State ex rel. Delta Lookout, LLC v. City of Cincinnati

Citation150 N.E.3d 556,2019 Ohio 5353
Decision Date27 December 2019
Docket NumberNO. C-170107,C-170107
Parties STATE of Ohio, EX REL. DELTA LOOKOUT, LLC, and Delev and Associates, LLC, Relators, v. CITY OF CINCINNATI, John Cranley, Mayor of the City of Cincinnati, Harry Black, City Manager of the City of Cincinnati, and Michael Moore, Director of Transportation and Engineering for the City of Cincinnati, Respondents.
CourtUnited States Court of Appeals (Ohio)

Delev and Associates, LLC, and Gregory D. Delev, Cincinnati, for Relators,

Paula Boggs Muething, City Solicitor, and Shuva J. Paul, Senior Assistant City Solicitor, for Respondents.

OPINION.

Zayas, Presiding Judge.

{¶1} Relators Delta Lookout, LLC, and Delev and Associates, LLC, filed a petition for a writ of mandamus as an original action in this court seeking an order to compel respondent city of Cincinnati to repair and maintain two streets within the city boundary. For the following reasons, we decline to issue the writ.

I. Background and Procedural History

{¶2} Delta Lookout, LLC, and Delev and Associates, LLC, (collectively, "Delta Lookout") are businesses operating in a building located in the Mt. Lookout area of the city of Cincinnati. Delta Lookout filed this action against the city over the city's alleged failure to maintain two allegedly public streets called Willbarre Terrace and Close Court (collectively, the "disputed streets"). Delta Lookout argues that the city's failure to maintain the streets and install a proper storm water drainage system led to the erosion of a sidewall on Delta Lookout's property due to uncontrolled storm water runoff, which it argues has created a private nuisance.

{¶3} Delta Lookout filed its petition and complaint for a writ of mandamus on March 16, 2017, which was amended on April 5, 2017. The city filed its answer on April 19, 2017. Delta Lookout moved for summary judgment on September 25, 2017. The city filed a response in opposition and a cross-motion for summary judgment on January 2, 2018. Delta Lookout filed a response in opposition to the cross-motion for summary judgment on January 17, 2018. The parties filed a stipulated record on April 1, 2019.

{¶4} Delta Lookout is requesting a writ of mandamus to compel the city to keep the disputed streets in repair, free from nuisance, and in a reasonably safe condition for travel in accordance with R.C. 723.01 and 735.02. Delta Lookout is also requesting compensatory damages in the amount of $25,000 for negligence and the creation of a nuisance on their property, the costs of the action, and attorney fees.

II. Analysis
Entitlement to Mandamus

{¶5} The first question we must address is whether Delta Lookout's complaint for a writ of mandamus is the proper avenue through which to seek relief. The city argues that mandamus is inappropriate and that Delta Lookout should have instead sought a declaratory judgment and a prohibitory injunction. Delta Lookout contends that a declaration of rights and a prohibitory injunction would not provide a complete remedy, as it also seeks to compel the city to fulfill its statutory duties and remedy the damage caused by the city's past failure to maintain the streets.

{¶6} In order to be entitled to a writ of mandamus, a relator must show that he "has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and the relator has no plain and adequate remedy at law." State ex rel. Fink v. Cincinnati , 186 Ohio App.3d 484, 2010-Ohio-449, 928 N.E.2d 1152, ¶ 7 (1st Dist.). "A mandamus action is thus appropriate where there is a legal basis to compel a public entity to perform its duties under the law." State ex rel. Gen. Motors Corp. v. Indus. Comm. , 117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, ¶ 9, citing State ex rel. Levin v. Schremp , 73 Ohio St.3d 733, 654 N.E.2d 1258 (1995). "In addition, if the public entity has misinterpreted a statute, a writ of mandamus may be an available remedy." (Internal citations omitted.) Id. at 482, 884 N.E.2d 1075.

{¶7} By contrast, when a party files for a declaratory judgment the party seeks merely a declaration of its "rights, status, and other legal relations whether or not further relief is or could be claimed." R.C. 2721.02. A declaratory judgment by itself cannot compel a government official to perform a specific legal duty.

State ex rel. Ohio Civ. Serv. Emps. Assn., AFSCME, Local 11, AFL–CIO v. State Emp. Relations Bd. , 104 Ohio St.3d 122, 2004-Ohio-6363, 818 N.E.2d 688, ¶ 16, quoting 1 Antieau, The Practice of Extraordinary Remedies , Section 2.06, at 300 (1987) (" ‘A declaratory action, which merely announces the existence of a duty to be performed, has generally not been deemed as adequate as the writ of mandamus, which compels performance.’ "). Therefore, "a declaratory judgment must be accompanied with injunctive relief in the form of a mandatory injunction in order to successfully compel the government to act." Gen. Motors Corp. at 482, 884 N.E.2d 1075, citing State ex rel. Fenske v. McGovern , 11 Ohio St.3d 129, 131, 464 N.E.2d 525 (1984).

{¶8} Here, Delta Lookout seeks a writ directing the city to recognize (according to Delta Lookout) its statutory acceptance of the disputed streets as public streets, properly repair and maintain the disputed streets, and repair the damage caused by the city's prolonged failure to maintain the disputed streets pursuant to the Revised Code. The writ, therefore, seeks to compel the city to take affirmative action. The city argues that Delta Lookout should have instead filed an action for a declaratory judgment coupled with a prohibitory injunction, but this position ignores the relief requested. "A prohibitory injunction preserves the status quo by enjoining a defendant from performing the challenged acts in the future." Gen. Motors Corp. at 1079, citing State ex rel. Leslie v. Ohio Hous. Fin. Agency , 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 50. "A mandatory injunction, however, is an extraordinary remedy that compels the defendant to restore a party's rights through an affirmative action." Gen. Motors Corp. at 1079, citing Gratz v. Lake Erie & W. RR. Co. , 76 Ohio St. 230, 233, 81 N.E. 239 (1907). While Delta Lookout does seek to prevent future injury by requiring the city to maintain the disputed streets as public streets, Delta Lookout also seeks remediation of its eroding sidewall and compensation for this past injury. A declaratory judgment in and of itself is insufficient to provide adequate relief, and a prohibitory injunction is likewise inadequate because it does not remedy past injury. Accordingly, a mandamus action is proper because the other available alternative would not provide a complete and adequate remedy.

Clear Legal Right to Relief

{¶9} Next, we must determine whether Delta Lookout was entitled to the requested writ by first answering whether Delta Lookout has a clear legal right to the relief prayed for. Delta Lookout argues that it has a clear legal right to relief because the city failed to fulfill its duty to maintain disputed streets that were dedicated public streets by statute, or, in the alternative, disputed streets that were dedicated and accepted as public under the rules of common law, and as a result injured Delta Lookout.

Statutory Dedication

{¶10} In Ohio, property may be dedicated to public use for streets and roads pursuant to either statutory requirements or the rules of the common law. See R.C. 723.03 ; OTR, ex rel. State Teachers' Retirement Bd. of Ohio v. City of Cincinnati , 1st Dist. Hamilton No. C-010658, 2003-Ohio-1549, 2003 WL 1571758, ¶ 31. R.C. 723.03 pertains to the statutory dedication of streets and acceptance by legislative authority. The statute states that

A street or alley, dedicated to public use by the proprietor of ground in any municipal corporation, shall not be a public street or alley, or under the care or control of the legislative authority of such municipal corporation, unless the dedication is accepted and confirmed by an ordinance specially passed for such purpose.

R.C. 723.03.

{¶11} Delta Lookout admits that the city did not pass an ordinance accepting the disputed streets pursuant to R.C. 723.03, but argues that the statutory dedication of the disputed streets predated this section of the Revised Code. Delta Lookout argues that the disputed streets were dedicated and established in 1876 pursuant to the provisions of the Platting Commission Act of 1871 (the "1871 Act"). Without going into detail as to the provisions of the 1871 Act, generally the act provides for a commission whose duty it shall be "to plat such portions of the territory within its limits in which the necessary or convenient streets or alleys have not already been accepted by the corporation so as to become public streets * * *," and then declares that "no streets or alleys, except those laid down on such plat shall subsequently be in any way accepted as public streets or alleys by the municipal corporation, nor shall any of the public funds be expended in the improvement or repair of streets or alleys subsequently laid out, and not on such plat."

{¶12} In Winslow v. City of Cincinnati , 9 Ohio Dec. 89, 6 Ohio N.P. 47 (Ohio Super.1899), a case interpreting the 1871 Act, the court held that the "acceptance" referred to in the 1871 Act cannot be "anything other than a statutory acceptance by the municipal corporation which imposes upon it a liability to repair * * *." The court held that the 1871 Act's reference to subsequent acceptance by a municipality following the work of the platting commission rebutted the contention that the 1871 Act empowered the platting commission with the authority to dedicate streets as public. Thus, the 1871 Act does not implicitly accept streets as public simply because the platting commission included the streets on a plat map.

{¶13} Accordingly, we find that there was not a statutory dedication of the disputed streets by the ...

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