State ex rel. Bellville v. Washington Twp.

[Cite as State ex rel. Bellville v. Washington Twp., 2025-Ohio-410.]

COURT OF APPEALS

RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JUDGES:

STATE EX REL. VILLAGE OF : Hon. W. Scott Gwin, P.J.

BELLVILLE : Hon. John W. Wise, J.

: Hon. Andrew J. King, J.

Relator-Appellant :

:

-vs- : Case No. 2024 CA 30

:

WASHINGTON TOWNSHIP, ET AL :

: OPINION

Respondents-Appellees

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of

Common Pleas, Case No. 2024 CV 0114

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 6, 2025

APPEARANCES:

For Relator-Appellant For Respondents-Appellees

LUTHER L. LIGGETT, JR. BRANDON L. ABSHIER

5053 Grassland Drive REMINGER CO., LPA

Dublin, OH 43016 200 Civic Center Drive, Ste. 800

Columbus, OH 43215

Richland County, Case No. 2024-CA-0030 2

Gwin, P.J.

{¶1} Relator-Appellant, State ex rel. Village of Bellville, appeals the June 4, 2024

judgment entry of the Court of Common Pleas of Richland County, Ohio, denying its

request for a writ of mandamus. Respondents-Appellees are Washington Township and

Washington Township Board of Trustees. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶2} The Village of Bellville is located both in Washington and Jefferson

Townships. Both townships maintain fire departments and each fire department provides

services to the respective Bellville properties located within their townships. The Bellville

residents pay taxes for fire protection to their respective township.

{¶3} In 1995, Bellville sought to annex a commercial area of Washington

Township. Washington Township opposed the annexation, but the parties reached an

agreement. On November 20, 1995, Bellville and the Washington Township Trustees

entered into a Fire Protection Contract wherein Washington Township would provide fire

protection services to the annexed area in consideration of Bellville paying to the township

a portion of Bellville's bed tax collected from the annexed area, all the real and personal

property tax revenues collected from the annexed area, and a portion of real and personal

property tax collected from new construction in the annexed area for ten years. The

contract provided it "shall be from year to year and shall be renewed annually and shall

be terminated only upon the occurrence of one of the following circumstances": 1) Bellville

becoming a city under Ohio law; 2) Washington Township's refusal to provide fire

protection services; and 3) upon joint agreement of the parties.

Richland County, Case No. 2024-CA-0030 3

{¶4} In 2011, Bellville stopped making payments to Washington Township under

the Fire Protection Contract. The trustees filed a declaratory judgment action and breach

of contract claim against Bellville; the Court of Common Pleas of Richland County, Ohio

issued an order, finding the Fire Protection Contract was valid and enforceable and was

binding until one of the three listed events occurred [Board of Trustees of Washington

Township v. Village of Bellville, OH, Richland C.P. No. 10 CV 974 (Nov. 2, 2011)]. The

trial judge found prior to the annexation, Washington Township was providing fire

protection services to the annexed area and was receiving the bed tax and the real and

personal property taxes from the area; Washington Township had opposed the

annexation so in order to resolve the dispute, the parties reached an agreement and

entered into the Fire Protection Contract. The trial judge found the contract was not

against public policy. No appeal was taken from the trial court’s judgement entry.

{¶5} On March 5, 2024, Bellville filed a verified petition original action in

mandamus claiming by paying both property taxes and the village fire contract taxes,

Bellville residents in the annexed area were paying twice for the same fire protection

services. Bellville sought to have continued fire services without any additional payments

required under the Fire Protection Contract. Bellville argued several theories: legislative

entrenchment, unconstitutional debt, unconstitutional tax, no contract consideration, and

equity. Bellville attached the 2011 Order to its complaint as Exhibit C.

{¶6} On March 29, 2024, appellees filed a motion to dismiss, claiming Bellville

had an adequate remedy at law - an appeal of the 2011 order. Appellees also claimed

res judicata and Bellville's arguments lacked merit. Bellville filed a memo contra on April

1, 2024, arguing they were raising new facts and claims distinct from the 2011 order. By

Richland County, Case No. 2024-CA-0030 4

judgment entry filed June 4, 2024, the trial judge denied the writ, finding res judicata

applied and further, Bellville did not lack an adequate remedy at law, appellees did not

have a legal duty to perform the requested relief, and Bellville was not entitled to relief in

the matter.

Assignments of Error

{¶7} Bellville raises five assignments of error,

{¶8} " I. THE FIRE PROTECTION CONTRACT IS VOID AB INITIO AS

REQUIRING PAYMENT IN PERPETUITY WITHOUT A VOTE OF THE VILLAGE OF

BELLVILLE'S DULY ELECTED LEGISLATIVE AUTHORITY, THUS CONSTITUTING

'LEGISLATIVE ENTRENCHMENT'."

{¶9} “II. THE FIRE PROTECTION CONTRACT IS VOID AB INITIO AS

WITHOUT A PROPER APPROPRIATION BY THE VILLAGE COUNCIL, VIOLATING

THE DEBT LIMITATION OF THE OHIO CONSTITUTION, ARTICLE II, SECTION 22."

{¶10} “III. THE FIRE PROTECTION CONTRACT CONSTITUTES AN

UNCONSTITUTIONAL TAX IN ADDITION TO THE PROPERTY TAXES PAID EQUALLY

BY ALL PROPERTY OWNERS TO WASHINGTON TOWNSHIP FOR THE SAME FIRE

PROTECTION, IN VIOLATION OF THE OHIO CONSTITUTION, ARTICLE XXI,

SECTION 2."

{¶11} "IV. THE FIRE PROTECTION CONTRACT FAILS FOR LACK OF

CONSIDERATION."

{¶12} “V. THE VILLAGE OF BELLVILLE'S CHALLENGE TO THE FIRE

PROTECTION CONTRACT IS NOT RES JUDICATA."

Richland County, Case No. 2024-CA-0030 5

Standard of Review - Mandamus

{¶13} Bellville challenges the trial court's denial of its request for a writ of

mandamus.1 For a writ of mandamus to issue, the relator must have a clear legal right to

the relief prayed for, the respondent must be under a clear legal duty to perform the

requested act, and the relator must have no plain and adequate remedy in the ordinary

course of the law. (Citations omitted.) State ex rel. Berger v. McMonagle, 6 Ohio St.3d

28, 29 (1983). Mandamus is an extraordinary writ and will not be issued unless the relator

can establish a clear legal right to the writ. State ex rel. Skinner Engine Co. v. Kouri, 136

Ohio St. 343 (1940), paragraph one of the syllabus.

V.

{¶14} Because we find Appellant’s Fifth Assignment of Error to be dispositive we

shall address that error.

{¶15} A writ of mandamus is an extraordinary legal remedy granted only in those

cases where relief cannot otherwise be obtained. State ex rel. Stanley v. Cook, 146 Ohio

St. 348(1946) (citations omitted) State ex rel. Cottrill-Craig v. Ross Cnty. Gen. Health

Dist., 2022-Ohio-2193(4th Dist.)(citations omitted). Significantly, mandamus may not be

used as a substitute for an appeal. State ex rel. Steinle v. Dewey, 2016-Ohio-5549, ¶10;

State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 30, 451 N.E.2d 225 (1983) (petitions

for mandamus and prohibition cannot be used as substitutes for an appeal to contest

1

We note Bellville had filed an identical verified complaint original action in mandamus

against the same respondents with the Supreme Court of Ohio on September 28, 2023

(Case No. 2023-1230). On February 2, 2024, the Court granted respondents' motion to

dismiss and dismissed the cause. State ex rel. Bellville v. Washington Township, 2024-

Ohio-597. Bellville stated the "Supreme Court merely declined discretionary jurisdiction,

without reaching any merits." April 1, 2024 Relator's Memo Contra at 5. In fact, the

Supreme Court of Ohio's decision specifically granted respondents' motion to dismiss and

titled it as a merit decision without opinion. The arguments made in that motion to dismiss

are included in the motion to dismiss in this case.

Richland County, Case No. 2024-CA-0030 6

allegedly improper assignment of judge); State ex rel. Black v. Forchione, 2015-Ohio-

4336, ¶ 4.

{¶16} It is axiomatic that “if the allegations of a complaint for a writ of mandamus

indicate that the real objects sought are a declaratory judgment and a prohibitory

injunction, the complaint does not state a cause of action in mandamus and must be

dismissed for want of jurisdiction.” State ex rel. Grendell v. Davidson, 86 Ohio St.3d 629,

634(1999).

{¶17} Bellville raised the arguments that the contract is ambiguous; the contract

is indefinite or perpetual; the contract is against public policy; and the contract is invalid

and unenforceable in the original action in the lower court twelve years ago, and the

record contains no evidence of bad faith acts by the parties. Further, Bellville also had the

opportunity to raise the arguments they seek to raise in the mandamus action in the

previous case.

{¶18} The only change pointed to by Bellville is that newly elected Village officials

do not like the contract entered by their predecessors. Bellville agreed to the conditions

of the contract so that it could annex a portion of Washington Township. To avoid litigation

the parties agreed to the annexation if Washington Township would provide fire protection

to the area, and that Bellville would pay for that protection from the collection of bed taxes

within the annexed area. Now, Bellville wants to avoid its obligation to pay for the fire

protection.

{¶19} The legislature has acknowledged the validity of annexation agreements.

See, e.g. R.C. 709.192. It has further noted that such agreements may be entered into

“for any period of time…” Id. They may also contain provisions for the provision of services

Richland County, Case No. 2024-CA-0030 7

and the payment of service fees. Id. The legislature has given the parties the power to

enter into the contract executed in this case. R.C. 709.19(F)(2).

{¶20} The basic principle, was enunciated in the leading case of Plant Food

Company v. City of Charlotte, 214 N.C. 518.

{¶21} Plant Food had contracted with the city to remove sewage sludge from city

drying beds, paying the city according to a schedule set out in the contract. The contract

extended for ten years, with an option for either party to extend the contract another ten

years. But within a year or two of the contract's execution, a new governing board took

over in the city and sought to negate the contract. When Plant Food sued the city for

breach of contract, the city argued that the previous board had no power to enter into a

contract that bound the current one.

{¶22} The rule, as developed by the courts of many states, was that a city may

enter into a contract that binds future boards if the subject of the contract is a proprietary

activity of government. If, however, the subject is a governmental activity, such a contract

is beyond the power of the local government and therefore void. The city pointed out that

sewer services had been held to be a governmental activity in the context of local

government immunity from tort liability, and it argued that therefore this contract involved

a governmental activity and could not bind a later board. The trial court agreed.

{¶23} On appeal, the North Carolina Supreme Court accepted the dichotomy

between proprietary and governmental activities, but noted the true test is whether the

contract itself deprives a governing body, or its successor, of a discretion which public

policy demands should be left unimpaired. By way of example, the Court noted,

Richland County, Case No. 2024-CA-0030 8

Amongst the powers generally conceded to be accompanied by such

governmental discretion, and which cannot be suspended or controlled by

contract are usually classed the legislative powers of the governing body,–

the power to make ordinances and decide upon public questions of a purely

governmental character (and under this head must be classed most of the

strictly governmental discretionary powers, since the body acts as a whole

and usually by ordinance or resolution); the power to lay out and maintain

streets; to build bridges and viaducts over which they lead, preserve civil

order, to regulate rates, (where power to do so is given in the charter); to

levy taxes, make assessments, and the like.

199 S.E. at 713. See, Lawerence, Contracts That Bind the Discretion of Governing

Boards, 1990 Popular Government 38.

{¶24} In the case at bar, the parties entered into the Fire Protection Contract as

part of the agreement in exchange for Bellville annexing a portion of Washington

Township. Had the agreement not been entered, Bellville would have to go through the

annexation procedure and be successful. The Fire Provision Contract does not deprive a

governing body, or its successor, of a discretion which public policy demands should be

left unimpaired. It is simply a basic commercial agreement. The only way out is through

the manner set forth in the contract or a breach of contract.

Res judicata

{¶25} In the previous action, the trial judge found the contract is not vague nor

indefinite, and not against public policy. The mandamus action is nothing more than a

Richland County, Case No. 2024-CA-0030 9

collateral attack on a final, appealable order determining the issues, when Bellville failed

to pursue a direct appeal or other available remedies to challenge the court’s judgment.

{¶26} Where there was a plain and adequate remedy in the ordinary course of the

law which the relator either resorted to and lost or neglected to take timely advantage of,

a peremptory writ of mandamus will not issue. State ex rel. Stanley v. Cook, 146 Ohio St.

348 (1946), syllabus at ¶5, approving and following State ex rel. Bassichis v. Zangerle,

Aud., 126 Ohio St. 118 (1933).

{¶27} Res judicata bars the litigation of all claims that either were or might have

been litigated in a first lawsuit.” Hughes v. Calabrese, 2002-Ohio-2217, ¶ 12; Grava v.

Parkman Township, 73 Ohio St. 3d 379, 381(1995). The case from Richland County

involved the same parties and the same issues. Relator cannot relitigate these issues

that were decided 12 years ago. While exceptions to res judicata may apply in some

extraordinary situations, courts generally will not find an exception to the doctrine when

the parties had a full and fair opportunity to be heard on an issue, the trial court issued a

final, appealable order determining that issue, the parties failed to pursue a direct appeal

or other available remedies to challenge that court’s order, and the record contains no

evidence of bad-faith acts by the parties. Aaron v. Supreme Court of Ohio, 2024-Ohio-

5616, ¶19. (citations and quotation marks omitted).

Adequate remedy at law

{¶28} We further note, Bellville filed an identical verified complaint and original

action in mandamus against the same respondents with the Supreme Court of Ohio on

September 28, 2023 (Case No. 2023-1230). Washington Township filed a motion to

dismiss on November 15, 2023, raising among other arguments that the complaint should

Richland County, Case No. 2024-CA-0030 10

be dismissed because Bellville had an adequate remedy at law, and was barred by res

judicata. Bellville filed a response to the motion to dismiss on November 16, 2023. On

February 21, 2024, a unanimous Supreme Court ruled,

In Mandamus. On respondents’ motion to dismiss. Motion granted.

Cause dismissed.

State ex rel. Bellville v. Washington Twp., 2024-Ohio-597(Table).

{¶29} “It is firmly established that the writ of mandamus will not issue ‘* * * where

the relator has or had available a clear, plain and adequate remedy in the ordinary course

of the law.’ ” State, ex rel Berger v. McMonagle, 6 Ohio St.3d 28, 30 (1983), quoting State

ex rel. Sibarco Corp. v. Berea, 7 Ohio St.2d 85, 88, 218 N.E.2d 428 (1966) See, State

ex rel. Cartwright v. Ohio Adult Parole Bd., 2021-Ohio-923, ¶ 7 (10th Dist.), citing State

ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548(1992). See also

State ex rel. Washington v. D’Apolito, 2018-Ohio-5135, ¶ 7, quoting State ex rel. Edwards

v. Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 109 (1995) (stating that “‘a

claim that a relator possesses an adequate legal remedy precluding a writ of mandamus

seeks an adjudication on the merits’ and that ‘a Civ.R. 12(B)(6) dismissal based upon the

merits is unusual and should be granted with caution’ ”).

{¶30} The Ohio Supreme Court has affirmed dismissals pursuant to Civ.R.

12(B)(6) based upon the existence of an adequate remedy at law. State ex rel. Sobczak

v. Skow, 49 Ohio St.3d 13, 14(1990); State ex rel. Daggett v. Gessaman, 34 Ohio St.2d

55, 63(1973), paragraph three of the syllabus.

Richland County, Case No. 2024-CA-0030 11

{¶31} We concur with the trial court that Bellville did not meet the requirements

listed for the issuance of a writ, i.e. Bellville cannot establish a clear legal right for a writ.

This case involves a dispute over a contract between two public parties.

{¶32} Upon review, we find the trial judge did not err in denying Bellville's request

for a writ of mandamus.

{¶33} Bellville’s First, Second, Third, Fourth and Fifth Assignments of Error are

denied.

{¶34} The judgment of the Richland County Court of Common Pleas is affirmed.

By Gwin, P.J., and

Wise, J., concur;

King, J.