State Ex Rel. Iris Sales Co. v. Voinovich , 43 Ohio App. 2d 18 ( 1975 )

I would reverse the judgment of the trial court dismissing this declaratory judgment action and, therefore, I respectfully dissent from the majority opinion for the following reasons.

This declaratory judgment action is properly brought since the allegations of the complaint clearly raise a justiciable issue that should be decided in this action. The prinicipal issue is whether the County Auditor created an illegal classification of real property called "country clubs or golf courses" for the purposes of the valuation of such property for real estate taxes. This does not involve valuation of specific parcels of real property by the County Auditor nor a challenge to this valuation by appeal under Chapters 5715 and 5717 Rawle C.

The resolution of this issue can only be decided in this declaratory judgment proceeding because the filing of a complaint and appeal pursuant to the statutory remedy regarding the valuation of specific property would not answer the questions raised in the complaint as to whether the County Auditor created an illegal classification called "country clubs or golf courses."

In order to better understand declaratory judgment actions generally and the issues raised in this case, it is necessary to set forth the following material regarding the law of declaratory judgments.

Recently, governmental agencies and other defendants have been advancing theories which argue that when there is an alternative remedy or a special statutory proceeding regarding the general subject matter at issue, a declaratory judgment action cannot be maintained as a matter of law. Adoption of these philosophies amounts to repeal of the Declaratory Judgment Act provided for in Chapter 2721 Rawle C. by court fiat and would eliminate it as an independent action.

In 1933, Ohio adopted Chapter 2721 Rawle C., the Uniform Declaratory Judgment Act, whose provisions are remedial in nature and are to be liberally construed and administered. R. C.2721.13; Sessions v. Skelton (1955), 163 Ohio St. 409;Radaszewski v. Keating (1943), 141 Ohio St. 489.

The provisions of this act are clear and unambiguous. Courts of record may declare rights, status and other legal relations whether or not further relief is or could be claimed and the court's declaration may be either affirmative or negative and such declaration has the effect of a final judgment or decree. R. C. 2721.02. Any person whose rights, status or other legal relations are affected by statute, municipal ordinance, contract or franchise may have determined any question of construction or validity arising under such statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. R. C. 2721.03. Wilson v. Cincinnati (1960),171 Ohio St. 104.

Further, courts of record may refuse to enter a declaratory judgment or decree when such judgment or decree would not terminate the uncertainty or controversy giving rise to the proceeding. R. C. 2721.07. However, judgments rendered in declaratory judgment actions may be reviewed on appeal the same as other orders, judgments and decrees. R. C. 2721.08.

Several major issues have developed in regard to court interpretations under the Declaratory Judgment Act. They are (1) justiciable issues; (2) alternative remedies; (3) special statutory remedies; (4) termination of uncertainty or controversy and the trial court's discretion therein.

I. Declaratory judgment relief is statutory and the parties bringing the action must meet the statutory requirements.Risman v. VanSweringen Co. (1962), 88 Ohio Law. Abs. 362. Also, courts will not give advisory opinions and in order for a declaratory judgment action to lie, there must be a justiciable controversy. Schaefer v. First Natl. Bank (1938), 134 Ohio St. 511. II. A declaratory judgment action is an independent action created by statute and may be brought even though a party has an alternative remedy and is not limited to cases in which there is no other remedy available. Schaefer v. First Natl. Bank, supra; also see Civil Rule 57.

In order to better understand the alternative remedy issue, there are several other rules that must be examined. If a party has a legal remedy, he may not maintain an equitable action.Schaefer v. First Natl. Bank, supra at page 519. Also, if a party has available a legal or equitable remedy, he may not take advantage of extraordinary remedies, such as mandamus and prohibition. Further, a party must exhaust all of his administrative and other remedies before resorting to the use of extraordinary remedies, such as mandamus or prohibition.State, ex rel. Schindel, v. Rowe (1971), 25 Ohio St. 2d 47; State, ex rel.Lieux, v. Westlake (1951), 154 Ohio St. 412. However, these rules do not apply to declaratory judgment actions because a declaratory judgment is not an extraordinary or equitable remedy but a remedy in the ordinary course of law. See RealtyCorporation v. Columbus (1970), 21 Ohio St. 2d 265, at 268. This is especially so in regard to attempted compliance with administrative procedures when such attempted compliance would be a vain act. Realty Corporation v. Columbus, supra at page 267. Also see, Kaufman v. Newburgh Heights (1971), 26 Ohio St. 2d 217.

It is clear from the foregoing that a declaratory judgment is an independent action that may be brought even though a party has an alternative remedy, and it would be error to concludeas a matter of law that if a party has an alternative remedy he may not bring a declaratory judgment action.

III. A declaratory judgment action may not be brought or maintained if there is an exclusive statutory remedy or procedure, or if exclusive jurisdiction vests in some agency or some other court in the action presented. See Dayton Transit Company v.Dayton Power and Light (1937), 57 Ohio App. 299.

Examples of such exclusive statutory proceedings are control over utility rates and service by the Ohio Public Utilities Commission as provided for in Chapter 4909 Rawle C., licensing of insurance companies and approval of rates by the Ohio Insurance Commissioner as provided for in Title 39 of the Revised Code, suspension and revocation of liquor permits by the Ohio Board of Liquor Control as provided for in Chapter 4301 Rawle C., appeals of tax valuations to County Boards of Revision and to the Board of Tax Appeals or to the Common Pleas Court as provided for in Chapters 5715 and 5717 Rawle C., and disability and death claims under Workmen's Compensation as provided for in Chapter 4123 Rawle C.

The existence of a special or exclusive statutory procedure dealing with a portion of a general subject does not require a trial of all issues relating to that general subject in the special proceedings. In other words, all issues relating to real estate taxes do not have to be tried in appeals to the Board of Revision, or Board of Tax Appeals or Common Pleas Court under Chapters 5715 and 5717 Rawle C. Thus, a declaratory judgment action can be brought and maintained in cases dealing with issues other than appeals of real estate valuation; namely, as in this case, whether the County Auditor created an illegal classification of real property.

IV. R. C. 2721.07 states that the trial court may refuse to hear a declaratory judgment action and dismiss it if it would not terminate the uncertainty or controversy. It does not state whether or not it means all uncertainty or all controversy, orsome uncertainty or some controversy. It is my view that this means that the action must at least terminate some uncertainty or some controversy before the trial court may entertain the action and it is not necessary to terminate all uncertainty orall controversy.

This conclusion is based on Chief Justice Weygandt's opinion inWalker v. Walker (1936), 132 Ohio St. 137, 139.

"* * * The declaratory judgment act is a salutary, remedial measure and should be liberally construed and applied, but * * * it does not require a court to render a futile judgment that ``would not terminate' any ``uncertainty or controversy' whatsoever."

Also, see Radaszewski v. Keating, supra at page 498.

Stated in affirmative terms, this means that a trial court may entertain a declaratory judgment action if its judgment would terminate some or any of the uncertainty or some or any of the controversy between the parties giving rise to the proceedings.

R. C. 2721.07 provides for discretion in the trial court; but it is a limited discretion wherein a trial court may refuse to render a declaratory judgment even though the declaration sought otherwise comes within the scope of the declaratory judgment action. In other words, a declaratory judgment may come within the scope of the act, but nevertheless R. C. 2721.07 provides a limited discretion to the trial court to refuse to render a judgment in the action when such judgment or decree would not terminate some of the uncertainty or controversy giving rise to the proceeding. Ins. Co. v.Sadler (1966), 6 Ohio App. 2d 161, 164.

Returning now to the issue of exclusive statutory remedy, there is no question but that the exclusive statutory remedy regarding appeals of valuation of specific parcels of property must be pursued and decided through County Boards of Revision and further appeals taken to the Common Pleas Court or the State Board of Tax Appeals in accordance with Chapters 5715 and 5717 Rawle C.

However, the issue raised in this case is whether the County Auditor illegally created a classification such as "golf courses or country clubs" and it cannot be tested in the foregoing appeal procedure, because such a procedure is only concerned with the valuation of a specific parcel of real property. Therefore, the plaintiff should be allowed to maintain this declaratory judgment action. Otherwise, the issues raised in this complaint could not be decided.

There is no question that if the County Auditor did create a classification entitled "country clubs or golf courses" it is illegal because the State Board of Tax Appeals has created the following four classifications of real property: agricultural, residential, commercial and industrial.² The creation of any other classification by a County Auditor would be illegal.

I agree with the majority that any issues raised in the complaint regarding the valuation of specific parcels of property cannot be maintained in the declaratory judgment action but can only be attacked by direct appeal from the auditor's valuation through the Board of Revision and by further appeal to the Common Pleas Court or to the State Board of Tax Appeals, but I disagree with the majority when they conclude that the portion of the complaint dealing with the creation of an illegal classification of real property cannot be maintained in this declaratory judgment action.

The Ohio Legislature enacted the Declaratory Judgment Act to give parties a remedy and it is an independent action and may be used as an alternative to any other action. The statute does not state that it may only be used if there is not another available remedy, nor does it state that if there is an alternative remedy it may not be used. Further, a declaratory judgment action may not be brought and maintained in cases where there is an exclusive or specific statutory remedy, but a declaratory judgment action may be brought and maintained in cases involving that same general subject matter when there are issues raised other than those involving the exact issue that could be raised in the exclusive or special statutory proceeding.

The allegations of the complaint meet the statutory requirements of the Declaratory Judgment Act by raising a justiciable controversy; it does not deal with a subject over which there is a specific or exclusive statutory remedy: namely, the valuation of a parcel of property, and the rendering of such a declaratory judgment action would terminate some of the controversy between the parties. The trial court committed prejudicial error in dismissing the complaint.

The judgment of the trial court should be reversed and the trial court should entertain the declaratory judgment action and make a determination of whether the County Auditor created an illegal classification called "country clubs or golf courses." Any issue of valuation of a specific parcel of property may not be maintained in this declaratory judgment action. This action should be limited to the issue of whether the County Auditor did create such an illegal classification.

² Rules of the Ohio Board of Tax Appeals 5-04(G) (1) through (4)