State ex rel. Varnau v. Wenninger

[Cite as State ex rel. Varnau v. Wenninger, 131 Ohio St.3d 169, 2012-Ohio-224.]

THE STATE EX REL. VARNAU, APPELLANT AND CROSS-APPELLEE, v.

WENNINGER, SHERIFF, APPELLEE AND CROSS-APPELLANT.

[Cite as State ex rel. Varnau v. Wenninger,

131 Ohio St.3d 169, 2012-Ohio-224.]

Quo warranto to oust county sheriff—Court of appeals’ judgment denying writ

and denying attorney fees to sheriff affirmed.

(No. 2011-1414—Submitted January 18, 2012—Decided January 26, 2012.)

APPEAL and CROSS-APPEAL from the Court of Appeals for Brown County,

No. CA2009-02-010, 2011-Ohio-3904.

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Per Curiam.

{¶ 1} This is an appeal and cross-appeal from a judgment entered, upon

remand, by the court of appeals denying a writ of quo warranto to oust appellee

and cross-appellant, Dwayne Wenninger, from the office of sheriff of Brown

County and to order that appellant and cross-appellee, Dennis J. Varnau, be

entitled to the office. Because the court of appeals did not err in denying the writ

or in denying an award of attorney fees to Wenninger, we affirm.

Facts

{¶ 2} Wenninger has been the Brown County sheriff since January 2001,

having won elections in 2000, 2004, and 2008. The board of elections certified

that he had met the applicable qualifications to be a sheriff’s candidate for each of

the elections.

{¶ 3} In 2004, a protest was lodged against Wenninger’s candidacy for

sheriff, but it was withdrawn.

{¶ 4} In 2008, Varnau, an independent candidate for sheriff, filed a

protest against Wenninger’s candidacy for sheriff. The board of elections denied

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the protest because, among other reasons, it was not “filed by a member of the

appropriate party.”

{¶ 5} Varnau then sought a writ of mandamus to compel the board of

elections to accept as valid the protest he had filed against Wenninger’s

candidacy. The Brown County Court of Common Pleas dismissed the mandamus

action because, among other reasons, “the extraordinary remedy of mandamus is

not appropriate in that there is a legal remedy at law through a quo warranto

action,” and Varnau’s protest was not “filed by a ‘qualified elector who is a

member of the same political party as the candidate and who is eligible to vote at

the primary election for the candidate whose declaration of candidacy the elector

objects to,’ pursuant to R.C. 3513.05.” The court of appeals affirmed the

dismissal, finding: “Should Wenninger be elected and take office, [Varnau] has

other legal remedies.”

{¶ 6} In February 2009, following the election victory by Wenninger,

Varnau filed a complaint in the court of appeals for a writ of quo warranto to oust

Wenninger from the office of sheriff and to place Varnau in that office. Varnau

claimed that because he was the only lawful sheriff’s candidate at the November

2008 election, he is entitled to the office. Wenninger moved to dismiss the

complaint and attached his affidavit to the motion. The court of appeals

converted the motion for dismissal to a motion for summary judgment, Varnau

moved for summary judgment, and the parties submitted evidence.

{¶ 7} On August 16, 2010, the court of appeals granted Wenninger’s

motion for summary judgment and denied the writ. State ex rel. Varnau v.

Wenninger, Brown App. No. CA2009-02-010, 2010-Ohio-3813, 2010 WL

3212016.

{¶ 8} On appeal, we held that the court of appeals erred in holding that

the previous administrative determinations of the board of elections precluded the

quo warranto action, and we remanded the cause to the court of appeals for

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further proceedings. State ex rel. Varnau v. Wenninger, 128 Ohio St.3d 361,

2011-Ohio-759, 944 N.E.2d 663.

{¶ 9} On remand, the court of appeals denied Varnau’s motion for

summary judgment, granted Wenninger’s motion for summary judgment, and

denied the writ of quo warranto. The court of appeals taxed the costs of the

proceedings to Varnau, but it did not award Wenninger attorney fees as part of the

costs.

{¶ 10} This cause is now before the court upon Varnau’s appeal and

Wenninger’s cross-appeal.

Legal Analysis

Varnau’s Appeal: Quo Warranto

{¶ 11} In his appeal as of right, Varnau asserts that the court of appeals

erred in denying the writ of quo warranto.

{¶ 12} “To be entitled to the writ of quo warranto, the relator must

establish that the office is being unlawfully held and exercised by respondent and

that relator is entitled to the office.” State ex rel. Zeigler v. Zumbar, 129 Ohio

St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 23. Moreover, “[i]f a relator in a

quo warranto proceeding fails to establish entitlement to the office, judgment may

still be rendered on the issue of whether respondent lawfully holds the disputed

office.” State ex rel. Myers v. Brown (2000), 87 Ohio St.3d 545, 547, 721 N.E.2d

1053.

{¶ 13} Varnau asserts that Wenninger is not entitled to the office of

sheriff, because when he was elected in 2000 and took office for his first four-

year term in January 2001, Wenninger did not meet the supervisory-experience

requirement or the postsecondary-education requirement of R.C. 311.01(B)(9),

and this deficiency resulted in Wenninger’s having a break in service that

invalidated his peace-officer certificate of training and led to Wenninger’s not

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meeting the qualifications for sheriff under R.C. 311.01(B)(8) starting in January

2005.

{¶ 14} We disagree. As the court of appeals correctly concluded, “any

challenge to Wenninger’s qualifications to run for or hold the office of sheriff for

the 2000 and 2004 election terms has been rendered moot as those office terms

have already expired,” and “Varnau cannot seek to invalidate Wenninger’s

present term of office based on an alleged prior disqualification from an expired

term of office.” State ex rel. Varnau v. Wenninger, Brown App. No. CA 2009-02-

010, 2011-Ohio-3904, at ¶ 38, 44. Wenninger raised defenses of mootness and

laches in his motion for summary judgment.

{¶ 15} A quo warranto claim must be timely directed to challenge a

current term of office rather than an expired one. See Zeigler, 129 Ohio St.3d

240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 14; State ex rel. Devine v. Baxter

(1959), 168 Ohio St. 559, 7 O.O.2d 431, 156 N.E.2d 746 (appeal from judgment

denying writ of quo warranto to remove members of board of trustees of a

cemetery association dismissed as moot when one-year terms to which members

were elected had expired, and those members who continued to hold office as

trustees did so by authority of their reelection to new terms of office); State ex rel.

Paluf v. Feneli (1995), 100 Ohio App.3d 461, 654 N.E.2d 360 (appointee’s quo

warranto claim to the office of city law director was rendered moot by the

expiration of the law director’s term of office).

{¶ 16} Similarly, in State ex rel. Newell v. Jackson, 118 Ohio St.3d 138,

2008-Ohio-1965, 886 N.E.2d 846, ¶ 11, we held that “[t]o be entitled to a writ of

quo warranto to oust a good-faith appointee, a relator must take affirmative action

by either filing a quo warranto action or an injunction challenging the

appointment before the appointee completes the probationary period and becomes

a permanent employee.” Varnau could have raised his claims by filing an action

for quo warranto during Wenninger’s first four-year term of office beginning in

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January 2001 instead of waiting until Wenninger had already begun his third four-

year term of office beginning in January 2009 to raise his belated claim.

{¶ 17} This result comports with our consistent requirement in election-

related cases that relators “act with the utmost diligence.” Blankenship v.

Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, ¶ 19. “If

relators in election cases do not exercise the utmost diligence, laches may bar an

action for extraordinary relief.” State ex rel. Craig v. Scioto Cty. Bd. of Elections,

117 Ohio St.3d 158, 2008-Ohio-706, 882 N.E.2d 435, ¶ 11. We have previously

held that extraordinary-writ actions challenging a sheriff candidate’s R.C.

311.01(B)(9) qualification may be barred by laches. See Campaign to Elect Larry

Carver Sheriff v. Campaign to Elect Anthony Stankiewicz Sheriff, 101 Ohio St.3d

256, 2004-Ohio-812, 804 N.E.2d 419; State ex rel. Landis v. Morrow Cty. Bd. of

Elections (2000), 88 Ohio St.3d 187, 724 N.E.2d 775.

{¶ 18} Although Varnau’s status as a nonpartisan may have precluded

him from instituting a timely protest against Wenninger’s candidacy in the

November 2000 sheriff’s race, it did not preclude him from instituting a timely

quo warranto action after Wenninger took office in January 2001 to oust him from

office. Varnau did not do so, and he cannot belatedly raise his claim after the first

term has expired and Wenninger has subsequently been elected to second and

third four-year terms as sheriff.

{¶ 19} As the court of appeals observed, “[t]he focus must remain on

Wenninger’s eligibility to run for and hold the office of sheriff for the present

term, not for the previous terms that have already expired.” (Emphasis sic.)

Varnau, 2011-Ohio-3904, at ¶ 44. For purposes of a quo warranto claim, “ ‘[h]is

office’ means his present office under his present commission, and not an old

expired term in the same office under a former election or appointment. He could

not be ousted from such former term of office, because the term has expired, and

he is not now in office under that term, and is not now an officer under that term.”

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State ex rel. Wilmot v. Buckley (1899), 60 Ohio St. 273, 299-300, 54 N.E. 272,

construing the predecessor to R.C. 2733.35, which sets forth the statute of

limitations for bringing quo warranto actions; see also State ex rel. Fogle v.

Carlisle, 99 Ohio St.3d 46, 2003-Ohio-2460, 788 N.E.2d 1060, ¶ 10 (“Fogle’s

quo warranto claim is barred by R.C. 2733.35 because he brought his action more

than three years after his cause of action arose”).

{¶ 20} The cases that Varnau cites are inapposite. For example, in State

ex rel. Huron Cty. Prosecutor v. Westerhold (1995), 72 Ohio St.3d 392, 650

N.E.2d 463, the quo warranto action was instituted by the prosecuting attorney to

challenge the appointment of a person to a veterans service commission only a

month and a half after the appointment. And in Zeigler, 129 Ohio St.3d 240,

2011-Ohio-2939, 951 N.E.2d 405, ¶ 15, the relator challenged his removal from

office before he was removed and filed his quo warranto action only 15 days after

his ouster. No comparable prompt action was taken by Varnau to challenge

Wenninger’s qualifications to be a candidate for sheriff in November 2000 or to

thereafter hold office.

{¶ 21} Therefore, Varnau has not established that Sheriff Wenninger lacks

the qualifications under R.C. 311.01(B) to hold the office of sheriff for his third

four-year term, and the court of appeals properly denied the writ. By so holding,

it is unnecessary to address Varnau’s remaining contentions contesting the court

of appeals’ evidentiary rulings, because even if these contentions had merit, he

would not be entitled to the requested extraordinary relief in quo warranto.

Cross-Appeal: Attorney Fees

{¶ 22} In his cross-appeal, Wenninger asserts that the court of appeals

erred in not awarding him attorney fees when he prevailed on Varnau’s quo

warranto claim. During the proceedings in the court of appeals, Wenninger

requested that Varnau pay his attorney fees as part of the costs of the case.

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{¶ 23} “Ohio has long adhered to the ‘American rule’ with respect to

recovery of attorney fees: a prevailing party in a civil action may not recover

attorney fees as a part of the costs of litigation.” Wilborn v. Bank One Corp., 121

Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 7. “An exception to this

general rule is that attorney fees may be awarded to a prevailing party when a

statute specifically authorizes it.” State ex rel. Doe v. Smith, 123 Ohio St.3d 44,

2009-Ohio-4149, 914 N.E.2d 159, ¶ 18.

{¶ 24} Wenninger claims that R.C. 309.13 provides statutory support for

awarding him attorney fees in this case. That statute provides for an award of

attorney fees as part of costs if a prosecuting attorney failed to institute a civil

action for the protection of public funds after a taxpayer made a written request

that he do so and the taxpayer, upon securing the costs, brought such an action

and prevailed:

{¶ 25} “If the prosecuting attorney fails, upon the written request of a

taxpayer of the county, to make the application or institute the civil action

contemplated in section 309.12 of the Revised Code, the taxpayer may make such

application or institute such civil action in the name of the state, or, in any case

wherein the prosecuting attorney is authorized to make such application, such

taxpayer may bring any suit or institute any such proceedings against any county

officer or person who holds or has held a county office, for misconduct in office

or neglect of his duty, to recover money illegally drawn or illegally withheld from

the county treasury, and to recover damages resulting from the execution of such

illegal contract.

{¶ 26} “If such prosecuting attorney fails upon the written request of a

taxpayer of the county, to bring such suit or institute such proceedings, or if for

any reason the prosecuting attorney cannot bring such action, or if he has received

and unlawfully withheld moneys belonging to the county, or has received or

drawn public moneys out of the county treasury which he is not lawfully entitled

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to demand and receive, a taxpayer, upon securing the costs, may bring such suit or

institute such proceedings, in the name of the state. Such action shall be for the

benefit of the county, as if brought by the prosecuting attorney.

{¶ 27} “If the court hearing such case is satisfied that such taxpayer is

entitled to the relief prayed for in his petition, and judgment is ordered in his

favor, he shall be allowed his costs, including a reasonable compensation to his

attorney.”

{¶ 28} Wenninger is not entitled to an award of attorney fees under R.C.

309.13, because he never demanded that the prosecuting attorney institute a civil

action to protect public funds pursuant to R.C. 309.12, and he never instituted any

such action. In fact, Wenninger did not institute any action at all. He simply

responded to the quo warranto suit instituted by Varnau.

{¶ 29} Therefore, the court of appeals did not err in not awarding him

attorney fees.

Conclusion

{¶ 30} Based on the foregoing, the court of appeals did not err in denying

the writ of quo warranto and in not including Wenninger’s attorney fees as part of

the costs of the case that Varnau was ordered to pay. Therefore, we affirm the

judgment of the court of appeals. We also deny Varnau’s motion for oral

argument because he specifies no reasons for it, and the parties’ briefs are

sufficient to resolve this appeal. See State ex rel. Lorain v. Stewart, 119 Ohio

St.3d 222, 2008-Ohio-4062, 893 N.E.2d 184, ¶ 18-19.

Judgment affirmed.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

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Thomas G. Eagle Co., L.P.A., and Thomas G. Eagle, for appellant and

cross-appellee.

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Gary A. Rosenhoffer, L.L.C., and Gary A. Rosenhoffer; and Patrick L.

Gregory, for appellee and cross-appellant.

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