Penn Traffic Co. Dba Big Bear Stores and Zeus Shopping Center v. Clark County Board of Elections
| Decision Date | 29 October 1999 |
| Docket Number | 99-LW-4550,C.A. 99-CA-26 |
| Parties | PENN TRAFFIC CO. DBA BIG BEAR STORES AND ZEUS SHOPPING CENTER, Plaintiffs-Appellants v. CLARK COUNTY BOARD OF ELECTIONS, ET AL., Defendant-Appellees C.A. Case No. 99-CA-26 |
| Court | Ohio Court of Appeals |
THOMAS H. LAGOS, 1 South Limestone Street, Suite 1000, Springfield Ohio 45502, Atty. Reg. #0014980, Attorneys for Intervenor-Appellant, Zeus Shopping Center, Inc.
JENNIFER L. BRUNNER, 545 E. Town Street, Columbus, Ohio 43215-4801 Attorney for Plaintiff-Appellee, Penn Traffic Co.
THOMAS E. TREMPE, Assistant Prosecuting Attorney, 50 E. Columbia Street, 4t h Floor, P.O. Box 1608, Springfield, Ohio 45501, Attorney for Defendant-Appellee
Intervenor-appellant, Zeus Shopping Center, Inc., appeals from a judgment of the Clark County Court of Common Pleas dismissing its intervening complaint. Zeus contends that the trial court erred by failing to permit it to intervene. Zeus also contends that the trial court erred by dismissing its intervening complaint because it was denied due process of law when it was not notified of a pending local option election. Finally, Zeus argues that the trial court erred by dismissing its complaint because the local option election of which it complains was void.
We find that the trial court did permit Zeus to intervene in the underlying action. We further conclude that Zeus does not have any constitutional due process, or statutory, right to notification of local option elections. Finally, to the extent that Zeus's complaint challenges the result of a local option election, it was correctly dismissed upon the grounds that it was not timely. Accordingly, the judgment of the trial court is Affirmed.
Frances Kosmos (not a party to this action) owned a store called "Mom's Little Shop." The store was located in Ward 2, Precinct I, in the City of Springfield. The plaintiff Penn Traffic Co. dba Big Bear Stores, had been located in Precinct T in the City of Springfield from August, 1988, until June, 1996, when the defendant-appellee, the Clark County Board of Elections (the "Board"), combined all of Precinct T with Precinct I to make an enlarged Precinct I. Precinct T was eliminated. However, when the precincts were combined, the local option status of the land in each precinct remained as it had been previously voted, resulting in a lack of uniformity in Precinct I; Big Bear was in the "wet" portion of the precinct, while Kosmos' shop was in the "dry" portion of the precinct.
In August, 1998, Kosmos circulated and filed three local option petitions to place on the general election ballot for Precinct I certain questions relating to the sale of wine and beer. On November 3, 1998, the Board conducted a local option election in Precinct I. The local option election resulted in a majority "no" vote on the sale of beer and intoxicating liquor.
Thereafter, Big Bear was informed that, pursuant to the election outcome, it would have to surrender its liquor permits. On December 23, 1998, Big Bear filed a complaint for a declaratory judgment and injunction against the Board and the Ohio Department of Commerce, Ohio Division of Liquor Control. The complaint sought, among other things, to have the election declared invalid.
On January 14, 1999, intervenor-appellant Zeus Shopping Center, Inc. filed an "Interpleder Complaint." Zeus alleged that it owned the shopping center in which Big Bear is located. It also averred that two other stores, which sell beer and wine, are located in its shopping center. Zeus alleged that it would suffer irreparable harm if those stores were not permitted to sell beer and wine. Zeus sought to have the election declared void.
On January 14, 1999, the trial court entered an order permitting Zeus to "intervene and interplead the within matter." The Board then filed a motion to dismiss Zeus's complaint for failure to state a claim. The trial court granted the motion on February 18, 1999. From this order dismissing its complaint, Zeus appeals.
Zeus's First Assignment of Error is as follows:
THE COURT ERRED IN DISMISSING THE COMPLAINT OF THE INTERVENOR ZEUS SHOPPING CENTER INC. SINCE ZEUS SHOPPING CENTER INC. CLEARLY HAD A RIGHT TO INTERVENE TO PROTECT ITS PROPERTY INTERESTS.
This Assignment of Error is based solely upon Zeus's argument that it was entitled, but not permitted, to intervene in the subject action.
It appears, as argued by the Board, that Zeus has confused the issue of its right to intervene with the issue of the sufficiency of its complaint. The record clearly demonstrates that the trial court permitted Zeus to intervene in the action. However, the trial court subsequently determined that Zeus had failed to state a claim upon which relief could be granted. We find that the error assigned is not portrayed in the record.
Zeus's First Assignment of Error is overruled.
Zeus's Second and Third Assignments of Error are as follows:
Zeus argues that the trial court erred by dismissing its complaint because it was deprived of its property rights without due process of law, as guaranteed by the United States and Ohio constitutions. Zeus argues that it was entitled to, but did not receive, notice of the local option election, and that R.C. 4301.32 is unconstitutional because it fails to provide for notice to landlords. It appears that this claim is premised upon the allegation that the loss of its liquor license would cause Big Bear to vacate Zeus's shopping center, thereby causing Zeus to lose over one million dollars in revenue. In support, Zeus cites this court's holding in Rickard v. Ohio Dept. of Liquor Control (...
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