[Cite as State ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 122 Ohio St.3d 260, 2009-Ohio2871.] 

THE STATE EX REL. GILMOUR REALTY, INC., APPELLANT, v. CITY OF 

MAYFIELD HEIGHTS ET AL., APPELLEES. 

[Cite as State ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 

122 Ohio St.3d 260, 2009-Ohio-2871.] 

Real property — Zoning — Regulatory-takings claim not established. 

(No. 2009-0229 — Submitted June 16, 2009 — Decided June 24, 2009.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

No. 90575, 2009-Ohio-29. 

__________________ 

 Per Curiam.

{¶ 1} This is an appeal from a summary judgment denying a writ of 

mandamus to compel a city and its planning commission to commence 

appropriation proceedings based on an alleged regulatory taking. Because the 

summary-judgment evidence was insufficient to raise a triable issue on 

appellant’s regulatory-takings claim and the evidence established as a matter of 

law that the claim lacked merit, we affirm the judgment of the court of appeals. 

Purchase of Property for Commercial Use 

{¶ 2} Beginning in 1999, appellant, Gilmour Realty, Inc. (“Gilmour” or 

“the company”), operated a mortgage brokerage and title agency on property it 

owned at 5747 Mayfield Road in appellee city of Mayfield Heights, Ohio. 

Gilmour purchased two properties in Mayfield Heights: 1461 Eastwood Avenue 

in 2001 and 1455 Eastwood Avenue in 2003. Before each purchase, the city 

verified to Gilmour that the property was zoned U-4 Local Retail/Wholesale 

District, which permitted commercial use. The Eastwood Avenue properties were 

located directly north of Gilmour’s existing business property, and Gilmour 

bought them for use as additional office space. The Mayfield Heights City 
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Council approved a site plan for the conversion of Gilmour’s Eastwood Avenue 

properties for office use in conjunction with the company’s existing mortgage and 

title businesses at 5747 Mayfield Road in March 2003. According to Gilmour’s 

president, after the city approved the commercial use of the properties purchased, 

Gilmour “spent a considerable amount of money in * * * renovating, converting 

and improving the properties so they could be used by [Gilmour] as office space.” 

Business Relocation from Mayfield Road and Sale of Properties 

{¶ 3} By June 2003, Gilmour had moved from its Mayfield Road 

location because it needed more space. According to the mayor, however, 

Gilmour moved because the city would not permit use of the building’s second 

floor without remodeling it to conform to the building code. In a filing in a 

common pleas court case, Gilmour admitted that it had vacated its Mayfield Road 

office and had put the Mayfield Road and neighboring Eastwood Avenue 

properties up for sale. By the end of 2004, Gilmour had sold the Mayfield Road 

and Eastwood Avenue properties. 

The Rezoning of the Property 

{¶ 4} In January 2004, appellee Mayfield Heights Planning Commission 

recommended that the city council rezone Gilmour’s Eastwood Avenue properties 

from U-4 Local Retail/Wholesale District, which permits commercial use, to U-1 

Single Family House District, which does not. 

{¶ 5} In March 2004, the city council adopted Ordinance No. 2004-4, 

which rezoned 1455 and 1461 Eastwood Avenue from U-4 to U-1. 

Action for Declaratory and Injunctive Relief 

{¶ 6} Gilmour later filed a complaint in the Cuyahoga County Court of 

Common Pleas requesting a declaratory judgment against the city, its mayor, and 

its council members and an injunction prohibiting them from rezoning the 

Eastwood Avenue properties. Gilmour alleged that the city’s rezoning of these 

properties constituted a compensable taking. 
January Term, 2009 

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Mandamus Case – Dismissal 

{¶ 7} In October 2007, Gilmour filed a complaint in the Court of 

Appeals for Cuyahoga County for a writ of mandamus to compel appellees, 

Mayfield Heights and the Mayfield Heights Planning Commission, to commence 

appropriation proceedings. Gilmour alleged that the city’s rezoning of the 

Eastwood Avenue properties from commercial to residential constituted a taking 

because the rezoning denied Gilmour the economically viable use of its land and 

interfered with its investment-backed expectations for the property. Appellees 

filed a motion for summary judgment or dismissal. Gilmour filed a motion for 

summary judgment. 

{¶ 8} The court of appeals treated appellees’ motion as a motion to 

dismiss for failure to state a claim upon which relief can be granted, granted the 

motion, and dismissed Gilmour’s mandamus complaint. 174 Ohio App.3d 113, 

2007-Ohio-6480, 881 N.E.2d 277. The court of appeals concluded that Gilmour’s 

pending common pleas court action for declaratory and injunctive relief 

constituted an adequate remedy in the ordinary course of law, which precluded 

the mandamus action. Id. 

Reversal and Remand 

{¶ 9} On appeal, we reversed the judgment of the court of appeals 

because the court of appeals erred in holding that Gilmour’s pending action for 

declaratory and injunctive relief barred the company’s mandamus action to 

compel appellees to institute appropriation proceedings. State ex rel. Gilmour 

Realty, Inc. v. Mayfield Hts., 119 Ohio St.3d 11, 2008-Ohio-3181, 891 N.E.2d 

320. We remanded the cause to the court of appeals for the parties to “be given 

the opportunity to introduce evidence and argument on Gilmour’s partial 

regulatory-takings claim.” Id. at ¶ 21. 

Mandamus Proceedings on Remand 
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{¶ 10} On remand, the court of appeals granted the parties leave to file 

supplemental briefs and noted that the disposition of the case would be based on 

the previously filed motions and briefs as well as the supplemental briefs. 

Gilmour filed a supplemental brief that included an attached, unsworn real estate 

appraisal. Appellees filed a brief with several unsworn and unauthenticated 

exhibits. Neither party requested an evidentiary hearing or oral argument. 

{¶ 11} In January 2009, the court of appeals granted appellees’ motion for 

summary judgment, denied Gilmour’s motion for summary judgment, and denied 

the writ. 

{¶ 12} This cause is now before the court upon Gilmour’s appeal as of 

right. 

Mandamus – Regulatory Taking 

{¶ 13} Gilmour first argues that the court of appeals’ supplementalbriefing order erroneously modified our remand order by limiting the evidence the 

court of appeals would consider. To the contrary, we instructed that on remand, 

the parties be afforded “the opportunity to introduce evidence and argument.” 

Nothing in the court of appeals’ order prohibited the parties from offering 

evidence. Gilmour also did not request an evidentiary hearing or oral argument. 

See Loc.App.R. 45(B)(4) of the Eighth Appellate District (“If the parties do not 

stipulate to the evidence, then the court may appoint a magistrate to take 

testimony on issues of disputed fact”). 

{¶ 14} Gilmour next claims that the court of appeals erred in granting 

summary judgment in favor of appellees and denying the writ. “Summary 

judgment is appropriate if (1) no genuine issue of any material fact remains, (2) 

the moving party is entitled to judgment as a matter of law, and (3) it appears 

from the evidence that reasonable minds can come to but one conclusion, and 

construing the evidence most strongly in favor of the nonmoving party, that 

conclusion is adverse to the party against whom the motion for summary 
January Term, 2009 

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judgment is made.” State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 

372, 2005-Ohio-2163, 826 N.E.2d 832, ¶ 9; see also Todd Dev. Co. v. Morgan, 

116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 11. 

{¶ 15} To be entitled to a writ of mandamus, Gilmour must establish a 

clear legal right to compel the city and its planning commission to commence 

appropriation, a corresponding clear legal duty on the part of the city and planning 

commission to institute that action, and the lack of an adequate remedy for 

Gilmour in the ordinary course of law. State ex rel. Shelly Materials, Inc. v. Clark 

Cty. Bd. of Commrs., 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59, ¶ 15. 

“Mandamus is the appropriate action to compel public authorities to commence 

appropriation cases when an involuntary taking of private property is alleged.” 

Id. 

{¶ 16} For Gilmour’s attempt to establish the remaining requirements of a 

clear legal right and duty, the regulatory-takings claim requires an examination of 

(1) the economic impact of the regulation on Gilmour, (2) the extent to which the 

regulation has interfered with the company’s distinct investment-backed 

expectations, and (3) the character of the government action. Penn Cent. Transp. 

Co. v. New York City (1978), 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631; 

Gilmour Realty, 119 Ohio St.3d 11, 2008-Ohio-3181, 891 N.E.2d 320, ¶ 21. 

{¶ 17} Notwithstanding Gilmour’s arguments to the contrary, the 

undisputed evidence establishes that it moved its business from the properties at 

issue for reasons other than the rezoning it challenges in its mandamus action. 

Gilmour moved from its Mayfield Road office before the rezoning occurred, and 

by the end of 2004, Gilmour had sold all of its properties in or near that location. 

Although appellees did not support these pertinent facts with evidence of the 

kinds specified in Civ.R. 56(C), courts may consider other evidence if there is no 

objection on this basis. State ex rel. Spencer v. E. Liverpool Planning Comm.

(1997), 80 Ohio St.3d 297, 301, 685 N.E.2d 1251; Loukinas v. Roto-Rooter Servs. 
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Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272, ¶ 22. Gilmour 

did not object to this evidence based on any alleged noncompliance with Civ.R. 

56. Instead, the company filed a motion to strike appellees’ brief on the mistaken 

ground that it did not comply with the court’s remand order. The court of appeals 

correctly denied Gilmour’s motion. 

{¶ 18} This evidence established that the rezoning had little or no effect 

on Gilmour and that it did not substantially interfere with Gilmour’s distinct 

investment-backed expectations. Gilmour had vacated the Mayfield property and 

had relocated its business by the time the rezoning became effective. This is not a 

case in which the challenged governmental action caused “substantial 

individualized harm.” Penn Cent., 438 U.S. at 125, 98 S.Ct. 2646, 57 L.Ed.2d 

631. Therefore, even if the court of appeals had credited the affidavit of 

Gilmour’s president, appraisal report, and other evidence, the evidence submitted 

by the parties failed to raise a genuine triable issue under the Penn Cent. test. 

State ex rel. Trafalgar Corp. v. Miami Cty. Bd. of Commrs., 104 Ohio St.3d 350, 

2004-Ohio-6406, 819 N.E.2d 1040, ¶ 28. 

{¶ 19} Therefore, because the summary-judgment evidence established as 

a matter of law that Gilmour’s regulatory-takings claim lacked merit, the court of 

appeals properly granted appellees’ motion for summary judgment and denied the 

writ. We affirm the judgment of the court of appeals. 

Judgment affirmed. 

 MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL,

LANZINGER, and CUPP, JJ., concur. 

 PFEIFER, J., concurs in judgment only. 

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 Rudolph J. Geraci, for appellant. 

 Leonard F. Carr and L. Bryan Carr, for appellees. 

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