The Colt’s Neck Homeowners Association v. Franklin County, Ohio Board of Commissioners et al., Case Nos. 2025-0693 and 2025-0980
Fifth and Tenth District Courts of Appeals (Franklin and Licking counties)

State of Ohio v. Scott T. Burrell, Case Nos. 2025-0952 and 2025-0962
Fifth District Court of Appeals (Muskingum County)

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Could Homeowners Association Appeal Order to Proceed With Ditch Improvements?

The Colt’s Neck Homeowners Association v. Franklin County, Ohio Board of Commissioners et al., Case Nos. 2025-0693 and 2025-0980
Fifth and Tenth District Courts of Appeals (Franklin and Licking counties)

ISSUES:

• Can a landowner opposing a joint county ditch improvement petition appeal a joint county board of commissioners’ decision to move forward with the project after the first hearing on the matter?
• Can a single judge consider an appeal of a joint county ditch improvement petition when the opponent to the project seeks monetary damages in the appeal?
• Even if a single judge could consider a claim for damages by an opponent of a joint county ditch improvement plan, must a joint panel of judges from the impacted counties consider all other objections by the opponent to the plan?

BACKGROUND:
In 2023, a Licking County resident and the Jefferson Township Board of Trustees filed a ditch improvement petition with the Franklin County Board of Commissioners. The plan aimed to mitigate flooding and improve drainage for properties along Cole Ditch. Cole Ditch is a tributary of Blacklick Creek, beginning in Licking County and flowing into Franklin County. Cole Ditch spans 1,132 acres, with about two-thirds of it running through Franklin and the remainder in Licking. Modifications to storm water drainage are governed by R.C. Chapters 6131 through 6133 and establish a process for addressing ditches that cross county lines.

The process requires the petitioners to list the affected property owners in the ditch’s watershed. The petition contained hundreds of names of landowners whose property could be impacted by the project and might be assessed charges to pay for the improvements. Among the landowners were the Colt’s Neck Homeowners Association and individual homeowners in the Colt’s Neck subdivision. Once the petition was filed, the Franklin County Engineer’s Office was tasked by law to notify property owners within the watershed of the proposal.

Because the improvement proposal crosses county lines, state law required a joint board of county commissioners from Franklin and Licking counties to consider the matter. The process requires two hearings to proceed. At the first hearing, the county engineer presented a required preliminary report, including a cost estimate and a cost-benefit analysis of the entire project. Individual parcel assessments had not been calculated for the first hearing.

Several area owners raised their objections to the proposal at the hearing, including a representative of the Colt’s Neck Homeowners Association and various members of the association. The association noted that several large lakes owned by Colt’s Neck would be impacted by the plan, and the potential costs for the improvements ranged from $2.4 million to $7.5 million.

At the conclusion of the hearing, the joint board found the petition met the requirements to proceed to the next step. The county commissioners adopted a resolution directing the Franklin County engineer to proceed with a project survey and design, including preparing reports, plans, and schedules for improvements to the Cole Ditch watershed. Under state law, those plans would be considered at a second hearing.

Homeowners Association Appeals Decision
In December 2023, Colt’s Neck appealed the joint board’s determination to Franklin County Common Pleas Court. The association claimed the engineer failed to demonstrate the need for the improvements and argued the hearing process was flawed. The lawsuit requested $25,000 or more in damages to cover the association's expenses incurred to date in contesting the plan. Colt’s Neck filed a companion case in Licking County Common Pleas Court.

The commissioners from both counties sought to have the cases dismissed, arguing an action taken after the first hearing was only preliminary and not a final order that could be appealed to the common pleas court. Trial judges in both Franklin and Licking counties agreed, and both cases were dismissed.

Colt’s Neck appealed the Licking County case to the Fifth District Court of Appeals and the Franklin County case to the Tenth District Court of Appeals. The Fifth District affirmed the trial court’s decision, finding the case was filed too early and that the affected owners had to hold their challenge until after the second hearing. The Fifth District found it unclear how Colt’s Neck would be affected until the commissioners agreed to move forward with the project and estimate the amount owners would be assessed.

The Tenth District reversed the other trial court’s decision. It found the law allowed an appeal of a joint board “order” at any time. It interpreted the resolution directing the engineer to proceed as an “order” that could be appealed. The Tenth District found that its decision conflicted with the Fifth District's.

The parties appealed the adverse decisions to the Supreme Court of Ohio, which agreed to consider the conflict and consolidated the cases.

Case Properly Dismissed, Counties Maintain
The counties support two reasons cited by the Fifth District for dismissing the case. First, the appeals court found that under R.C. Chapters 6131 and 6133, there is no right to appeal a joint board’s decision after the first hearing if the joint board directs the county engineer to proceed with the project. If a petition is dismissed after the first hearing, it is a final action that can be appealed under the law, they note. The counties argue that since the matter had not progressed to the second stage, the landowners are not “affected owners” who have been impacted by the joint board’s decision. The law allows affected owners to appeal, and the counties maintain that Colt’s Neck isn’t an affected owner yet. It’s only after the engineer's plans have been adopted and assessments to the landowners have been projected that any property owner in the Cole Ditch watershed can become an affected owner, the counties assert. Because this hadn’t happened, the association had no right to appeal after the first hearing, the counties argue.

In addition, the Fifth District found that if Colt’s Neck’s appeal was valid, the trial court had the authority to dismiss the case. The counties note that under R.C. 6133.10, an appeal of a joint county board’s decision on a ditch petition must be heard by a joint panel of judges, one from each county in which the ditch is located. However, R.C. 6133.10(A) provides an exception: all appeals to the common pleas court, except those on claims for compensation and damages, shall be heard by a panel of judges from each affected county.

Because Colt’s Neck seeks damages in its appeal, a joint panel of judges didn’t need to consider the appeal, the counties maintain. Instead, a single judge in the county in which the case was filed could decide the case, the Fifth District ruled. The counties agree that the trial courts in Franklin and Licking counties each had the authority to dismiss the cases, and those decisions should be affirmed.

Cases Improperly Dismissed, Homeowners Association Asserts
Colt’s Neck agrees with the reasoning of the Tenth District, which found the decision could be appealed, and that a joint panel of judges would have to consider the matter. The association argues that the resolution passed by the joint board is an “order” to the county engineer to proceed with the planning and scheduling of the ditch improvements. R.C. 6131.25 indicates that “any order” issued by the board can be appealed to the common pleas court. Since the order impacts a ditch plan for two counties, state law requires a two-judge panel to consider the matter, the association asserts.

Colt’s Neck agrees with the Tenth District’s decision that the homeowners have the right under the statute to file the appeal and don’t have to wait until they learn how much they will be charged for the project to be considered affected owners. Additionally, the association disputes that a single judge could rule on the case because the lawsuit included a claim for damages.

The association argues that the law allows for a single judge to consider a claim for damages only if the joint board has reached the point in the process where it ruled that some landowners were damaged by the project. Including a request for damages along with other claims to halt the project doesn’t prevent the matter from going to a two-judge panel, the association argues. Colt’s Neck maintains Ohio courts have handled similar claims differently. One approach is for a single judge to consider the damages suffered by the landowners in their county and send the rest of the case to the joint judge panel to consider the other objections. The other approach is for the joint judge panel to defer ruling on the damages issue and first decide the rest of the appeal. If damages are determined later, after the other issues are resolved, then the matter is returned to single judges in their respective counties to decide on damage amounts, the association asserts.

Because the matters were dismissed by single-judge rulings, Colt’s Neck argues they are invalid, and the appeal needs to be considered by a two-judge panel.

– Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2025-0693 and 2025-0980).

Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Michael Wajda, mwajda@prosecutor.cuyahogacounty.us

Representing Colt’s Neck Homeowners Association: Bryan Hunt, bshunt@lovelandlaw.net

Representing Franklin County Board of Commissioners et al.: Joseph Durham, jrdurham@eastmansmith.com

Representing Licking County Board of Commissioners: Darcy Cook, dcook@lickingcounty.gov

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Does State Have Right to Appeal Indictment Amended by Trial Court?

State of Ohio v. Scott T. Burrell, Case Nos. 2025-0952 and 2025-0962
Fifth District Court of Appeals (Muskingum County)

ISSUES:

• When a trial court amends an indictment or bill of information to remove a reference to a prior conviction that elevated the level of the new alleged criminal offense, does the prosecutor have the right to appeal that decision under R.C. 2945.67?
• Does a prosecutor have the right to appeal not only when a trial court deletes a prior conviction elevating an offense, but also when a trial court deletes any language in an indictment or bill of information?

BACKGROUND:
Scott Burrell was indicted in September 2024 on one count of third-degree domestic violence and a count of misdemeanor child endangerment. The domestic violence allegation was charged as a third-degree felony, rather than a fourth-degree felony, because of two earlier domestic violence convictions.

In the Muskingum County Common Pleas Court, Burrell filed a motion opposing the third-degree felony charge, arguing his 2011 domestic violence conviction can’t be one of the two convictions needed to support the elevation of the current charge to a third-degree offense. Burrell noted that he wasn’t represented by an attorney in the 2011 case and alleged that his waiver of his right to counsel wasn’t made knowingly, intelligently, or voluntarily. He served 15 days in jail for the crime.

Trial Court Amends Indictment
In a February 2025 decision, the Muskingum County Common Pleas Court agreed with Burrell, finding he wasn’t informed in 2011 of the range of punishments, dangers and disadvantages of self-representation at trial, and other factors before the municipal court accepted his waiver in that case. The 2024 indictment was amended to lower the domestic violence charge to a fourth-degree felony.

The Muskingum County prosecutor appealed to the Fifth District Court of Appeals, which upheld the trial court decision. The Fifth District ruled state law doesn’t grant the prosecutor the right to appeal an amendment made to an indictment. The Fifth District also certified that the Eighth District Court of Appeals has a decision that conflicts with the ruling in Burrell’s case.

The Supreme Court of Ohio agreed to review the conflict and accepted an appeal from the Muskingum County Prosecutor’s Office.

Prosecutor Argues Lowering Level of Offense Is Dismissal of More Serious Charge
The prosecutor notes that R.C. 2945.67 gives prosecutors the right to appeal a criminal case decision that “grants a motion to dismiss all or any part of an indictment, complaint, or information ….” In most other circumstances, the prosecutor must request leave, or permission, from the appellate court to file an appeal.

The prosecutor notes that Ohio courts are split on whether deleting language that enhanced the level of an offense in an “accusatory instrument,” such as an indictment, qualifies as a dismissal. In Burrell’s case, the prosecutor maintains that the amended indictment is a dismissal, granting a right for an appeal. The office argues that deleting a prior conviction from a charge is equivalent to deleting an element of the offense. In this case that means an element of the third-degree felony domestic violence charge was deleted. That deletion always terminates the offense without resolving the defendant’s guilt, the office contends. Because a more serious offense was dismissed and replaced with a lesser offense, prosecutors are entitled to appeal, the office asserts.

The prosecutor also points out that the certified conflict in this case only addresses deleted language that affects the level of a charged offense. In its separate appeal, the prosecutor requests a broader rule from the Supreme Court – one allowing prosecutors to appeal the deletion of any language, not just a change to the offense level. The prosecutor asserts that changing the language in these accusatory instruments affects how a crime can be punished, how it is affected by other parts of the Revised Code, and how the state can prove a crime.

The prosecutor’s brief also states that “times are changing in criminal law: a veritable renaissance is afoot in how courts are interpreting a prosecutor’s right to appeal,” citing to a 2025 Court ruling that permits prosecutors to appeal a trial court’s venue decision and to three other cases pending with the Court. The prosecutor believes this case fits into the mix. When trial courts start “wrongly tinkering” with the language of the charges, the state should have the right to appeal those actions to vindicate their charging decisions, the prosecutor’s brief concludes.

Man Contends Amended Charge Different Than Appealable Partial Dismissal
Burrell counters that the Court shouldn’t consider the certified conflict because the prosecutor invited the error. The prosecutor seemingly forgot to file for leave from the court, as required by R.C. 2945.67, before filing an appeal, Burrell argues. He contends that the state now seeks correction of a mistake caused by its own neglect.

He also asserts that amending an indictment isn’t the same as a partial dismissal. This view is supported by the Ohio Rules of Criminal Procedure, he maintains. Rule 7(D) provides guidance for amendments to indictments, and a separate rule, Rule 12(C), discusses motions to dismiss indictments before trial. An amendment is a modification or change to a document, while a dismissal terminates a criminal prosecution before a resolution, Burrell maintains. The Supreme Court will need to reconcile the reasons for these different rules if it adopts the state’s propositions of law, he contends.

He asserts that the state’s arguments are overly broad and would expand the appeal rights of prosecutors contrary to the limits enacted by the General Assembly in R.C. 2945.67. In addition, he argues, if the Court rules that requesting leave from a court to appeal is no longer required, that ruling would apply to both the state and to defendants.

Burrell’s brief states that the state is “seeking judicial activism to change the rules of the game as part of a legal ‘renaissance’ allowing it to appeal as of right any decision it doesn’t like.” The argument isn’t supported by Ohio law, Burrell concludes.

State Attorney General Files Brief, Will Argue Before Court
An amicus curiae brief supporting the Muskingum County prosecutor’s position was submitted by the Ohio Attorney General’s Office. The attorney general will participate in oral argument, sharing the time allotted to the prosecutor.

– Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2025-0952 and 2025-0962).

Contacts
Representing the State of Ohio from the Muskingum County Prosecutor’s Office: John Dever, jcdever@muskingumcounty.org

Representing Scott T. Burrell: Christopher Bazeley, bazeleyc@bazeleylaw.com

Representing the Ohio Attorney General’s Office: Mathura Sridharan, mathura.sridharan@ohioago.gov

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