State ex rel. Eliza Jennings, Inc. v. Noble

• Decision Date: 21 February 1990
• Docket Number: No. 89-143,89-143
• Citation: 49 Ohio St.3d 71,551 N.E.2d 128
• Parties: The STATE, ex rel. ELIZA JENNINGS, INC., Appellee, v. NOBLE, Director, Appellant.
• Court: Ohio Supreme Court

Page 71

49 Ohio St.3d 71

551 N.E.2d 128

The STATE, ex rel. ELIZA JENNINGS, INC., Appellee, v. NOBLE, Director, Appellant.

No. 89-143.

Supreme Court of Ohio.

Submitted Nov. 7, 1989.

Decided Feb. 21, 1990.

Calfee, Halter & Griswold, Mark I. Wallach, Kenneth S. Cline and Smith R. Brittingham IV, Cleveland, for appellee.

Michael R. Gareau, Law Director, North Olmsted, and James M. Dubelko, for appellant.

PER CURIAM.

The main issue before this court is whether appellee, Eliza Jennings, Inc., for the purpose of receiving permits to "tap-in" to North Olmsted's sanitary sewer system, is required to submit a fee calculated solely by reference to North Olmsted Codified Ordinances Section 911.10, or whether the "benefited unit" provisions of Section 911.09 should also apply. For the reasons cited below, we find that, in order to receive such permits for its construction project, appellee must submit both a "per connection" fee, as described in North Olmsted Codified Ordinances Section 911.10, and a "benefited unit" fee as provided in Section 911.09.

As a threshold to our inquiry, we will determine if the court of appeals properly granted the writ of mandamus, or whether there was an adequate remedy at law for the appellee to pursue.

R.C. 2731.05, which governs the issuance of writs of mandamus, provides that "[t]he writ of mandamus must not be issued where there is plain and adequate remedy in the ordinary course of the law." In addressing the issue of when mandamus is an appropriate remedy, this court has held that, "[i]n order for the extraordinary writ of mandamus to issue, a court must find that the relator 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 that relator has no plain and adequate remedy at law. * * * " Freshour v. Radcliff (1988), 35 Ohio St.3d 181, 182, 519 N.E.2d 395, 396, citing State, ex rel. Westchester Estates, Inc., v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, paragraph one of the syllabus; accord State, ex rel. GMS Management Co., v. Callahan (1989), 45 Ohio St.3d 51, 54, 543 N.E.2d 483, 486; The Chapel v. Solon (1988), 40 Ohio St.3d 3, 530 N.E.2d 1321; State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 29, 6 OBR 50, 50-51, 451 N.E.2d 225, 226; State, ex rel. Harris, v. Rhodes (1978), 54 Ohio St.2d 41, 8 O.O.3d 36, 374 N.E.2d 641. Furthermore, "[f]or a remedy at law to be adequate, the remedy should be complete in its nature, beneficial and speedy. * * * " State, ex rel. Liberty Mills, Inc., v. Locker (1986), 22 Ohio St.3d 102, 104, 22 OBR 136, 137, 488 N.E.2d 883, 885-886; State, ex rel. Merydith Constr. Co., v. Dean (1916), 95 Ohio St. 108, 123, 116 N.E. 37, 41.

Appellant maintains in his first proposition of law that even if there was a miscalculation of the "tap-in" charges for appellee's connections to the North Olmsted sanitary sewer system, appellee had several plain and adequate remedies at law. We agree. For instance, appellee could have pursued an administrative appeal from the appellant's decision pursuant to R.C. 2506.01. ² Specifically, appellant's decision, rejecting appellee's application for sanitary sewer connection permits, was a final decision, which determined "rights, duties, privileges, benefits, or legal relationships" within the meaning of R.C. 2506.01, and was appealable to the Court of Common Pleas of Cuyahoga County. See State, ex rel. Cunagin Constr. Corp., v. Creech (1969), 20 Ohio St.2d 128, 49 O.O.2d 447, 254 N.E.2d 18 (the denial of a building permit by a city planning commission constituted a final order under R.C. 2506.01 et seq., thereby making mandamus an improper remedy). Also, appellee could have filed a declaratory judgment action against the city to determine whether the city had breached its contract with the county in calculating "tap-in" charges for Olmsted Township property owners. See State, ex rel. Dollison, v. Reddy (1978), 55 Ohio St.2d 59, 60, 9 O.O.3d 67, 378 N.E.2d 150, 151 (although the availability of a declaratory judgment action does not bar the issuance of a writ of mandamus, the court may consider the availability of declaratory judgment as one element in exercising its discretion whether the writ should issue).

Appellee suggests that time was crucial to the success of its building project, thereby creating the need for the extraordinary remedy of mandamus. This court has stated "[w]here a constitutional process of appeal has been legislatively provided, the sole fact that pursuing such process would encompass more delay and inconvenience than seeking a writ of mandamus is insufficient to prevent the process from constituting a plain and adequate remedy in the ordinary course of the law. (State, ex rel. Kronenberger-Fodor Co., v. Parma, 34 Ohio St.2d 222 , 297 N.E.2d 525, syllabus approved and followed.)" State, ex rel. Willis, v. Sheboy (1983), 6 Ohio St.3d 167, 6 OBR 225, 451 N.E.2d 1200, paragraph one of the syllabus. In the instant case, appellee failed to sufficiently specify why any delay involved in pursuing these alternative remedies is an overriding factor justifying relief in mandamus.

Thus, we hold that appellee had a plain and adequate remedy in the ordinary course of law.

Next, we address appellee's motion to dismiss this case as moot. In determining whether a case is moot, " '[t]he duty of this court, as of every judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. * * * ' " Miner v. Witt (1910), 82 Ohio St. 237, 238-239, 92 N.E. 21, 22, quoting Mills v. Green (1895), 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293.

Appellee argues that this case should be dismissed as moot, since appellee was able to obtain the desired connections into the North Olmsted sanitary sewer system pursuant to the writ issued by the court of appeals. We believe appellee ignores the main issue still in controversy, which is the proper fee to be paid by Olmsted Township for the "tap-in" residents permits to the North Olmsted sanitary sewer system. Therefore, we deny appellee's motion to dismiss.

The key issue left to be resolved is whether the appellee was required to pay a "benefited unit" fee in addition to the "per connection" fee in order to receive the "tap-in" permits for sewer connections.

Appellant asserts that appellee had incorrectly calculated the fee for the permits and that the fee should be based on the number of "benefited units" within the project, per North Olmsted Codified Ordinances Section 911.09, ³ rather than strictly upon the number of actual sewer connections running to the buildings. Under the appellant's calculations, the total fee for the required permits, taking into account the number of "benefited units" in the buildings, was $176,770.44, as opposed to the $62,832 tendered by the appellee.

The June 24, 1983 agreement between the city of North Olmsted and Cuyahoga County provides in Section 10 that "[t]he Board of County Commissioners shall incorporate all provisions of the North Olmsted Sewer Use Ordinance for the North Olmsted Service Area in Olmsted Township after adoption by the City of North Olmsted in accordance with requirements of the Environmental Protection Agency and proposed in the Dalton-Dalton-Newport report entitled, 'City of North Olmsted Sewer Use Ordinance.' The county shall have the right to review the proposed sewer use ordinance prior to its adoption." The language which specifies that the commissioners shall incorporate "all provisions of the North Olmsted Sewer Use Ordinance Service Area in Olmsted Township" means that all the provisions of North Olmsted's Codified Ordinances Chapter 911, the city's "Sewer Use Ordinance," not just Section 911.10, should be applied to Olmsted Township residents seeking sewer "tap-i...