State ex rel. Bayless v. Guernsey Cty. Eng.

2023 Ohio 4459

• Court: Ohio Court of Appeals
• Decided: December 6, 2023
• Docket: 23CA000024
• Status: Published

Opinion

[Cite as State ex rel. Bayless v. Guernsey Cty. Eng., 2023-Ohio-4459.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE EX REL., JUDGES: SCOTT AND KERRY BAYLESS Hon. William B. Hoffman, P.J. Hon. Craig R. Baldwin, J. Relators Hon. Andrew J. King, J. -vs- Case No. 23CA000024 GUERNSEY COUNTY ENGINEER

and OPINION

GUERNSEY COUNTY PLANNING COMMISSION

and

GUERNSEY COUNTY COMMISSIONER

J & J MUSKINGUM REAL ESTATE, LLC CAROL GOFF

Respondents

CHARACTER OF PROCEEDINGS: Writ of Mandamus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: December 6, 2023

APPEARANCES:

For Relators For County Respondents

JOSIAH COLLIER DERRICK EVAN MOOREHEAD 612 Garfield Avenue, Apt. #324 58 North Fifth Street Kansas City, MO 64124 Zanesville, OH 43701 Guernsey County, Case No. 23CA000024 2

For Goff Respondents

MOLLY R. GWIN ALEXIS R. PANNELL Isaac, Wiles & Burkholder, LLC 2 Miranova Place, Suite #700 Columbus, OH 43215 Guernsey County, Case No. 23CA000024 3

Hoffman, P.J. {¶1} Relators, Scott and Kerri Bayless, are owners of parcels of land located

within the Wakefield Subdivision in Guernsey County. Respondents can be separated

into two groups. The first group of respondents are the Guernsey County Engineer,

Guernsey County Planning Commission, and Guernsey County Commissioner (“County

Respondents”). The second group of respondents consists of Carol Goff and J & J

Muskingum Real Estate, LLC (“Goff”). Goff is the sole owner of J & J Muskingum Real

Estate, LLC.

{¶2} Goff submitted a subdivision plat which was approved by the County

Respondents. The plat calls for a cul-de-sac and connecting roads which have not been

constructed.1 As a result, Relators aver they are landlocked without the roads and lack

access to public services like school buses and emergency services.

{¶3} Relators have filed a complaint with two causes of action. The first cause

of action requests a writ of mandamus issue. The second cause of action is a declaratory

judgment action. Relators seek relief requiring the County Respondents to “enforce

subdivision standards,” and “[p]ursuant to R.C. 711.17, order the Wakefield Subdivision

plats to be rewritten to comply with all applicable standards and regulations.” Relators

also seek to require the Goff Respondents to complete “construction of the subdivision

within 3 months of the order.”

{¶4} Both sets of Respondents have filed motions to dismiss pursuant to Civ.R.

12(B)(6) for failure to state a claim upon which relief may granted. Relators have filed

responses in opposition to those motions.

1 See ¶16-18 Amended Petition for Writ of Mandamus and ¶ 17-19 Answer of County Respondents. Guernsey County, Case No. 23CA000024 4

MOTION TO DISMISS STANDARD - CIV.R. 12(B)(6)

{¶5} “For a court to dismiss a complaint pursuant to Civ.R. 12(B)(6), it must

appear beyond doubt from the complaint that the relator can prove no set of facts

warranting relief, after all factual allegations of the complaint are presumed true and all

reasonable inferences are made in the relator's favor.” (Citation omitted.) State ex rel.

Bandy v. Gilson, 161 Ohio St.3d 237, 2020-Ohio-5222, 161 N.E.3d 672, ¶ 11.

MANDAMUS

{¶6} To obtain a writ of mandamus, Relators must establish by clear and

convincing evidence (1) they have a clear legal right to requested relief, (2) Respondents

have a clear legal duty to provide that relief, and (3) Relators do not have an adequate

remedy in the ordinary course of law. State ex rel. King v. Cuyahoga Cnty. Bd. of

Elections, 2023-Ohio-3959, HN1.

{¶7} “Generally, if a relator has or had an adequate remedy at law, whether used

or not, relief in mandamus is precluded.” State ex rel. Martin v. Russo, 8th Dist. Cuyahoga

No. 96328, 2011-Ohio-3268, 2011 WL 2568453, ¶ 7, citing State ex rel. Tran v. McGrath,

78 Ohio St.3d 45, 676 N.E.2d 108 (1997).

{¶8} We find Relators have or had an adequate remedy at law, therefore, a writ

of mandamus does not lie. In Beechler v. Winkel, 59 Ohio App.2d 65, 392 N.E.2d 889

(6th Dist. 1978), property owners used declaratory judgment and an action in equity to

seek the construction of roads consistent with the approved plat. The Sixth District found

an action in specific performance is available to a landowner relying on the plat for street

access to compel the construction of streets. Id. at 72. Guernsey County, Case No. 23CA000024 5

{¶9} Relators likewise have these options available to them providing an

adequate remedy at law. The existence of an adequate remedy at law prevents this Court

from issuing the requested writ.

{¶10} Respondents further argue Relators lack standing to seek enforcement of

O.R.C. 711. Because we have already determined Relators have an adequate remedy

at law, resolution of this issue is unnecessary. We note to the extent the petition seeks

enforcement of O.R.C. 711, et seq., “Chapter 711 creates no rights on behalf of

individuals to sue for Chapter 711 violations.” Newell v. Rase, 4th Dist. Scioto No. 1512,

1985 WL 9389, *3.

{¶11} Because an adequate remedy at law exists or existed, we decline to issue

the requested writ of mandamus.

DECLARATORY JUDGMENT

{¶12} We lack jurisdiction over Relators’ second cause of action.

{¶13} “[P]ursuant to Section [3](B), Article IV of the Ohio Constitution, the scope

of an Ohio appellate court's original jurisdiction is expressly limited to five types of claims.

State ex rel. Biros v. Logan, 11th Dist. No. 2003-T-0016, 2003-Ohio-5425 [2003 WL

22326666], at ¶ 15. Since a declaratory judgment claim is not included in the list

delineated under the constitutional provision, an Ohio appellate court does not have the

general authority to hear such a claim as a trial court. Wright v. Ghee (1996), 74 Ohio

St.3d 465, 659 N.E.2d 1261; State ex rel. Coyne v. Todia (1989), 45 Ohio St.3d 232, 543

N.E.2d 1271. Instead, we can only consider the merits of a declaratory judgment claim in

a direct appeal from a decision of a lower court.” Rone v. State, 11th Dist. Ashtabula No.

2005-A-0075, 2006-Ohio-1268, 2006 WL 687939, ¶ 4. Guernsey County, Case No. 23CA000024 6

{¶14} Because this Court cannot hear declaratory judgment as an original cause

of action, this portion of the petition is dismissed for lack of jurisdiction.

CONCLUSION

{¶15} For the foregoing reasons, we grant Respondents’ Motions to Dismiss

under Civ.R. 12(B)(6). The clerk of courts is hereby directed to serve upon all parties not

in default notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).

By: Hoffman, P.J. Baldwin, J. and King, J. concur