762 N.E.2d 388 | Ohio Ct. App. | 2001
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In May 1997, the Board of Wood County Commissioners created, pursuant to R.C.
In May 2000, plaintiffs-appellants, owners of property in the project area, received notice of the assessments levied. Linda and Doug Avery and some of the tenants in common owning a parcel of assessed property located on Simmons Road in Rossford commenced this cause against Rossford and RTID. They also named the Board of Wood County Commissioners, the Wood County Auditor and the Wood County Treasurer (hereinafter collectively known as "Wood County") as defendants1. In a separate action, Nancy A. Lewis filed a complaint challenging the assessment levied on her property against the same government defendants. The plaintiffs in each suit were represented by the same counsel, and they sought relief under the same legal theories.
The first cause of action in the Lewis complaint and in the first amended complaint in the Avery case requested injunctive relief pursuant to R.C. Chapter 2723.02. Appellants' stated bases for this request all involved appellees' asserted illegal application of the statute to their properties. That is, they complained of a lack of notice, assessments in excess of those allowed by the statute, the creation of RTID and the levying of assessments. In their second claims, appellants alleged that the excessive amount of the assessments constituted taking of property for public use without just compensation in violation of Section
Appellants' third causes of action actually set forth three claims. First, appellants argued that R.C. Chapter 5540 is unconstitutional because, among other things, it does not require a transportation improvement district to hold a hearing on the assessments to be levied or to provide notice of such a hearing to the affected property owners. Second, appellants asserted that RTID violated their procedural due process rights, as guaranteed by the
Appellants' fourth causes of action sought, in the alternative, the appeal of the assessment against their properties, pursuant to R.C.
Rossford filed a motion to dismiss pursuant to Civ.R. 12(B)(6) and/or 12(C) in both the Avery and Lewis suits. RTID filed a motion for summary judgment and a supplemental motion and memorandum in support of that motion in the Avery case only. Likewise, Wood County filed a motion to dismiss pursuant to Civ.R. 12(B)(6) and(C) and/or a motion for summary judgment in the Avery suit only.
On December 29, 2000, the trial court entered a judgment in the Avery case. The court found, sua sponte, that it lacked jurisdiction to consider the challenge to the constitutionality of R.C. Chapter 5540 because the plaintiffs in the Avery case failed to serve the Attorney General with a copy of their amended complaint pursuant to Civ.R. 4.1. See Cicco v. Stockmaster (2000),
The common pleas court also filed a judgment dismissing the claims against Rossford in the Lewis case. The entry of dismissal contains the requisite language of Civ.R. 54(B) rendering that judgment a final, appealable order. The *161 cases were consolidated by this court for the purpose of this appeal. In their consolidated brief, appellants assert the following assignments of error:
"1. The Court erred as a matter of law in dismissing Appellants' first and third causes of action against RTID which challenged the constitutionality of the statute that was used to assess appellants, O.R.C.
5540.01 , et seq., because the six (6) month time limitation for obtaining service of process provided for in Civ.R. 4(e) had not expired and the court did not give Appellants notice of its intent to dismiss their claim for lack of service."2. The Court erred as a matter of law in dismissing Appellants' first, second and third causes of action for failure to exhaust administrative remedies, since an appeal to the county board of revision is not mandatory in appeals from assessments under the transportation district statute and appeals can be taken directly to the common pleas court.
"3. The Court erred as a matter of law in dismissing Appellants' Amended Complaint for failure to exhaust administrative remedies, since an appeal to the county board of revision is not mandatory in appeals from assessments under the transportation district statute and appeals can be taken directly to the court of common pleas.
"4. The Court erred as a matter of law in dismissing Appellants' claims against the City of Rossford, pursuant to its motion to dismiss, and for dismissing Appellants' claim for punitive damages, because (1) Appellants' claims were not purely equitable in nature, but also sought recovery of compensatory damages; (2) punitive damage [sic] can be awarded under
42 U.S.C. § 1983 , for a constitutional violation, even where there are no compensatory damages; (3) nominal damages may be awarded for constitutional violations and punitive damages can be based on nominal damages; and (4) a claim for conspiracy can nevertheless be based on a claim that seeks purely equitable relief."
We must first note that consolidated appellants' first, second and third assignments of error apply only to the Avery case. Therefore, any reference to "appellants" in the discussion of these assignments of error refers only to the plaintiffs in that case. In their first assignment of error, appellants contend that the trial court erred in sua sponte dismissing, for want of jurisdiction, their constitutional challenge to R.C. Chapter 5540.
As effective on September 24, 1999, R.C.
It is undisputed that appellants never served the Attorney General with a copy of their first amended complaint; therefore, to the extent that appellants' third claim for relief challenged the validity of the statute itself, the trial court lacked the jurisdiction to address this challenge. Appellants argue, nonetheless, that Civ.R. 4(E) precluded the dismissal of their constitutional claim. That rule provides, in material part:
"If a service of the summons and complaint is not made upon a defendant within six months after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion."
The plain language of the rule makes it applicable only to instances where the plaintiff(s) fail to diligently serve in-state defendants. The Attorney General is not a defendant in a declaratory judgment action that asserts that a particular statute is unconstitutional.
Furthermore, under R.C. 2723.12 and Cicco, service of a complaint in a declaratory judgment action raising the unconstitutionality of a statute is necessary to vest a trial court with the authority to consider that issue. See Denny v. Progressive Ins. Co. (Mar. 5, 2001), Jackson County App. No. CA-00-018, unreported. Thus, to the extent that appellants' third claim challenged the validity of R.C. Chapter 5540 itself, the trial court could dismiss that claim sua sponte for lack of jurisdiction. Appellants' first assignment of error is found not well-taken.
In their second assignment of error, appellants maintain that the trial court erred in granting summary judgment to RTID and Wood County and dismissing their first, second and third causes of action for failure to exhaust their administrative remedy. Appellants maintain that those causes contain other constitutional claims that were not challenges to R.C. Chapter 5540. Specifically, appellants argue that their constitutional claims involving violations of their procedural due process rights and the "taking" of their property without just compensation could be considered by the court. We conclude that RTID and Wood County were entitled to a grant of summary judgment on these claims as a matter of law. See Civ.R. 56(C).
Before we discuss appellants' argument we must determine whether an administrative remedy was available to appellants. R.C.
The exhaustion of administrative remedies is usually required in order to prevent a premature interference with agency processes. This permits the agency to function efficiently and provides it with "`an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.'" Nemazee v. Mt. Sinai Med. Ctr. (1990),
Generally, the exhaustion of administrative remedies is a prerequisite to any further judicial action. Noernberg v. Brook Park (1980),
We conclude, however, that the questions raised by appellants concerning lack of notice, lack of an opportunity to be heard and excessive assessments (the "taking") are all issues that could be addressed in the administrative process. As stated by the Eighth District Court of Appeals:
"* * * compared to seeking a declaration on the constitutionality of a statute, it is an entirely different matter to assert that a party's actions were unconstitutional.
That kind of allegation does not draw into question the validity of the statute or law. Instead, it questions whether the party's actions were in accordance with the law. Administrative review is suited to that task, and this is a quasi-judicial function that could be performed by the board of review. See Snavely v. Erie Cty. Bd. of Revision (1997),
78 Ohio St.3d 500 ,502 ,678 N.E.2d 1373 , 1375." BP *164 Communications Alaska, Inc. v. Central Collection Agency (2000),136 Ohio App.3d 807 ,814 .
For these reasons, we find the trial court did not err in granting the summary judgment motions of Wood County and RTID with regard to appellants' declaratory judgment action, and appellants' second assignment of error is not well-taken.
In their third assignment of error, appellants claim that the trial court erred in finding that they were required to exhaust their administrative remedy before seeking declaratory and injunctive relief because the language found in R.C.
The use of "may" in the context of a statute providing an administrative remedy allows an aggrieved individual either to pursue the remedy or to forgo taking any further action on the matter. Frick v.University Hosp. of Cleveland (1999),
Our consideration of appellants' fourth assignment of error involves both the Lewis case and the Avery case. In that assignment, appellants contend that the trial court erred in granting Rossford's motion to dismiss for failure to state a claim upon which relief can be granted. In addition, they assert that the trial court erred in dismissing their causes based upon civil conspiracy and Section 1983, Title 42, U.S. Code, as well as their claim for punitive damages.
We shall first address the dismissal of the claims against Rossford. In order for a court to grant a motion to dismiss for failure to state a claim, it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."O'Brien v. Univ. Community Tenants Union, Inc. (1975),
In their complaints, appellants stated that Rossford and the other named defendants "conspired and acted in concert to create the improvement district to levy assessments * * * in order to obtain the financing [of a sports and entertainment complex] that they had been unable to obtain because of said ineptness and incompetence [of the city of Rossford]." The trial court found, among other things, that appellants failed to set forth facts that would satisfy the elements of a civil conspiracy; specifically, the court found that appellants failed to allege an underlying tort claim and/or allege any actual damages. We agree that the complaints fail to set forth any facts entitling appellants to relief under a claim of civil conspiracy.
The tort of civil conspiracy is "a malicious combination of two or more persons to injure another in person or property, in a way not competent for one alone, resulting in actual damages." Kenty v. TransamericaPremium Ins. Co. (1995),
Appellants' complaints lack any facts that this court could interpret as supportive of a finding that a continuing conspiracy existed between Rossford and the other governmental entities. Appellants argue that the underlying unlawful act is a violation of their constitutional rights; however, as observed by the trial court, for the purpose of satisfying this element of such a claim, the underlying unlawful act must be a tort. Stiles v. Chrysler Motors Corp. (1993),
Likewise, and based on the foregoing reasoning, the trial court did not err in granting summary judgment to RTID and Wood County on the civil conspiracy claim as a matter of law. *166
The Section 1983 claim raised against Rossford, RTID and Wood County involves an alleged deprivation of procedural due process. In 1946 St.Clair Corp. v. city of Cleveland (1990),
As a final note, we conclude that the trial court did not err in dismissing appellants' claim for punitive damages. It is axiomatic that punitive damages cannot be awarded absent an award of actual or nominal damages on a plaintiff's underlying claim. Moskovitz v. Mt. Sinai Med.Ctr. (1994),
On consideration whereof, this court finds that substantial justice was done the parties complaining, and the judgments of the Wood County Court of Common Pleas are affirmed. Appellants are ordered to pay the costs of this consolidated appeal.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Melvin L. Resnick, J.
Richard W. Knepper, J. and Mark L. Pietrykowski, P.J. CONCUR.