State ex rel. Harrison v. Hubbard , 2013 Ohio 2443 ( 2013 )

[Cite as State ex rel. Harrison v. Hubbard, 2013-Ohio-2443.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO EX REL. CITY : APPEAL NO. C-120762
OF HARRISON, TRIAL NO. A-1202927
:
Relator-Appellant,
:
vs. O P I N I O N.
:
THEODORE B. HUBBARD,
HAMILTON COUNTY :
ENGINEER,
:
Respondent-Appellee.
:
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 14, 2013
Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere and Michael E.
Maundrell, for Relator-Appellant,
Joseph T. Deters, Hamilton County Prosecuting Attorney, Roger Friedmann and
David T. Stevenson, Assistant Hamilton County Prosecuting Attorneys, for
Respondent-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
HILDEBRANDT, Judge.
{¶1} Relator-appellant city of Harrison appeals the summary judgment
entered by the Hamilton County Court of Common Pleas in favor of respondent-
appellee Theodore B. Hubbard, Hamilton County Engineer (“the Engineer”), in a
mandamus action.
Harrison’s Water-Service Plans
{¶2} In 2009, Harrison formulated plans to extend its water system into
unincorporated portions of Crosby Township in western Hamilton County. It
pursued these plans even though water services in the area in question had long been
provided, under contract, by the city of Cincinnati.
{¶3} Harrison submitted its proposed plans to the Engineer in 2011 in
conjunction with a request for a permit to excavate county roads to complete the
extension of water services. After reviewing the proposed plans, the Engineer did not
explicitly approve or deny Harrison’s application for the permit.
{¶4} In 2012, Harrison filed a petition for a writ of mandamus to compel
the Engineer to issue the excavation permit. Harrison contended that it had
complied with the conditions set forth in the Engineer’s rules and regulations and
that the Engineer therefore had a clear legal duty to issue the permit. The Engineer
filed a motion for summary judgment, and the trial court granted the motion.
Summary Judgment and Mandamus
{¶5} In a single assignment of error, Harrison argues that the trial court
erred in entering summary judgment in favor of the Engineer. Because we hold that
Harrison had adequate remedies at law, we affirm the judgment of the trial court.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Under Civ.R. 56(C), a motion for summary judgment may be granted
only when no genuine issue of material fact remains to be litigated, the moving party
is entitled to judgment as a matter of law, and it appears from the evidence that
reasonable minds can come to but one conclusion, and with the evidence construed
most strongly in favor of the nonmoving party, that conclusion is adverse to that
party. See State ex rel. Howard v. Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189(1994). This court reviews a ruling on summary judgment de novo. Jorg v.
Cincinnati Black United Front, 153 Ohio App.3d 258, 2003-Ohio-3668, 792 N.E.2d
781 (1st Dist.).
{¶7} To be entitled to a writ of mandamus, the relator must show (1) that it
has a clear legal right to the requested relief, (2) that the respondent has a clear legal
duty to perform the act, and (3) that the relator has no plain and adequate remedy in
the ordinary course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28,
29, 451 N.E.2d 225 (1983).
{¶8} In addressing the third element, Harrison argues that it had no
adequate remedy at law to challenge the failure or refusal of the Engineer to issue the
requested permit. Specifically, Harrison argues that there was no provision in the
Engineer’s regulations for an appeal or other administrative remedy.
{¶9} We find no merit in this argument. R.C. 2506.01 provides that, with
certain exceptions, “every final order, adjudication, or decision of any officer,
tribunal, authority, board, bureau, commission, department, or other division of any
political subdivision of the state may be reviewed by the court of common pleas of
the county in which the principal office of the political subdivision is located * * *.”
In a context similar to the case at bar, the Supreme Court of Ohio held that “[t]he
proper procedure to test an official’s refusal to issue a building permit is by way of
3
OHIO FIRST DISTRICT COURT OF APPEALS
appeal to the court of common pleas after all administrative remedies of appeal, if
any, are exhausted.” The Chapel v. Solon, 40 Ohio St.3d 3, 4, 530 N.E.2d 1321(1988). See State ex rel. 506 Phelps Holdings, LLC v. Cincinnati Union Bethel, 1st
Dist. Nos. C-120461, C-120462, and C-120474, 2013-Ohio-388.
{¶10} In the alternative, a declaratory-judgment action was an available
means of determining the respective rights of the parties. See, e.g., State ex rel. Eliza
Jennings, Inc. v. Noble, 49 Ohio St.3d 71, 73, 551 N.E.2d 128 (1990) (writ of
mandamus to issue sewer “tap-in” permits was improper where a declaratory-
judgment action was available); Bd. Of Cty. Commrs. v. Marblehead, 86 Ohio St.3d
43, 711 N.E.2d 663 (1999)(declaratory-judgment action filed to determine village’s
right to provide water service to residents of annexed county land). The writ of
mandamus sought by Harrison was not available in this case because Harrison had
adequate remedies at law. We overrule the assignment of error.
Conclusion
{¶11} We affirm the judgment of the trial court.
Judgment affirmed.
HENDON, P.J., and FISCHER, J., concur.
Please note:
The court has recorded its own entry this date.
4