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5^ ^'^^:^:•^ IN THE SUPREME COURT OF OHIO STATE OF OHIO EX REL> ESTATE OF VINCENT OTRUSINA : Case No.: 2006-1259 Relator, V. 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 ^ s;/ £ r, t' 1 3 ^f3^'^ ^^? ts^ 4, D C L E RKIR 0 .s.-^' '€#5sR 2 . .^..t..^..:..^... ^^ I^. '^ v^ ^'°F Li 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.

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