State ex rel. Jeffers v. Athens Cty. Commrs. , 2016 Ohio 8119 ( 2016 )

[Cite as State ex rel. Jeffers v. Athens Cty. Commrs., 2016-Ohio-8119.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, EX REL., :
RICHARD JEFFERS, :
: Case No. 15CA27
Plaintiff/Relator-Appellant, :
:
vs. :
: DECISION AND JUDGMENT
ATHENS COUNTY : ENTRY
COMMISSIONERS, ET AL. :
:
Defendants/Respondents- :
Appellees. : Released: 12/06/16
_____________________________________________________________
APPEARANCES:
John P. Lavelle and Robert R. Rittenhouse, Lavelle and Associates, Athens,
Ohio, for Appellant Richard L. Jeffers.
Mark Landes and Aaron M. Glasgow, Isaac Wiles Burkholder & Teetor,
LLC, Columbus, Ohio, for Appellee Board of County Commissioners of
Athens County, Ohio.
Keller Blackburn, Athens County Prosecutor, for Appellee Board of County
Commissioners of Athens County, Ohio.1
Robert H. Stoffers and Michael S. Loughry, Mazanec, Raskin & Ryder Co.,
L.P.A., Columbus, Ohio, for Appellee and Cross-Appellant Board of
Trustees of Alexander Township, Ohio.
_____________________________________________________________
1
The Athens County Prosecutor has not participated in this appeal.
Athens App. No. 15CA27 2
Per Curiam.
{¶1} Appellant Richard Jeffers appeals the following decisions and
judgment entries of the Athens County Common Pleas Court:
1. The June 23, 2015 “Decision on Motion to Lift Stay of the
Constitutional Claims; (sic) To Allow Additional Causes of
Action to be Presented”; and,
2. The October 8, 2013 “Nunc Pro Tunc Decision and
Judgment on Complaint for Writ of Mandamus; Final
Appealable Order.”
Jeffers contends the trial court erred by: (1) concluding that a pro tanto
taking of his property did not occur, and thus, denying and dismissing his
complaint for a writ of mandamus; (2) dismissing his remaining Section
1983, Title 42, U.S. Code claims based on the doctrine of issue preclusion;
and (3) denying his motion for leave to amend his complaint to assert
additional claims. For the reasons which follow, we find no merit to the
arguments made under Appellant’s first and third assignments of error.
However, we sustain the second assignment of error. Accordingly, we
affirm the judgment in part, reverse in part, and remand the matter to the
trial court for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} Richard Jeffers owns approximately 530 acres in Alexander
Township, Athens County, Ohio. In 2004, the Athens County Board of
Athens App. No. 15CA27 3
Commissioners (“Board”), voted to vacate Red Lane Road and Jeffers Road,
public roads which abut Jeffers’ property. Since 2004, litigation between
Jeffers and the defendants, Board, and the Board of Trustees of Alexander
Township (“Trustees”) has continued. At the outset, Jeffers alleged a de
facto taking of his property and collusion between county officeholders and
entities in doing so. More than once, the parties and this Court have
commented on the “tortured history” of the Jeffers’ matter, which has made
its way to this Court on several occasions. See Bd. of Cty. Commrs. of
Athens Cty. v. Goldsberry, 4th Dist. Athens No. 05CA18, 2005-Ohio-4705;
and Jeffers v. Athens County Commrs., 4th Dist. Athens No. 06CA39, 2007-
Ohio-2458, paragraphs 2-5, (“Jeffers I”) for a detailed factual and procedural
history.
{¶3} Relevant to the case before us now on appeal, Jeffers filed a
petition requesting a writ of mandamus to order the Board to institute
damages proceedings pursuant to Chapter 163 of the Ohio Revised Code.
Jeffers later amended his complaint to add various claims for money
damages under Section 1983, Title 42, U.S. Code. On April 5, 2010, the
trial court issued the writ of mandamus. The Board appealed. In Jeffers v.
Athens County Commrs., 4th Dist. Athens Nos. 10CA3, 10CA15, 2011-
Ohio-675, ¶ 5, (“Jeffers II”), we held the trial court did not abuse its
Athens App. No. 15CA27 4
discretion in ordering the Board to comply with Revised Code Chapter 163.
Jeffers II was decided on February 9, 2011.
{¶4} However, in April 2011, the Board voted to rescind its prior
decisions to vacate the two roads. Jeffers appealed this decision. The Board
also filed a motion to dismiss Jeffers’ constitutional claims. On September
6, 2011, the trial court issued a decision denying the Board’s motion to
dismiss. The trial court further found Appellant was not entitled to R.C. 163
proceedings because, in the interim, the vacation process had been
abandoned prior to there being a legal taking of Jeffers’ property.
{¶5} In the September 6, 2011 decision, however, the trial court also
held there was a disputed issue of fact as to whether the Board physically
interfered with Jeffers’ use of his roads to such an extent that there was a pro
tanto taking of his property. The trial court subsequently scheduled a bench
trial to hear evidence regarding the alleged interference. On September 8,
2011, Jeffers filed a motion to lift the stay of his constitutional claims and
further requested permission to amend his complaint to assert a claim for
retaliation and promotion of Ex Post Facto legislation in order to unlawfully
affect his constitutional rights.
{¶6} The trial court heard the mandamus action on October 9 and 10,
2012. The court heard testimony from various witnesses. Additional facts
Athens App. No. 15CA27 5
gleaned from the witnesses’ testimony will be set forth below, where
relevant. Counsel filed post-trial briefs. On May 10, 2013, the trial court
found as follows:
“[T]he Court finds that a pro tanto taking of relator’s property
has not occurred, due to a lack of the prerequisite substantial or
unreasonable interference with relator’s property rights.
Relator does not have a clear legal right to the commencement
of R.C. Chapter 163 appropriation proceedings. Therefore, his
complaint for a writ of mandamus is denied and dismissed at
his cost.”
{¶7} Jeffers appealed. On October 7, 2013, this court found the trial
court’s decision was not a final appealable order. On October 8, 2013, the
trial court filed a nunc pro tunc decision and judgment. However, on
November 5, 2013, this Court again found the order not final and appealable
due to Jeffers’ remaining outstanding and unresolved Section 1983 claims.
{¶8} In April 2014, the parties filed briefs arguing the merits of the
remaining federal claims. On June 23, 2015, the trial court dismissed
Jeffers’ federal claims, based on the doctrine of issue preclusion, and denied
Jeffers’ motion for leave to amend his complaint to add additional federal
claims.
{¶9} On July 22, 2015, Jeffers’ timely appeal of the trial court’s
October 8, 2013 and June 23, 2015 decisions followed. In addition, the
Trustees assert one cross-assignment of error.
Athens App. No. 15CA27 6
ASSIGNMENT OF ERROR ONE
“I. THE TRIAL COURT ABUSED ITS DISCRETION IN
CONCLUDING THAT APPELLANT FAILED TO PROVE
THAT THERE WAS A SUBSTANTIAL OR
UNREASONABLE INTERFERENCE WITH HIS
PROPERTY RIGHTS.”
A. STANDARD OF REVIEW
{¶10} We review a trial court's decision on whether to issue a writ of
mandamus under the abuse of discretion standard. Jeffers II, supra, at ¶ 27;
Athens Cty. Commrs. v. Ohio Patrolmen's Benevolent Assn., 4th Dist.
Athens No. 06CA49, 2007-Ohio-6895, at ¶ 45, citing Truman v. Village of
Clay Center, 160 Ohio App.3d 78, 825 N.E.2d 1182, 2005-Ohio-1385, (6th
Dist.), at ¶ 16. “An abuse of discretion connotes more than a mere error of
judgment; it implies that the court's attitude is arbitrary, unreasonable or
unconscionable.” Jeffers II, supra, at ¶ 14, quoting Pryor v. Pryor, 4th Dist.
Ross No. 09CA3096, 2009-Ohio-6670, at ¶ 22, citing Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). In order to
demonstrate an abuse of discretion, “the result must be so palpably and
grossly violative of fact or logic that it evidences not the exercise of will but
the perversity of will, not the exercise of judgment but the defiance of
judgment, not the exercise of reason but instead passion or bias.” Nakoff v.
Athens App. No. 15CA27 7
Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 1996-Ohio-159, 662 N.E.2d
1.
B. LEGAL ANALYSIS
{¶11} “Mandamus is a writ, issued in the name of the state to an
inferior tribunal, a corporation, board, or person, commanding the
performance of an act which the law specially enjoins as a duty resulting
from an office, trust, or station.” Jeffers II, supra, at ¶ 26; R.C. 2731.01.
“ ‘Mandamus is the appropriate action to compel public authorities to
institute appropriation proceedings where an involuntary taking of private
property is alleged.’ ” State ex rel. Duncan v. Mentor City Council, 105 Ohio
St.3d 372, 826 N.E.2d 832, 2005-Ohio-2163, at ¶ 11, quoting State ex rel.
Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63, 765 N.E.2d 345, 2002-Ohio-
1627. As we previously stated in Jeffers II, in order to be entitled to a writ
of mandamus, Jeffers must establish that he had a clear legal right to the
requested relief, that the Board had a corresponding clear legal duty to
comply, and that Jeffers has no adequate remedy in the ordinary course of
the law. Jeffers II, supra, at ¶ 27. See State ex rel. Savage v. Caltrider, 100
Ohio St.3d 363, 800 N.E.2d 358, 2003-Ohio-6806, at ¶ 8, citing State ex rel.
Ferguson v. Court of Claims of Ohio, Victims of Crime Div., 98 Ohio St.3d
399, 786 N.E.2d 43, 2003-Ohio-1631, at ¶ 10. The Supreme Court of Ohio
Athens App. No. 15CA27 8
has held that the appropriate standard of proof in mandamus cases is proof
by clear and convincing evidence. State ex rel. Doner v. Zody, 130 Ohio
St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 55; State ex rel. Pressley v.
Indus. Comm., 11 Ohio St.2d 141, 161, 228 N.E.2d 631 (1967); State ex rel.
Henslee v. Newman, 30 Ohio St.2d 324, 325, 59, 285 N.E.2d 54 (1972),
Ohio Jurisprudence 2d (1959) 285, Section 37.
{¶12} Under the first assignment of error, Jeffers contends the trial
court erred and abused its discretion when it denied his complaint for a writ
of mandamus. Jeffers asserts that he submitted a totality of clear and
convincing evidence at trial that there had been substantial or unreasonable
interference with his property rights. However, the Board urges affirmance
of the trial court’s decision. The Board points out the trial court heard
multiple witnesses and two days of testimony regarding Jeffers’ use of his
property. Jeffers submitted over 70 exhibits. The trial court also reviewed
the record and considered lengthy post-trial briefs of the parties. The Board
argues Jeffers failed to demonstrate the obstructions placed on the roads
were placed there by the Board, that the obstructions interfered with Jeffers’
use or access for extended periods of time, or that his claims regarding his
subdivision plans and the marketability of his land were anything but
speculation. Upon review of the evidence submitted at trial, we agree with
Athens App. No. 15CA27 9
the trial court’s decision. Jeffers failed to prove that he was deprived of all
economically valuable uses of his property as a consequence of government
action.
{¶13} The Fifth Amendment to the United States Constitution, made
applicable to the States by virtue of the Fourteenth Amendment, guarantees
that private property shall not “be taken for public use, without just
compensation.” Morris v. Chillicothe, 4th Dist. Ross No. 1720, 1991 WL
207246 (Oct. 2, 1991), *3. Analogously, Article I, Section 19 of the Ohio
Constitution provides as follows:
“Private property shall ever be held inviolate, but subservient to
the public welfare. * * * Where private property shall be taken
for public use, a compensation therefore shall first be made in
money * * *.” Id.{¶14} The determination that governmental action constitutes a taking
is, in essence, a determination that the public at large, rather than a single
owner, must bear the burden of an exercise of state power in the public
interest, with the question necessarily requiring a weighing of private and
public interests. Morris, supra, citing First Lutheran Church v. Los Angeles
County, 482 U.S. 304, 318-319 (1987); Agins v. Tiburon, 447 U.S. 255, 260,
100 S.Ct. 2138 (1980) (abrogated by Linger v. Chevron U.S.A. Inc., 12 S.Ct.
2074, 544 U.S. 528 (2005). Property interests protected by the Fifth and
Fourteenth Amendments to the United States Constitution and by Article I,
Athens App. No. 15CA27 10
Section 19, of the Ohio Constitution are diverse and extend beyond actual
fee ownership of real estate, and include the property owner's absolute right
of dominion, use or disposition over it. Knepper and Frye, Ohio Eminent
Domain Practice (1977) 155, Sec. 6.01; Lucas v. Carney, 167 Ohio St. 416,
423, 149 N.E.2d 238 (1958); City of Mansfield v. Balliett, 65 Ohio St. 451,
471, 63 N.E. 86 (1901).
{¶15} Ordinarily in order to constitute a taking, the governmental
activity must physically displace a person from space in which he was
entitled to exercise dominion consistent with the rights of ownership.
Morris, supra, at *4. However, in Morris we also observed that physical
displacement is not always necessary. Id. A taking may also be found where
it is clear that the injury sustained by a person differs substantially in kind
from that sustained by others in the neighborhood, even though there has
been no physical displacement. Id. And, the fact that property is rendered
less desirable as a result of the governmental activity does not in and of itself
constitute a taking so as to entitle the owner thereof to compensation. Id. See
also Miller v. PPG Industries, 48 Ohio App.3d 20, 23, 547 N.E.2d 1216 (4th
Dist.1988).
{¶16} In the absence of a physical taking of property, a taking occurs
only where there is a substantial interference with the rights of ownership of
Athens App. No. 15CA27 11
private property. Seiler v. Norwalk, 949 N.E.2d 63 2011-Ohio-548, (6th
Dist.) ¶ 46; Smith v. Erie RR. Co., 134 Ohio St. 135, 16 N.E.2d 310 (1938).
Any such substantial interference with the rights of ownership of private
property is deemed to be a taking pro tanto. Seiler, supra; J.P. Sand &
Gravel Co. v. State, 51 Ohio App.2d 83, 89-90, 367 N.E.2d 54 (1976).
{¶17} To establish a taking, the landowner must prove that the state
entity caused a “substantial or unreasonable interference with [his] property
right[s].” Seiler, supra, at ¶ 47, quoting State ex rel. OTR v. Columbus, 76
Ohio St.3d 203, 206, 667 N.E.2d 8 (1996). This right is applicable even
when the owner is only partially deprived of the uses of his land. The
rationale behind recognizing a pro tanto taking is that the act of depriving an
owner of any valuable use of his land is the equivalent of depriving him of
his land. Id. at 207. The issue in a taking is not whether the public entity
acted negligently or contrary to its authority. Rather, the issue is solely
whether the landowner was deprived of an economically valuable use of his
property as a consequence of governmental action. Masley v. Lorain, 48
Ohio St.2d at 341, 358 N.E.2d 596 (1976), and Carney, supra, 167 Ohio St.
at 423.
{¶18} Appellant testified he had farmed all of his life. He had owned
his acreage in Alexander Township, since the early 1970’s. In particular,
Athens App. No. 15CA27 12
“Jeffers Lane,” was the only public road bordering a 78-acre tract of land.
“Red Lane,” was the only public road bordering a 23-acre tract of land.2
These were the roads sought to be vacated in 2004. With these roads
vacated, Jeffers’ tracts would be landlocked. He testified the two tracts had
been used for agricultural purposes since he first owned them until the
present time and acknowledged he has always received a tax incentive for
using the land for agricultural purposes.
{¶19} Appellant testified he appeared before the Trustees in 2002 to
discuss a subdivision he was planning. The only access for the subdivision
would be via Red Lane and he also believed the Board was supportive of his
project. He was working on the subdivision full time. He identified
Planning Commission records which demonstrated steps he had taken to
begin the planning process, and a letter from the Board indicating they
would approve a sewage treatment facility to support his subdivision if it
met applicable standards. Between 90 and 180 lots were planned. He also
testified he had hired Paul Mara of Mara Engineering and also retained
surveyors and he spent a great deal of money in the engineering, surveying
and planning of the subdivision.
2
Jeffers Road is also known as “Township Road 554.” Red Lane is known as “Township Road 548.”
Athens App. No. 15CA27 13
{¶20} Appellant testified sometime in 2003, after he was improving
Red Lane and moving forward, he learned of a petition being circulated to
vacate Red Lane. Later on, an abutting landowner circulated a petition to
vacate Jeffers Road. Appellant testified he made his opposing view known
and attended all the public viewings and hearings on the petitions. At a
Trustee meeting on August 10, 2004, he asked the trustees to grade his
roads. He testified he was informed the roads were closed and the Trustees
were not responsible to maintain the closed roads. He then sought legal
counsel.
{¶21} After the trial court ruled that the original vacation proceeding
was void, the Trustees circulated another petition. Appellant again attended
all meetings to protest. At the September 28, 2004 meeting, Commissioner
Lenny Eliason informed him that the roads were vacated and closed to the
public until the court ruled otherwise. Appellant testified his adjoining
neighbors were present at this meeting.
{¶22} He testified subsequently, in the fall and winter of 2004, the
township road signs were taken down and replaced with “no trespassing”
signs and identified photographs of the signs and a metal gate with chain on
Jeffers Road. He also identified photographs of “no trespassing” signs and
Athens App. No. 15CA27 14
hay bales placed on Red Lane. The signs were placed during the summer of
2004.
{¶23} In January 2005, Appellant consulted the Athens County
Sheriff’s Office to advise them of the locked gate and of the legal
proceedings which had commenced. He advised the sheriff’s office he could
not get in to feed his cattle. He subsequently used bolt cutters to cut the
chain. He then went to the sheriff’s department and spoke with Lt. Darrell
Cogar to file a complaint.
{¶24} Appellant testified thereafter he received a letter from Lt.
Cogar, on behalf of the Athens County Sheriff’s Office. Lt. Cogar later
testified he was familiar with narrative reports and incident reports coming
into the sheriff’s office and maintained in the ordinary course of business.
He identified several reports called in by Mr. Jeffers, as well as the letter he
sent to Jeffers. Jeffers testified and Lt. Cogar read the letter into the record,
which stated that the county prosecutor advised the matter of the road
vacations was a civil issue. The letter further advised the sheriff’s
department would not be involved.
{¶25} He further testified to the interference with his property rights
as follows:
“ * * * I was very limited with what I could do with the
property. I’d worked a hundred hours a week for forty-five
Athens App. No. 15CA27 15
years and I was ready to slow down and retire and I wanted to
sell this ground. And all at once I was forced to use it as a farm
(inaudible) only. And then I was afraid every time I would go
in there would be a Sheriff’s cruiser there when I came back.
You know. And every opportunity I had to sell property there
was this stigma over it. I couldn’t show it. I couldn’t sell it.
And I just felt like my violates, my rights had been violated by
my neighbors that I didn’t dream would shut me off from my
farm. It was, you know, I was forced to use the land for
agricultural purposes only. And I was blocked from nay
opportunity to sell it at a decent price.”
{¶26} Appellant then testified he had “no luck” marketing or selling
the 23-acre tract at Red Lane. He testified to several inquiries, and
explained he could not sell without advising potential buyers of the road
vacation issues. He testified the interference was unreasonable in that he
was demoralized, defeated, and, “worn out.” He further testified during the
eleven-month delay in scheduling a damage hearing, he had no idea that one
of the Commissioners was lobbying the legislature to change the law.
{¶27} Appellant also presented the testimony of Larry McDaniel, a
licensed real estate appraiser since 1975, who prepared an appraisal on
behalf of Appellant in 2007. McDaniel testified that Jeffers’ property
became landlocked, and marketability was limited when Jeffers Road and
Red Lane were vacated. He testified although Appellant owned other
parcels contiguous to Fisher Road, the other parcels had mixed terrain-flat
Athens App. No. 15CA27 16
areas, but also steep hillsides and a rock cliff.3 He testified the “no
trespassing” signs and a gate would have a negative effect upon
marketability. However, McDaniel also admitted he had not performed
analysis of the effect of the hay bales, “no trespassing” signs, or the gate to
the property values.
{¶28} In the decision denying Appellant’s request for the writ of
mandamus, the trial court observed:
“Whether the subdivision would have been economically
successful then or now is speculation.* * * [T]here was no
specific evidence that he was trying to sell it.”
{¶29} We find the trial court did not abuse its discretion in its finding
that Appellant’s testimony regarding the losses associated with his real
estate to be speculative. In addition to the above, he testified he had no
evidence of lost sales and he had not obtained permits or otherwise
proceeded with the subdivision planning since the vacations were
rescinded.4
3
The testimony indicates that Fisher Road was a main road which the subdivision would need to access.
The testimony of Appellant and Larry McDaniel also indicated the topography of the parcels connecting
the proposed subdivision area to Fisher Road was of poor quality and improving the parcels to connect to
Fisher Road would be a laborious and expensive project.
4
Jeffers also argues his ability to lease his property to hunters was thwarted. He testified he had hunting
leases for his property and the abutting property owners would not allow hunters to enter after the roads
were closed. He argues this additional financial loss for the first time on appeal. However, we decline to
consider this alleged loss. It is well-settled that failure to raise an argument in the trial court results in
waiver of the argument for purposes of appeal. Community Action of Pike County v. Maynard, 4th Dist.
Pike No. 02CA695, 2003-Ohio-4312 ¶ 16. (Internal citations omitted.)
Athens App. No. 15CA27 17
{¶30} And, Appellant also claims obstructions were placed on Jeffers
and Red Lane Roads and he had to find ways to circumvent the obstructions
in order to use his property. The trial court also observed:
“There was testimony at the October 2012 hearing that during
the course of the Commissioners’ road vacation proceedings the
identifying public road signs were removed, a locked gate was
engaged, and blocking hay bales taken to the sites. ‘No
Trespassing’ signs were installed. These impediments did not
prevent relator from feeding and caring for his cattle on his
premises * * *.” [H]e was able to able (sic) continue to use the
land for the purpose to which it had been previously devoted.”
{¶31} While Appellant apparently blames Appellees for the
obstructions, Lt. Cogar testified no one from the sheriff’s office placed the
hay bales or the metal gate on the roads. Former Athens County Prosecutor
C. David Warren, retired, testified, to his knowledge, no one on behalf of the
county placed obstructions on Jeffers or Red Lane Roads.5 To his
knowledge, no one on behalf of the county advised private parties to obstruct
those roads. Also, Lenny Eliason, Athens County Commissioner, testified
that to his knowledge the Board did nothing to physically barricade Jeffers
or Red Lane Roads or to attempt to block Jeffers’ access to his property.
{¶32} The trial court also heard testimony of Michael Canterbury,
operations manager for the Athens County Engineer’s Department, and a
5
Warren was the elected prosecutor between 2004 and 2011. By statute, he was the legal representative for
all county officeholders, including the Board, the Trustees, and the sheriff’s office.
Athens App. No. 15CA27 18
member of the Planning Commission. Canterbury testified the Engineer’s
office is responsible for maintenance of the county roadways and advises the
townships. Canterbury testified he is familiar with subdivision regulations.
He is familiar with the vacation processes that took place with Jeffers Road
and Red Lane Road. He recalled a lot of opposition to Appellant’s
subdivision. However, Canterbury testified he was not aware of anyone
from the Engineer’s Office physically blocking the roads - placing hay bales,
installing a gate, taking down road signs, or placing “no trespassing” signs.
{¶33} Again, we find the trial court did not abuse its discretion with
regards to its findings as to the obstructions. And, Appellant admitted at
trial he used the roads nearly every day, despite the obstructions. He
admitted he moved the bales of hay with his tractor when he needed to get in
the areas. He admitted the “no trespassing signs” and hay bales did not
impede him from access or using the roads. He admitted after cutting the
chain on the gate, he opened and closed it each time as needed. He testified
the locked metal gate was in place for approximately one month. This
testimony demonstrates Appellant was able to use his property as he always
had - for agricultural purposes.
{¶34} The trial court further observed:
“Relator may have had some justifiable anxiety because of his
fear of arrest.* * * However, relator was not able to prove the
Athens App. No. 15CA27 19
identity of those person(s) who erected the obstructions. * * *
The road ‘closures’ were erroneously and publicly announced
by the County’s chief legal officer and by one of the
Commissioners. But these actions, though they may qualify as
‘interference,’ do not rise to the level of substantial interference
required for finding a compensable taking of property.”
{¶35} The trial court’s findings above are supported by Appellant’s
own admissions that he had no personal knowledge if the Board was
responsible for removing the road signs and placing “no trespassing” signs,
hay bales, and the chained gate. He also testified the sheriff came to his
house shortly after his complaint in January 2005, and he thought he was
going to be arrested. Ultimately, the officer only verified a report made by
Appellant. He also admitted neither a deputy nor cruiser was ever present
when he used his roads.
{¶36} Finally, Appellant argues the Board’s lobbying efforts with the
Ohio Legislature caused delay of the second damage hearing for the purpose
of enacting new law which would apply to bar him from receiving
compensation for his alleged losses relating to the vacations. He also argued
the lobbying efforts affected and delayed his ability to fully utilize his land.
Furthermore, he contends he suffered additional costs in defending the
Board’s action. With regard to the Board’s lobbying efforts, the trial court
held:
Athens App. No. 15CA27 20
“During the course of these cases the General Assembly,
prompted by the Court’s rulings and leaders from Athens
County, changed the law that had applied for over one hundred
years to provide closing a public road does not result in
entitlement to damages. See R.C. 5553.11, eff. 4-7-09. It may
have been a goal to have this change apply to the current case.
The actions show the desire to deprive relator of a jury
assessment. While the political actions were not subject of
testimony at the October hearing, the Court can take judicial
notice of them because the law was in fact changed and
respondents represented to the Court they had a role in
promoting the statutory change. The motive to close the two
roads remains unclear but it cannot be mistaken that the local
governments involved for years have tried to accomplish that
result. That such a prolonged effort would have inconvenience
to relator is beyond question, but the Commissioners’
successful lobbying efforts cannot be construed as substantial
interference within the meaning of takings law.”
{¶37} Lenny Eliason testified he had been an Athens County
Commissioner since 1998. He acknowledged communicating with Brad
Cole, a lobbyist for the County Commissioners Association of Ohio, seeking
a change in the law. Eliason testified he told Cole that the language of
5553.01 needed to be changed to make sure it did not include vacation of a
private road. He testified the Board was seeking change in the law in order
that it would be applied in Athens County as it had been in other areas of the
state. He also testified he was aware of discussion of the legislation between
Brad Cole and Larry Long, Executive Director of the County
Commissioners’ Association.
Athens App. No. 15CA27 21
{¶38} In sum, Eliason’s testimony was the only relevant evidence
presented at the October 2012 hearing, about the lobbying efforts and
motives of the Board. We agree with the trial court’s finding that, within the
meaning of Ohio takings law, this evidence cannot be construed as
substantial or unreasonable interference.
{¶39} For the foregoing reasons, we find the trial court did not abuse
its discretion when it denied the complaint for writ of mandamus. The trial
court was not unsympathetic to the financial losses Appellant obviously
suffered, or the inconveniences he experienced. Neither are we. However,
we agree with the trial court that they did not rise to the level of a pro tanto
taking. A pro tanto taking cannot be found where there is no substantial or
unreasonable interference with Appellant’s rights of ownership by the
named government entities. Based on the evidence presented at the October
2012 trial, we cannot say Appellant provided clear and convincing evidence
that a he was entitled to the writ. As such, we overrule the first assignment
of error and affirm the judgment of the trial court.
ASSIGNMENT OF ERROR TWO
“II. THE TRIAL COURT ERRED IN DISMISSING THE
APPELLANT’S REMAINING CLAIMS BASED ON THE
DOCTRINE OF ISSUE PRECLUSION.”
A. STANDARD OF REVIEW
Athens App. No. 15CA27 22
{¶40} Under the doctrine of res judicata, “a valid, final judgment
rendered upon the merits bars all subsequent actions based upon any claim
arising out of the transaction or occurrence that was the subject matter of the
previous action.” Beneficial Ohio Inc., v. Parish, 4th Dist. Ross No.
11CA3210, 2012-Ohio-1146, ¶ 11, quoting Grava v. Parkman Twp., 73
Ohio St.3d 379, 382, 1995-Ohio-331, 653 N.E.2d 226. 1. The doctrine of res
judicata involves both claim preclusion (historically called estoppel by
judgment in Ohio) and issue preclusion (traditionally known as collateral
estoppel). Id. See Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108, 254
N.E.2d 10 (1969); Krahn v. Kinney, 43 Ohio St.3d 103, 107, 538 N.E.2d
1058, 1062 (1989); 46 American Jurisprudence 2d (1994) 780, Judgments,
Section 516. “The applicability of res judicata is a question of law that is
subject to de novo review.” Althof v. State, 4th Dist. Gallia No. 04CA16,
2006-Ohio-502, at ¶ 13.
B. LEGAL ANALYSIS
{¶41} Relevant to this appeal, Appellant’s amended complaint, filed
in January 2007, set forth the following causes of action:
5. A denial of procedural due process with regard to Jeffers Road;
6. A denial of procedural due process with regard to Red Lane;
9. A denial of any meaningful procedure to afford him the right to
seek compensation, under color of law;
Athens App. No. 15CA27 23
10. A taking of private property for private use; and,
11. A denial of equal protection of the law.
{¶42} On June 23, 2015, the trial court dismissed Appellant’s
remaining claims, finding as follows:
“[T]he remaining causes of action, collectively referred to as
constitutional claims or Section 42 U.S.C. 1983 claims
(numbered 5, 6, 9, 10, and 11) are challenged as moot or
required to be dismissed because of the doctrine of issue
preclusion.”
{¶43} Under the second assignment of error, Jeffers contends the trial
court’s decision dismissing his remaining federal claims based on the
doctrine of issue preclusion was in error because his mandamus claim had a
higher evidentiary standard than did his remaining constitutional claims.
Regarding the difference in evidentiary standards, he is correct. As cited
above, the evidentiary standard for mandamus cases is “clear and
convincing.” By contrast, an action under § 1983 requires a plaintiff to
provide proof by a preponderance of the evidence. Pointer v. Detroit, 2011
WL 2580664, (U.S.D.C.).
{¶44} The Board directs us to Trafalgar Corp. v. Miami County
Board of Commissioners, 519 F.3d 285 (U.S.D.C. 6th), which discussed the
principles of preclusion, beginning with the tenet that a federal court must
give prior state court judgments the same effect those judgments would be
Athens App. No. 15CA27 24
given in the courts of the rendering state. 28 U.S.C. § 1738. A federal court
must therefore apply the principles of preclusion from the rendering state to
state court decisions. Trafalgar, supra, citing Hamilton's Bogarts, Inc., v.
State of Michigan, 501 F.3d 644, 650 (6th Cir. 2007). Trafalgar noted that
Ohio state courts recognize both claim and issue preclusion. Fort Frye
Teachers Ass'n, OEA/NEA v. State Employment Relations Bd., 81 Ohio St.3d
392, 692 N.E.2d 140, 144 (1998). In the Fort Frye decision, we observed:
“[C]laim preclusion * * * holds that a valid, final judgment
rendered upon the merits bars all subsequent actions based upon
any claim arising out of the transaction or occurrence that was
the subject matter of the previous action.” Id. (citing Grava v.
Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226, 228
(1995)).
***
“The doctrine of issue preclusion, also known as collateral
estoppel, holds that a fact or a point that was actually and
directly at issue in a previous action, and was passed upon and
determined by a court of competent jurisdiction, may not be
drawn into question in a subsequent action between the same
parties or their privies, whether the cause of action in the two
actions be identical or different.” Id. (citing Norwood v.
McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943)).
{¶45} In Trafalgar, supra, the Sixth District Court of Appeals held
that issue preclusion barred further litigation under the Takings clause.
Trafalgar initially sought compensation under the United States and Ohio
Constitutions for a regulatory taking of its property, alleging that Trafalgar
Athens App. No. 15CA27 25
had “been deprived of the economic viable use of [its] Property.” The Ohio
state courts determined that Trafalgar could not make out a claim for
compensation because it failed to present sufficient evidence that it had been
deprived of all economically viable uses of the land. In its action before the
district court, Trafalgar again sought to litigate the issue of just
compensation under the Takings clause, arguing that the defendants “have
stripped the property of any viable, economic use.” The district court held
because that issue was directly decided in a previous state court action, it
could not be re-litigated in federal district court.
{¶46} Trafalgar protested that it did not actually argue the federal
takings issue, and therefore it should not be precluded from litigating that
issue in federal court. But, the district court held Trafalgar put directly at
issue the question of whether it was entitled to just compensation under the
Ohio and United States Constitutions by including them in its complaint and
by alleging that it had “been deprived of the economic viable use of [its]
property.” The court stated:
“[Trafalgar] thus ‘effectively asked the state court to resolve
the same federal issues’ that it now claims it reserved for
federal court. San Remo Hotel, L.P. v. City of San Francisco,
545 U.S. 323, 341, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005);
see C. Wright And A. Miller, 18 Federal Practice and
Procedure, § 4419 (2007). The court of appeals and the Ohio
Supreme Court held that the takings claims were without merit.
Trafalgar, 104 Ohio St.3d 350, 819 N.E.2d 1040, 1045 (2004).
Athens App. No. 15CA27 26
Thus issue preclusion bars further litigation of Trafalgar's
takings claim.”
{¶47} Appellant has directed us to Schweller v. Schweller, 1997 WL
793106 (Dec. 26, 1997); Premier Courier Inc., v. Flaherty, 1995 WL
571846 (Sept. 26, 1995); In re Weaver, 41 Ohio St.2d 97, 322 N.E.2d 665,
(1975); and Buddie Contracting, Inc., v. Seawright, 595 F.Supp. 422 (D.C.
1984). Schweller involved contentious parties in post-divorce proceedings
which culminated in the trial court’s grant of summary judgment to the wife
on a malicious prosecution claim and grant of summary judgment to the
husband on assault and battery claims. The First District appellate court
generally commented upon the differing standards of proof required in civil
and criminal cases. In sustaining the parties’ assignments of error, the
appellate court observed:
“The trial court relied upon the rulings of the criminal court in
order to justify summary judgment on both civil intentional
torts. Not only are the elements of the offense different from
the elements of the torts, the standards used to judge civil
liability and criminal guilt are also different.”
{¶48} In Premier Courier, the plaintiff, Premier Courier, was a
package delivery service serving the greater Columbus area. Premier
Courier hired Flaherty as a manager of its Columbus operation. When hired,
Flaherty executed an employment contract containing provisions restricting
his right to operate a competing business, restricting his right to solicit
Athens App. No. 15CA27 27
plaintiff's customers and prohibiting him from disclosing trade secrets for a
period of three years after termination. When Flaherty's employment with
Premier Courier was terminated, Flaherty started his own package delivery
business. Premier Courier filed an action in the Franklin County Court of
Common Pleas seeking a preliminary and permanent injunction preventing
Flaherty from operating the business and seeking damages as a result of an
alleged breach of the restrictive covenants in his employment agreement and
upon an alleged violation of Ohio's trade secret law. Following an
evidentiary hearing, the referee recommended that the trial court deny the
request for injunctive relief. Premier Courier objected. The trial court
overruled the objections and adopted the referee's report as its own. Premier
Courier appealed and the appellate court dismissed for lack of a final
appealable order.
{¶49} Flaherty filed a motion for summary judgment with respect to
plaintiff's remaining claims for monetary relief. The trial court granted
Flaherty’s motion for summary judgment and denied defendants' motion.
On appeal Premier Courier pointed out certain restrictive covenants in
Flaherty's employment contract and the trade secret violation. Based on
facts in the referee’s decision, that defendants' company was not in direct or
indirect competition with any business activity conducted by plaintiff at the
Athens App. No. 15CA27 28
time of Flaherty's termination, the trial court determined that all material
factual issues had been finally resolved in defendants' favor in the prior
proceedings upon plaintiff's motion for preliminary and permanent
injunction.
{¶50} On appeal of the summary judgment ruling, the appellate court
noted Ohio law on collateral estoppel, observing:
“[C]ourts have refused to apply the doctrine to prevent a litigant
from challenging the trial court's prior rulings, when the
quantum of proof necessary to render both the original and
subsequent judgment is not identical. See e.g. State Bar Assn. v.
Weaver, 41 Ohio St.2d 97 (1975); F. Buddy Contracting, Inc. v.
Seawright (D.C.Ohio 1984), 595 F.Supp. 422.”
{¶51} The appellate court further found:
“In the present case, the burden of proof placed upon plaintiff in
the proceedings upon the motion for a preliminary and
permanent injunction was that of proof by clear and convincing
evidence. Call v. G.M. Sader Excavating & Paving, Inc., 68
Ohio App.2d 41, 46 (1980). This is clearly a higher quantum of
proof than that required to prevail in its claims for monetary
relief, which may be established by a preponderance of the
evidence. Id.”
{¶52} Buddie v. Seawright arose from the award of a contract
to build a solid waste transfer station for the City of Cleveland in May 1975.
Buddie later filed a taxpayer's action in Cuyahoga County Common Pleas
Court (Buddie I) alleging a violation of the state laws regulating the award of
public contracts. Buddie sought an injunction barring execution of the
Athens App. No. 15CA27 29
contract and re-advertisement of the bids. A trial judge later found, in
relevant part, no evidence of improper conduct or collusion involving any
public official or bidder.
{¶53} Buddie appealed the decision of the Buddie I court to the Eighth
District Court of Appeals. The appellate court affirmed the trial judge's
decision in December 1976. Subsequent to the close of the Buddie I action,
press revelations and a subsequent prosecution disclosed an unlawful
relationship between various parties involved in the case. In 1978, the
Cuyahoga County Grand Jury indicted several parties on criminal charges
arising out of their involvement in the award of the contract for the transfer
station. Ultimately, Seawright pled guilty to one count of attempt and
complicity to have an unlawful interest in a public contract.
{¶54} After entry of the guilty pleas, Buddie instituted federal court
action alleging violations of the antitrust laws. Buddie alleged conspiracy to
secure the award of the contract for Peabody, violating both § 1 of the
Sherman Act, 15 U.S.C. § 1, and Ohio's Valentine Act, Ohio Rev.Code §
1331.01 et seq. Peabody moved for summary judgment arguing in part, that
collateral estoppel prevented Buddie from establishing facts required to
make out its cause of action. In ruling the collateral estoppel would not be
Athens App. No. 15CA27 30
applied, the court commented that an exception to the doctrine applied in
that:
“The issue confronting the Court is whether the Buddie I court's
findings regarding collusion preclude Buddie from presenting
evidence on the conspiracy issue to this Court.
***
There is a clear and convincing need for a new determination of
the issue * * * (c) because the party sought to be precluded, as a
result of the conduct of his adversary or other special
circumstances, did not have an adequate opportunity or
incentive to obtain a full and fair adjudication in the initial
action.
{¶55} However, the Buddie court cautioned:
“In reaching this conclusion, the Court is mindful that this
decision represents a deviation from established concepts of
collateral estoppel. This decision should not be interpreted as
opening the floodgates to relitigation of the vast majority of
factual issues. The peculiar facts presented by this case make
this case an unusually good candidate for use of the exceptions
to the general rule of issue preclusion. It is important to
interpret the exceptions to the general rule of issue preclusion
so as not to overwhelm the general rule. Thus, while
concluding that the general rule does not apply to this case, the
Court emphasizes the narrowness of this holding.”
{¶56} Weaver, also cited above by Premier Courier, involved an
attorney’s disciplinary proceeding subsequent to the attorney’s,[Weaver’s]
acquittal on criminal charges. In its discussion of the inapplicability of the
doctrine of res judicata, the Supreme Court of Ohio emphasized the differing
evidentiary standards. The Court held:
Athens App. No. 15CA27 31
“The doctrine of res judicata renders final judgments conclusive
only when subsequent actions involve the same parties, or those
in privity with them, as in the first action; when the issues to
which the evidence is directed are identical in both actions; and
when the quantum of proof necessary to render both the
original and subsequent judgments is identical.”
{¶57} Turning to application of these legal principles in the case sub
judice, we point out in Jeffers I, this Court held at paragraph 8:
“Jeffers’ property abuts the closing roads. Therefore, pursuant
to Eastland Woods, he is entitled to compensation and
damages.”
{¶58} In Jeffers II, at paragraph 7, we held:
“In the mandamus action, Jeffers amended the complaint to add
various claims. Jeffers included a series of claims for money
damages under Section 1983, Title 42 U.S.Code. Essentially,
these claims rely on the same facts as Jeffers’s claim for
mandamus.”
{¶59} We also made the observation that the constitutional claims
relied on the same underlying facts as the mandamus action in Jeffers II at
paragraph 22. As in Trafalgar, supra, Appellant placed the alleged pro tanto
taking directly at issue in his mandamus proceeding. We have affirmed the
trial court’s decision that no taking occurred. Appellant’s federal claims rely
on the same facts as did his mandamus action. However, we must agree
with Appellant that because the standards of proof are different for the
Section 1983 claims than on the mandamus action, this renders his case an
exception to the general rule, and res judicata does not apply to bar his
Athens App. No. 15CA27 32
federal causes of action. The standard of proof to establish the Section 1983
claims, preponderance of the evidence, is less than the standard of proof
necessary to establish the mandamus action, which is a clear and convincing
burden.
{¶60} For the foregoing reasons, we find merit to Appellant’s
argument that the doctrine of res judicata should not bar his Section 1983
claims. Based on our de novo review and the relevant Ohio law, we find the
trial court erred by finding that the doctrine of issue preclusion applied to bar
further consideration of Jeffers’ constitutional claims. As such, we sustain
Appellant’s second assignment of error and reverse the judgment of the trial
court.
ASSIGNMENT OF ERROR THREE
“III. THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT DENIED APPELLANT’S MOTION FOR LEAVE
TO AMEND HIS COMPLAINT.”
A. STANDARD OF REVIEW
{¶61} “The decision to grant or deny a motion for leave to amend a
pleading is within the sound discretion of the trial court. * * * Thus, we will
not reverse a court's decision denying a motion for leave to amend, absent an
abuse of discretion.” Rose v. Cochran, 4th Dist. Ross No. 14CA3445, 2014-
Ohio-4979, ¶ 17, quoting Mollette v. Portsmouth City Council, 169 Ohio
Athens App. No. 15CA27 33
App.3d 557, 2006-Ohio-6289, 863 N.E.2d 1092, ¶ 28 (4th Dist.); Fifth Third
Bank v. Rankin, 4th Dist. Pickaway No. 10CA45, 2011-Ohio-2757, ¶ 36. As
discussed above, an abuse of discretion occurs when a decision is
unreasonable, arbitrary, or unconscionable. Rose, supra, citing State ex rel.
Nese v. State Teachers Retirement Bd. of Ohio, 136 Ohio St.3d 103, 2013-
Ohio-1777, 991 N.E.2d 218, ¶ 25.
B. LEGAL ANALYSIS
{¶62} On September 8, 2011, Appellant filed a motion seeking leave
of court pursuant to Civil Rule 15 to amend his complaint to include a
retaliation cause of action and one regarding the endorsement, lobbying, and
promoting of ex post facto legislation by Commissioner Eliason designed
specifically to curtail Appellant’s constitutional rights. Appellant alleged
that his right to a damage hearing was unnecessarily delayed while the new
legislation was promoted and passed by the General Assembly, exacerbating
his damages, costs, and legal fees. The trial court denied the motion, finding
that “[during the course of this protracted case the Ohio General Assembly
legislated in the subject area and (sic) parties and witnesses in this case
played a significant role in recommending changes to that body. * * * While
the efforts to secure change were successful, the Court of Appeals expressed
Athens App. No. 15CA27 34
that such changes could not apply to or affect this case.” Jeffers II at ¶ 35.
Under the final assignment of error, Appellant contends the trial court’s
decision found the Board engaged in actions intended to deprive him of a
jury assessment and that the delay of the second hearing caused him
additional costs in defending. Appellant concludes to deny his motion to
amend was an abuse of discretion.
{¶63} The Board responds that overruling Appellant’s motion to
amend the claim was not an abuse of discretion because the motion was: (1)
untimely; (2) barred by the Noerr-Pennington doctrine which bars liability
under Section 1983 for efforts to petition the government for changes in the
law; and (3) a Section 1983 action for money damages is not a remedy for an
alleged “Ex Post Facto” violation. The Board concludes multiple valid
reasons support the trial court’s decision overruling Appellant’s motion for
leave to amend his complaint and thus, the trial court did not abuse its
discretion in doing so.
{¶64} “Pursuant to Civ.R. 15(A), once an answer to a complaint is
served, a party may amend a pleading only by leave of the court or by
written consent of the adverse party.” Rose, supra, at ¶ 16. See Martin v.
Ohio Dept. of Rehab. and Corr., 140 Ohio App.3d 831, 837, 749 N.E.2d 787(4th Dist.2001). Although Civ.R. 15(A) provides that leave of court shall be
Athens App. No. 15CA27 35
freely given when justice so requires, there is no absolute or unlimited right
to amend a complaint. Rose, supra, at ¶ 20. See generally Kinchen v. Mays,
8th Dist. Cuyahoga No. 100672, 2014-Ohio-3325, ¶ 17. “Where a plaintiff
fails to make a prima facie showing of support for new matters sought to be
pleaded, a trial court acts within its discretion to deny a motion to amend the
pleading.” Wilmington Steel Products, Inc. v. Cleveland Elec. Illuminating
Co., 60 Ohio St.3d 120, 573 N.E.2d 622 (1991), syllabus; Townsend v. Ohio
Dept. of Transp., 10th Dist. Franklin No. 11 AP-672, 2012-Ohio-2945, ¶ 34;
Kinchen at ¶ 17. This requirement ensures that a proposed amendment is not
a delaying tactic or one which would cause prejudice to the opposing party.
Darby v. A–Best Products Co., 102 Ohio St.3d 410, 2004-Ohio-3720, 811
N.E.2d 1117, ¶ 20, citing Wilmington Steel at 122.
{¶65} We recognize, as pointed out by Jeffers, that the trial court’s
decision made no reference to the constitutional claims as being time-barred
or being barred by application of the Noerr-Pennington Doctrine. Similarly,
the trial court’s decision did not discuss the availability of money damages
for an alleged “Ex Post Facto” violation. The trial court’s decision stated:
“The remaining causes of action, collectively referred to as
constitutional claims or Section 42 U.S.C. 1983 claims
(numbered 5, 6, 7, 9, 10, and 11) are challenged as moot or
required to be dismissed because of the doctrine of issue
preclusion. This Court agrees with this position * * *.”
Athens App. No. 15CA27 36
{¶66} Despite our resolution of Appellant’s second assignment of
error above, we find that the trial court did not abuse its discretion in
overruling his motion for leave. While Appellant’s claims for retaliation and
improper Ex Post Facto legislation rely on the same underlying facts and
evidence as argued in his mandamus action, they are first and foremost
untimely. Therefore, we find the trial court did not abuse its discretion in
denying Appellant’s motion for leave to amend his complaint to add the
additional claims. As such, we overrule the third assignment of error and
affirm the judgment of the trial court.
CROSS-ASSIGNMENT OF ERROR OF APPELLEE BOARD
OF TRUSTEES OF ALEXANDER TOWNSHIP, OHIO
“I. THE TRIAL COURT’S DECISIONS AND JUDGMENTS
AT ISSUE ARE APPROPRIATE BY VIRTUE OF OTHER
SEPARATE GROUNDS SUPPORTED BY THE RECORD.”
{¶67} Having affirmed the judgment of the trial court as to
assignments of error one and three above, having reversed the judgment of
the trial court as to assignment of error number two, and having set forth our
reasoning fully, the cross-assignment of error is rendered moot. As such, we
decline to consider it. Accordingly, we affirm the judgment of the trial
court.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.
Athens App. No. 15CA27 37
Harsha, J., concurring:
{¶68} I concur in the judgment and opinion overruling Jeffers’s first
and third assignments of error. In addition, I concur in the judgment
sustaining Jeffers’s second assignment of error and reversing the trial court’s
dismissal of his Section 1983 claims based on res judicata for the following
reasons.
{¶69} Jeffers asserts in his second assignment of error that the trial
court erred in dismissing his Section 1983 claims based on res judicata. He
claims that because the standards of proof are different for his Section 1983
claims than his mandamus claim, res judicata did not bar his claims. The
Supreme Court of Ohio has expressly held that “[t]he doctrine of res
judicata renders final judgments conclusive only when subsequent actions
involve the same parties, or those in privity with them, as in the first action;
when the issues to which the evidence is directed are identical in both
actions; and when the quantum of proof necessary to render both the
original and subsequent judgments is identical.” (Emphasis added.) Ohio
State Bar Assn. v. Weaver, 41 Ohio St.2d 97, 99-100, 322 N.E.2d 665(1975). Consequently, “courts have refused to apply the doctrine to prevent
a litigant from challenging the trial court’s prior rulings, when the quantum
of proof necessary to render both the original and subsequent judgment is
Athens App. No. 15CA27 38
not identical.” See Premier Courier, Inc. v. Flaherty, 10th Dist. No.
95APE01-34, 1995 WL 571846, *3.
{¶70} This is not a case where the exception to this general rule
applies because Jeffers’s burden of proof is lower for his Section 1983
claims than for his previously decided mandamus claim. Compare Queener
v. Dayton, 2d Dist. Montgomery No. 16494, 1997 WL 797760, * 3 (Dec. 31,
1997) (“Even where the burdens of proof are not identical, res judicata will
apply against a party to a subsequent proceeding in which he bears a higher
burden of proof or bears a burden carried by the other party in the earlier
proceeding”).
{¶71} As the majority opinion notes, the standard to establish his
Section 1983 claims-preponderance of the evidence-is less than the standard
to establish his mandamus claim-clear and convincing evidence. Therefore,
based on Weaver and its progeny, res judicata could not bar Jeffers’s Section
1983 claims.
{¶72} And because the trial court held that res judicata applied, the
board’s and trustees’ argument that the court presumably applied the correct
standard of proof is meritless. By misapplying the doctrine of res judicata,
the court never proceeded to apply the correct evidentiary standard. Nor am
I convinced that the law-of-the-case doctrine should apply here given the
Athens App. No. 15CA27 39
differing standards of proof and because our prior appeals did not
specifically resolve Jeffers’s Section 1983 claims. Although this court in
Jeffers II, 2011-Ohio-675, did indeed note that he amended his prior
mandamus complaint to add claims for money damages under Section 1983,
we further noted that the trial court had not yet resolved those claims. Id. at
¶ 7, 22-24.
{¶73} Because the federal cases cited by the board were not asked to
apply our controlling state law concerning res judicata, I concur in the
sustaining of Jeffers’s second assignment of error.
Athens App. No. 15CA27 40
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVERSED IN PART, AND CAUSE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and
Appellees shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Harsha, J.: Concurs with Concurring Opinion.
Hoover, J: Concurs in Per Curiam Opinion and Concurring Opinion.
McFarland, J.: Concurs in Judgment and Opinion as to Assignments of
Error I & III and Cross Assignment Error;
Dissents as to Assignment of Error II.
For the Court,
BY: _____________________________
William H. Harsha, Judge
BY: _____________________________
Marie M. Hoover, Judge
BY: _____________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.