Small World Early Childhood Ctr. v. Ohio Dept. of Job & Family Servs. , 2017 Ohio 8336 ( 2017 )

[Cite as Small World Early Childhood Ctr. v. Ohio Dept. of Job & Family Servs., 2017-Ohio-8336.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
SMALL WORLD EARLY CHILDHOOD :
CENTER :
: C.A. CASE NO. 27448
Plaintiff-Appellant :
: T.C. NO. 16-CV-5982
v. :
: (Civil Appeal from
OHIO DEPT. OF JOB & FAMILY : Common Pleas Court)
SERVICES :
:
Defendant-Appellee :
:
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OPINION
Rendered on the 27th day of October, 2017.
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JOHNNA M. SHIA, Atty. Reg. No. 0067685 and ANTHONY S. VanNOY, Atty. Reg. No.
67052, 130 W. Second Street, Suite 1624, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
REBECCA L. THOMAS, Atty. Reg. No. 0066650, Assistant Attorney General, Health and
Human Services Section, 30 E. Broad Street, 26th Floor, Columbus, Ohio 43215
Attorney for Defendant-Appellee
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FROELICH, J.
{¶ 1} Small World Early Childhood Center appeals from a judgment of the
Montgomery County Court of Common Pleas, which dismissed, pursuant to Civ.R.
12(B)(1), Small World’s administrative appeal of two decisions by the Ohio Department
of Jobs and Family Services (ODJFS). For the following reasons, the trial court’s
judgment will be affirmed.
I. Background and Procedural History
{¶ 2} Small World is a child daycare provider that had a contract with ODJFS to
provide publicly-funded child care. In the spring of 2015, ODJFS received allegations
that Small World was improperly in possession of Ohio Electronic Child Care (ECC) swipe
cards and that Small World’s staff was using the cards to check children into the center
when they were not actually in attendance. ODJFS conducted an investigation.
{¶ 3} According to the termination decision on appeal, ODJFS personnel
conducted a timed observation on April 23, 2015 and counted 62 children entering the
center between 6:00 a.m. and 7:00 a.m. During the same time, Ohio ECC records
showed 170 children were swiped in as having arrived at the center. ODJFS personnel
returned on May 21, 2015, and performed another timed observation between 6:00 a.m.
and 8:15 a.m. and observed 105 children arriving. Ohio ECC transactions for that same
period showed that Small World had 217 children swiped in as arriving and receiving care.
ODJFS staff entered the building and conducted a head-count; 108 children were present.
{¶ 4} ODJFS staff identified themselves to Small World staff, spoke to the owner,
and asked for permission to search the facility. ODJFS located 99 Ohio ECC swipe
cards. Interviews with Small World staff indicated that the center’s owner, administrator,
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and office managers used the swipe cards. ODJFS collected billing and attendance
records from Small World. ODJFS concluded that it had overpaid Small World by
$442,963.67.
{¶ 5} On April 15, 2016, ODJFS provided Small World with a written Child Care
Provider Investigative Report, recommending suspension and termination of the Provider
Agreement, as well as a Proposed Suspension and Termination of Provider Agreement
and Overpayment Collection Notice. (The investigative report and the notice are not part
of the record.) On April 20, 2016, Small World filed an appeal of the suspension and
termination decision with ODJFS. The same day, it sought reconsideration by ODJFS
of the overpayment calculation.
{¶ 6} On November 16, 2016, ODJFS sent two decision letters to Small World, one
of which denied Small World’s appeal of the suspension and termination decision and the
other denying reconsideration of the overpayment calculation. The reconsideration
decision expressly stated that the “reconsideration decision is final and not subject to
further review by the department.” The letter informing Small World of the suspension
and termination decision similarly stated, “This appeal decision is final and not subject to
further review by the department.” Both determinations were made by the bureau chief
of ODJFS’s Office of Fiscal and Monitoring Services, Monitoring and Consulting Services
Division.
{¶ 7} On November 22, 2016, Small World filed a notice of appeal, pursuant to
R.C. 119.12 and R.C. 5101.35, in the Montgomery County Court of Common Pleas.
Small World claimed that both ODJFS decisions were “not supported by reliable,
probative, and substantial evidence and [were] not in accordance with law.” Small World
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filed motions to stay the ODJFS decisions and for court-ordered mediation. The court
denied both motions.
{¶ 8} On December 19, 2016, ODJFS moved to dismiss the appeal for lack of
jurisdiction, pursuant to Civ.R. 12(B)(1). ODJFS argued that the decisions on appeal
were not “adjudications” by an “agency” for purposes of R.C. Chapter 119, nor was this
the type of matter that triggered rights conferred or duties imposed under that chapter.
ODJFS further argued that R.C. 5101.35 provided no statutory authority for an appeal of
the two decisions. Small World opposed the motion.
{¶ 9} On January 26, 2017, the trial court agreed with ODJFS and granted the
motion to dismiss for lack of jurisdiction. Small World appeals the trial court’s decision.
II. Jurisdiction to Small World’s Administrative Appeal
{¶ 10} In its sole assignment of error, Small World claims that “[t]he trial court erred
when it dismissed Small World’s Administrative Appeal because Small World was entitled
to judicial review pursuant to the Ohio Revised Code.”
{¶ 11} A motion to dismiss for lack of subject matter jurisdiction, pursuant to Civ.R.
12(B)(1), challenges whether the complaint raises any cause of action cognizable by the
forum. State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St. 3d 315, 2016-
Ohio-478, 56 N.E.3d 913, ¶ 12. We review de novo the trial court’s dismissal of Small
World’s administrative appeal for lack of jurisdiction. See id.; Crawford v. United Dairy
Farmers, Inc., 2d Dist. Montgomery No. 25786, 2013-Ohio-5047, ¶ 8.
{¶ 12} “It is well-settled law that a state is not subject to suit in its own courts unless
it expressly consents to be sued.” Proctor v. Kardassilaris, 115 Ohio St. 3d 71, 2007-
Ohio-4838, 873 N.E.2d 872, ¶ 7. Since 1913, the Ohio Constitution has provided that
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“[s]uits may be brought against the state, in such courts and in such manner, as may be
provided by law.” Ohio Constitution, Article I, Section 16. However, this constitutional
provision “did not provide specific consent for every state entity to be sued in every state
court. Rather, it merely enabled the state to pass statutes consenting to be sued in
specific ways; unless an explicit statutory waiver exists, the presumption of sovereign
immunity applies.” (Citations omitted.) Proctor at ¶ 8.
{¶ 13} Article IV, Section 4(B) of the Ohio Constitution grants the Ohio legislature
exclusive authority to define the jurisdiction of the courts of common pleas. Article IV,
Section 4(B) provides, in relevant part, that courts of common pleas have “such powers
of review of proceedings of administrative officers and agencies as may be provided by
law.”
A. R.C. Chapter 5104
{¶ 14} We begin with a review of the relevant portions of R.C. Chapter 5104, the
chapter under which Small World contracted with ODJFS to receive public funds for child
daycare. (Pursuant to R.C. 5101.30, ODJFS was designated as the state agency
responsible for administration and coordination of federal and state funding for publicly
funded child care in Ohio.)
{¶ 15} Certain provisions governing publicly funded child care required the
creation of a process for applying for publicly funded child care, as well as procedures for
determining whether the applicant is eligible to receive publicly funded child care. See
R.C. 5104.33 and R.C. 5104.34. R.C. 5104.34(A)(1) expressly provides that “[a]n
applicant aggrieved by a decision or delay in making an eligibility determination may
appeal the decision or delay to the department of job and family services in accordance
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with section 5101.35 of the Revised Code. The due process rights of applicants shall be
protected.”
{¶ 16} R.C. 5104.31 specifies what entities may provide publicly funded child care,
and R.C. 5104.32(A) requires that “all purchases of publicly funded child care shall be
made under a contract entered into by a licensed child day-care center * * * and the
department of job and family services.” R.C. 5104.32(B) sets forth specific terms that
are required to be included in each contract for publicly funded child care. R.C.
5104.32(A) further provides, in part:
To the extent permitted by federal law and notwithstanding any other
provision of the Revised Code that regulates state contracts or contracts
involving the expenditure of state or federal funds, all contracts for publicly
funded child care shall be entered into in accordance with the provisions of
this chapter and are exempt from any other provision of the Revised Code
that regulates state contracts or contracts involving the expenditure of state
or federal funds.
Small World was a licensed child daycare provider that contracted with ODJFS to provide
publicly funded child care, pursuant to R.C. 5104.32.
{¶ 17} Finally, R.C. 5104.37 provides that ODJFS may withhold any money due
and may recover any money erroneously paid to an eligible provider of publicly funded
child care if evidence exists that the provider did not fully comply with the statutory
requirements or any rules promulgated under the statute. This statutory section reads,
in part:
(D) Subject to the notice and appeal provisions of divisions (G) and (H) of
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this section, the department may suspend a contract entered into under
section 5104.32 of the Revised Code with an eligible provider if the
department has initiated an investigation of the provider for either of the
following reasons:
(1) The department has evidence that the eligible provider received an
improper child care payment as a result of the provider’s intentional act.
(2) The department receives notice and a copy of an indictment,
information, or complaint charging the eligible provider or the owner or
operator of the provider with committing [certain offenses].
(E)(1) Except as provided in division (E)(2) of this section, the suspension
of a contract under division (D) of this section shall continue until the
department completes its investigation * * *.
(2) If the department initiates the termination of a contract that has been
suspended pursuant to division (D) of this section, the suspension shall
continue until the termination process is completed.
(F) An eligible provider shall not provide publicly funded child care while the
provider’s contract is under suspension pursuant to division (D) of this
section. * * *
(G) Before suspending an eligible provider’s contract pursuant to division
(D) of this section, the department shall notify the eligible provider. * * *
(H) An eligible provider may file an appeal with the department regarding
any proposal by the department to suspend the provider’s contract pursuant
to division (D) of this section. The appeal must be received by the
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department not later than fifteen days after the date the provider receives
the notification described in division (G) of this section. The department
shall review the evidence and issue a decision not later than thirty days after
receiving the appeal. The department shall not suspend a contract
pursuant to division (D) of this section until the time for filing the appeal has
passed or, if the provider files a timely appeal, the department has issued a
decision on the appeal.
(Emphasis added.) R.C. 5104.37(D)-(H). Nothing in R.C. 5104.37 provides for an appeal
to the court of common pleas of a suspension or termination of an eligible provider’s
contract or of an order for repayment of any money erroneously paid to an eligible
provider.
{¶ 18} R.C. 5104.38 states that the director of ODJFS shall adopt rules, in
accordance with R.C. Chapter 119, governing financial and administrative requirements
for publicly funded child care. The statute enumerates 13 areas which were to be
addressed by rule, none of which related to appeal procedures for eligible providers
whose contracts were suspended or terminated or who were found to have wrongfully
received payments. R.C. 5104.38(N) allowed for “[a]ny other rules necessary to carry
out sections 5104.30 to 5104.43 of the Revised Code.”
{¶ 19} The rules for publicly funded child care are located in Ohio Adm.Code Ch.
5101:2-16. Ohio Adm.Code 5101:2-16-44 states that “[t]he provider agreement as
entered into with ODJFS may be suspended and/or terminated if ODJFS determines
misuse of publicly funded child care or Ohio ECC,” and that “[t]he provider agreement as
entered into with ODJFS, [sic] may be terminated in accordance with the terms contained
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in the agreement.” Id. at (N), (O). However, this administrative rule does not provide
any appeal rights.
{¶ 20} Ohio Adm.Code 5101:2-16-71 relates to improper payments to providers or
misuse of publicly funded child care. The rule addresses what is a “provider improper
child care payment,” what is misuse of publicly funded child care or Ohio ECC by a
provider, what are the repayment procedures for an improper payment or an overpayment
due to misuse of Ohio ECC, how a provider can request a review of the identified
overpayment, and what is provider fraud. With respect to the review provision, Ohio
Adm.Code 5101:2-16-71(D) states:
(D) Can a child care provider request a review of an identified overpayment?
(1) A child care provider may request in writing to ODJFS that a
reconsideration review be conducted for any identified overpayment that is
subject to recoupment.
(2) The written request must be received by ODJFS no later than fifteen
days after the date the provider receives the overpayment notice.
{¶ 21} Finally, Ohio Adm.Code 5101:2-16-72 addresses “program integrity
reviews” of the publicly funded child care program, which include reviews, audits,
investigations, and other activities to ensure that the program is limited to eligible
participants and that “payments to providers are for actual services provided and conform
to program rules.” The rule states, in part:
(F) What happens if ODJFS determines misuse of publicly funded child care
or Ohio electronic child care (Ohio ECC) * * *?
ODJFS may do any of the following:
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(1) Suspend the provider agreement entered into with ODJFS pursuant to
rule 5101:2-16-44 of the Administrative Code and in accordance with
section 5104.37 of the Revised Code.
(2) Terminate the provider agreement entered into with ODJFS pursuant to
rule 5101:2-16-44 of the Administrative Code.
Ohio Adm.Code 5101:2-16-72 does not address rights to appeal the ODJFS action.
{¶ 22} In summary, no provision in R.C. Chapter 5104 or administrative rule related
to the publicly funded child care authorizes an appeal to the court of common pleas from
an ODJFS decision suspending or terminating a contract entered pursuant to R.C.
5104.32 or a decision regarding an identified overpayment.
B. R.C. 119.12
{¶ 23} Small World sought judicial review of ODJFS’s decision under R.C. 119.12.
R.C. Chapter 119, the Ohio Administrative Procedure Act, focuses on two distinct sets of
procedures: (1) the procedures governing administrative rulemaking (R.C. 119.02 to
119.04), and (2) the procedures governing administrative decisions by agencies (R.C.
119.06 to 119.13). Crawford-Cole v. Lucas Cty. Dept. of Job & Family Servs., 121 Ohio
St.3d 560, 2009-Ohio-1355, 906 N.E.2d 409, ¶ 28. “[T]he second part of the chapter,
R.C. 119.06 to 119.13, * * * concerns agency adjudications and the procedures for notice,
hearing, and appeal of those decisions.” Id. at ¶ 29.
{¶ 24} R.C. 119.12 specifies who may pursue an administrative appeal in the
common pleas court. Specifically, R.C. 119.12(A)(1) states:
Except as provided in division (A)(2) or (3) of this section, any party
adversely affected by any order of an agency issued pursuant to an
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adjudication denying an applicant admission to an examination, or denying
the issuance or renewal of a license or registration of a licensee, or revoking
or suspending a license, or allowing the payment of a forfeiture under
section 4301.252 of the Revised Code may appeal from the order of the
agency to the court of common pleas of the county in which the place of
business of the licensee is located or the county in which the licensee is a
resident.
(Emphasis added.) Alternatively, R.C. 119.12(B) provides, “Any party adversely affected
by any order of an agency issued pursuant to any other adjudication may appeal to the
court of common pleas of Franklin county * * *.” (Emphasis added.)
{¶ 25} R.C. 119.01 provides definitions for relevant terms. The term “agency” is
defined as:
“Agency” means, except as limited by this division, [1] any official, board, or
commission having authority to promulgate rules or make adjudications in
the civil service commission, the division of liquor control, the department
of taxation, the industrial commission, the bureau of workers’
compensation, [2] the functions of any administrative or executive officer,
department, division, bureau, board, or commission of the government of
the state specifically made subject to sections 119.01 to 119.13 of the
Revised Code, and [3] the licensing functions of any administrative or
executive officer, department, division, bureau, board, or commission of the
government of the state having the authority or responsibility of issuing,
suspending, revoking, or canceling licenses.
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R.C. 119.01(A)(1). With respect to the ODJFS, R.C. 119.01(A)(2) further provides:
(2) “Agency” also means any official or work unit having authority to
promulgate rules or make adjudications in the department of job and family
services, but only with respect to both of the following:
(a) The adoption, amendment, or rescission of rules that section 5101.09 of
the Revised Code requires be adopted in accordance with this chapter;
(b) The issuance, suspension, revocation, or cancellation of licenses.
R.C. 119.01(A) also exempts certain named agencies from its coverage.
{¶ 26} “Adjudication” means “the determination by the highest or ultimate
authority of an agency of the rights, duties, privileges, benefits, or legal relationships of a
specified person, but does not include the issuance of a license in response to an
application with respect to which no question is raised, nor other acts of a ministerial
nature.” R.C. 119.01(D). “License” is defined as “any license, permit, certificate,
commission, or charter issued by any agency.” R.C. 119.01(B).
{¶ 27} Small World argues that it was aggrieved by a decision of ODJFS and that
it has a right to appeal that decision pursuant to R.C. 119.12. Small World complains
that ODJFS should have promulgated rules providing for a state hearing and judicial
review. Small World’s arguments are unavailing.
{¶ 28} R.C. 119.12 does not provide for judicial review of all decisions of all state
agencies. See, e.g., Baltimore Ravens, Inc. v. Self-Insuring Emp. Evaluation Bd., 94
Ohio St. 3d 449, 452, 764 N.E.2d 418 (2002); Plumbers & Steamfitters Joint
Apprenticeship Commt. v. Ohio Civil Rights Comm., 66 Ohio St. 2d 192, 194, 421 N.E.2d
128 (1981). ODJFS constitutes an “agency” for purposes of R.C. 119.01(A) only if “it is
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described by one or more of the three branches of the definition of ‘agency’ and not
otherwise excluded.” Id. Again, those branches consist of (1) the agencies enumerated
in the statute, (2) “functions * * * specifically made subject to R.C. 119.01 to R.C. 119.13,”
and (3) agencies with the authority to issue, suspend, revoke or cancel licenses.
{¶ 29} Here, ODJFS is not one of the agencies specifically identified in R.C.
119.01(A)(1), and this matter does not concern licenses. R.C. 5104.38 grants
rulemaking power to ODJFS regarding financial and administrative requirements for
publicly funded child care and required the rules to be adopted in accordance with R.C.
Chapter 119. However, R.C. Chapter 5104 did not make decisions relating to contracts
with publicly funded child care providers subject to R.C. 119.12 (the right to appeal
adjudications). Accordingly, ODJFS does not fall within the definition of an agency, as
set forth in R.C. 119.12(A)(1).
{¶ 30} R.C. 119.01(A)(2) specifically addresses ODJFS. The decisions that
Small World attempted to appeal to the trial court did not concern “the adoption,
amendment, or rescission of rules” and “the issuance, suspension, revocation, or
cancellation of licenses.” Consequently, ODJFS also is not an agency within the
meaning of R.C. 119.01(A)(2).
{¶ 31} Because the two decisions on appeal are not decisions of an “agency,” as
defined by R.C. 119.01(A), Small World had no right to appeal the two decisions to the
court of common pleas pursuant to R.C. 119.12.
{¶ 32} Small World further asserts that it can appeal the two ODJFS decisions,
pursuant to R.C. 119.12, because R.C. 5101.46 (governing of the administration of Title
XX social service funding through grants to ODJFS) grants ODJFS rule-making authority,
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in accordance with R.C. Chapter 119, regarding publicly funded child care. R.C. 5101.46
states, in part: “Rules governing eligibility for services, program participation, and other
matters pertaining to applicants and participants shall be adopted in accordance with
Chapter 119. of the Revised Code.” (We note that R.C. 5104.38 also gave rulemaking
authority to the director of ODJFS regarding publicly funded child care.)
{¶ 33} The Supreme Court of Ohio has noted that many statutes incorporate R.C.
Chapter 119 for limited purposes that did not include judicial review. E.g., Baltimore
Ravens at 456-457 (discussing R.C. 4123.352(C), R.C. 4112.05, and other statutes as
examples where R.C. Chapter 119 was incorporated for rulemaking, but did not provide
a right of judicial review). We find nothing in R.C. Chapter 5101 and R.C. Chapter 5104
to indicate that a provider of publicly funded child care was granted a right of judicial
review, pursuant to R.C. 119.12.
{¶ 34} To the extent that Small World argues that ODJFS’s decision to terminate
the provider’s contract is invalid, because ODJFS failed to promulgate additional rules
involving Title XX funding, that issue is not properly before us.
C. R.C. 5101.35
{¶ 35} Small World further claims that it was entitled to appeal to the court of
common pleas pursuant to R.C. 5101.35, the general appeal provision for ODJFS.
Under R.C. 5101.35(B), “an appellant who appeals under federal or state law a decision
or order of an agency administering a family services program shall, at the appellant’s
request, be granted a state hearing by the department of job and family services.” R.C.
5101.35(C) further provides:
Except as provided by division (G) of this section, an appellant who
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disagrees with a state hearing decision may make an administrative appeal
to the director of job and family services in accordance with rules adopted
under this section. This administrative appeal does not require a hearing,
but the director or the director’s designee shall review the state hearing
decision and previous administrative action and may affirm, modify,
remand, or reverse the state hearing decision. An administrative appeal
decision is the final decision of the department and, except as provided in
section 5160.31 of the Revised Code, is binding upon the department and
agency, unless it is reversed or modified on appeal to the court of common
pleas.
{¶ 36} R.C. 5101.35(E) expressly provides for judicial review. It states, in part:
“An appellant who disagrees with an administrative appeal decision of the director of job
and family services or the director’s designee issued under division (C) of this section
may appeal from the decision to the court of common pleas pursuant to section 119.12
of the Revised Code.”
{¶ 37} Small World asserts that it is an “appellant” of a decision of an “agency”
administering a “family services program.” There is no question that the provision of
publicly funded child care is a “family services program.” R.C. 5101.35(A)(3)(a) includes
“[p]rograms that provide assistance under Chapter 5104. or 5115. of the Revised Code”
in the definition of a “family services program.” In addition, ODJFS is an “agency” under
R.C. 5101.35. R.C. 5101.35(A)(1)(a) defines an “agency” as any of several entities,
including ODJFS, that administer a family services program.
{¶ 38} The parties dispute whether Small World constitutes an “appellant.” The
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term “appellant” is defined as “an applicant, participant, former participant, recipient, or
former recipient of a family services program who is entitled by federal or state law to a
hearing regarding a decision or order of the agency that administers the program.” R.C.
5101.35(A)(2).
{¶ 39} Small World asserts that it is an “appellant” under R.C. 5101.35(A)(2),
because it was a “participant” in the publicly funded child care program. ODJFS
responds that a child care provider receiving public funds pursuant to a contract with
ODJFS is not a “participant” in the program. ODJFS further argues that R.C. 5101.35(E)
provides for an appeal from an “administrative appeal decision” issued in an appeal from
a “state hearing decision,” and that since Small World was not entitled to such a hearing,
R.C. 5101.35(E) is inapplicable.
{¶ 40} We need not address whether Small World was a “participant” of a family
services program, because we find the more critical aspect of the definition of “appellant”
to be whether Small World was “entitled by federal or state law to a hearing regarding a
decision or order of the agency that administers the program.” As discussed above,
nothing in the provisions governing publicly funded child care or R.C. Chapter 119 entitled
Small World to a hearing. Consequently, in the absence of an entitlement to a hearing,
Small World cannot satisfy the definition of an “appellant” under R.C. 5101.35, nor did
Small World received the kind of decision that is subject to appeal under this statute.
{¶ 41} Small World’s assignment of error is overruled.
{¶ 42} We note that providers of publicly funded child care, such as Small World,
have a possible avenue for relief. The Ohio Supreme Court “has repeatedly determined
in a long line of cases in varying contexts that when an agency’s decision is discretionary
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and, by statute, not subject to direct appeal, a writ of mandamus is the sole vehicle to
challenge the decision, by attempting to show that the agency abused its discretion.”
Ohio Academy of Nursing Homes v. Ohio Dept. of Job & Family Servs., 114 Ohio St. 3d
14, 2007-Ohio-2620, 867 N.E.2d 400, ¶ 23. As explained by the Ohio Supreme Court:
Two important competing concerns are implicated when a party
wishes to challenge a particular state actor’s decision that expressly is not
appealable. The first concern is that the unavailability of an appeal
indicates the clear intention that full discretion is to be entrusted to the state
agency. The opposing concern is that if an agency’s discretionary decision
were truly allowed to be absolutely unchallengeable, an aggrieved party
would have no remedy whatsoever, giving the state agency unfettered
discretion and raising fundamental due process concerns. See Section 16,
Article I of the Ohio Constitution, which provides that a remedy shall be
available “by due course of law.”
In light of these very significant competing concerns, courts
(including this court in many different situations) have determined that some
level of review must be recognized. Furthermore, courts have determined
that a writ of mandamus provides an appropriate balance between the
extreme of allowing no challenge at all and the other alternative of
completely ignoring the explicit directive that an agency’s particular
determination is not meant to be appealable. In such a mandamus action,
the aggrieved party can challenge the agency’s decision, but must
demonstrate an abuse of discretion before relief can be provided.
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Id. at ¶ 25-26.
{¶ 43} Whether an original action in mandamus is available to Small World
specifically and whether it would be successful are not before us, and we state no opinion
on the merits of any such action.
III. Conclusion
{¶ 44} The trial court’s judgment will be affirmed.
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HALL, P.J. and WELBAUM, J., concur.
Copies mailed to:
Johnna M. Shia
Anthony S. VanNoy
Rebecca L. Thomas
Hon. Mary Katherine Huffman