State ex rel. Levin v. Schremp

654 N.E.2d 1258, 73 Ohio St. 3d 733, 1995 Ohio LEXIS 1936
CourtOhio Supreme Court
DecidedOctober 11, 1995
DocketNo. 95-341
StatusPublished
Cited by32 cases

This text of 654 N.E.2d 1258 (State ex rel. Levin v. Schremp) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Levin v. Schremp, 654 N.E.2d 1258, 73 Ohio St. 3d 733, 1995 Ohio LEXIS 1936 (Ohio 1995).

Opinion

Per Curiam.

Levin asserts in his first proposition of law that the court of appeals erred in granting Schremp’s motioncfior summary judgment and denying his request for a writ of mandamus on the basis that Levin possesses an adequate remedy at law.

In order to be entitled to a writ of mandamus, Levin had to establish that he has a clear legal right to removal of the enclosure of Day Ditch, that Schremp has a clear legal duty to remove the enclosure, and that Levin has no adequate remedy at law. In addition, Civ.R. 56(C) provides that before summary judgment is granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 218-219, 631 N.E.2d 150, 152.

The court of appeals determined that because the city uses and manages Day Ditch as part of its storm sewer system, the city has a clear legal duty to exercise reasonable care in order to keep the ditch in repair and free from obstruction. The court of appeals did not decide whether “Sheffield Lake breached its duty or caused any damages to Levin’s property” because it determined that Levin was not entitled to a writ of mandamus based on the summary judgment evidence that he has an adequate remedy at law, i.e., “[h]e could sue the city for negligently causing damage to his property by failing to exercise reasonable care.”

[735]*735A writ of mandamus will not be issued when there is a plain and adequate remedy in the ordinary course of law. R.C. 2731.05. In order for there to be an adequate remedy at law, the remedy must be complete, beneficial, and speedy. State ex rel Horwitz v. Cuyahoga Cty. Court of Common Pleas, Probate Div. (1992), 65 Ohio St.3d 323, 328, 603 N.E.2d 1005, 1009.

The court of appeals cited Doud v. Cincinnati (1949), 152 Ohio St. 132, 39 O.O. 441, 87 N.E.2d 243; Portsmouth v. Mitchell (1925), 113 Ohio St. 250, 148 N.E. 846; and Kendle v. Summit Cty. (Apr. 15, 1992), Summit App. No. 15268, unreported, 1992 WL 80074, to support its determination that a private action for damages constitutes an adequate remedy at law precluding extraordinary relief via mandamus. However, none of the foregoing cases holds that the specified damage action precludes mandamus relief where relief in the nature of a mandatory injunction rather than damages is sought.

While mandamus may not ordinarily be employed as a substitute for an action at law to recover money, Maloney v. Sacks (1962), 173 Ohio St. 237, 238, 19 O.O.2d 51, 52, 181 N.E.2d 268, 269, underlying public duties having their basis in law may be compelled by a writ of mandamus. State ex rel. Ms. Parsons Constr., Inc. v. Moyer (1995), 72 Ohio St.3d 404, 406, 650 N.E.2d 472, 474; see, also, 1 Antieau, The Practice of Extraordinary Remedies (1987) 295, Section 2.03 (“rights are enforceable in mandamus when the defendant is under a public duty to perform the act demanded.” [Emphasis sic.}). Likewise, a mandatory injunction compelling Schremp to perform the requested actions does not preclude Levin’s mandamus action, since a mandatory injunction, which is an extraordinary remedy, does not constitute an adequate remedy in the “ordinary” course of the law. State ex rel. Zupancic v. Limbach (1991), 58 Ohio St.3d 130, 133, 568 N.E.2d 1206, 1209; State ex rel. Fenske v. McGovern (1984), 11 Ohio St.3d 129, 11 OBR 426, 464 N.E.2d 525, paragraph one of the syllabus. Since Schremp seeks relief in the nature of a mandatory injunction to enforce alleged public duties rather than damages to his private property, the court of appeals erred in holding that a suit by Levin for damages to his private property is an adequate remedy at law.

Schremp asserts that the court of appeals’ grant of his summary judgment motion and denial of Levin’s requested writ of mandamus were nevertheless justified. A reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as a basis thereof. State ex rel. Carter v. Schotten (1994), 70 Ohio St.3d 89, 92, 637 N.E.2d 306, 309.

Schremp claims that Levin did not establish a proper statutory taxpayer action. “In case an officer or board of a municipal corporation fails to perform any duty expressly enjoined by law or ordinance, the village solicitor or city director of law shall apply to a court of competent jurisdiction for a writ of mandamus to compel [736]*736the performance of the duty.” R.C. 733.58. If the village solicitor or city director of law fails upon the written request of a taxpayer to file a mandamus action under R.C. 733.58, the taxpayer may file such action on behalf of the municipal corporation. R.C. 733.59.

Schremp’s contention fails for two separate reasons. Initially, even if Levin’s suit is not a proper statutory taxpayer action, he still might be entitled to a writ of mandamus, but without attorney fees under R.C. 733.61. See State ex rel. Caspar v. Dayton (1990), 53 Ohio St.3d 16, 20-21, 558 N.E.2d 49, 53-54; State ex rel. Citizens for a Better Portsmouth v. Sydnor (1991), 61 Ohio St.3d 49, 54, 572 N.E.2d 649, 652.

Second, to maintain a statutory taxpayer action under R.C. 733.59, the taxpayer’s aim must be to enforce a public right, regardless of any personal or private motive or advantage. State ex rel. Caspar, supra, 53 Ohio St.3d at 20, 558 N.E.2d at 53. Although Schremp raises the claim on appeal that Levin merely asserted a private right, Levin’s summary judgment evidence included his affidavit, in which he states that the obstruction in Day Ditch causes periodic flooding of Lake Road that necessitates the rerouting of traffic.

The court of appeals erred in entering summary judgment in favor of Schremp and denying the writ of mandamus. Therefore, Levin’s first proposition is sustained.

Levin asserts in his second proposition of law that the court of appeals erred in overruling his motion for summary judgment. The Sheffield Lake Service Director is charged with the construction, improvement, repair, and maintenance of sewers, sewage systems, ditches, and culverts belonging to the city and dedicated to public use. Section 5, Article V, Sheffield Lake Charter. See, also, R.C. 735.02.

The pertinent city ordinances in effect at the time Jordan enclosed the ditch provided:

“905.01 CONDUITS REQUIRED.

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Bluebook (online)
654 N.E.2d 1258, 73 Ohio St. 3d 733, 1995 Ohio LEXIS 1936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-levin-v-schremp-ohio-1995.