stating that “an appellant Lawrence App. No. 18CA19 18 generally may not raise an argument on appeal that the appellant has not raised in the lower courts”
How later courts described this case
- stating that “an appellant Lawrence App. No. 18CA19 18 generally may not raise an argument on appeal that the appellant has not raised in the lower courts”
- stating that “an appellant generally may not raise an argument on appeal that the appellant has not raised in the lower courts”
Written by the judges who cited it.
The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Independence v. Office of the Cuyahoga Cty. Executive, Slip Opinion No. 2014-Ohio-4650.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-4650
THE CITY OF INDEPENDENCE, APPELLEE, v. OFFICE OF THE CUYAHOGA
COUNTY EXECUTIVE, APPELLANT, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as Independence v. Office of the Cuyahoga Cty. Executive,
Slip Opinion No. 2014-Ohio-4650.]
R.C. 5591.02 and 5591.21—County’s obligation to repair bridges—Roads of
general and public utility.
(No. 2013-0984—Submitted May 27, 2014—Decided October 23, 2014.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 97167,
2013-Ohio-1336.
____________________
FRENCH, J.
{¶ 1} In this appeal, we consider the extent of a county’s responsibility
for repairing and maintaining bridges under R.C. 5591.02 and 5591.21.
Appellant, the Office of the Cuyahoga County Executive (“county”), and
appellee, the city of Independence, each claim that the other is responsible for
maintaining and repairing a bridge located in Cuyahoga County, on the border
SUPREME COURT OF OHIO
between Independence and the village of Valley View but on a road that is neither
a county road nor a state highway. Because the court of appeals appropriately
concluded that the preponderance of substantial, reliable, and probative evidence
supports the common pleas court’s judgment, which held the county responsible
for the bridge’s maintenance and repair, we affirm.
Governing Statutes
{¶ 2} R.C. 723.01 generally places “the care, supervision, and control of
the public highways, streets, avenues, [and] bridges * * * within [a] municipal
corporation” within that municipal corporation’s legislative authority. The term
“municipal corporation” encompasses both cities and villages. R.C. 703.01(A).
{¶ 3} Despite that general rule, R.C. Chapter 5591 specifically addresses
county bridges, and R.C. 5591.02 and 5591.21 place a duty on county
commissioners to repair bridges located on improved roads of general and public
utility running into or through a municipal corporation within the county. 1990
Ohio Atty.Gen.Ops. No. 90-079, at paragraph three of the syllabus. R.C. 5591.02
provides as follows: “The board of county commissioners shall construct and
keep in repair all necessary bridges in municipal corporations on all county roads
and improved roads that are of general and public utility, running into or through
the municipal corporations, and that are not on state highways.” With certain
inapplicable exceptions, R.C. 5591.21 similarly requires “the board of county
commissioners [to] construct and keep in repair necessary bridges over streams
and public canals on or connecting state, county, and improved roads.” As to the
reference to “improved roads,” courts read R.C. 5591.21 in conjunction with R.C.
5591.02 to impose responsibility upon a county with respect to only those
improved roads that are of general and public utility. Washington Court House v.
Dumford, 22 Ohio App.2d 75, 78, 258 N.E.2d 261 (2d Dist.1969).
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Factual and Procedural Background
{¶ 4} In September 2010, Independence requested that the Cuyahoga
County Board of County Commissioners (“board”), the predecessor to the county
executive, recognize the Old Rockside Road bridge as a bridge of general and
public utility. Independence represented that the Old Rockside Road bridge
required significant repairs and asserted that the county was responsible for
repairing it as a necessary bridge on an improved road of general and public
utility.
{¶ 5} The Old Rockside Road bridge spans the Cuyahoga River and
traverses the boundary between Independence and Valley View. After crossing
the Cuyahoga River, Old Rockside Road connects with two dead-end roads and
comes to a dead end itself in Independence. The Old Rockside Road bridge
provides the sole means of access to the businesses and facilities, including a
station for the Cuyahoga Valley Scenic Railroad, located off Old Rockside Road
in Independence.
{¶ 6} In 1967, Cuyahoga County vacated Old Rockside Road as a county
road, pursuant to R.C. 5553.04, after completing construction of a new Rockside
Road. Documents created by the county engineer’s office in connection with the
vacation indicate that Old Rockside Road would remain as a municipal street.
Independence admits that it has borne responsibility for the road’s maintenance
since the county vacated the road.
{¶ 7} At its regular meeting on December 2, 2010, the board determined
that Old Rockside Road is not a road of general and public utility.
{¶ 8} Independence appealed the board’s decision to the Cuyahoga
County Court of Common Pleas, pursuant to R.C. 2506.01. Upon review of the
parties’ briefs, the record, and newly submitted evidence, the common pleas court
reversed the board’s decision. In a four-sentence journal entry, the court found
the board’s decision unreasonable and arbitrary, and stated as follows:
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The Old Rockside Road bridge is found to be a bridge of “general
and public utility” as it lies between two municipalities and is
therefore not within the municipal corporation as required by
O.R.C. 723.01 and O.R.C. 5591. The court finds that Cuyahoga
County is responsible for the repair and maintenance of the Old
Rockside Road bridge.
{¶ 9} The county appealed, and the Eighth District Court of Appeals
affirmed. The appellate court found that a preponderance of reliable, probative,
and substantial evidence supported the common pleas court’s decision. 8th Dist.
Cuyahoga No. 97167, 2013-Ohio-1336, ¶ 30.
{¶ 10} This court accepted the county’s discretionary appeal on the
following proposition of law:
A county has no duty to repair or replace a bridge on [a]
dead-end private drive serving a limited number of businesses.
The county’s duty to repair or replace such a bridge depends upon
whether the road served by the bridge is a road of general and
public utility, and such a road primarily serves a small number of
special and private interests.
136 Ohio St.3d 1509, 2013-Ohio-4657, 995 N.E.2d 1212. Despite the phrasing of
its proposition of law, the county does not argue that Old Rockside Road is a
“private drive,” but maintains that since its vacation as a county road, Old
Rockside Road has been a municipal street, a local road, or both.
{¶ 11} The county’s proposition of law correctly states that its
responsibility for repairing the Old Rockside Road bridge depends on whether
4
January Term, 2014
Old Rockside Road is an improved road of general and public utility, see R.C.
5591.02 and 5591.21, and this appeal stems from the board’s resolution that the
road “is not a road of general and public utility.” But both the common pleas
court and the court of appeals erroneously refer to the relevant inquiry as whether
the Old Rockside Road bridge is a bridge of general and public utility.
{¶ 12} Despite the lower courts’ misstatement of the issue, the evidence
before those courts goes to the nature of the road as much as it goes to the nature
of the bridge. For example, the record contains evidence regarding the county’s
vacation of the road, a 2010 study of traffic using the road and the bridge, the
nature of the businesses and facilities located off the road in Independence, the
inability of those businesses to access their facilities without traveling over Old
Rockside Road and the Old Rockside Road bridge, and the large number of
visitors to the Cuyahoga Valley Scenic Railroad who rely on Old Rockside Road
and the Old Rockside Road bridge to access the station in Independence. On the
facts of this particular case, utility of the bridge and utility of the road cannot be
separated, and we read the lower courts’ findings that the Old Rockside Road
bridge is a bridge of general and public utility as a determination that Old
Rockside Road is a road of general and public utility.
Standard of Review
{¶ 13} In an R.C. 2506.01 administrative appeal, the common pleas court
considers the whole record and determines whether the administrative order is
“unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by
the preponderance of substantial, reliable, and probative evidence.” R.C.
2506.04. See also Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d
142, 147, 735 N.E.2d 433 (2000). The court weighs the evidence to determine
whether a preponderance of reliable, probative, and substantial evidence supports
the administrative decision, and if it does, the court may not substitute its
judgment for that of the board. Dudukovich v. Lorain Metro. Housing Auth., 58
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Ohio St.2d 202, 207, 389 N.E.2d 1113 (1979). If it does not, the court may
reverse, vacate, or modify the administrative decision. Id.; R.C. 2506.04.
{¶ 14} The court of appeals’ standard of review under R.C. Chapter 2506
is more limited. Henley at 147, citing Kisil v. Sandusky, 12 Ohio St.3d 30, 34,
465 N.E.2d 848 (1984). The court of appeals reviews the common pleas court’s
judgment only on questions of law and does not have the same extensive authority
to weigh the evidence. Id. at 147, quoting Kisil at 34, fn. 4. Within the ambit of
questions of law for appellate-court review is whether the common pleas court
abused its discretion. Kisil at 34, fn. 4. The court of appeals must affirm unless it
finds, as a matter of law, that the trial court’s decision is not supported by a
preponderance of reliable, probative, and substantial evidence. Id. at 34.
{¶ 15} Here, the common pleas court concluded that the board’s
decision—that Old Rockside Road is not a road of general and public utility—was
unreasonable and arbitrary. Implicit within that conclusion is a finding that the
preponderance of reliable, probative, and substantial evidence does not support
the board’s decision. The court of appeals cited the appropriate standard of
review and affirmed, concluding that a preponderance of reliable, probative, and
substantial evidence supports the trial court’s judgment.
Analysis
{¶ 16} Neither the county’s vacation of Old Rockside Road nor
Independence’s responsibility for maintaining the road is determinative of
whether the county or the city is responsible for maintaining and repairing the Old
Rockside Road bridge. Any county responsibility for the bridge would arise from
R.C. 5591.02 or 5591.21, neither of which limits a county’s duty to bridges
located upon county roads or upon roads for which the county bears maintenance
responsibility. Rather, both statutes extend county responsibility to necessary
bridges located on improved, non-county roads that are of general and public
6
January Term, 2014
utility. The central question in this case is, therefore, whether Old Rockside Road
is a road of general and public utility.
{¶ 17} The Ohio attorney general has opined that “[t]he determination of
whether a particular road is an improved road of general and public utility is a
question of fact to be determined in the first instance by the county
commissioners.” 1990 Ohio Atty.Gen.Ops. No. 90-079, at paragraph three of the
syllabus. Nevertheless, the county argues that because the facts before the board
were undisputed, whether this road is of general and public utility is strictly a
legal determination.
{¶ 18} The county relies on a statement in Henley, 90 Ohio St.3d at 148,
735 N.E.2d 433, quoting Black’s Law Dictionary 1260 (7th Ed.1999), that
application of a zoning ordinance to the facts “is a ‘question of law’—‘[a]n issue
to be decided by the judge, concerning the application or interpretation of the
law.’ ” See also Brennaman v. R.M.I. Co., 70 Ohio St.3d 460, 466, 639 N.E.2d
425 (1994) (holding that whether a facility was an improvement to real property
under R.C. 2305.131 was a question of law when the facts were undisputed).
Statutory interpretation presents a question of law. Riedel v. Consol. Rail Corp.,
125 Ohio St.3d 358, 2010-Ohio-1926, 928 N.E.2d 448, ¶ 6. The necessity of
considering the facts or the evidence to determine whether a legislative act applies
to a particular case does not turn the issue of statutory interpretation into a
question of fact. Henley at 148.
{¶ 19} Here, the meaning of “improved road of general and public utility”
is a question of law, but the question of whether Old Rockside Road qualifies
under that statutory term requires a consideration of the underlying facts and
circumstances regarding the use of the road. Regardless of whether that ultimate
question is one of fact or one of law, the court of appeals appropriately considered
whether, as a matter of law, the trial court properly reversed the board’s decision
7
SUPREME COURT OF OHIO
on the grounds that it was not supported by reliable, probative, and substantial
evidence.
{¶ 20} Statutory provisions analogous to R.C. 5591.02 and 5591.21 have
been part of Ohio law for over 100 years. For example, in Piqua v. Geist, 59
Ohio St. 163, 164, 52 N.E. 124 (1898), this court applied a statute that required
county commissioners to “ ‘construct and keep in repair all necessary bridges over
streams and public canals on all state and county roads, free turnpikes, improved
roads, abandoned turnpikes and plank roads in common public use.’ ” (Emphasis
sic.) Id., quoting R.S. 860. See also Interurban Ry. & Terminal Co. v.
Cincinnati, 94 Ohio St. 269, 114 N.E. 258 (1916) (applying similar subsequent
statutes).
{¶ 21} Neither Piqua nor Interurban Ry. & Terminal Co. aids the county’s
cause. Although the Piqua syllabus suggests that county commissioners are not
required to construct and keep in repair bridges on streets established by a city or
village for the use and convenience of the municipality that are not part of a state
or county road, the opinion does not so extensively limit a county’s responsibility.
Rather, this court stated that the county’s statutory responsibility extended to all
types of roads enumerated in R.S. 860, including improved roads in common
public use. Id. at 164 (“The phrase ‘all bridges,’ employed in [R.S. 860], simply
relates to and includes all the necessary bridges over streams and public canals, on
all state and county roads, etc., first enumerated in the section, being the bridges
that it is the general duty of county commissioners to construct and keep in
repair” [emphasis added]). Because the street in Piqua did not fall within R.S.
860—the street was laid out and established for the use of the city municipality
only—the city was responsible for the maintenance and repair of the bridge on
that road.
{¶ 22} Interurban Ry. & Terminal Co. essentially asked whether the city
of Cincinnati’s annexation of land affected Hamilton County’s statutory duty to
8
January Term, 2014
maintain and repair a bridge located within the annexed land. A franchise from
the Hamilton County commissioners to Interurban Railway and Terminal
Company’s predecessor required Interurban’s predecessor to maintain, repair, and
rebuild the bridge during the contract term, under the direction of the county
engineer and commissioners, whenever the commissioners deemed it necessary.
{¶ 23} Cincinnati claimed that it succeeded to the county commissioners’
right to enforce Interurban’s obligation to repair the bridge, but this court held that
the annexation did not affect the county’s preexisting obligation. This court
concluded that the county’s statutory duty to construct and maintain the bridge
remained unchanged even though, after annexation, the bridge was located within
the municipal boundaries and formed part of a city street. Id. at 276-278.
{¶ 24} Neither Piqua nor Interurban Ry. & Terminal Co. speaks to the
meaning of an improved road of general and public utility. The Revised Code
does not define the phrase “general and public utility,” but we read those words in
context, according to the rules of grammar and common usage. R.C. 1.42;
Slingluff v. Weaver, 66 Ohio St. 621, 627, 64 N.E. 574 (1902) (“Statutes and
contracts should be read and understood according to the natural and most
obvious import of the language, without resorting to subtle and forced
constructions * * *”).
{¶ 25} “The phrase ‘of general and public utility * * *’ has long been
construed as creating a distinction based on the type of traffic using the street on
which the bridge is located.” 1990 Ohio Atty.Gen.Ops. No. 90-079, *2. A
county’s obligation to maintain bridges on roads running into and through
municipal corporations is related to the general, as distinguished from the local,
use of those bridges. Dumford, 22 Ohio App.2d at 77, 258 N.E.2d 261; State ex
rel. Moraine v. Montgomery Cty. Bd. of Commrs., 2d Dist. Montgomery No.
10033, 1987 WL 6638 (Feb. 12, 1987) (describing the purpose of R.C. 5591.02
9
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and 5591.21 as placing responsibility for bridge maintenance upon a city where
the bridge on a city street is “meant to facilitate local traffic primarily”).
{¶ 26} Rather than focusing on the specific facts of this case as a basis for
determining whether Old Rockside Road is an improved road of general and
public utility, the county makes sweeping generalizations in an attempt to exclude
categories of roads from that designation. For example, the county generalizes
that dead-end roads rarely, if ever, qualify as roads of general and public utility.
But the county offers no rationale for that assertion beyond its bare belief that
traffic on a dead-end road is necessarily local, as opposed to general. In support
of its general assertion, the county maintains that inclusion of dead-end roads as
roads of general and public utility would impermissibly render the phrase “of
general and public utility” meaningless. While courts should, of course, not read
a statute in a manner that renders any part superfluous, see State ex rel. Myers v.
Spencer Twp. Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 373, 116 N.E. 516
(1917), a factual, case-by-case determination whether a dead-end road is of
general and public utility pays heed to the statutory requirement without rendering
any part of the statute superfluous. As with any other street or road, whether a
particular dead-end road serves a general and public utility must be determined on
a case-by-case basis upon the particular facts of each case.
{¶ 27} The county also generally asserts that bridges to isolated business
enclaves are not “necessary” bridges under R.C. 5591.02 and 5591.21, but that
assertion is specious. As the county notes, “necessary” describes something
“essential, indispensable, or absolutely required.” In re Application of Columbus
S. Power Co., 138 Ohio St.3d 448, 2014-Ohio-462, 8 N.E.3d 863, ¶ 28, citing
Webster’s Third New International Dictionary 1510-1511 (1986). But the
county’s assertion that bridges are “necessary” only when “situated on roads
which are essential to getting Ohioans from one end of town to the other” is not
supported by either the statutory language itself or the common meaning of the
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January Term, 2014
term “necessary.” The Old Rockside Road bridge is necessary, inasmuch as it is
essential, indispensable, and absolutely required to access the portion of Old
Rockside Road in Independence, the businesses located off Old Rockside Road in
Independence, the two municipal streets with which it connects in Independence,
and the Rockside Station of the Cuyahoga Valley Scenic Railroad.
{¶ 28} Finally, the county argues that judicial estoppel precludes
Independence from arguing that Old Rockside Road is a road of general and
public utility. The county bases this argument on Independence’s alleged
representation in a grant application to the Northeast Ohio Areawide Coordinating
Agency (“NOACA”) that Independence was the sponsor for an approved project
to repair the Old Rockside Road bridge. The county claims that Independence’s
representation should preclude Independence from inconsistently arguing that the
county is responsible for repairing the Old Rockside Road bridge.
{¶ 29} Judicial estoppel precludes a party from taking a position
inconsistent with a position that it successfully and unequivocally asserted in a
prior judicial proceeding. Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-
Ohio-6442, 879 N.E.2d 174, ¶ 25. It applies only when a party demonstrates that
an opposing party took a contrary position under oath in a prior proceeding and
that the court accepted the prior position. Id., quoting Griffith v. Wal-Mart Stores,
Inc., 135 F.3d 376, 380 (6th Cir.1998). Even then, judicial estoppel is an
equitable doctrine that a court may invoke at its discretion. New Hampshire v.
Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), quoting
Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990).
{¶ 30} The county’s judicial-estoppel argument fails here for several
reasons. First, the county raises that argument for the first time in this court, even
though an appellant generally may not raise an argument on appeal that the
appellant has not raised in the lower courts or administrative proceedings. Greer-
Burger at ¶ 30. Here, according to the county, the factual basis for its judicial-
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estoppel argument—Independence’s NOACA application—occurred in February
2013, while this case was pending in the Eighth District, but the county did not
raise the issue of estoppel in that court.
{¶ 31} Second, even were we inclined to consider the county’s argument,
the record contains no evidence of the grant application to NOACA containing
Independence’s alleged inconsistent position. Although the County Engineers
Association of Ohio, as amicus curiae, has attached Independence’s NOACA
application to its amicus brief, the application was not filed in any prior
proceeding in this case and is therefore not properly part of the record before this
court.
{¶ 32} Furthermore, the county does not rely on, nor does the record
reflect, a contrary position taken by Independence in either this or any prior
judicial proceeding. In determining whether to invoke judicial estoppel, courts
often consider whether the party to be estopped has persuaded a court to accept
the party’s earlier position, so that subsequent acceptance of an inconsistent
position would create the risk of inconsistent court determinations. New
Hampshire at 750, quoting United States of Am. for the use of Am. Bank v. C.I.T.
Constr. Inc. of Texas, 944 F.2d 253, 259 (5th Cir.1991). Throughout the four-
year history of these proceedings, Independence’s position has consistently been
that Old Rockside Road is an improved road of general and public utility and that
the county is, therefore, responsible for the maintenance and repair of the bridge
located on it. Because Independence has not presented a contrary argument to
any court, let alone succeeded on a contrary argument, there is no risk of
inconsistent judicial determinations on this issue. Moreover, the availability of
funding to Independence, should it be found responsible for repairing the Old
Rockside Road bridge, does not prejudice the county’s ability to defend against
liability. In light of the county’s successive and ongoing appeals, as well as its
refusal to comply with the common pleas court’s judgment, Independence’s
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January Term, 2014
application for funding does not preclude Independence from defending the
position upon which it prevailed in the common pleas court and the court of
appeals.
{¶ 33} Turning now from the county’s general arguments to the specific
facts of this case, we reiterate the limitation upon appellate review in this matter:
like the court of appeals, we decline to reweigh the evidence. Our only concern is
whether, as a matter of law, the preponderance of the reliable, probative, and
substantial evidence supports a conclusion contrary to the trial court’s
determination that the road is one of general and public utility.
{¶ 34} The evidence regarding Old Rockside Road and the traffic that
uses it is undisputed. The Old Rockside Road bridge provides the only means for
accessing the portion of Old Rockside Road in Independence, the two streets to
which Old Rockside Road connects in Independence, and the businesses and
facilities located off those roads. Additionally, the road and bridge provide access
to the Cuyahoga Valley National Park and the only motor-vehicle access to the
Cuyahoga Valley Scenic Railroad’s Rockside Station.
{¶ 35} Multiple businesses rely on Old Rockside Road and the Old
Rockside Road bridge as the sole means of access to their facilities. Those
businesses serve many customers outside of Independence—some serve national
and international customers—and they would be cut off from any roads without
the Old Rockside Road bridge.
{¶ 36} The county attempts to minimize the amount of traffic using Old
Rockside Road in comparison with the traffic using new Rockside Road, but a
two-day traffic study conducted by the county engineer’s office in early
November 2010 showed that 1,666 vehicles used the Old Rockside Road bridge
one day and 1,780 vehicles used the bridge the other day. (The county maintains
that those numbers must be halved because every vehicle that crosses the bridge
into Independence must also cross the bridge to leave.) While those numbers are
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significantly less than the number of vehicles that used the new Rockside Road
during the study period, they cannot be dismissed outright as mere local traffic
primarily for the use and benefit of Independence.
{¶ 37} In addition to the traffic study, the record contains evidence that
during 2010, approximately 75,000 passengers from across the state of Ohio and
the United States used the road and the bridge to reach the Cuyahoga Valley
Scenic Railroad at the Rockside Road Station. Further, ALL Erection & Crane
Rental Corporation, one of the businesses located off Old Rockside Road in
Independence, uses the road and bridge to transport a large local fleet of vehicles
and equipment to national and international rental customers. The company’s
dispatch department conservatively estimates that bridge crossings by the
company’s employees, customers, and suppliers reach 40,000 to 50,000 per year.
{¶ 38} Based on the evidence in the record, the court of appeals could not
have concluded, as a matter of law, that a preponderance of reliable, probative,
and substantial evidence did not support the trial court’s conclusion that Old
Rockside Road is an improved road of general and public utility.
Conclusion
{¶ 39} Unless the court of appeals found, as a matter of law, that a
preponderance of reliable, probative, and substantial evidence did not support the
common pleas court’s reversal of the board’s decision, it was bound to affirm.
Dudukovich, 58 Ohio St.2d at 207-208, 389 N.E.2d 1113. The evidence does not
demonstrate, as a matter of law, that Old Rockside Road lacks general and public
utility. Rather, a preponderance of reliable, probative, and substantial evidence
supports the determination that Old Rockside Road and the Old Rockside Road
bridge facilitate general, as opposed to primarily local, traffic and that Old
Rockside Road is, therefore, a road of general and public utility. Accordingly, we
affirm the court of appeals’ judgment.
Judgment affirmed.
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January Term, 2014
O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, and O’NEILL, JJ.,
concur.
O’DONNELL, J., dissents.
____________________
O’DONNELL, J., dissenting.
{¶ 40} Respectfully, I dissent.
{¶ 41} This case concerns whether Cuyahoga County should bear the cost
to repair the Old Rockside Road Bridge, which is located on Old Rockside Road,
formerly a county road that the county vacated in 1967.
{¶ 42} In my view, based on the facts of this case, Cuyahoga County
should not be required to pay for repairs to the bridge.
Facts and Procedural History
{¶ 43} On June 22, 1967, the Board of County Commissioners of
Cuyahoga County vacated Old Rockside Road as a county road and adopted the
county engineer’s recommendation to leave the roadway as a municipal street.
Independence has admitted that it has borne the responsibility for maintaining that
road since the county vacated it.
{¶ 44} On December 2, 2010, upon the request of the Cuyahoga County
prosecutor, the board adopted a resolution determining that “Old Rockside Road,
located in the City of Independence and Village of Valley View, is not a road of
general and public utility * * * as that term is used in Ohio Revised Code Sections
5591.03 and 5591.21.”
{¶ 45} The city of Independence appealed that decision to the Cuyahoga
County Court of Common Pleas, and that court reversed the board’s decision,
stating:
The court reviewed the briefs and the record and finds that
the decision of the Cuyahoga County Board of Commissioners was
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unreasonable and arbitrary [and] therefore reverses the board’s
decision. The Old Rockside Road Bridge is found to be a bridge
of “general and public utility” as it lies between the two
municipalities and is therefore not within the municipal
corporation as required by O.R.C. 723.01 and O.R.C. 5591. The
court finds that Cuyahoga County is responsible for the repair and
maintenance of the Old Rockside Road Bridge.
(Emphasis added.)
{¶ 46} The board and Cuyahoga County appealed to the Eighth District
Court of Appeals, which affirmed the judgment of the court of common pleas.
8th Dist. Cuyahoga No. 97167, 2013-Ohio-1336, ¶ 37. The Office of the
Cuyahoga County Executive, the board’s successor, appealed to this court, and we
granted discretionary review. 136 Ohio St.3d 1509, 2013-Ohio-4657, 995 N.E.2d
1212.
Law and Analysis
{¶ 47} R.C. 723.01 requires that a municipal corporation, i.e., a city or
village, see R.C. 703.01(A), have the care, supervision, and control of bridges
within its municipal boundaries. See R.C. 723.01 (“Except as provided in section
5501.49 of the Revised Code [bridges on a state highway in a municipal
corporation], the legislative authority of a municipal corporation shall have the
care, supervision, and control of the * * * bridges * * * within the municipal
corporation”).
{¶ 48} By way of comparison, R.C. 5591.02 requires a board of county
commissioners to “construct and keep in repair all necessary bridges in municipal
corporations on all county roads and improved roads that are of general and
public utility, running into or through the municipal corporations, and that are not
on state highways.” And, pursuant to R.C. 5591.21, subject to an exception not
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relevant here, a board of county commissioners also is required to “construct and
keep in repair necessary bridges over streams and public canals on or connecting
state, county, and improved roads.”
{¶ 49} The issue before the common pleas court focused on the board’s
determination that Old Rockside Road—not Old Rockside Road Bridge—is not a
road of general and public utility. However, the court rendered judgment
regarding the bridge, not the road. It therefore abused its discretion. See Doe v.
Natl. Bd. of Med. Examiners, 199 F.3d 146, 154 (3d Cir.1999) (“A court abuses
its discretion when its ruling is founded on an error of law or a misapplication of
law to the facts”).
{¶ 50} The court of appeals also misidentified the pertinent issue when it
stated that the “issue in this case * * * is whether the trial court’s decision that the
bridge is one of general and public utility is supported by a preponderance of
reliable, probative, and substantial evidence.” (Emphasis added.) 2013-Ohio-
1336, ¶ 14.
{¶ 51} In Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d 848 (1984),
we stated that in an appeal pursuant to R.C. 2506.04, such an appeal “requires [the
court of appeals] to affirm the common pleas court, unless the court of appeals
finds, as a matter of law, that the decision of the common pleas court is not
supported by a preponderance of reliable, probative and substantial evidence.”
We also stated,
[R.C. 2506.04] grants a more limited power to the court of appeals
to review the judgment of the common pleas court only on
“questions of law,” which does not include the same extensive
power to weigh “the preponderance of substantial, reliable and
probative evidence,” as is granted to the common pleas court.
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SUPREME COURT OF OHIO
Within the ambit of “questions of law” for appellate court review
would be abuse of discretion by the common pleas court.
Id. at fn. 4.
{¶ 52} In this case, a preponderance of reliable, probative, and substantial
evidence supports the board’s decision that Old Rockside Road is not a road of
general and public utility. See Webster’s Third New International Dictionary 944
(1993) (defining “general” as “applicable or relevant to the whole rather than to a
limited part, group, or section”); Black’s Law Dictionary 1422, 1779 (10th
Ed.2014) (defining “public” as “[o]pen or available for all to use, share, or enjoy”
and “utility” as the “quality of serving some function that benefits society;
meritoriousness”).
{¶ 53} Specifically, the record discloses that in 1967, in support of a
recommendation to vacate Old Rockside Road, the chief deputy to the county
engineer informed the board that “[s]ubsequent to the relocation of Rockside
Road * * * it has been determined that the portion of Old Rockside Road between
the above captioned limits is no longer an essential part of the County-wide road
network nor is it anticipated that this section of the old road will be included in
any plans in the foreseeable future.”
{¶ 54} The record further discloses that the results of an August 2010
traffic study of Old Rockside Bridge showed that the total two-way traffic that
went over the bridge in a 24-hour period consisted of 1,666 vehicles on the first
day and 1,780 vehicles on the second day, while the average daily traffic on the
new Rockside Road Bridge was 24,300 vehicles.
{¶ 55} While the area near Old Rockside Road may have changed since
1967 and Old Rockside Road may be important to businesses that abut that
roadway and that are located on streets that connect with it, these business
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January Term, 2014
constitute a limited part, group, or section when compared with the whole of the
local surrounding area.
{¶ 56} Thus, the board’s determination that Old Rockside Road is not a
road of general and public utility is supported by the record.
{¶ 57} Notably, the board in its 2010 resolution did not render any
decision regarding Old Rockside Road Bridge. Therefore, the issue of
responsibility for repairs to the bridge is not properly before this court.
{¶ 58} Accordingly, I would reverse the judgment of the court of appeals
and uphold the decision of the Board of County Commissioners that Old Rockside
Road is not a road of general and public utility.
____________________
Taft, Stettinius & Hollister, L.L.P., and Gregory J. O’Brien, Independence
Law Director, and Thomas J. Lee and Jennifer Orr, for appellee.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Brian
R. Gutkoski and David G. Lambert, Assistant Prosecuting Attorneys, for
appellant.
Thomas L. Sherman, urging reversal for amicus curiae, County Engineers
Association of Ohio.
_________________________
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