State ex rel. Spencer v. East Liverpool Planning Commission

[This opinion has been published in Ohio Official Reports at 

80 Ohio St.3d 297

.]




   THE STATE EX REL. SPENCER, APPELLANT, v. EAST LIVERPOOL PLANNING
                               COMMISSION, APPELLEE.
         [Cite as State ex rel. Spencer v. E. Liverpool Planning Comm.,
                                     

1997-Ohio-77

.]
Civil procedure—Summary judgment erroneously granted, when—Mandamus to
        compel city planning commission to institute an action under city codified
        ordinances to strike conveyances of land by the county port authority from
        county records erroneously denied, when.
  (No. 97-555—Submitted September 23, 1997—Decided November 19, 1997.)
    APPEAL from the Court of Appeals for Columbiana County, No. 95-CO-17.
                                  __________________
        {¶ 1} The Columbiana County Port Authority owned 27.54 acres of
property in the city of East Liverpool. In September 1992, the port authority
transferred a parcel of 20.80 acres to Waste Technologies Industries (“WTI”) by
general warranty deed and assignment of lease. The deed and assignment were
recorded by the Columbiana County Recorder. The deed and assignment referred
to several easements of access. Appellee, East Liverpool Planning Commission,
did not approve the transaction.
        {¶ 2} In March 1995, appellant, Alonzo Spencer, filed a complaint in the
Court of Appeals for Columbiana County for a writ of mandamus to compel the
planning commission to institute an action under East Liverpool Codified
Ordinances 1159.01 to strike the illegal plat representing the September 1992
transfer of property from the port authority to WTI. After the court of appeals
granted an alternative writ, the planning commission filed a memorandum in
opposition. Attached to the memorandum were several unattested exhibits and an
affidavit. Spencer filed a memorandum in response to the planning commission’s
                             SUPREME COURT OF OHIO




memorandum. The court of appeals converted the parties’ memoranda into motions
for summary judgment and gave them time to file additional evidence. Spencer
subsequently filed a memorandum in opposition to the planning commission’s
summary judgment motion and in support of his own summary judgment motion.
The court of appeals granted the planning commission’s motion for summary
judgment and denied the writ.
       {¶ 3} The cause is now before this court upon an appeal as of right.
                                __________________
       Betras & Dann, Marc E. Dann and Jeffrey A. Rodgers, for appellant.
       G. Thomas Rodfong, East Liverpool Law Director, for appellee.
                                __________________
       Per Curiam.
       {¶ 4} Spencer asserts in his sole proposition of law that the court of appeals
erred in granting the planning commission’s motion for summary judgment and
denying the requested writ of mandamus. Before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any material fact
remains to be litigated, (2) the moving party is entitled to judgment as a matter of
law, and (3) it appears from the evidence that reasonable minds can come to but
one conclusion, and viewing the evidence most strongly in favor of the nonmoving
party, that conclusion is adverse to the party against whom the motion for summary
judgment is made. State ex rel. Leigh v. State Emp. Relations Bd. (1996), 

76 Ohio St.3d 143, 144

, 

666 N.E.2d 1128, 1130

. The court of appeals granted the planning
commission’s motion for summary judgment and denied the writ based on (1)
Spencer’s failure to file evidence or an affidavit that he ever requested the planning
commission to strike the conveyance, (2) Spencer’s failure to show how denial of
the writ would cause him injury, and (3) laches. For the following reasons, the
court of appeals’ stated grounds for summary judgment and denial of the writ of
mandamus are erroneous.



                                          2
                                  January Term, 1997




           {¶ 5} First, the court of appeals erred in denying the writ because Spencer
“filed no evidence or affidavit that he ever requested Columbiana County to strike
or to have those conveyances stricken from the records of Columbiana County.”
Sworn pleadings constitute evidence for purposes of Civ.R. 56, and courts are not
limited to affidavits in determining a summary judgment motion. Civ.R. 56(C);
Jackson v. Alert Fire & Safety Equip., Inc. (1991), 

58 Ohio St.3d 48, 51

, 

567 N.E.2d 1027, 1031

. Spencer alleged in his verified complaint that the planning commission
had refused his previous demand that it follow East Liverpool Codified Ordinances
1159.01 and institute proceedings to have the illegal plat stricken from the county
records. The planning commission did not introduce summary judgment evidence
to controvert these allegations and therefore did not obligate Spencer to respond
with additional evidence to set forth specific facts. Civ.R. 56(E); Mootispaw v.
Eckstein (1996), 

76 Ohio St.3d 383, 385

, 

667 N.E.2d 1197, 1199

. In fact, the
planning commission did not challenge these allegations of a prior demand and
refusal.     Therefore, Spencer’s allegations in his pleading that the planning
commission refused his prior demand were sufficient to withstand summary
judgment.
           {¶ 6} In addition, the ordinance at issue does not condition the planning
commission’s duty to strike illegal plats on a prior demand and refusal. See, e.g.,
1 Antieau, The Practice of Extraordinary Remedies (1987) 297, Section 2.05 (“The
majority and better view is that when an applicant [for a writ of mandamus] seeks
to hold a public servant to a duty clearly imposed upon him by law, no demand
need be shown.”); cf. R.C. 733.59, which requires a prior written request on a
village solicitor or city director of law by the relator prior to bringing a statutory
taxpayer action; see, also, State ex rel. Citizens for a Better Portsmouth v. Sydnor
(1991), 

61 Ohio St.3d 49

, 

572 N.E.2d 649

 (action may be allowed as a common-
law taxpayer mandamus action if it is not a proper statutory taxpayer action).




                                            3
                               SUPREME COURT OF OHIO




        {¶ 7} The court of appeals also erred in denying the writ because Spencer
“has not shown where the denial of mandamus will cause any wrong or injury to
[him].” A person must be beneficially interested in the case in order to bring a
mandamus action. State ex rel. Russell v. Ehrnfelt (1993), 

67 Ohio St.3d 132, 133

,

616 N.E.2d 237

; R.C. 2731.02. A person’s status as a taxpayer is generally
sufficient to establish a beneficial interest when the object is to compel performance
of a duty for the benefit of the public. State ex rel. Hodges v. Taft (1992), 

64 Ohio St.3d 1, 4

, 

591 N.E.2d 1186, 1189

; State ex rel. Pressley v. Indus. Comm. (1967),

11 Ohio St.2d 141

, 

40 O.O.2d 141

, 

228 N.E.2d 631

, paragraph nine of the syllabus.
Residents are normally taxpayers. State ex rel. Nimon v. Springdale (1966), 

6 Ohio St.2d 1, 6

, 

35 O.O.2d 1, 3

, 

215 N.E.2d 592, 596

. Therefore, Spencer’s allegation
in his complaint that he is a resident of East Liverpool conferred sufficient standing
on him to bring the mandamus action.
        {¶ 8} Further, the planning commission never raised this issue. Cf. State ex
rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 

73 Ohio St.3d 530, 533

, 

653 N.E.2d 349, 353

, quoting Civ.R. 17(A) (“ ‘No action shall be dismissed on the
ground that it is not prosecuted in the name of the real party in interest until a
reasonable time has been allowed after objection for ratification of commence-ment
of the action by, or joinder or substitution of, the real party in interest.’ ”).
        {¶ 9} The court of appeals additionally erred in denying the writ based on
laches. In nonelection cases, laches is an affirmative defense which must be raised
or else it is waived. Civ.R. 8(C); State ex rel. Plain Dealer Publishing Co. v.
Cleveland (1996), 

75 Ohio St.3d 31, 33

, 

661 N.E.2d 187, 189

 (“An affirmative
defense is waived under Civ.R. 12[H], unless it is presented by motion before
pleading pursuant to Civ.R. 12[B], affirmatively in a responsive pleading under
Civ.R. 8[C], or by amendment under Civ.R. 15.”); Graines v. Fleeter (1985), 

30 Ohio App.3d 207, 212

, 30 OBR 363, 368-369, 

507 N.E.2d 376, 382

; cf. State ex
rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 

74 Ohio St.3d 143, 145

, 656



                                            4
                                January Term, 

1997 N.E.2d 1277

, 1279 (“Extreme diligence and the promptest of action are required in
election cases.”). The planning commission never raised laches and consequently
waived this affirmative defense. In addition, the parties did not submit evidence
concerning laches. The court of appeals erred in finding unreasonable delay and
prejudice to the planning commission and WTI. See State ex rel. Meyers v.
Columbus (1995), 

71 Ohio St.3d 603, 605

, 

646 N.E.2d 173, 174

 (“Prejudice will
not be inferred from a mere lapse of time.”); State ex rel. Chavis v. Sycamore City
School Dist. Bd. of Edn. (1994), 

71 Ohio St.3d 26, 35

, 

641 N.E.2d 188, 196

 (Laches
defense rejected because there was no evidence that respondent’s ability to defend
against mandamus suit was prejudiced by delay.).
       {¶ 10} Based on the foregoing, the court of appeals’ stated reasons for
granting the planning commission’s motion for summary judgment and denying the
writ are meritless.
       {¶ 11} Nevertheless, the planning commission contends that the court’s
judgment should still be upheld because the conveyance of property from the port
authority to WTI was properly recorded. The planning commission contends that
the conveyance was exempt from the requirement of planning commission approval
prior to recordation based on R.C. 711.001(B)(1) and East Liverpool Codified
Ordinances 1151.09(32)(a).      These provisions exempt from the definition of
“subdivision” any “division or partition of land into parcels of more than five acres
not involving any new streets or easements of access.” The planning commission
claims that the challenged conveyance created no new easements of access.
       {¶ 12} The planning commission’s claim, however, is meritless. A review
of the general warranty deed and assignment of lease reveals that it did create new
easements of access. The planning commission’s argument that “easements of
access” refer only to easements of access to public streets or roads is not supported
by any authority or the plain language of the pertinent legislative provisions.




                                          5
                             SUPREME COURT OF OHIO




       {¶ 13} Finally, there remains a general issue of material fact in this case
which precludes summary judgment for either party. Spencer requested in his
complaint that a writ of mandamus issue to compel the planning commission to
institute an action pursuant to Section 1159.01 of the East Liverpool Codified
Ordinances “to have the illegal plat stricken from the records of Columbiana
County.” Section 1159.01 provides:
       “No plat of any subdivision shall be entitled to record in the office of
Recorder of Columbiana County or have any validity until it has been approved in
the manner prescribed herein. In the event any such unapproved plat is recorded,
it shall be considered invalid, and the Planning Commission shall institute
proceedings to have the plat stricken from the records of Columbiana County.”
       {¶ 14} It is unclear in this case whether a plat of the conveyance was ever
recorded. A “plat” is defined by Section 1151.09(24) as a “map upon which the
subdivider’s plan of the subdivision is presented and which he submits for approval
and intends to record in the final form.” The general warranty deed and assignment
of lease filed in the court of appeals includes maps relating to the prior lease but
does not contain a plat.       In the planning commission’s court of appeals
memorandum, it stated that the challenged conveyance was a deed transfer which
did not include a new plat. If no plat was recorded, Section 1159.01, which Spencer
is seeking to enforce via mandamus, does not apply.
       {¶ 15} Accordingly, the court of appeals erred in granting summary
judgment in favor of the planning commission. The judgment of the court of
appeals is reversed, and the cause is remanded for further proceedings. On remand,
the parties should file evidence which comports with Civ.R. 56(C), i.e., “pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts
of evidence in the pending case, and written stipulations of fact,” instead of relying
on unsworn statements of counsel in memoranda. See State ex rel. Boggs v.
Springfield Local School Dist. Bd. of Edn. (1995), 

72 Ohio St.3d 94, 97

, 

647 N.E.2d 6

                              January Term, 1997




788, 792. While the court of appeals may consider evidence other than that listed
in Civ.R. 56 when there is no objection, it need not do so. See, e.g., Bowmer v.
Dettelbach (1996), 

109 Ohio App.3d 680, 684

, 

672 N.E.2d 1081, 1084

.
                                                              Judgment reversed
                                                            and cause remanded.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                             __________________




                                        7