Givens v. Shadyside
2022 Ohio 1051
Ohio Ct. App.2022Background
- Property at issue: residential parcel (3735 Highland Ave., Shadyside) that Code Administrator Joe Klug inspected in 2019 and deemed a public nuisance (overgrowth, junk vehicles, structural disrepair).
- Klug prepared photographs and a written report, issued "Notice(s) of Public Nuisance," and avers certified-mail service July 15 and August 19, 2019; notices were also published in the local paper July 22–29, 2019.
- Certified-mail receipts show at least one mailing to Greg Givens was returned unclaimed; no return receipts for Carol or Dennis appear in the record. Relators filed a verified mandamus petition on August 5, 2019 claiming inadequate notice.
- Trial court initially dismissed for lack of an adequate remedy at law; this Court (Givens I) remanded because the record then lacked evidence of compliance with the ordinance notice provisions. Trial court reopened discovery; Village filed summary judgment; court granted summary judgment for Village.
- This appeal challenges notice and procedural issues. The Seventh District affirms: it finds service was perfected by publication and therefore mandamus is barred because an administrative appeal was an adequate remedy (the writ of prohibition dismissal was previously affirmed).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Is mandamus available when a municipal nuisance/abatement order exists? | Givens: Mandamus is appropriate because Relators lacked required statutory notice and thus had no realistic administrative remedy. | Village: Mandamus is an extraordinary remedy; an adequate remedy at law exists by administrative appeal, so mandamus is unavailable. | Mandamus not available; administrative appeal is adequate remedy when notice is perfected. |
| 2. Did the Village comply with ordinance notice requirements (personal/certified mail or publication)? | Givens: Owners (Carol/Dennis) never received certified mail or personal service; publication alone was insufficient as a substitute here. | Village: Klug attests to certified mail attempts and shows publication in paper for the required two weeks; publication and notice left/attached to property sufficed under ordinance. | Publication (July 22–29) satisfied ordinance §1329.03; existence of publication in record defeats claim of inadequate notice. |
| 3. Were there procedural/due-process errors at summary-judgment stage (joinder, denial of transcript, lack of hearing/testimony)? | Givens: Trial court erred by advancing argument time, supposedly joining an unrelated trial, denying transcript, and not allowing additional testimony or witnesses. | Village: The schedule change was reasonable; the related trial was unrelated and not consolidated; discovery had closed so summary judgment was procedurally proper. | No prejudice shown; no consolidation occurred; discovery was closed so summary-judgment procedure and oral argument were proper. |
| 4. Did the trial court comply with the appellate mandate on remand? | Givens: Trial court failed to follow this Court’s remand instructions (alleged noncompliance). | Village: Trial court reopened discovery, set deadlines, and adjudicated the notice issue on summary judgment consistent with remand. | Trial court complied with remand; it resolved notice through renewed record and summary-judgment process. |
Key Cases Cited
- State ex rel. Brown v. Ashtabula Cty. Bd. of Elections, 142 Ohio St.3d 370 (2014) (mandamus is an extraordinary remedy issued only when the relator's right is clear)
- State ex rel. Taxpayers for Westerville Schools v. Franklin Cty. Bd. of Elections, 133 Ohio St.3d 153 (2012) (elements required for mandamus relief)
- State ex rel. Voleck v. Powhatan Point, 127 Ohio St.3d 299 (2010) (failure to exhaust available administrative remedies bars mandamus)
- State ex rel. Cotterman v. St. Mary's Foundry, 46 Ohio St.3d 42 (1989) (limited exceptions where administrative remedy is futile)
- Clagg v. Baycliffs Corp., 82 Ohio St.3d 277 (1998) (failure to exhaust is an affirmative defense; de novo review when facts are undisputed)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (summary-judgment burden-shifting framework)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (summary-judgment standard)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (appellate de novo review of summary-judgment rulings)