State ex rel. Kushlak v. Cleveland Animal Protective League

2024 Ohio 580

• Court: Ohio Court of Appeals
• Decided: February 9, 2024
• Docket: 112753
• Status: Published

Opinion

[Cite as State ex rel. Kushlak v. Cleveland Animal Protective League, 2024-Ohio-580.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE EX REL., ANTHONY : KUSHLAK, : Relator, : No. 112753 v. : THE CLEVELAND ANIMAL PROTECTIVE LEAGUE, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: COMPLAINT DISMISSED DATED: February 9, 2024

Writ of Mandamus Motion No. 565565 Order No. 571904

Appearances:

Michaela Huth, for relator.

Holland & Muirden and DanaMarie Pannella, for respondent.

KATHLEEN ANN KEOUGH, A.J.:

Anthony Kushlak (“Kushlak”), the relator, has filed a complaint for a

writ of mandamus. Kushlak essentially seeks a declaratory judgment and a

prohibitory injunction that prevents the enforcement of an agreed sentencing judgment that provides for random, unannounced inspection of Kushlak’s residence

by the Cleveland Animal Protective League (“APL”), the respondent. The APL has

filed a motion to dismiss that is granted for the following reasons.

I. The Facts

In Cleveland v. Kushlak, Cleveland M.C. No. 2021-CRB-13267,

Kushlak was charged with violation of Cleveland Codified Ordinances 603.091(b)

(no person shall keep any animal in a place that is unsanitary, including any place

where there is an accumulation of feces or other waste, or foul odor, or insect or

rodent infestation) and violation of R.C. 959.131(D)(1) (prohibitions concerning

companion animals). On June 1, 2022, Kushlak entered a plea of no contest and

was found guilty of R.C. 959.13(D)(1), the offense of prohibitions concerning

companion animals. The offense of keeping an animal in an unsanitary place, a

violation of Cleveland Codified Ordinances 603.091(b), was nolled. As part of the

agreed sentence imposed by the trial court, the following condition was imposed as

part of community control:

The Defendant voluntarily consents to random, unannounced inspections of his home and other areas of his property where animals may be kept or cared for by the Cleveland APL or other county humane society where he resides. Such random inspections shall take place during daylight hours at a reasonable time and frequency.

No appeal was taken by Kushlak from the sentence and conditions of

community control journalized on June 1, 2022. On May 23, 2023, Kushlak filed a

complaint for a writ of mandamus. Kushlak seeks to: Enjoin Respondent Cleveland APL from entering Relator Anthony Kushlak’s property pursuant to the random and unannounced community control condition set forth in paragraph four of the Agreed Supplemental Sentencing Entry.

Enjoin Respondent Cleveland APL from entering upon Relator Anthony Kushlak’s property, including his home, unless the Cleveland APL employee or agent conducting the entry, complies [with] Ohio Revised Code Section 2951.02.

On June 27, 2023, the APL filed a motion to dismiss. On July 17, 2023, Kushlak

filed a brief in opposition the APL’s motion to dismiss.

II. Legal Analysis

A. Adequate Remedy in the Ordinary Course of the Law

The Ohio Constitution, Article IV, Section 3(B)(1)(b) provides this

court with original jurisdiction over a complaint that seeks a writ of mandamus. A

writ of mandamus, however, is an extraordinary remedy that can only be granted in

a limited set of circumstances. State ex rel. Parisi v. Heck, 2d Dist. Montgomery No.

25709, 2013-Ohio-4948. Mandamus can only be employed to compel the

performance of a present existing duty to which there is a default. State ex rel.

Willis v. Sheboy, 6 Ohio St.3d 167, 451 N.E.2d 1200 (1983); State ex rel. Fed. Homes

Properties, Inc. v. Singer, 9 Ohio St.2d 95, 223 N.E.2d 824 (1967).

To be granted mandamus, Kushlak must establish (1) a clear legal

right to the requested relief, (2) a clear legal duty on the part of the APL, and (3) the

lack of an adequate remedy in the ordinary course of the law. State ex rel.

Richardson v. Gowdy, 172 Ohio St.3d 281, 2023-Ohio-976, 223 N.E.3d 424; State

ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452. The Ohio Supreme Court has held “[t]he availability of an appeal is an adequate remedy

sufficient to preclude a writ.” State ex rel. Luoma v. Russo, 141 Ohio St.3d 53, 2014-

Ohio-4532, 21 N.E.3d 305, ¶ 8; State ex rel. Peoples v. Johnson, 152 Ohio St.3d 418,

2017-Ohio-9140, 97 N.E.3d 426. The availability of an appeal is an adequate remedy

in the ordinary course of the law even if the relator fails to pursue an appeal.

Jackson v. Johnson, 135 Ohio St.3d 364, 2013-Ohio-999, 986 N.E.2d 989; State ex

rel. Gaydosh v. Twinsburg, 93 Ohio St.3d 576, 757 N.E.2d 357 (2001).

Herein, Kushlak cannot demonstrate that he lacks or lacked an

adequate remedy in the ordinary course of the law. The sentencing order

journalized June 1, 2022, that contained the supplemental agreed provision to be

subjected to random and unannounced inspections by the APL, constituted a final

appealable order subject to an immediate appeal. In addition, Kushlak can

potentially avail himself of an appeal through a delayed appeal pursuant to App.R.

5. Shoop v. State, 144 Ohio St.3d 374, 2015-Ohio-2068, 43 N.E.3d 432; State ex rel.

Williams v. Corrigan, 8th Dist. Cuyahoga No. 87150, 2005-Ohio-6092.

B. Declaratory Judgment and Injunctive Relief

This court lacks any jurisdiction to issue a declaratory judgment on

behalf of Kushlak. Wright v. Ghee, 74 Ohio St.3d 465, 659 N.E.2d 1261 (1996); State

ex rel. Coyne v. Todia, 45 Ohio St.3d 232, 543 N.E.2d 1271 (1989). The Supreme

Court of Ohio has held that if the allegations of a complaint for a writ of mandamus

indicate the real objects sought are a declaratory judgment, the complaint does not state a cause of action in mandamus and must be dismissed for want of jurisdiction.

State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629, 716 N.E.2d 704 (1999).

In addition, this court lacks jurisdiction to issue a prohibitory

injunction to prohibit or enjoin the APL from doing something that Kushlak expects

to occur in the future. Any attempt to prevent an anticipated injury is the function

of a prohibitory injunction, which is not within the original jurisdiction of this court.

State ex rel. Gadell-Newton v. Husted, 153 Ohio St.3d 255, 2018-Ohio-1854, 103

N.E.3d 809.

Kushlak seeks a declaratory judgment, through his prayer in the

complaint for mandamus, that the APL is required to comply with R.C. 2951.02 and

must have statutory reasonable grounds for any unannounced inspection and a

search of his home pursuant to the agreed community control condition set forth in

paragraph four of the agreed supplemental sentencing journal entry. We can only

consider the merits of a declaratory judgment claim in a direct appeal from a

decision of a lower court that has declared the rights and duties of Kushlak and the

APL. State ex rel. Hogan v. Ghee, 85 Ohio St.3d 150, 707 N.E.2d 494 (1999); State

ex rel. Kirk v. Burcham, 82 Ohio St.3d 407, 696 N.E.2d 582 (1998).

Finally, Kushlak seeks to enjoin the APL from entering his property

to conduct any unannounced inspection and search of his home as permitted under

paragraph four of the agreed community control condition. The request to enjoin

the APL from conducting any unannounced inspection and search of Kushlak’s

home constitutes a prohibitory injunction that is not within our jurisdiction. State ex rel. Maras v. Larose, 170 Ohio St.3d 374, 2022-Ohio-3852, 213 N.E.3d 672; State

ex rel. King v. Cuyahoga Cty. Bd. of Elections, 170 Ohio St.3d 42, 2022-Ohio-3613,

208 N.E.3d 787.

Accordingly, we grant the APL’s motion to dismiss. Costs to Kushlak.

The court directs the clerk of courts to serve all parties with notice of this judgment

and the date of entry upon the journal as required by Civ.R. 58(B).

Complaint dismissed.

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

ANITA LASTER MAYS, J., and MICHAEL JOHN RYAN, J., CONCUR