In re Petition to Annex 95 Acres to Nelsonville

682 N.E.2d 734, 84 Ohio Misc. 2d 20, 1997 Ohio Misc. LEXIS 265
CourtAthens County Court of Common Pleas
DecidedMarch 7, 1997
DocketNo. 96CI000350
StatusPublished
Cited by2 cases

This text of 682 N.E.2d 734 (In re Petition to Annex 95 Acres to Nelsonville) is published on Counsel Stack Legal Research, covering Athens County Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Petition to Annex 95 Acres to Nelsonville, 682 N.E.2d 734, 84 Ohio Misc. 2d 20, 1997 Ohio Misc. LEXIS 265 (Ohio Super. Ct. 1997).

Opinion

Michael Ward, Judge.

STATEMENT OF FACTS AND THE CASE

The city of Nelsonville, by its duly authorized officials, officers, and agents, prepared a petition for annexation (Petition # 1), circulated the petition for signatures, and filed it on or about May 20, 1996, with the Athens County Commissioners (“commissioners”). Petitioners Cheryl McKnight Winegardner et al. requested that ninety acres, more or less, of unincorporated York Township land be annexed to the city of Nelsonville.

On August 5, a petition (Petition # 2) seeking the annexation of forty-five acres of unincorporated York Township land to the village of Buchtel was filed by Charles E. Townsend et al. with the commissioners. Petition # 1 and Petition # 2 are incompatible in that they contain, in part, the same real estate.

[23]*23On August 6, the commissioners conducted a public hearing regarding Petition #1.

On September 10, the commissioners decided to grant Petition # 1 without having yet conducted a hearing on Petition # 2.

On November 21, plaintiffs filed herein a “Petition * * * to Enjoin Nelsonville City Auditor from Presenting Annexation Petition and Other Papers to Nelson-ville Council, to Prevent Nelsonville Council from Taking Action Thereon, Appealing Decision of Commissioners, and Requesting a Stay of Execution While this Matter is Pending (R.C. 709.07).”

On November 22, the court conducted a chambers status conference regarding the issues pending before the court.

On December 4, a hearing was conducted on the plaintiffs’ request for an order granting stay of execution.

On December 6, the court issued its decision on the plaintiffs’ motion for stay. In the journal entry, the court ordered that any further action by the city of Nelsonville, or its officers, agents, or employees to accept or act upon the annexation proceedings submitted by the commissioners be stayed pending a hearing and disposition of plaintiffs’ petition for injunction and that plaintiffs not be required to post bond.

The final hearing on the motion for injunction, as agreed to by counsel, was scheduled for January 3, 1997. However, on December 31, the parties agreed that the hearing on plaintiff’s petition for injunction would be continued to January 10.

On January 8, the parties filed a stipulation of facts and agreed to waive the January 10 hearing. The parties also agreed to dates for submitting post-hearing briefs.

On January 24, the parties submitted post-hearing briefs.

On January 31, the plaintiffs filed a reply brief.

DISCUSSION OF LAW

R.C. 709.07(D) describes the burden of proof for the plaintiffs in their petition for injunction:

“(D) The petition for injunction shall be dismissed unless the court finds the petitioner has shown by clear and convincing evidence that the annexation would adversely affect the legal rights or interests of the petitioner, and that:
[24]*24“(1) There was error in the proceedings before the board of county commissioners pursuant to section 709.032 or 709.033 of the Revised Code, or that the board’s decision was unreasonable or unlawful; or
“(2) There was error in the findings of the board of county commissioners.”

“Clear and convincing evidence” is evidence which will provide in the mind of the factfinder a firm belief or conviction as to the facts sought to be established. Cincinnati Bar Assn. v. Massengale (1991), 58 Ohio St.3d 121, 122, 568 N.E.2d 1222, 1222-1223. It is a higher degree of proof than a mere “preponderance of evidence,” the usual standard for civil cases, but it is less stringent than the “beyond a reasonable doubt” standard employed in criminal cases. State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60-61.

The commissioners are charged with the duty of finding the facts and determining whether the prerequisites for annexation listed in R.C. 709.033 have been met. See Lariccia v. Mahoning Cty. Bd. of Commrs. (1974), 38 Ohio St.2d 99, 67 O.O.2d 97, 310 N.E.2d 257. Generally, the commissioners’ findings should be disturbed only if found to be “unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record.” See Middletown v. McGee (1988), 39 Ohio St.3d 284, 288, 530 N.E.2d 902, 906.

Because it is the plaintiffs’ burden to point out and establish error in the proceedings below, this court will confine its review to the five alleged infirmities asserted by the plaintiffs.

PLAINTIFFS’ ASSIGNMENTS OF ERROR

1. THE PETITION DID NOT HAVE A MAJORITY OF VALID SIGNATURES

R.C. 709.033 permits a board of county commissioners to enter an order allowing annexation if it finds, inter alia:

“(C) The persons whose names are subscribed to the petition are owners of real estate located in the territory in the petition, and as of the time the petition was filed with the board of county commissioners the number of valid signatures on the petition constituted a majority of the owners of real estate in the territory proposed to be annexed.”

At the time of the August 6 hearing before the commissioners, the plaintiffs claim that, at most, only six of the eleven signatures of property owners were still valid on the annexation petition. The issue concerns the signature of property owner Mary Robinette Dixon by Arlene Linscott, who was her attorney-in-fact pursuant to a written power of attorney.

[25]*25Mary Robinette Dixon is the mother of Arlene Linscott. In 1985, Arlene Linscott and Marilyn Wiggins quitclaimed their interest in the real estate to their mother after their father, Thomas Lawrence Dixon, died. On November 11, 1994, Mary Robinette Dixon appointed Arlene Linscott and/or her husband, Gerald Linscott, her true and lawful attomey-in-fact. This power of attorney is truly a general power of attorney because it authorizes Arlene Linscott to do everything conceivably possible with Dixon’s money, real estate, and personal property. The following paragraph shows that Dixon appointed Arlene Linscott to have unlimited power over matters involving her real estate:

“For me and in my name, to make, seal, and deliver, bargain, contract for, agree for, purchase, receive and take lands, tenements, hereditaments, and accept the possession of all lands, and all deeds and other assurances, in the law therefor, and to lease, let, demise, bargain, sell, remise, release, convey, mortgage, and hypothecate lands, tenements, and hereditaments upon such terms and conditions and under such covenants as they shall see fit;

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682 N.E.2d 734, 84 Ohio Misc. 2d 20, 1997 Ohio Misc. LEXIS 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-petition-to-annex-95-acres-to-nelsonville-ohctcomplathens-1997.