Saturday, June 6th, 2009
By Nancy Allen
Case Leasing and state both filing appeals on flood damage decision
  The state and Case Leasing and Rental are both appealing a decision by an Ohio Court of Claims judge awarding the company $3,286,144 in damages caused by historic flooding that damaged Breakaway RecPlex in July 2003.
The state is appealing because it says it owes less and the business is appealing because it says it is owed more.
The case now moves to the 10th District Court of Appeals in Franklin County.
The April 16 decision filed by Judge J. Craig Wright modified and nullified an earlier Feb. 11 recommendation by an Ohio Court of Claims magistrate who said Case was entitled to $4.2 million in damages from the state. Wright's figure was less because he ruled Case was not entitled to receive damages for the interest Case paid on the money he borrowed to repair the health complex.
Stephen Samuels, who is representing the business and owner Tom Case, said he is disappointed.
"I am very disappointed that the state decided to appeal and drag this matter out," Samuels said this week. "ODNR did serious damage to Tom and he deserves to get reimbursed sooner rather than later."
Samuels said ODNR likely will file a brief with the appeals court outlining its grounds for the appeal and he, on Case's behalf, will file a reply brief. The appeals court would then schedule oral arguments whereby each side will have an allotted amount of time to present its side to a three judge panel.
Samuels said it could take a few months before there is appeals court decision.
It's possible the case could be appealed to the Ohio Supreme Court, which has discretion on which cases it hears.
In the lawsuit first filed in 2005, the business said the severe flooding was caused by Grand Lake's West Bank spillway, which is managed by the state. Case had originally sought almost $5.3 million in damages.
A trial to determine whether the state was liable for damages to the RecPlex was held in August and October 2006. In June 2008, the court ruled in favor of Case, finding ODNR negligent, and scheduled a second trial to determine a damage amount. That trial was held in January, after which Magistrate Lee Hogan made a Feb. 11 recommendation awarding Case $4.2 million in damages. Judge Wright then modified Hogan's decision saying Case was entitled to $3,286,144.
The court of claims said based on the data available to it at the time, the state knew or should have known that installation of the replacement spillway in 1997 would result in more frequent and more severe flooding to downstream landowners. Therefore, its design choice and subsequent lake level management were unreasonable, the court said.
The state replaced the 39-foot-long, 1913 spillway with a new 500-foot-long spillway in 1997 because dam inspection regulations said it was in danger of failing due to topping over.
In July 2003, heavy rains exiting Grand Lake from the West Bank spillway flooded Beaver Creek, which lies just north of the RecPlex. The entire area around the fitness facility was flooded, as was the inside of the building, closing the facility for months and necessitating extensive repairs and the replacement of equipment.
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