State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections

[This opinion has been published in Ohio Official Reports at 80 Ohio St.3d 182.]

THE STATE EX REL. SUPERAMERICA GROUP v. LICKING COUNTY BOARD OF

ELECTIONS.

[Cite as State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections,

1997-Ohio-347.]

Mandamus sought to compel Licking County Board of Elections to refuse to certify

for referendum ordinance dealing with relator’s development plan to

construct a convenience store—Writ of prohibition sought to prevent board

of elections from placing referendum on November 1997 ballot—Writs

denied, when.

(No. 97-1823—Submitted September 23, 1997—Decided October 1, 1997.)

IN MANDAMUS and PROHIBITION.

__________________

{¶ 1} Relator, SuperAmerica Group (“SuperAmerica”), owns land in the

village of Granville. In mid-1996, SuperAmerica submitted a development plan to

construct a convenience store selling gasoline and other items. In November 1996,

the Granville Village Council adopted an ordinance in which it approved

SuperAmerica’s development plan subject to certain conditions. In December

1996, intervening respondents, Carl Wilkenfeld, James R. Jump, and Mary V.

Fellabaum, filed a referendum petition with the village clerk to submit the

ordinance to the village electors for their approval or rejection at the November

1997 general election. In February 1997, the village clerk certified referendum

petition parts containing approximately three hundred signatures to respondent,

Licking County Board of Elections. Also in February 1997, SuperAmerica filed a

written protest with the board challenging the validity of the referendum petition.

In June 1997, after the board conducted an investigation, it certified the validity of

SUPREME COURT OF OHIO

two hundred sixty-three signatures for the referendum petition, which exceeded the

two hundred fifteen signatures required for placing the referendum on the ballot.

{¶ 2} In August 1997, over two months after the board’s action,

SuperAmerica filed a complaint in this court for a writ of mandamus to compel the

board to refuse to certify the ordinance for referendum or, alternatively, a writ of

prohibition to prevent the board from placing the referendum on the November

1997 ballot. SuperAmerica claimed that the board’s certification of the referendum

issue was improper because (1) each referendum petition part contained an

inaccurate statement and (2) the ordinance was not subject to referendum. After

the board filed a timely answer, SuperAmerica failed to file its evidence and merit

brief within the period specified by S.Ct.Prac.R. X(9). On August 19, we dismissed

SuperAmerica’s action for want of prosecution pursuant to S.Ct.Prac.R. X(11).

{¶ 3} On August 28, SuperAmerica filed another complaint in mandamus

and prohibition in this court. SuperAmerica’s complaint is identical to its previous

complaint. The board filed an answer and a motion to dismiss. The referendum

petitioners filed a motion to dismiss and an answer.

__________________

Porter, Wright, Morris & Arthur and John F. Marsh, for relator.

Robert L. Becker, Licking County Prosecuting Attorney, and David Q.

Wigginton, Assistant Prosecuting Attorney, for respondent Licking County Board

of Elections.

James R. Jump, for intervening respondents.

__________________

Per Curiam.

Referendum Petitioners’ Motion to Intervene

{¶ 4} The referendum petitioners request intervention as respondents under

Civ.R. 24. They oppose the ordinance passed by the Granville Village Council that

approved, subject to certain conditions, SuperAmerica’s plan to build a

2

January Term, 1997

convenience store and gas station. If SuperAmerica is victorious in this case, the

referendum election on the ordinance will not be held and SuperAmerica will begin

the construction that the referendum petitioners seek to prevent. They thus possess

a sufficient interest in this case to intervene. Civ.R. 24(A) and (B). In addition,

while SuperAmerica contends that intervention is not warranted because the board

adequately represents the referendum petitioners’ interests and their defenses are

identical to the board’s, the referendum petitioners aptly note that SuperAmerica’s

attack is not limited to matters relating to the validity and sufficiency of the petition.

Further, the referendum petitioners’ asserted defenses manifestly raise questions of

law and fact in common with those raised by the board in this action, as required

for permissive intervention under Civ.R. 24(B).

{¶ 5} Therefore, given the liberal construction generally accorded Civ.R. 24

in favor of intervention and the movants’ compliance with the mandatory

procedural requirements of Civ.R. 24(C), we grant the referendum petitioners’

motion and permit them to intervene as respondents in this action. State ex rel. LTV

Steel Co. v. Gwin (1992), 64 Ohio St.3d 245, 247, 594 N.E.2d 616, 619; cf. State

ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 143, 144, 656

N.E.2d 1277, 1278.

Res Judicata

{¶ 6} The board and the referendum petitioners claim that SuperAmerica’s

action for writs of mandamus and prohibition is barred by res judicata.1 As

SuperAmerica concedes, we recently dismissed an identical action by

SuperAmerica for want of prosecution when it failed to file its evidence and a merit

brief within the period required in expedited election matters. See S.Ct.Prac.R.

1. The board also raises this defense in its motion to dismiss. But a motion to dismiss is generally

not the proper method to raise the affirmative defense of res judicata. Shaper v. Tracy (1995), 73

Ohio St.3d 1211, 1212, 654 N.E.2d 1268.

3

SUPREME COURT OF OHIO

X(9) (“Unless otherwise ordered by the Supreme Court, relator shall file any

evidence and a merit brief in support of the complaint within three days following

the response * * *.”) and S.Ct.Prac.R. X(11) (“Unless all evidence is presented and

relator’s brief is filed within the schedule issued by the Supreme Court, an original

action shall be dismissed for want of prosecution.”). In expedited election matters

filed in this court, both the schedule and alternative writ contemplated by

S.Ct.Prac.R. X(11) are incorporated into S.Ct.Prac.R. X(9). See Staff Commentary

to S.Ct.Prac.R. X(9) (“In an expedited election case under the former rules, the

Court was required to make a determination promptly under S.Ct.Prac.R. X,

Section 5. This virtually always resulted in the grant of an alternative writ and an

expedited schedule for the presentation of evidence and briefs. Since the Court

usually grants alternative writs in expedited election cases, this amendment returns

to the practice in the pre-1994 rules and incorporates into the rule itself an

expedited schedule for the presentation of evidence and briefs.”). (Emphasis

added.)

{¶ 7} S.Ct.Prac.R. X(2) provides that all original actions other than habeas

corpus filed in this court “ ‘shall proceed under the Ohio Rules of Civil Procedure,

unless clearly inapplicable.’ ” State ex rel. Master v. Cleveland (1996), 75 Ohio

St.3d 23, 26, 661 N.E.2d 180, 183; see, also, S.Ct.Prac.R. X(1). Civ.R. 41 governs

the dismissal of actions, and Civ.R. 41(B) applies to the involuntary dismissal of

actions. Civ.R. 41(B)(3) provides that “[a] dismissal under this subdivision and

any dismissal not provided for in this rule * * * operat[e] as an adjudication on the

merits unless the court, in its order for dismissal, otherwise specifies.” (Emphasis

added.) By its own terms, Civ.R. 41(B)(3) is not “clearly inapplicable” to

dismissals for want of prosecution pursuant to S.Ct.Prac.R. X(11). We dismissed

SuperAmerica’s complaint under S.Ct.Prac.R. X(11) and did not specify that the

dismissal was not an adjudication on the merits. Therefore, under Civ.R. 41(B)(3),

our dismissal operated as an adjudication on the merits. Civ.R. 41(B)(1)’s

4

January Term, 1997

requirement of notice to plaintiff’s counsel before dismissal is inapplicable to

dismissals under S.Ct.Prac.R. X(11). Cf. Logsdon v. Nichols (1995), 72 Ohio St.3d

124, 128, 647 N.E.2d 1361, 1365 (“Generally, notice is a prerequisite to dismissal

for failure to prosecute under Civ.R. 41[B][1].”). As noted by respondents, notice

of dismissal is, in effect, provided by S.Ct.Prac.R. X(11) itself.

{¶ 8} Res judicata consequently bars SuperAmerica’s present action. State

ex rel. Gabriel v. Youngstown (1996), 75 Ohio St.3d 618, 620, 665 N.E.2d 209,

210, quoting Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226,

syllabus (“ ‘A valid, final judgment rendered upon the merits bars all subsequent

actions based upon any claim arising out of the transaction or occurrence that was

the subject matter of the previous action.’ ”).

{¶ 9} While SuperAmerica claims that this violates the fundamental tenet

of judicial review in Ohio that fairness and justice are best served when cases are

decided on their merits, see State ex rel. Wilcox v. Seidner (1996), 76 Ohio St.3d

412, 414, 667 N.E.2d 1220, 1221, fairness and justice are best served here by

application of the meritorious defense of res judicata. SuperAmerica should have

known that S.Ct.Prac.R. X(11) and Civ.R. 41(B)(3) mandated dismissal on the

merits of its earlier, identical action for want of prosecution if it failed to file its

evidence and brief within the time specified in S.Ct.Prac.R. X(9). As the board

asserts, a contrary holding would circumvent S.Ct.Prac.R. XIV(1)(C) (“No

pleading, memorandum, brief, or other document may be filed after the filing

deadlines imposed by these rules * * *.”) by permitting parties to refile and proceed

with their original actions following dismissal for want of prosecution.

Laches

{¶ 10} The board and referendum petitioners further contend that

SuperAmerica’s action is barred by laches. The elements of laches are (1)

unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse

for the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4)

5

SUPREME COURT OF OHIO

prejudice to the other party. Polo, 74 Ohio St.3d at 145, 656 N.E.2d at 1279. In

election-related matters, extreme diligence and promptness are required. In re

Election of Member of Rock Hill Bd. of Edn. (1996), 76 Ohio St.3d 601, 606, 669

N.E.2d 1116, 1121. Extraordinary relief has been routinely denied in election-

related cases based on laches. State ex rel. White v. Franklin Cty. Bd. of Elections

(1992), 65 Ohio St.3d 45, 48-49, 600 N.E.2d 656, 659; Paschal v. Cuyahoga Cty.

Bd. of Elections (1995), 74 Ohio St.3d 141, 142, 656 N.E.2d 1276, 1277.

{¶ 11} In this case, SuperAmerica delayed almost three months from the

board’s certification to bring this action. SuperAmerica lacks any justifiable excuse

for the delay even though it had knowledge of the basis of its claims when the board

certified the validity of the petition in early June. Prejudice occurred because

SuperAmerica’s inexcusable and unreasonable delay made this case an expedited

election matter under S.Ct.Prac.R. X(9), thereby restricting respondents’ time to

prepare and defend against SuperAmerica’s claims. In addition, as noted by the

board, by the time this case is completely resolved by our issuance of a mandate,

the board’s ability to prepare, print, and distribute appropriate ballots will be

jeopardized due to the expiration of the date to provide absentee ballots. See R.C.

3509.01; S.Ct.Prac.R. XI(4)(A).2

{¶ 12} SuperAmerica does not deny that the foregoing elements of laches

are evident here. Instead, it contends that (1) laches does not apply as long as an

election case is brought within ninety days of the election, and (2) the inaction and

delay of the board in certifying the validity of the referendum petition principally

contributed to the delay.

2. While the referendum petitioners also correctly note that the R.C. 3505.01 date for certifying the

ballot form has passed, it does not appear that the mere passage of this date, which affects

certification of candidates’ names, prejudiced the respondents. Cf. R.C. 3505.06, concerning

preparation of ballots on questions and issues.

6

January Term, 1997

{¶ 13} SuperAmerica’s first contention lacks merit because S.Ct.Prac.R.

X(9) does not provide or suggest that simply because an election case is filed within

ninety days prior to the election, laches is never applicable. Rather, the purpose of

S.Ct.Prac.R. X(9) is to incorporate an expedited schedule for the presentation of

evidence and briefs in election cases filed in that time period to assist the court in

resolving such cases promptly. See, e.g., Staff Commentary to S.Ct.Prac.R. X.

Laches may still bar relief in election cases filed within ninety days of an election.

See, e.g., State ex rel. Drew v. Vinton Cty. Bd. of Elections (1996), 75 Ohio St.3d

1416, 661 N.E.2d 1117; Polo.

{¶ 14} SuperAmerica’s remaining contention concerns the alleged delay of

the board of elections in certifying the validity of the referendum petition after it

had received it from the Granville Clerk. SuperAmerica’s contention lacks merit

for the following reasons. First, the ten-day limit specified in R.C. 731.29 refers

only to the board’s duty to review the petition and attest to the number of electors

who signed the petition. It does not restrict the board’s separate duties under R.C.

3501.11(K) to “[r]eview, examine, and certify the sufficiency and validity of

petitions and nomination papers” and R.C. 3501.39 to consider written protests to

petitions, such as the one filed by SuperAmerica. Cf. State ex rel. Wiliams v.

Iannucci (1988), 39 Ohio St.3d 292, 294, 530 N.E.2d 869, 870. Second, even if the

board unnecessarily delayed its certification determination, that delay did not in any

way excuse or justify SuperAmerica’s own nearly three-month delay in bringing

this expedited election case. Third, the referendum petitioners, who also raise

laches, were not a party to the claimed delay by the board.

{¶ 15} Accordingly, since respondents have established that SuperAmerica

failed to exercise the requisite diligence in bringing this expedited election case,

laches bars this case.

Conclusion

7

SUPREME COURT OF OHIO

{¶ 16} Based on the foregoing, res judicata and laches bar SuperAmerica’s

action. Therefore, we deny the requested writs of mandamus and prohibition.

Writs denied.

MOYER, C.J., F.E. SWEENEY and COOK, JJ., concur.

PFEIFER, J., concurs separately.

COOK, J., concurs separately.

RESNICK, J., concurs in judgment only.

DOUGLAS and LUNDBERG STRATTON, JJ., dissent.

__________________

PFEIFER, J., concurring.

{¶ 17} In my view, the writs should be denied because the referendum

petition in question did not contain significant inaccuracies and because the

ordinance was indeed subject to referendum.

__________________

COOK, J., concurring.

{¶ 18} The staff commentary to S.Ct.Prac.R. X(9) explains why it is

unnecessary for this court to grant an alternative writ and issue a briefing schedule

before invoking S.Ct.Prac.R. X(11) to dismiss an expedited election matter for want

of prosecution:

“Section 9. In an expedited election case under the former rules, the Court

was required to make a determination promptly under S.Ct.Prac.R. X, Section 5.

This virtually always resulted in the grant of an alternative writ and an expedited

schedule for the presentation of evidence and briefs. Since the Court usually grants

alternative writs in expedited election cases, the amendment returns to the practice

in the pre-1994 rules and incorporates into the rule itself an expedited schedule for

the presentation of evidence and briefs.” (Emphasis added.)

{¶ 19} Accordingly, for expedited election matters, the schedule

contemplated in S.Ct.Prac.R. X(11) is the briefing schedule built into S.Ct.Prac.R.

8

January Term, 1997

X(9). Moreover, S.Ct.Prac.R. X(9) acts as a substitute for this court’s

determination under S.Ct.Prac.R. X(5), in effect automatically granting an

alternative writ.

{¶ 20} By acknowledging the proper interrelation between S.Ct.Prac.R.

X(9) and S.Ct.Prac.R. X(11), it becomes clear that S.Ct.Prac.R. X(11) itself

provides notice of dismissal for a relator’s failure to timely file evidence and a merit

brief. Therefore, denial of the writs is proper.

__________________

DOUGLAS, J., dissenting.

{¶ 21} The majority bases its decision to deny the requested writs of

mandamus and prohibition on the doctrines of res judicata and laches. Because I

believe the facts and the law indicate that this matter was decided earlier on

procedural grounds, I must respectfully dissent.

{¶ 22} In August 1997, relator, SuperAmerica Group, filed a complaint for

writ of mandamus and prohibition, case No. 97-1647 (“SuperAmerica I”). Because

relator did not timely file evidence and a brief, its complaint was dismissed for

failure to comply with S.Ct.Prac.R. X(9). It is the majority’s contention that

because of this earlier dismissal in SuperAmerica I, relator’s instant action is barred

by the doctrine of res judicata.

{¶ 23} In Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d

226, syllabus, this court held that “[a] valid, final judgment rendered upon the

merits bars all subsequent actions based upon any claim arising out of the

transaction or occurrence that was the subject matter of the previous action.”

(Emphasis added.) In other words, pursuant to Grava, in order to deny relator’s

instant action on res judicata grounds, the dismissal of SuperAmerica I had to be

an adjudication on the merits. The dismissal of relator’s first cause of action was

on procedural grounds, i.e., failure to timely file relator’s evidence and merit brief

under S.Ct.Prac.R. X(9). Therefore, the doctrine of res judicata is inapplicable.

9

SUPREME COURT OF OHIO

{¶ 24} A dismissal can be considered an adjudication on the merits under

Civ.R. 41(B)(3). Civ.R. 41(B)(3) provides that “[a] dismissal under this

subdivision, and any dismissal not provided for in this rule * * * operat[e] as an

adjudication on the merits unless the court, in its order for dismissal, specifies

otherwise.” Admittedly, the order issued by this court in dismissing SuperAmerica

I did not specify that the decision was otherwise than on the merits. Presumably

because S.Ct.Prac.R. X(9) does not expressly provide for dismissal in the event of

noncompliance with its provisions, the majority contends that SuperAmerica I was

dismissed for want of prosecution pursuant to S.Ct.Prac.R. X(11). In any event,

before we can decide if the dismissal of SuperAmerica I was or was not an

adjudication on the merits, it must first be determined whether the dismissal was

proper under Section 11.

{¶ 25} Initially, this court’s entry dismissing SuperAmerica I makes no

reference to S.Ct.Prac.R. X(11). Additionally, S.Ct.Prac.R. X(11) provides that

“[u]nless all evidence is presented and relator’s brief is filed within the schedule

issued by the Supreme Court, an original action shall be dismissed for want of

prosecution.” (Emphasis added.) There was no schedule issued by this court in

SuperAmerica I.

{¶ 26} The majority contends that the briefing schedule provided by

S.Ct.Prac.R. X(9) satisfies the “schedule issued” requirement of Section 11.

Assuming arguendo this to be correct, the dismissal of SuperAmerica I for want of

prosecution under S.Ct.Prac.R. X(11) would still be improper. The staff and

committee notes to S.Ct.Prac.R. X(11) state in pertinent part that “the Court will

dismiss an original action for lack of prosecution if, after an alternative writ is

issued, the relator fails to file evidence and a brief.” (Emphasis added.) No

alternative writ was ever issued in SuperAmerica I. In short, S.Ct.Prac.R. X(11)

contemplates both a briefing schedule being issued and an alternative writ being

10

January Term, 1997

granted by the court before a case can be dismissed for want of prosecution. Since

neither occurred in SuperAmerica I, the dismissal was improper.

{¶ 27} Although the majority states that the dismissal of SuperAmerica I

was pursuant to S.Ct.Prac.R. X(11), the majority curiously discuss involuntary

dismissals under Civ.R. 41(B). Civ.R. 41(B)(1) states in pertinent part that

“[w]here the plaintiff fails to prosecute, or comply with these rules or any court

order, the court * * * may, after notice to the plaintiff’s counsel, dismiss an action

or claim.” (Emphasis added.) The majority contends that the notice requirement

under Civ.R. 41(B)(1) does not apply to dismissals in this court while at the same

time arguing that Civ.R. 41(B)(3) does apply. The majority cites no cases in

support of this novel argument.

{¶ 28} In Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 129, 647 N.E.2d

1361, 1365, this court held that “the trial court erred in failing to provide prior

notice before dismissing plaintiffs’ action with prejudice.” Notice of intent to

dismiss was never given to relator’s counsel in SuperAmerica I. Accordingly, the

dismissal of SuperAmerica I was improper and thus cannot be used as a basis for

denying the requested writs on the ground of res judicata.

{¶ 29} Alternatively, the majority asserts that the notice requirement under

Civ.R. 41(B)(1) is satisfied because notice of dismissal is, in effect, provided by

S.Ct.Prac.R. X(11) itself. However, as addressed above, because of the interplay

between S.Ct.Prac.R. X(9), X(11), and the staff and committee notes under the rule,

it would have been improper to dismiss SuperAmerica I pursuant to S.Ct.Prac.R.

X(11). Additionally, it can hardly be argued that relator’s counsel failed to

prosecute SuperAmerica I in view of counsel’s strict compliance with S.Ct.Prac.R.

X(4)(B) in filing a complaint, an affidavit in support of the complaint, and a

memorandum in support of the complaint.

11

SUPREME COURT OF OHIO

{¶ 30} The majority additionally proposes that relator’s cause of action is

barred by the doctrine of laches. For the following reasons I do not believe laches

is applicable to this action.

{¶ 31} The majority first states that laches bars this action because relator

“delayed almost three months from the board’s certification to bring this motion.”

The board of elections certified the validity of signatures on June 2, 1997. This

action was filed almost three months after the certification of signatures as the

majority points out. However, the majority has conveniently overlooked that

SuperAmerica I was filed in this court on August 6, 1997, just over two months

after the board’s action. Regardless, I do not find this “delay” inexcusable or

unreasonable as the majority contends. Attorneys need time to meet with their

clients, discuss options, negotiate alternative resolutions, formulate legal strategies,

research legal issues, and draft pleadings. I would consider this “delay” a

reasonable amount of time for an attorney to spend in consultation with his client

and in preparation for litigation.

{¶ 32} The majority is correct that the filing of an expedited election matter

in this court does not preclude application of the doctrine of laches. See State ex

rel. Drew v. Vinton Cty. Bd. of Elections (1996), 75 Ohio St.3d 1416, 661 N.E.2d

1117, and State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio

St.3d 143, 144, 656 N.E.2d 1277, 1278. However, these cases can be distinguished

from the present cause of action. In Drew, the expedited election action was filed

only thirty-six days before the upcoming primary election. In Polo, the action was

filed thirty-two days before the election. Polo, 74 Ohio St.3d at 145, 656 N.E.2d

at 1278. SuperAmerica I was filed ninety days prior to the upcoming election. This

instant action was filed sixty-eight days before the election. The majority cannot

seriously contend that an action filed ninety days prior to an election or a second

action filed over two months before the election is barred by the doctrine of laches.

12

January Term, 1997

If that is the case, then perhaps this court needs to revise its rules governing

expedited election matters.

{¶ 33} It is “a basic tenet of Ohio jurisprudence that cases should be

determined on their merits and not on mere procedural technicalities.” Barksdale

v. Van’s Auto Sales, Inc. (1988), 38 Ohio St.3d 127, 128, 527 N.E.2d 284, 285.

Based upon the foregoing reasons, I dissent from the majority’s decision to deny

the requested writs on the grounds of res judicata and/or laches.

LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.

__________________

13