State ex rel. Chester v. Evans

2011 Ohio 3675

• Court: Ohio Court of Appeals
• Decided: July 25, 2011
• Docket: 11-CA-5
• Status: Published

Opinion

[Cite as State ex rel. Chester v. Evans, 2011-Ohio-3675.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE EX REL. : DOUGLAS H. CHESTER & : JUDGES: ROSALYN S. CHESTER : : Hon. W. Scott Gwin, P.J. Relators : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : CASE NO. 11-CA-5 J. TERRY EVANS/MICHAEL L. : SMITH : : OPINION Respondent :

CHARACTER OF PROCEEDING: Petition for Writ of Mandamus

JUDGMENT: WRIT DISMISSED

DATE OF JUDGMENT ENTRY: July 25, 2011

APPEARANCES:

For Relators (Pro se): For Respondent:

Douglas & Roslyn Chester Dennis E. Dove 3449 Licking Valley Rd. Assistant Prosecuting Attorney Newark, Ohio 43055 Licking County Prosecutors Office 20 South Second Street, P.O. Box 830 Newark, Ohio 43058 2

Licking County, Case No. 11-CA-5

Delaney, J.

{¶1} Relators, Douglas and Rosalyn Chester, have filed a Petition for

Writ of Mandamus requesting this Court issue a writ which would require the

Respondent, the Licking County Auditor, to remove from his records any

reference to a mobile home currently included in Parcel Number 065-

315972.01.001.

{¶2} Relators have requested and are granted leave to amend their

Petition to name the current auditor, Michael L. Smith.

{¶3} Respondent Smith has filed a Motion to Dismiss to which Relators

have filed a response.

{¶4} Relators are the defendants in a foreclosure lawsuit filed in the

Licking County Court of Common Pleas, Case Number 09-CV-1892. In that

case, the trial court granted judgment in favor of Federal Home Loan Mortgage

Company (“Federal”). Thereafter, Federal moved the trial court for leave to

amend their complaint to include a new claim that the mobile home which was

located on the foreclosed land was a fixture and part of the land. The trial court

granted leave to amend the complaint. Both Federal and Relators filed

dispositive motions relative to the amended complaint. Each of the dispositive

motions was denied, therefore, the claim to declare the mobile home a fixture

remains unresolved in the trial court. 3

{¶5} Respondent argues Relator’s Petition should be dismissed

Because Relators have no clear legal right to have the mobile home removed

from the parcel number, Respondent has no clear legal duty to remove the

mobile home from the parcel number and Relators have or had an adequate

remedy at law.

{¶6} For a writ of mandamus to issue, the relator must have a clear legal

right to the relief prayed for, the respondents must be under a clear legal duty to

perform the requested act, and relator must have no plain and adequate remedy

in the ordinary course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio

St.3d 28, 451 N.E.2d 225.

{¶7} Relators have not directed this Court to any clear legal duty on the

part of Respondent to remove the mobile home from this parcel. Relators merely

assert they have a free and clear title to the mobile home. We have previously

recognized that a mobile home may become a fixture and part of the real estate.

In Equitable Federal Savings and Loan Association v. Hopton (1985), 1985 WL

7309, at 4, this Court held: “The trial court's conclusion that the “double wide,”

two-piece mobile home became a fixture is abundantly supported by the

evidence. The test for annexation is (1) actual annexation to the realty; (2)

application to the use; and (3) the intention of the party making the annexation to

make a permanent accession. Zangerle v. Standard Oil Co. (1945), 144 Ohio St.

506, 60 N.E.2d 52 (following Teaff v. Hewitt (1853), 1 Ohio St. 511); Taylor v. 4

Multi-Flo, Inc. (1980), 69 Ohio App.2d 19, 429 N.E.2d 1086. Thus, a fixture is an

article which was a chattel, but which, by being affixed to realty, became

accessory to it and parcel of it.” Therefore, we find mere possession of the title

to the mobile home is not dispositive of the inquiry as to whether the mobile

home is a fixture on the property.

{¶8} Relators also have not shown that the possession of the title alone

creates a duty on the part of Respondent to remove the mobile home from the

parcel.

{¶9} As Respondent notes in his Motion to Dismiss, pursuant to Licking

County Conveyance Standards Rule C.2, Respondent has the discretion to deny

a requested transfer when Respondent has knowledge that a lawsuit is pending

involving the property at issue.

{¶10} We find the cause of action pending in the trial court to determine

whether the mobile home is a fixture provides Relators with an adequate remedy

at law.

{¶11} For these reasons, Respondent’s Motion to Dismiss is granted.

The requested Writ of Mandamus is dismissed. 5

{¶12} PETITION FOR WRIT DISMISSED.

{¶13} COSTS TO RELATORS.

By: Delaney, J. Gwin, P.J. and Hoffman, J. concur

____________________________ HON. PATRICIA A. DELANEY

____________________________ HON. W. SCOTT GWIN

____________________________ HON. WILLIAM B. HOFFMAN 6

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE EX REL. : DOUGLAS H. CHESTER & : CASE NO. 11-CA-5 ROSALYN S. CHESTER : : Relators : : -vs- : JUDGMENT ENTRY : J. TERRY EVANS/MICHAEL L. : SMITH : : Respondent :

For the reasons stated in the Memorandum-Opinion on file, Relators’

Petition for Writ of Mandamus is hereby dismissed. Costs to Relators.

______________________________ HON. PATRICIA A. DELANEY

______________________________ HON. W. SCOTT GWIN

______________________________ HON. WILLIAM B. HOFFMAN