[Cite as Cuyahoga Hts. v. Ram Supply Chain, L.L.C., 2021-Ohio-315.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

VILLAGE OF CUYAHOGA HEIGHTS, : 

 Plaintiff-Appellee, : 

 No. 109565 and 109566 

 v. : 

 

RAM SUPPLY CHAIN, L.L.C., ET AL., : 

 

 Defendants-Appellants. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 4, 2021 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Probate Court Division 

Case Nos. 2018ADV234017 and 2018 ADV234021 

 

Appearances: 

Walter│Haverfield, L.L.P., R. Todd Hunt, Benjamin G. 

Chojnacki, Assistant Director of Law, Village of Cuyahoga 

Heights, and Wesley M. Kretsch, for appellee. 

Richard D. Eisenberg, for appellant. 

EILEEN T. GALLAGHER, P.J.: 

Defendant-appellant, Ram Supply Chain, L.L.C. (“Ram”), appeals a 

judgment of the Cuyahoga County Probate Court finding that the appropriation of 
its property is necessary and serves a legitimate public purpose. Ram claims the 

following three errors: 

1. The trial court committed reversible error in adopting the 

magistrate’s opinion as an order without independently reviewing the 

facts to determine necessity, contrary to statute. 

2. It was reversible error for the lower court to adopt and incorporate 

the magistrate’s opinion (titled Magistrate’s Decision) with plain error 

on its face. 

3. The lower court committed reversible error by denying appellants 

an extension of time to prepare a transcript and file objections to the 

magistrate’s decision when appellants’ counsel was not provided a copy 

of the decision until after the fourteen (14) day objection period had 

elapsed. 

We find no merit to the appeal and affirm the trial court’s judgment. 

I. Facts and Procedural History 

The village of Cuyahoga Heights (“the Village”) sought to acquire fee 

simple interests in the rear portion of two adjacent parcels of real property for a 

public improvement project. The two properties were owned by Ram and JJM 

Investments, L.L.C. (“JJM Investments”). The Village offered to purchase the 

properties, but negotiations were not successful. As a result, the Village commenced 

two separate appropriations proceedings in the Cuyahoga County Probate Court to 

take the properties for the Nicky Boulevard Project. The Nicky Boulevard Project 

involves the extension of storm sewers, the installation of a retention pond, the 

stabilization eroding slopes, and the creation of a stream along a portion of the 

closed Nicky Boulevard Landfill and a portion of East 49th Street. The Village 

asserted that the project is necessary to prevent further flooding and erosion in the 
Village, manage leachate from the closed landfill, and protect the quality of the 

groundwater. 

In response to the Village’s claims, Ram and JJM Investments 

(collectively “defendants”), asserted that their properties were not needed for the 

project. They claimed the retention basin/pond could be built on other land and 

that, therefore, their properties would not be needed for slope stabilization, grading, 

or fill. They asserted that, unlike other properties on East 49th Street, their 

properties are not suffering from erosion. And, defendants argued that because 

managing leachate from the closed landfill benefits a private corporation, it is not a 

public improvement project. 

Following a hearing on the necessity of the appropriation of the 

defendants’ properties, a probate court magistrate issued a decision finding that the 

appropriation of the defendants’ properties is necessary and serves a legitimate 

public purpose. The magistrate’s decision was filed on January 9, 2020, 

approximately one year after the hearing. On January 30, 2020, the probate court 

adopted the magistrate’s decision. The probate court’s order stated, in its entirety: 

This cause came on for hearing before Magistrate * * * on the Petition 

for Appropriation filed by the Plaintiff and the Answer/Motion of 

Defendant to Dismiss Complaint for Failure to Show Necessity filed by 

Defendant property owner, JJM Investments, L.L.C. 

The Court finds that a Magistrate’s Decision was issued, a copy of which 

was mailed to all interested parties on January 10, 2020 and that no 

objections have been filed. 

The Court further finds that the Magistrate’s decision should be 

adopted as the findings and conclusions of this court. 
Therefore, it is ORDERED that the appropriation of the defendant[s’] 

subject property is necessary and serves a legitimate public purpose. 

It is further ORDERED that a pretrial on the issue of compensation is 

scheduled for February 27, 2020 at 2:30 p.m. 

(January 30, 2020, judgment entry.) 

One day later, on January 31, 2020, Ram filed a motion for an extension 

of time within which to file objections to the magistrate’s decision. Ram asserted 

that there was “good cause” for the extension because Ram did not receive a copy of 

the magistrate’s decision until January 25, 2020. The probate court overruled the 

motion for extension of time. Ram now appeals the trial court’s judgment adopting 

the magistrate’s decision. 

II. Law and Analysis 

A. Magistrate’s Authority 

In the first assignment of error, Ram argues the probate court erred in 

adopting the magistrate’s decision without independently reviewing the facts. Ram 

contends that only a judge, and not a magistrate, may determine the necessity of 

appropriating private property. Ram further asserts that a magistrate has no legal 

authority to conduct a hearing on a necessity. 

However, Ram did not object to the hearing before the magistrate and, 

therefore, waived all but plain error. The doctrine of plain error is not favored in 

civil cases and must be applied with the utmost caution. Goldfuss v. Davidson, 79 

Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). We, therefore, only apply plain error 
“in the extremely rare case involving exceptional circumstances where error, to 

which no objection was made at the trial court, seriously affects the basic fairness, 

integrity, or public reputation of the judicial process, thereby challenging the 

legitimacy of the underlying judicial process itself.” Id. at syllabus. 

Ram argues the trial court erred in adopting the magistrate’s decision 

because the magistrate lacked legal authority to conduct a hearing on the necessity 

for appropriating its property. Indeed, R.C. 163.09, which governs the 

appropriation of private property, provides that “only the judge may determine the 

necessity of the appropriation.” R.C. 163.09(B)(2). 

However, Civ.R. 53 vests magistrates with broad authority to do any 

of the following: 

(a) Determine any motion in any case; 

(b) Conduct a trial of any case that will not be tried to a jury; 

* * * 

(e) Exercise any other authority specifically vested in magistrates by 

statute and consistent with this rule. 

Civ.R. 53(C)(1). In addition, Civ.R. 53(D)(1)(a) allows a trial judge to “refer a 

particular case or matter or a category of cases or matters to a magistrate by a 

specific or general order of reference or by rule.” 

In any case, a magistrate’s decision is an interlocutory 

recommendation and is not the final order of the court. Becher v. Becher, 8th Dist. 

Cuyahoga No. 108472, 2020-Ohio-669, ¶ 32; see also State v. Pennington, 187 Ohio 
App.3d 526, 2010-Ohio-2139, 932 N.E.2d 941, ¶ 16 (2d Dist.). “Civ.R. 53 places 

upon the court the ultimate authority and responsibility over the referee’s findings 

and rulings.” Hartt v. Munobe, 67 Ohio St.3d 3, 615 N.E.2d 617 (1993). Therefore, 

the trial court in this case was authorized to refer the appropriation hearing to a 

magistrate, who was authorized to make factual findings and recommendations to 

the judge. 

Ram nevertheless argues there is nothing in the record to indicate that 

the trial court independently reviewed the magistrate’s factual findings. To be sure, 

a trial court judge may not merely “rubber stamp” a magistrate’s decision since the 

magistrate acts as an agent of the court without independent authority. Becher at 

¶ 24, citing State ex rel. Dewine v. Ashworth, 4th Dist. Lawrence No. 11CA16, 2012-

Ohio-5632, ¶ 38; McCarty v. Hayner, 4th Dist. Jackson No. 08CA8, 2009-Ohio4540, ¶ 17. 

However, unlike the trial judge in Becher, who signed the final 

judgment simultaneously with the magistrate and deprived the parties of the 

opportunity to file objections, the court in this case afforded the parties time to file 

objections and made a separate finding at a later date that “the appropriation of the 

Defendant’s subject property is necessary and serves a legitimate purpose.” (Jan. 

30, 2020, judgment entry.) Although the trial court did not state reasons for its 

conclusion that the appropriation of Ram’s property was necessary and served a 

legitimate purpose, an appellate court presumes the trial court conducted an 

independent review of the magistrate’s decision unless the appellant affirmatively 
shows that the trial court failed to conduct an independent analysis. Millers v. 

Kasnett, 2015-Ohio-298, 26 N.E.3d 915, ¶ 20 (8th Dist.), citing Brzozowski v. 

Brzozowski, 8th Dist. Cuyahoga No. 101013, 2014-Ohio-4820, ¶ 7, citing Rokakis v. 

W. Res. Leasing Co., 8th Dist. Cuyahoga No. 95058, 2011-Ohio-1926, ¶ 18. 

The fact that the trial court adopted the magistrate’s decision does not, 

by itself, prove that the court did not exercise its independent judgment. Id. “‘[T]he 

trial court is not required to “comment or reference” any portion of the record in 

undertaking its independent review of the record.’” Millers at ¶ 21, quoting 

Ernsberger v. Ernsberger, 8th Dist. Cuyahoga No. 100675, 2014-Ohio-4470, ¶ 21. 

Although it may be best practice for the trial court to explain its reason for adopting 

the magistrate’s decision, such a practice is not required. Millers at ¶ 21. 

The trial judge made the ultimate determination that the 

appropriation of Ram’s property was necessary and served a legitimate purpose. 

And because the court, as opposed to the magistrate, made the determination of 

necessity, the trial court complied with R.C. 163.09(B)(2). We, therefore, find no 

error in the court’s decision to have a magistrate conduct the appropriations hearing 

since the trial court made the final determination on necessity. 

The first assignment of error is overruled. 

B. Plain Error 

In the second assignment of error, Ram argues the magistrate’s 

decision had “plain error on its face” because none of the resolutions passed by the 

Village council complied with R.C. 163.59(B). 
R.C. 163.59(B) states, in relevant part: 

In order for an acquiring agency to acquire real property, the 

acquisition shall be for a defined public purpose that is to be achieved 

in a defined and reasonable period of time. 

Despite Ram’s statements to the contrary, the Village passed 

resolutions and ordinances declaring the necessity of appropriating Ram’s property 

for a public purpose to be achieved within a defined and reasonable time. Resolution 

No. 2017-16 states, in relevant part, that the appropriation of private property within 

the Village “is necessary and advisable for the public health, safety and welfare.” The 

resolution expressly states that the property would be acquired “for public use * * * 

to extend the sewer system, install a retention pond, stabilize eroding slopes, and 

create a stream along the western portion of the Nicky Boulevard Landfill * * * .” 

The resolution further provides: 

This Resolution is hereby declared to be an emergency measure 

immediately necessary for the preservation of the public peace, health, 

safety and welfare of the Village, and for further reason that it is 

immediately necessary for the transactions that are the subject of this 

Resolution to occur as soon as possible to meet deadlines imposed by 

the Ohio Environmental Protection Agency and in order to ensure that 

flooding, erosion, and other problems which the Project aims to 

address will no longer affect real property in the Village. 

Resolution 2017-16 expressly states that the Nicky Boulevard Project is intended for 

a public purpose and that the goals of the project would be obtained by deadlines 

imposed by the Ohio Environmental Protection Agency. 

Ordinance 2018-46 similarly states that it is “an emergency measure” 

passed pursuant to the Village’s Home Rule Authority “for the immediate 
preservation of the public peace, health, and safety of the Village.” The ordinance 

further states, in relevant part, that 

this ordinance must be immediately effective to ensure that the Law 

Director and Assistant Law Director may timely petition the Cuyahoga 

County Probate Court to acquire ownership of the Property in a 

timeframe that allows the Nicky Boulevard Storm Sewer Extension and 

Slope Stabilization Project to be started and completed in compliance 

with the timeframe for project completion required by the United 

States Army Corps of Engineers, the Ohio Environmental Protection 

Agency, and all other interested governmental agencies. 

The ordinance declared that the appropriation of Ram’s property served a legitimate 

government purpose. And, the ordinance states that the project will be completed 

within the timeframe required by the Ohio Environmental Protection Agency and 

the United States Army Corps of Engineers. Resolution No. 2017-16 and Ordinance 

2018-16 comply with R.C. 163.59(B) because they expressly state that the 

appropriation of Ram’s property is necessary to serve a legitimate public purpose 

and that the public improvement project will be completed within a definite and 

reasonable time as determined by the Ohio Environmental Protection Agency and 

the United States Army Corps of Engineers. 

Under R.C. 163.09(B)(1)(a), municipal resolutions and ordinances 

declaring the necessity for appropriation create a rebuttable presumption of the 

necessity of appropriating private property. R.C. 163.09(B)(1)(a) states, in its 

entirety: 

A resolution or ordinance of the governing or controlling body, council, 

or board of the agency declaring the necessity for the appropriation 

creates a rebuttable presumption of the necessity for the appropriation 
if the agency is not appropriating the property because it is a blighted 

parcel or part of a blighted area or slum. 

Since Ram’s property is neither blighted nor in a blighted area or slum, the 

magistrate properly concluded that the Village’s resolutions created a rebuttable 

presumption that the appropriation of Ram’s property was necessary for the project. 

Ram failed to present evidence rebutting that presumption. Ram’s 

expert witness, Joseph Ciuni (“Ciuni”), a civil engineer and professional surveyor, 

testified that the storm sewer extension was occurring on other properties within 

the project area and that Ram’s property was being acquired to place fill in the large 

ravine behind its property. Ciuni further stated that the retention basin/pond could 

be placed anywhere in the project area, including on top of the closed landfill. Ciuni 

opined that placing the pond elsewhere would eliminate the need to use Ram’s 

property. 

However, on cross-examination, Ciuni was unable to identify whether 

any problems would result from moving the pond elsewhere. And, he admitted that 

he had not examined the entire plan for the project to evaluate whether the pond 

could be placed elsewhere. 

The grading plan for the slope stabilization and retention pond 

required approval of CSX Railroad because the project calls for fill to be placed on 

portions of its property for slope stabilization. Ciuni admitted that he did not know 

if CSX had approved the project and conceded that if CSX approved the project, then 

the taking of Ram’s property would be necessary. 
By contrast, the Village’s expert engineer, Todd Sciano (“Sciano”), 

testified that Ram’s property is necessary for the project because the retention basin 

must be at the lowest elevation of the project site since water naturally flows to the 

lowest point. To place a retention pond on top of the landfill, which has a higher 

elevation, would require pumps to force the water uphill. Such a planwould be cost 

prohibitive. 

Ciuni testified that he did not observe any slope erosion on Ram’s 

property. However, he admitted that he did not take any soil samples and was 

unaware of the type of soil on Ram’s property. Sciano, on the other hand, testified 

that the storm sewer was failing in the project area and that the failure was causing 

an immense need for stabilization. Sciano opined that Ram’s property would likely 

experience the same erosion issues that were occurring on many nearby properties 

on East 49th Street. Sciano explained that Ram’s property would benefit from the 

stabilization aspect of the project. 

Ram’s expert, Ciuni, could not comment on the leachate 

contamination coming from the nearby landfill. But he admitted that leachate must 

be properly managed. He also admitted that there may be “much public benefit” 

from the project. Kurt Princic, the District Chief of the Ohio EPA North District, 

testified that leachate management issues will be resolved by the project because the 

leachate will be able to drain properly. Princic stated that access to private 

properties is necessary for the successful implementation of the project. 
In short, the Village passed resolutions and ordinances declaring the 

necessity of appropriating the rear portion of Ram’s property. The resolutions and 

ordinances created a rebuttable presumption of the necessity for the taking of Ram’s 

property. Ram argued that there is no erosion on its property and that the retention 

pond could be located elsewhere. However, Ram’s expert failed to review the entire 

project, acknowledged that he did not take soil samples from Ram’s property, could 

not comment on the leachate problem and, therefore, could not render a reliable 

opinion regarding the impact on the project if the Village was unable to use the rear 

portion of Ram’s property. Therefore, Ram failed to successfully rebut the 

presumption that the taking of the rear portion of its property is necessary and will 

serve a legitimate public purpose. 

The second assignment of error is overruled. 

C. Extension of Time 

In the third assignment of error, Ram argues the trial court abused its 

discretion in denying its motion for extension of time to file objections to the 

magistrate’s decision when its counsel was not served with a copy of the magistrate’s 

decision until after the 14-day objection period had elapsed. 

The decision as to whether to grant a motion for extension of time lies 

within the broad discretion of the trial court and will not be disturbed absent an 

abuse of discretion. Johnson v. Univ. Hosp. Case Med. Ctr., 8th Dist. Cuyahoga No. 

90960, 2009-Ohio-2119, ¶ 5. An abuse of discretion implies a decision that is 
unreasonable, arbitrary, or unconscionable. State ex rel. DiFranco v. S. Euclid, 144 

Ohio St.3d 571, 2015-Ohio-4915, 45 N.E.3d 987, ¶ 13. 

Civ.R. 53(D)(3) governs magistrate’s decisions and states, in relevant 

part, that “[a] magistrate’s decision shall be in writing, identified as a magistrate’s 

decision in the caption, signed by the magistrate, filed with the clerk, and served by 

the clerk on the parties or their attorneys no later than three days after the decision 

is filed.” Civ.R. (D)(3)(a)(iii). A party may then file written objections to a 

magistrate’s decision “within fourteen days of the filing of the decision * * * .” Civ.R. 

53(D)(3)(b)(i). However, Civ.R. 53(D)(5) allows the trial court to grant a reasonable 

extension of time outside the 14-day period for “good cause shown.” Id. “‘Good 

cause’ includes, but is not limited to, a failure by the clerk to timely serve the party 

seeking an extension with the magistrate’s order or decision.” Id. 

The magistrate’s decision was filed on January 9, 2020. Below the 

magistrate’s signature, the decision indicates that copies were mailed to the 

addresses of lead counsel for all parties. The trial court’s judgment entry adopting 

the magistrate’s decision also indicates that the magistrate’s decision was mailed by 

the clerk of courts on January 10, 2020. Pursuant to Civ.R. 5(B)(2)(c), service is 

complete upon mailing. 

The Ohio Supreme Court has held that a presumption of regularity 

attaches to official actions. L.J. Smith, Inc. v. Harrison Cty. Bd. of Revision, 140 

Ohio St.3d 114, 2014-Ohio-2872, 16 N.E.3d 573, ¶ 27. The “presumption of 

regularity” presupposes that public officials have properly performed their duties. 
Applying the presumption of regularity, we can infer that the clerk mailed the 

magistrate’s decision on January 10, 2020, as indicated by the court’s docket. And, 

there is no evidence to rebut that presumption because there is no evidence that the 

clerk failed to serve Ram or its lawyer with a copy of the magistrate’s decision. 

Nevertheless, Ram failed to file timely objections to the magistrate’s 

decision within the 14-day period set forth in Civ.R. 53(D)(3)(b)(i). Instead, Ram 

filed a motion for extension of time to file objections on January 31, 2020, the day 

after the trial court entered final judgment adopting the magistrate’s decision. Once 

the trial court adopted the magistrate’s decision and entered final judgment, it lost 

jurisdiction to grant the requested extension of time. Sanctuary Condo. Assn. v. 

Castro, 8th Dist. Cuyahoga No. 106008, 2018-Ohio-3561, ¶ 13; Napier v. Cieslak, 

12th Dist. Butler No. CA2014-12-242, 2015-Ohio-2574, ¶ 7 (“[A] court does not have 

jurisdiction to permit objections to the magistrate’s decision when the magistrate’s 

decision was adopted and already made a final judgment by the trial court.”). 

Therefore, the trial court lacked authority to grant Ram’s motion for extension of 

time, and Ram’s remedy, at that point in time, was to file a motion for relief from 

judgment pursuant to Civ.R. 60(B). But Ram never filed a motion for relief from 

judgment. 

Moreover, Ram’s motion for extension of time to file objections failed 

to demonstrate “good cause.” Ram’s lawyer represented to the court that he received 

a copy of the magistrate’s decision on January 25, 2020. Yet, he did not file a request 

for additional time until January 31, 2020. Ram failed to explain why counsel 
waited six days after receiving the magistrate’s decision to file the motion for 

extension of time. The trial court had not yet adopted the magistrate’s decision on 

January 25, 2020, and the trial court would likely have granted a reasonable request 

for extension of time if the request were made before the court entered final 

judgment. However, by January 31, 2020, it was too late. 

The record indicates that Ram was served with the magistrate’s 

decision, and Ram failed to demonstrate good cause for failing to file timely 

objections to the magistrate’s decision. Therefore, the third assignment of error is 

overruled. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to the common pleas court, 

probate division, 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. 

 

EILEEN T. GALLAGHER, PRESIDING JUDGE 

LARRY A. JONES, SR., J., CONCURS; 

MARY EILEEN KILBANE, J., DISSENTS WITH SEPARATE ATTACHED 

OPINION 
MARY EILEEN KILBANE, J., DISSENTING WITH SEPARATE OPINION 

I respectfully dissent. One year and two days after the hearing on 

necessity, the magistrate’s decision was filed. The copy was delivered to appellant’s 

counsel after the 14-day objection period had expired. The court inadvertently used 

the wrong address. This incorrect address was in no way the appellant’s fault or 

responsibility. I would find that the appellant did in fact meet his good cause shown 

burden. I respectfully would reverse and remand the matter.