commence settlement discussions with the Estate of

Vincent Otrusina (hereinafter "Otrusina"), evidencing clear disdain for this Court's decision and a willftil refusal to pay Otr-usina just compensation.

II. STATEMENT OF FACTS

History of the Litigation Relator Otrusina is the owner of certain real property situated in Erie County, Ohio along the Huron River that encompasses land beneath and adjacent to a foriner canal corridor and is currently occupied, used, possessed, and otherwise controlled by MetroParks (the "property").

^ See Bd. of Park Comm'rs, Erie MetroParks v. Key Trust Co. of Ohio. Court of Common Pleas of Erie County, No. 99-CV-442, (the "Key Trust Litigation"). See also Erie MetroParks Bd. of Comm'rs v. Key Trust Co. of Ohio, N.A. (6th Dist. 2001),145 Ohio App.3d 782; Bd of Park Comm 'rs v. Key Trust Co. of Ohio (6th Dist. 2002), 2002 WL 31054032,2002-Ohio-4287

3 Relator has spent well over fifteen years vindicating a constitutional right to just compensation.

As demonstrated in Coles, the dispute began in 1999 when MetroParks invaded and took

complete and exclusive dominion, control and possession of approximately six miles of a former

canal corridor extending from the Village of Milan, Ohio to Huron, Ohio, including property

owned by Relator, and constructed a recreational trail on the forrner corridor.

On July 2, 2002, Defendants sent MetroParks Park Rangers, armed with firearms, to

assist other MetroParks employees who used chainsaws to destroy the Coleses' and Otrusina's

recreational wooden decks attached to their personal residences located on and near portions of

the Property. The destroyed structures were not in the way of any future MetroParks' work.

Litigation ensued, and despite prevailing in the initial litigation (i.e., the Key Trust

litigation), MetroParks refused to recognize Relators' ownership of the property. Coles 116 Ohio

St.3d at 232-34, 240. In order to obtain compensation, Relators were forced to act, first

attempting an action in federal court which lasted over two and one-half years, and ultimately obtaining a writ of mandamus from this Court in 2007. Id. at 235.

The Mandamus Action

Specifically, in 2006, Edwin and Lisa Coles, Buffalo Prairie, Isolated Ventures, Ltd.,

Linda Moir as Executrix of the Estate of Vincent Otrusina, Bickley, and Jones filed an original action for a writ of mandamus in this Court, Case No. 2006-1259.2 Coles, 116 Ohio St.3d at 235.

See also Federal Compl. 9 35; Federal Answer 5 35. The Relators sought an order to compel

MetroParks and its Executive Director, Jonathan Granville, to either: 1) commence an appropriation proceeding to compensate Relators for1VletroParks' taking of their property; or 2)

2Subsequently, all other Relators settled their claims with MetroParks, lea.ving only Otrusina remaining.

4 relincluish the seized, property and direct MetroParks not to file an eminent domain action to

appropriate Relators' property. Coles, 116 Ohio St.3d at 235. See al.so Federal Compl. 5 35;

Federal Answer 5 35. This Court granted an alternative writ on the Relators' prayer for writ of

mandamus to commence an appropriation proceeding. Coles, 116 Ohio St.3d at 235. The parties

presented evidence and fully briefed the issues. Id. In resporise to Relators' claims of ownership,

MetroParks raised the following related affirmative defenses: l.) Relators lacked standing

because Relators were not the owners of and had no interest in the real estate; 2) Relators were

not the real parties in interest because Relators were not the owners of and had no interest in the

real estate; 3) Reliance upon deeds and the doctrine of adverse possession that MetroParks'

property rights in the real estate were superior to the rights of Relators in such real estate; 4)

Relators' claims were barred by the doctrines of res judicata and collateral estoppel; and, 5)

Relators did not have a clear legal right to require the institution of appropriation proceedings.

Respondents' Answer at 10-12, filed with this Court in this action on July 24, 2006. Indeed,

MetroParks claimed fee ownership of the property North of Lock No. 1 and claimed exclusive use and control of the property South of Lock No. 1. Coles, 116 Ohio St.3d at 232-34;

Respondents Merit Br. at 16-20, filed with this Court in this action. on July 11, 2007.

On November 20, 2007, this Court issued a unanimous decision granting the requested writ of mandamus "to compel the board to commence an appropriation proceeding to compensate [Relators] for that taking." Id at 231. In the decision, this Court concluded that

MetroParks' actions in employing Relators' private property for public use as a recreational trail constituted an involuzitary physical taking of Relators' property. Id. This Court stated that the

Relators "established that the board's construction and use of the recreational trail over their properly south of Mason Road resulted in a physical invasion of their property and constitute an

5 involuntary taking entitling them to the requested appropriation proceeding." Id. This Court

also found that the Key Trust litigation conclusively determined that "in regard to the portion of

[Relators'_I property north of Mason Road, the board's construction and use of a recreational trail

also [a]ffected an involuntary taking." Id. at 242. This Court even noted that MetroParks'

arguments to the contrary were based on a "hypertechnical reading of the trial court's entry

language in Key Trust and ignore[d] both the ultimate emphasis in that litigation ... as well as the

uncontroverted evidence . ...°' Id. at 240. In sum, this unanimous Court held: "Relators have

established that by employing their private property for public tise as a recreational trail, the

board of park commissioners has taken their property." Id. at 242.

In March 2008, MetroParks hired a surveyor to survey the new 66-foot wide section.

Dice Dep. at 23:15-24:4; 61:4-11 & Ex, 7. The surveys were completed by April 11, 2008, with

the exception of Mr. Bickley's property which needed to be resurveyed and possibly involved

some minimal follow-up work. Id. at 82:20-83:21; 86:14 & Ex. 11.

Despite this Court's unambiguous order that the Relators own the property, in late spring or early summer 2008, MetroParks then hired American Title to "review the chain of title" to the property. Id. at 26:9-13 & Ex. 1^10. The title reviews took two to three months to complete and were not completed until late summer 2008. Id. at 26:14-20. Mr. Dice, then Executive

Director of MetroParks, could not articulate arfly reason whatsoever for this title work related to the property this Court had already found that Relators owned and that MetroParks must appropriate: Id. at 24:11-23; 26:21-25.

Although it completed its unnecessary surveys by April, MetroParks had yet to hire an appraiser as of September 2008. Id. at 89:7.4-23. MetroParks finally hired an appraiser, Terry

Poole of Allied Appraisal, Inc., in October 2008. Id. at 93:1-14 & Ex. 14. Mr. Poole indicated

6 that he would complete the appraisals within eight weeks. Dice Dep. at 100;22-101:8. At some

point in the process, MetroParks instructed Mr. Poole that he was to appraise an easement and

not a fee simple take. Id. at 88:18-24; 89:24-90:3 & Ex. 1.3.

After a year of inaction subsequent to this Court's decision in Coles, Relators brought suit

in the United States District Court for the Northern, District of Ohio, Western Division, seeking

to vindicate their federal constitutional right to just compensation. See generally Fed. Compl.

After vindication by this Court in 2007, Relator C)trusina was hopeful that the nearly ten

years of litigation was drawing to a close, that MetroParks would diligently proceed with the

steps necessary to appropriate Relator's property, and pay Relator the long-overdue just compensation to which it was entitled. Prompt action by MetroParks not forthcoming, the

Relators collectively filed a similar Motion to Compel on or about December 4, 2009 hoping to garner MetroParks'compliance with this Court'snlandate. In addition to Otrusina, that motion was also filed on behalf of property owners: Edwin M. Coles; Lisa A. Coles; Buffalo Prairie,

LLC; Robert Bickley; Warren Jones; Daniel Coles; Mark Wojnar; and Carolyn Wojnar.

On March 3, 2010, this Court denied that motion. In opposition to the motion,

Respondents acknowledged that delays had occurred; however, they argued that blame for the delays was due to (1) compliance with procedural requirements of R.C. Chapter 163; (2) the positions and actions of Relators; and (3) the Respondents' own appraisers. See Respondents'

Memorandum in Opposition to Relators' Motion for Leave to File .St€pplenaent to Appendix to tVlotion for Contenipt (filed on February 8, 2010) at p. 7.

Respondents previously claimed that "none of-these delays are the result of Respondents acting in bad faith, deliberately delaying, or ignoring the Court's order in this case." Another three-and-a-half years have passed since that time, roughly six years after this Court's initial

7 order, and the taking of Otrusina's property still remaixls uncompensated by Respondents.

Waiting for Respondents to take the required action turned from weeks, to months, to (now)

years. Indeed, from the very beginning, MetroParks' actions in response to this Court's

November 20, 2007 order exhibited no sense of immediacy.

MetroParks Continued To Delay And Took Steps In Direct Contravention Of This Court's Writ

The delay continued. Eventually, Mr. Poole completed a draft appraisal of one property:

Mr. Jones' property. Id. at 107:11-17. Thereafter, on or about February 5, 2009, MetroParks

abruptly terminated Mr. Poole's services, Id. at 28:12-25; 30:4-12; 105:5-15 & Ex. 15,

apparently because Mr. Poole was going to do an appraisal of damage to the residue of the

property, Id. at 98:2-99:18; 102:12-103:18 & Ex. 14 (emphasis added). Not surprisingly

MetroParks replaced Mr. Poole with an appraiser who agreed not to eonsider any damage to the residue of the Relators' property. ld. at 30:13-14; 118:11-120:2 & Ex. 17. At or near the same time MetroParks terminated Mr. Poole, its legal counsel, Abe Lieberman, withdrew from his representation of MetroParks. Id. at 28:12-29:18; 108:13-14.

As of March 16, 2009, 15 months after this Court's decision, MetroParks had yet to formally hire a new appraiser. Id. at 114:6-10; 116:10-14 & Ex. 17. MetroParks contacted and briefly worked with another appraiser only to decide to pursue yet another appraiser. Id. at 31:3-

8. Eventually, MetroParks hired R/W Specialists, hlc. to complete the appraisals. Id. at 30:13-14

& Ex. 17. Despite R1W Specialists' promise to have ail appraisal completed within 30 days and tlie balance of the appraisals completed within an additional 60 days, the appraisals were not completed within that time frame. Id. at 117:6-16 & Ex. 17 at 2. RJW Specialists did not meet the timeline because MetroParks asked R/W Specialists to suspend work wliile MetroParks

8 decided "how to approach the appraisal." Id. at 117:14-20. See also id. at 130:4-9 (admitting that

MetroParks was responsible to some degree for R/W Specialists missing its deadline).

MetroParks' new "approach" was in direct contempt of this Court's decision in Coles.

According to Mr. Dice, MetroParks: "needed to determine several thizigs. Who really owned the

land at the time of the Taking. lf there was a Takina, who owned it and if at the time of the

taking it was still a railroad, those determinations need to be made because that then drives how

Hentz, Mr. Hentz does his appraisal." Id. at 122:5-13 (emphasis added). See also Id. at 122:19-

21 " I f there was a Taking, when did that happen. What date and what was taken and from

whom....") (emphasis added). Again, incredibly, despite this Court's unanimous ruling,

MetroParks was still questioning whether Relators owned the land and whether a taking had

actually even occurred!

MetroParks and R/W Specialists also had naultiple discussions as to what appraisal method to use. Id. at 118:11-120:2. The appraiser from R/W Specialists, John Hentz -- like Mr.

Poole before him -- advocated that the larger parcel must be appraised and any damge to the residue must be awarded to Relators, but MetroParks rejected this approach and dictated that Mr.

Hentz assess compensation for the land in the railroad corridor only. Id. at 118:11-120:2; 123:13-

124:6. See also Id, at 131:5-16 (As of April 15, 2009, Mr. F[entz was still intending to consider the larger parcel and appraise the value of the property taken and damage to the residue.) Indeed,

R/W Specialists had even cornpleted one appraisal considering the value of the larger parcel after the take (awarding damage to the residue) and valuing the parcel as of 2009 before MetroParks cut that short. Id. at 139:21-140:5 & Ex. 24.

In addition to directing an inaccurate appraisal method, MetroParks also instructed RIW

Specialists to appraise the property as of 1995, even though that was a date prior to the Relators'

9 ownership. Id. at 120:3-15; 121:19-22 3 MetroParks even went so far as to instruct Mr. Hentz to

value the property as if it was owned by Key Trust Company, not Relators. Id. at 144:8-12 & Ex.

25 4 Thus, based on MetroParks' instructions to Mr. Hentz, he was to value the properly as if

owned by Key Trust in 1995, to value only the corridor itself, and to not take into account any

potential damage at all to the residue of the larger parcel. Id. at 144:13-19. Mr. Hentz did as he

was instructed; the appraisals ultimately completed by RlW Specialists valued only the 66 feet of

the 150-foot corridor, did not consider the Relators' adjacent and now cut-off residual properties,

and did not consider that there were gU damages to the residue of their properties as a result of a

public trail bisecting their land. See, e.g., id. at 104:13-24;153;17-155:2; 208:12-209: 4; 209: 15-

17 & Exs. 28; 48,

MetroParks Finally Makes "Offers" To Relators On June 1, 2009, over a year and a half after this Court's decision, MetroParks passed yet another self-serving resolution concerning the Greenway: "to continue with appropriation action as ordered by the Supreme Court of the State of Ohio in State ex rel. Coles v. Granville, Suprenie

Court of Ohio, No. 2006-1259.'° Id. at 40:6-15 & Ex. 1. MetroParks purportedly passed the resolution because MetroParks had considered "abandoning" the Greenway project completely,

Id. at 40:16-43:8, despite the fact that it had taken Relators' properties and had been ordered by this Court to compensate Relators.

3 See also Dice Dep. 136:11-25; 137:5-18 & Ex. 23 (conveying that changed instruction to Mr. Hentz for the first time on ;V1ay 13, 2009); id. at 141:14-142:9; 143:7-10 & Ex. 25 (conveying instructions to Mr. Hentz "[o]n advice of counsel" to perform the appraisals using November 1, 1995); id. at 147:7-22. a This is inconsistent with MetroParks°treatment of Wikel Farms. Like the Relators in the present action, Wikel rarms acquired the canal land from Key Trust. Decl, Wikel, q11 & Ex. 2 at EMP-1323. In the Wikel Farms appropriation action, MetroParks has not used 1995 for the date of take, but instead, used April 14,1999, which was the date of MetroParks' deposit in that acti on . Id at I 11 & Ex. 2 at EMP-1266.

10 In August 2009, MetroParks finally provided appraisals and conditional "offers" of

settlement to some of the Relators. Id. at 50:24-51:6; 59:21-23. These offers referred to Key

Trust as the owner of the properties. See, e.g., id. at 207:23-209:4 & Ex. 48 at 2. In addition, it

offered to buy an easement over the property of Edwin and Lisa Coles only for the paltry sum of

$1,600. Id. at 207;23-208:2 & Ex. 48 at 2. This offer was accompanied by the illegitimate

Hentz appraisal, based on a 1995 valuation date of the property, when the property was owned

by Key Trust, and did not in any way consider damage to the residue, Id. at 208:12-209:4;

209:15-17. Moreover, MetroParks' offer was merely contingent, requiring the Coles to obtain a

release of Key Trust, an entity over whom none of the Relators have any control. Id. at 209:22-

210:3; 215:18-23 & Ex. 48. The offer was also contingent upon the Coles obtaining a release

from Buffalo Prairie, even though Buffalo Prairie did not own and never owned the Coles

property. Id. at 209:22-210:3; 215:18-23 & Ex. 48. In light of these facts and conditions,

MetroParks never made any legitimate offer of just compensation to Relators. Id. at 216:11-18.

On September 30, 2011, after having settled with all other Relators, MetroParks offered

$4,025 to Otrusina, contingent upon a release of all trespass claims as well as the property.

Having No Choice As A Result Of Relators Federal Court Action, MetroParks Finally Files "Appropriation Actions"

On October 15, 2009, only in response to summary judgment briefing in the federal court action, MetroParks finally connmenc.ed three appropriation actions collectively against Edwin and Lisa Coles; Buffalo Prairie, Ltd.; Warren Jones; Douglas and Kimberly Arter; Isolated

Ventures, Ltd; Daniel Coles; Mark and Carolyn Wojnak, and Robert Bickley. at no time to date hasMetroParks ever filed an appropriation action aaainst Otrusina, despite this Court's clear order to do so in 2007.

11 Despite the nearly two-year delay to institute appropriation actions against the above

listed parties, MetroParks denied that two years was an unreasonable delay in filing the

appropriation actions. DiceDep. at 44:1-5. Mr. Dice explained that no one had ever provided

him with a timeline for filing an appropriation action; for all he knew, taking ten years to file an

appropriation action may be acceptable. Id. at 38:5-40:5; 91:22-92:25; 110:4-7; 132:21-133:3.

Indeed, Mr. Dice expressed no concern with an indefinite denial of the constitutional right to just

compensation. Id. The delay in filing appropriation against Otrusina is approaching seven years.

Even worse, the above 2009 actions filed by MetroParks amounted to nothing inore than

another attempt to relitigate matters conclusively decided by this Court. Contrary to any

reasoned reading of this Court's November 20, 2007 decision, in the Original Complaints, the

first named defendant in each action was "Key Trust Company of Ohio, N.A., in its Capacity as

Trustee of the Testamentary Trust of Verna Lockwood Williams, Deceased." See generally

Def.'s Reply in Support of Suznniary J. at Ex 2, Comipl., Case No. 2009CV0876 ("Coles

Compl."); id. at Ex. 3, Compl., Case No. 2009CV0877 ("Jones Compl."); Id. at Ex. 4, Compl.,

Case No. 2009CV0878 ("Bickley Compl.°'). Key Trust was named in the litigation because

MetroParks continued to insist that Relators do not own the land and are not owed anything.

In September of 2011, MetroParks settled with all Relators except Otrusina.

III. LAW AND ARGUMENT

For the first few years after this Court's decision, MetroParks engaged in gamesmanship, hyper-technical readings of court decisions, low-ball offers that denied Relators the very basic elements of just compensation, and sham appropriation actions which did not comply with this

Court's mandate, denied Relators' ownership of the trail property, and sought to relitigate

12 matters which were conclusively determined by this Cotirt in the mandanius action. The totality

of these circumstances and evidence clearly demonstrated that MetroParks' reluctance to cornply

with this Court's November 20, 2007 order to commence appropriation actions and pay Relator

the just compensation to which it is entitled.

MetroParks finally did reach resolution with many of the property owners in September

of 2011; however, it failed to settle with Otrusina (as is clearly indicated in the Erie County

Gommmon Pleas entry resolving the remaining property owners' claims). Now, six years after this

Court's ruling, the Estate of Otrusina is still awaiting compensation for the taking of its property by MetroParks.

A. This Court Has Statutory And Inherent Authority To Hold! MetroParks In Contempt.

This Court has both statutory and inherent authority to hold a party in conternpt for failing to comply with a court order. Ohio Revised Code § 2705.02(A) provides, in material part: "A person guilty of any of the following acts may be punished as for a contempt: ..

.Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or an officer. ..." Moreover, this Court has consistently recognized that certain powers are necessary for the orderly and efficient exercise of justice and are thus inherent in a court. Zakany v. Za1mny (1984), 9 Ohio St. 3d 192, 194, 459 N.E.2d 870, 873 (citations omitted). Such inherent powers of the court include the authority to punish a party's disobedience of the court's orders with contempt proceedings. Id. (citations omitted).

Civil contenipt is appropriate where a party fails to do something ordered to be done by the court in a civil action for the benefit of the opposing party therein. Sancho v. Sancha (3d

Dist. 1996), 1.14 Ohio App.3d 636, 642, 683 N.E.2d 849, 853 (quotation omitted). A finding of

13 civil contempt of court must be based on clear and convincing evidence. Id. However, "[p]roof

of purposeful, willing or intentional violation of a court order is not a prerequisite to a finding of

[civilj contempt." Pugh v. Pugh (1984), 15 Ohio St.3d 136, 472 N.E.2d 1085, syllabus T1.

Moreover, "[i ]t is irrelevant that the transgressing party does not intend to violate the court order.

If the dictates of the judicial decree are not followed, a contempt citation will result." Sancho,

114 Ohio App.3d at 642, 683 N.E.2d at 853 (quotation omitted).

Here, the exercise of this Court's statutory and inherent authority to hold MetroParks in

civil contempt is appropriate in the present case because MetroParks has not followed, and, in fact, willfully disregarded and displayed clear contempt for this Couc-t's November 20, 2007

order as to the Estate of Otrusina.

B. MetroParks Waited Nearly Two Years Before Commencing Any Appropriation Actions And Even Then Failed To Commence Appropriation Actions To Compensate All Relators For The Property Taken By MetroParks.

Nearly two years passed between this Court's grant of Relators' writ of mandamus in

2007 and MetroParks' commencement of illegitimate and contemptuous appropriation actions to appropriate some of the others Relators' property, but ^tOtrusina's, MetroParks proceeded at a snail's pace: waiting three months to even pass a resolution acknowledging this Court's mandate; making unilateral decisions as to the scope of the land that it will appropriate which led to the additional time consuming step of surveying the property; hiring title work to be completed on the properties irrespective of the this Court's decision declaring Relators' ownership; switching appraisers multiple times; and altering the instructions given to the appraisers numerous times.

Statement of Facts, supra. Incredibly, MetroParks was never once concerned about the speed (or lack thereof) with which they were proceeding; never once concerned with the constitutional

14 rights of Otri.tsina whose property they wrongfully seized well over a decade ago; never once

concerned with acting like a responsible governmental actor, but rather spent years concocting

arguments to try and circunivent the clear mandate of this Court to compensate Otrusina for the

taking of its propei-ty. Indeed, MetroParks only filed appropriation actions after being forced to

do so as a result of Relators pursuit of the federal court action.

The delay continues for Otrusina as MetroParks still has not cotnpensated the Estate for

the land MetroParks has taken from it. MetroParks' failure to compensate the Estate of Otrusina

is unsupportable and not in compliance with this Court's order. MetroParks cannot dispute that

the Otrusina was a Relator in the mandamus action. See generally Mandamus Compl. filed with

this Cotirt in this action on June 29, 2006; Coles, 116 Ohio St.3d at 231. Similarly, MetroParks

cannot dispute that this Court's November 20, 2007 Order applied to all Relators; the Court did

not exclude the Estate of Otrusina from its holding that "Relators have established that by

employing their private property for public use as a recreational trail, the board of park commissioners has taken their property" nor from that portion of the order granting "a writ of mandamus to compel the board to commence an appropriation proceeding to compensate them for that taking." Coles, 116 Ohio St.3d at 242. MetroParks cannot dispute that this Court recognized Otrusina's ownership of trail property. Specifically, this Court acknowledged that

Key Trust conveyed the property formerly owned by the canal company to Edwin and Lisa Coles and Buffalo Prairie, and that later, the Coleses and Buffalo Prairie then conveyed sections of this property to the other Relators, including Vincent Otrusina, anlong others. Id. at 232.

Despite these undisputed findings and conclusions, MetroParks still has not compensated the Estate of Otrusina for the taking of its property. For this reason, MetroParks is in direct contravention of this Court's order.

15 C. MetroParks' Gamesmanship And Deliberate Delay Also Constitutes Conduct Sanctionable By This Court Under Ohio R. Civ. P. 11.

For well over a decade, Relator has fought to have its rights to just compensation

vindicated. Over these years, MetroParks has consistently played games with court decisions

and taken positions which are not supported by the facts or the law. Indeed, in the mandamus

action to essentially enforce the Key Trust decision in which Relators were victorious, this Court

even scolded MetroParks for its "hypertechnical" (i.e., unreasonable) reading of the trial court's

entry in Key Trust. Coles, 116 Ohio St.3d at 240. Even after achieving victory in this Court, however, MetroParks has continued with its games and outright defiance. As a result, Relator

Otrusina is no closer to having those rights vindicated.

Despite a decade of litigation culminating in this Court's order, MetroParks still refuses to acknowledge Relator's ownerslxip of the property. MetroParks simply has no good ground to support this incredible position. See Ohio R. Civ. P. 11. See, e.g., Vill. of Ottawa Hills v. Afjela

(May 26, 2006), 6th Dist No. L-04-1297, 2006 WL 1449819, at ^589-90 (affirming trial court's award of sanctions based on party's "consistent pattern of improper conduct including; voluminous baseless objections, motions, and allegations" filed "for the purpose of delay and confusion"); Leinweber v. Cox (Jan. 14, 1983), llth Dist. No. 1031, 1983WL 6259, at *1)

(holding that a party's bad faith in conducting litigation serves as a basis for appropriate action under Ohio Rule of Civil Procedure 11).

16 IV. CONCLUSION

For these reasons, Relator Estate of Otrusina respectfully requests that this Court find

Respondents in Contempt, award attorneys' fees to Relator;-5 order Respondents to pay a fine,

and order Respondents to comlnence within thirty (30) days, appropriation proceedings to

compensate the Estate of Otrusina or their successors-in-interest for all of its property at issue in

this action; a) that in those appropriation proceedings, the compensation and damages to the

Relators or tlieir successors shall be for a fee taking; b) that the compensation and damages to the

Relators or their successors shall include compensation and damages for the full 150-feel wide

area MetroParks originally look despite MetroParks' subsequent position to abandon 84 feet of

that area; c) that the date of take for valuation purposes shall be the date of trial in those proceedings; and d) that the compensation and damages to the Relators or their successors-in- interest shall be based on before and after values, shall recognize the Relators' adjacent residual parcels, and include compensation for damage to the residue.

--^: --- ^ ------D. Jeffery Rengel (0029069) Thomas R. Lucas (0071916) RENCEL LAW OFFICE 421 Jackson Street Sandusky, Ohio 44870

Attorneys for Relator Estate of Vincent Otrusina

5"[A] trial court has discretion to include reasonable attorney fees as a part of costs taxable to a defendant found guilty of civil contenipt:' State ex rel Fraternal Order of Police Captain John C Post Lodge No. 44 v. City of Dayton (1977), 49 Ohio St.2d 219, 229, 361 N.E.2d 428, 436.

17 CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true copy of the foregoing was served upon the following, via ordinary U.S. mail postage prepaid to:

John D. Latchncy, TOMIIVO & LAT<.I-INEY, LLC LPA, 803 East Washington Street, Suite 200 Medina, Ohio 44256

Thomas A. Young (0023070) Porter, Wright, Morris & Arthur LLP 41 South High Street Columbus, Ohio 43215 Attorneys for Responclents this 13r,4day of January, 2014.

^/^. ------D. Jeffery Rengel (0029069) Thomas R. Lucas (0071916) RENGEL LAW OFFICE 421 Jackson Street Sandusky, Ohio 44870

Attorneys for Relator Estate of Vincent Otrusina