Onе Energy Enterprises, LLC et al., Plaintiffs-Appellants, v. Ohio Department of Transportation, Defendant-Appellee.
No. 17AP-829 (C.P.C. No. 17CV-5513)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on February 5, 2019
[Cite as One Energy Ents., L.L.C. v. Dept. of Transp., 2019-Ohio-359.]
(REGULAR CALENDAR)
On brief: Zeiger, Tigges & Little LLP, Marion H. Little, Jr., and Christopher J. Hogan, for appellants. Argued: Marion H. Little, Jr.
On brief: Dave Yost, Attorney General, William J. Cole, and Eric M. Hopkins, for appellee. Argued: William J. Cole.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{1} Plaintiffs-appellants, One Energy Enterprises, LLC (“One Energy“) and OEE XXV, LLC (“OEE” collectively “appellants“), appeal from a judgment of the Franklin County Court of Common Pleas granting the
{2} One Energy is a company engaged in the business of constructing large scale wind turbines for industrial customers. OEE is a wholly owned subsidiary of One Energy. OEE currently has a contract to construct and operate two wind turbines for an industrial
{3} ODOT is the state agency tasked with administering the Ohio Airport Protection Act (“OAPA“), contained in
{4} On June 20, 2017, appellants filed a complaint against ODOT asserting claims for injunctive and declaratory relief. Appellants asserted the OAPA limited ODOT‘s regulatory authority to structures that penetrate at least one of the surfaces identified in
{5} Appellants additionally asserted
{6} In their complaint, appellants alleged that consistent “with the express statutory language” of the OAPA, “no permit application need be filed with ODOT – and
{7} However, appellants admitted the Findlay Project would constitute an obstruction to air navigation under the applicable federal regulations. The Federal Aviation Administration (“FAA“) regulates matters of air navigation and safety within the national airspace.
{8}
{9} Additionally, an object with a height greater than any of the imaginary surfaces described in
{11} Appellants asserted ODOT had taken the official position that its regulatory jurisdiction under the OAPA extended beyond the Imaginary Surfaces to “other ‘obstructions,’ including the Section 77.17(a)(1) & (a)(2) Obstruction Standards.” (Compl. at ¶ 24.) Appellants explained ODOT had expressed its official position through the testimony of two ODOT office of aviation officials,1 John Stains, an office of aviation employee, and James Bryant, the administrator of the office of aviation. The testimony occurred in an administrative hearing in In re One Energy, LLC v. Ohio Dept. of Transp., 2016-DOT-647-OE, 2016-DOT-4888-OE, which concerned ODOT‘s denial of permits for certain wind turbines located in Putnam County (the “Putnam County Project“).2 The Putnam County Project is “distinct from [and has] nothing to do” with the turbines at issue in the Findlay Project. (Compl. at ¶ 7.)
{12} During the administrative hearing, Stains and Bryant testified about proposed amendments to the OAPA contained in 2017 Sub.H.B. No. 49 (“H.B. 49“).3 Appellants attached excerpts from the hearing transcript to their complaint as Exhibit A, and attached the H.B. 49 proposed amendments to the OAPA to their complaint as Exhibit
{13} Stains explained during the hearing that H.B. 49 “clarifie[d] the Department‘s position that we are required to enforce Part 77 as a whole.” (Compl. Ex. A, Hearing Tr. at 102.) Stains noted that, although it was the office of aviation‘s “position that the current language [of the OAPA] already [said] that” ODOT had the authority to enforce all of
No, not really. There is six surfaces, and there‘s an additional surface which we felt that we had jurisdiction to also administer that we didn‘t feel that the Ohio Revised Code when it was prepared in 1991 or ‘92 adequately explained that. So we‘ve always felt that we had the jurisdiction to administer the Part 77, we just wanted to make it clear.
(Compl. Ex. A, Hearing Tr. at 179.)
{14} In Count 1 of their complaint, appellants asserted a claim for tortious interference with their contract for the Findlay Project and/or their prospective business relationship. Appellants alleged that “in or about March 2017” Stains, acting within the course and scope of his employment with ODOT, engaged “in efforts to encourage the Findlay Airport and/or airport officials to issue comments to the FAA opposing the [Findlay] Project” with the “intent of seeking to prevent the [Findlay] Project from proceeding.” (Emphasis sic.) (Compl. at ¶ 31.) Appellants requested an injunction to prevent ODOT from urging or encouraging any third party to oppose the Findlay Project or any similar project, and to prevent ODOT from asserting jurisdiction over any structure that did not penetrate one of the Imaginary Surfaces.
{16} On July 7, 2017, ODOT filed a
{17} ODOT also asserted the OAPA did “not limit ODOT‘s regulatory authority and jurisdiction to only ‘Imaginary Surfaces’ listed in
{18} On July 31, 2017, appellants filed a motion for partial summary judgment solely on their claim for declaratory relief. On August 1, 2017, appellants filed the complete first volume of the administrative hearing transcript from In re One Energy, LLC.4
{19} ODOT filed a memorandum contra appellants’ motion for partial summary judgment on August 21, 2017 maintaining that “it [was] authorized by the OAPA to regulate for safety the height of structures that do or will violate the federal Part 77 airspace obstruction standards.” (ODOT‘s Memorandum Contra Partial Summ. Jgmt. at 3.)
{20} On November 2, 2017, the trial court issued a decision and entry granting ODOT‘s motion to dismiss the complaint and denying appellants’ motion for partial summary judgment. The court noted a declaratory judgment action could not be used to “bypass a special statutory proceeding of an agency that has exclusive jurisdiction over a particular subject matter.” (Decision at 5.) As ODOT possessed the “exclusive power to regulate the granting and/or denying of permits for which an application has been filed under
{21} On November 8, 2017, the court issued an order amending the November 2, 2017 judgment entry to state the dismissal was without prejudice.
[I.] The trial court erred, as a matter of law, in dismissing all claims of Plaintiffs/Appellants One Energy Enterprises LLC and OEE XXV LLC.
[II.] The trial court erred in denying, as moot, Plaintiffs’ partial motion for summary judgment as to the extent of Defendant/Appellee the Ohio Department of Transportation‘s (“ODOT“) statutory jurisdiction/authority under the Ohio Airport Protection Act,
R.C. 4561.30 to4561.39 (the “OAPA“).
{23} Although the trial court dismissed the action without prejudice, this court has jurisdiction to address the instant appeal. Ohio appellate courts have jurisdiction to review only final appealable orders of lower courts within their districts.
{24} Generally, “a dismissal without prejudice constitutes ‘an adjudication otherwise than on the merits’ with no res judicata bar to refiling the suit.” Johnson v. H & M Auto Serv., 10th Dist. No. 07AP-123, 2007-Ohio-5794, ¶ 7, quoting Thomas v. Freeman, 79 Ohio St.3d 221, 225 (1997), fn.2. As such, a dismissal without prejudice generally is not a final appealable order “so long as a party may refile or amend a complaint.” Johnson at ¶ 7. See also B.H. v. State Dept. of Adm. Servs., 10th Dist. No. 16AP-747, 2017-Ohio-9030, ¶ 6.
{25} However, “a dismissal grounded on a complaint‘s ‘failure to state a claim upon which relief can be granted’ constitutes a judgment that is an ‘adjudication on the merits.’ As a result, res judicata bars refiling the claim.” State ex rel. Acres v. Ohio Dept. of Job & Family Servs., 123 Ohio St.3d 54, 2009-Ohio-4176, ¶ 15. In George v. State, 10th Dist. No. 10AP-4, 2010-Ohio-5262, ¶ 10, the trial court dismissed the parties’ claims pursuant to
{26} Accordingly, pursuant to Acres and George, the trial court‘s order dismissing the complaint for failure to state a claim was a final appealable order.
{28} When reviewing a judgment rendered on a
{29} An abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s action was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “An appellate court may find an abuse of discretion when the trial court ‘applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.’ ” Bellamy v. Montgomery, 10th Dist. No. 11AP-1059, 2012-Ohio-4304, ¶ 7, quoting Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, ¶ 15 (8th Dist.)
{31}
{32} For a real controversy to exist “there must be a ‘genuine dispute between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” Town Ctrs., quoting Wagner v. Cleveland, 62 Ohio App.3d 8, 13 (8th Dist.1988). A controversy is justiciable when it presents “issues that are ripe for judicial resolution and which will have a direct and immediate impact on the parties.” Cristino v. Ohio Bur. of Workers’ Comp., 10th Dist. No. 13AP-772, 2014-Ohio-1383, ¶ 22, citing Stewart v. Stewart, 134 Ohio App.3d 556, 558 (4th Dist.1999). The United States Supreme Court developed the following two-fold test to determine whether a controversy is justiciable in character: “first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied at that stage.” Toilet Goods Assn. v. Gardner, 387 U.S. 158, 162 (1967). Ripeness is a question of timing, and the “ripeness doctrine seeks to prevent courts from engaging in premature adjudication.” Johnson v. Ferguson-Ramos, 10th Dist. No. 04AP-1180, 2005-Ohio-3280, ¶ 22, citing State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88, 89 (1998). Such “premature claims are not ‘justiciable.’ ” Id., quoting Stewart at 558.
{33} In Burger Brewing Co. v. Liquor Control Comm., Dept. of Liquor Control, 34 Ohio St.2d 93 (1973), the court held that an administrative “regulation need not be violated to present a justiciable controversy,” as the “regulation itself essentially involve[d] legal questions.” Id. at 98. See also Ohio State Pharmaceutical Assn. v. Wickham, 61 Ohio App.3d 488, 494 (10th Dist.1989), citing Pack v. Cleveland, 1 Ohio St.3d 129, 131 (1982) (noting that “[a] justiciable controversy does not require an actual violation of a statute, but rather turns on the relationship of parties under the statute at issue“); Peltz v. S. Euclid, 11 Ohio St.2d 128, 131 (1967). The regulation at issue in Burger Brewing Co. prohibited manufacturers and wholesale distributors of beer from initiating specials or temporary price cuts, and prevented manufacturers from fixing the price per case or draft package at which a wholesale distributor could sell beer to retailers in Ohio. Several breweries filed a declaratory judgment action against the Liquor Control Commission challenging the validity of the regulation; the wholesale beer association of Ohio intervened as a defendant in the action. Although the breweries never violated the regulation, the court concluded that a real justiciable controversy existed.
{34} As the breweries sought “a judgment declaring the regulation void in order to avoid its economic constraints,” and the wholesalers sought to “invok[e] the regulation to set a ratio of the price charged them and the retailers,” the parties had adverse legal interests. Id. at 97. As the regulation “regulate[d] the plaintiffs’ businesses - - their pricing and marketing systems,” the impact of the case on the breweries was “sufficiently direct and immediate to render the issues appropriate for judicial review.” Id. at 98. Furthermore, as the breweries were “convinced that the regulation [was] invalid,” the court observеd that the breweries were “placed in a perplexing dilemma: Either change their customary pricing and marketing procedures in order to conform with the regulation, or challenge the regulation by disobedience and face severe sanctions,” including revocation of their liquor permits. Id. at 99. It was “to lift people from the horns of such a dilemma that the Declaratory Judgment Act was enacted.” Id., citing Abbott Laboratories v. Gardner, 387 U.S. 136, 152 (1967). Thus, because the breweries were “subjected to the application of [the
{35} The trial court in this case concluded that until ODOT denied appellants permits for the Findlay Project, the case would not present a real justiciable controversy. However, ODOT need not deny appellants permits for the Findlay Project for the present dispute to be justiciable. Rather, the language of the OAPA “essentially involves legal questions.” Burger Brewing Co. at 98.
{36} The present case presents a real controversy between parties with adverse legal interests. Through the testimony of ODOT office of aviation officials in an administrative proceeding, and through the motions and memoranda filed in the present case, ODOT has taken the definite position that its regulatory jurisdiction under the OAPA extends beyond the Imaginary Surfaces identified in
{37} The present controversy is also justiciable in character. Resolution of the controversy will determine whether appellants must seek an OAPA permit for the Findlay Project or whether the OAPA does not apply to the Findlay Project. As appellants have received federal approval to begin construction of the Findlay Project, resolution of the present controversy will have a direct and immediate impact on the parties. The issues tendered, seeking a construction of the OAPA, are appropriate for judicial resolution, and the hardship to appellants if relief is denied at this stage is notable. Absent resolution by declaratory judgment, appellants are placed in the following dilemma: seek a permit for the
{38} The right to pursue ” ‘a legitimate recognized trade [business], subject only to the restrictions made necessary in order to protect the public health, safety and welfare, constitutes a valuable property right protected by law.’ ” Burger Brewing Co. at 98, quoting Wilson v. Cincinnati, 171 Ohio St. 104, 108 (1960). Appellants’ ability to pursue their business of constructing wind turbines in Ohio, and specifically appellants’ ability to complete their contract for the Findlay Project and satisfy their banking and financing relationships related thereto, are directly affected by ODOT‘s interpretation of its regulatory jurisdiction under the OAPA. Accordingly, speedy relief is necessary to preserve the rights which may otherwise be lost or impaired.
{39} The instant case presents the essential elements for declaratory relief. Moreover, as appellants have pending contracts to construct a structure which is potentially subjected to the OAPA, the present declaratory judgment action is not premature.
{40} The trial court‘s statement that the present matter would not become ripe until ODOT denied appellants the permits that were “at the heart of this matter,” and other similar statements from the court, demonstrate the trial court‘s erroneous belief that appellants were seeking permits for the Findlаy Project. (Decision at 8.) The court noted that, if ODOT “denie[d] any of the permits sought by [appellants], including those currently being considered by ODOT,” appellants could request a hearing under
{41} There is no evidence in the record to support the court‘s belief that administrative proceedings regarding the Findlay Project were pending. Appellants alleged in their complaint that “no permit application need be filed with ODOT” regarding the Findlay Project, as ODOT did not possess “regulatory authority or jurisdiction over any
{42} The trial court‘s conclusion that the present case did not present a real or justiciable controversy, based on the court‘s erroneous factual assumption that appellants were seeking a permit for the Findlay Project, was an abuse of discretion.
{43} The court also dismissed the declaratory judgment action based on its conclusion the action was an improper attempt to bypass a special statutory procedure, and because appellants had failed to exhaust their administrative remedies.
{44} “[A]ctions for declaratory judgment and injunction are inappropriate where special statutory proceedings would be bypassed.” State ex rel. Albright v. Delaware Cty. Court of Common Pleas, 60 Ohio St.3d 40, 42 (1991). To circumvent a special statutory procedure by way of declaratory judgment “would nullify the legislative intent to have specialized * * * questions initially determined by boards and agencies specifically designed and created for that purpose.” State ex rel. Iris Sales Co. v. Voinovich, 43 Ohio App.2d 18, 23 (8th Dist.1975). Thus, where a “specialized statutory remedy is available in the form of an adjudicatory hearing, a suit seeking a declaration of rights which would bypass, rather than supplement, the legislative scheme ordinarily should not be allowed.” Arbor Health Care Co. v. Jackson, 39 Ohio App.3d 183, 186 (10th Dist.1987). See also State ex rel. Smith v. Frost, 74 Ohio St.3d 107, 112 (1995) (declaratory judgment could not be used to “bypass the statutory procedure” provided for “annexation“); Galion v. Am. Fedn. & Mun. Emps., Ohio Council 8, AFL-CIO, Local No. 2243, 71 Ohio St.3d 620 (1995), paragraph two of the syllabus (declaratory judgment action could not be “maintained to circumvent the clear legislative intent of
{45} A court‘s decision to dismiss a declaratory judgment action because the matter is committed to a special statutory proceeding is “tantamount to a holding that courts have no jurisdiction to hear the actions in the first place.” Albright at 42. See also
{46} Appellants note their request for declaratory relief relates to “structures for which no permit had been sought, no permit has been denied, and no administrative proceeding is or was pending.” (Appellants’ Brief at 1.) Thus, appellants assert there is no special statutory proceeding applicable to their declaratory judgment action. See Bd. of Edn. of the Loveland City School Dist. v. Bd. of Trustees of Symmes Twp., 1st Dist. No. C-170407, 2018-Ohio-1731, ¶ 18 (noting the “special statutory proceeding” on which the township relied “[did] not apply in th[e] case“).
{47} In Arbor Health Care Co., the plaintiff filed an application for a certificate of need, seeking to obtain the necessary agency approval to construct a new skilled nursing facility. The certificate of need process, codified in
{48} In Fairview Gen. Hosp. v. Fletcher, 63 Ohio St.3d 146 (1992), the director of the applicable agency informed the plaintiff-hospital, in response to the hospital‘s inquiry, that a certificate of need was required to change level of care of the hospital‘s neonatal intensive care unit. The hospital filed an application for a certificate of need which the agency denied, and the hospital appealed the agency‘s denial to the certificate of need review board. While the administrative appeal was pending, the hospital filed an action for declaratory judgment asserting the certificate of need laws did not apply to the redesignation of the level of care of its neonatal intensive care unit. The court concluded that,
{49} Thus, in both Arbor Health Care Co. and Fairview Gen. Hosp., the plaintiffs were participating in the administrative process when they sought a declaratory judgment on matters related to their administrative proceedings. As such, the declaratory judgment actions in both cases were attempts to bypass the applicable special statutory proceedings. Accord Champaign Cty. Nursing Home v. Tompkins, 10th Dist. No. 98AP-255, 2003-Ohio-1706, ¶¶ 34, 46 (holding that, as the plaintiffs “had an [administrative] appeal” pending when they filed the action for declaratory judgment, the declaratory judgment action was an attempt to “bypass, rather than supplement” the legislative scheme applicable to Medicaid reimbursement); Huntsman v. State, 5th Dist. No. 2016CA00206, 2017-Ohio-2622, ¶ 36 (concluding the plaintiff‘s “declaratory judgment action,” which concerned “the same issue that [was] being decided in the administrative proceeding,” was “merely a substitute for the administrative process“). Compare State ex rel. Taft v. Court of Common Pleas, 63 Ohio St.3d 190, 195 (1992) (concluding the trial court “had authority to hear a declaratory judgment action concerning [a political аction committee‘s] rights under
{50} In Aust, this court observed that “the issue is whether a special statutory procedure has been set forth by the legislature to address a particular type of case, not whether a ‘proceeding’ has actually commenced.” Id. at 683. In that case, the Ohio State Dental Board (“Board“) had suspended a dentist‘s license and, during the suspension, the dentist had placed his practice into a revocable trust, transferred legal title of the practice to a trustee, and named himself sole beneficiary of the trust. When the Board began an investigation to determine whether this arrangement violated the Dental Practice Act, the
{51} In the present action, appellants seek declaratory relief to determine in the first instance whether the OAPA administrative process applies to structures, like the Findlay Project, which do not penetrate Imaginary Surfaces. Unlike Arbor Health Care Co. and Fairview Gen. Hosp., appellants do not have an administrative proceeding regarding the Findlay Project pending. Appellants have not sought, and ODOT has neither granted nor denied, an OAPA permit to the Findlay Project. See
{52} Moreover, unlike Aust, there is no special statutory procedure applicable to the issue presented in appellants’ declaratory judgment action. The OAPA concerns ODOT‘s authority to issue and deny permits, and a party‘s ability to file an administrative appeal from an adverse ruling on their permit application. There is no provision in the OAPA by which a party may ask ODOT, outside of the permitting process, to determine whether the OAPA applies to a particular structure. Compare
{53} Resolution of appellants’ declaratory judgment action will supplement, rather than bypass, the special statutory proceeding contained in the OAPA. If the trial court concludes the OAPA does apply to the Findlay Project, appellants will be required to obtain an OAPA permit before they begin construction on the project. If the trial court concludes the OAPA does not apply to the Findlay Project, appellants may immediately commenсe construction assured that they will not be subject to criminal penalties under
{54} The trial court erred in holding appellants’ declaratory judgment action was an improper attempt to circumvent a special statutory proceeding.
{55} The exhaustion of administrative remedies doctrine is a rule of judicial administration providing ” ‘that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’ ” State ex rel. Teamsters Local Union No. 436 v. Bd. of Cty. Commrs., 132 Ohio St.3d 47, 2012-Ohio-1861, ¶ 19, quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938). Where an аdministrative proceeding is applicable to a particular action, a plaintiff “is not entitled to a declaratory judgment where failure to exhaust administrative remedies is asserted and maintained.” Schomaeker v. First Natl. Bank, 66 Ohio St.2d 304 (1981), paragraph three of the syllabus (holding that declaratory relief was unavailable where the plaintiff-landowner was “entitled under
{56} “The doctrine of failure to exhaust administrative remedies is not a jurisdictional defect to a declaratory judgment action; it is an affirmative defense that may be waived if not timely asserted and maintained.” Jones v. Chagrin Falls, 77 Ohio St.3d 456 (1997), syllabus. See also Driscoll v. Austintown Assocs., 42 Ohio St.2d 263, 276 (1975), citing
{57} An appellate court reviews a trial court‘s dismissal of a “declaratory-judgment action based on the conclusion that proceeding with the action would have been improper
{58} A plaintiff need not exhaust administrative remedies prior to instituting a declaratory judgment action “if there is no administrative remedy available which can provide the relief sought, * * * or if resort to administrative remedies would be wholly futile.” Karches at 17, citing Kaufman v. Newburgh Hts., 26 Ohio St.2d 217 (1971) and Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324 (1969). Accord Teamsters Local Union No. 436 at ¶ 24 (noting “parties need not pursue their administrative remedies if doing so would be a futile or a vain act“). Additional exceptions to the exhaustion of administrative remedies doctrine include if the available remedy is onerous or unusually expensive, Karches at 17, or if the plaintiff is contesting the validity or constitutionality of a statute. Fairview Gen. Hosp. at 149; Jones at 460-61.
{59} For the reasons noted above, there is no available administrative remedy which can provide the relief appellants seek. Appellants do not seek an OAPA permit for the Findlay Project but, rather, seek a ruling regarding the extent of ODOT‘s regulatory jurisdiction under the OAPA. As the OAPA does not provide a mechanism by which a party may seek a ruling regarding the applicability of the OAPA to a particular structure outside of the permitting process, there is no administrative remedy applicable to the present action.
{60} The trial court stated appellants had an equally serviceable remedy in this action through the OAPA administrative process. However, even if it were possible for appellants to file an application seeking a permit for the Findlay Project and to assert in the administrative proceeding that ODOT lacked the statutory authority to issue the permit they sought, such proceeding would not be an equally serviceable remedy in comparison to the present declaratory judgment action. Compare Buckeye Quality Care Ctrs., Inc. v. Fletcher, 48 Ohio App.3d 150, 154 (10th Dist.1988) (noting the “fact that plaintiffs may at some point in the future fail to comply with the rules, lose their Medicaid certification due to an administrative adjudication, and bring the same challenge on administrative appeal” did not alter the court‘s conclusion that the trial court erred in dismissing the plaintiffs’
{61} Generally, “proceedings for declaratory relief will not be entertained where another ‘equally serviceable’ remedy has been provided for the character of the case at hand.” Swander Ditch at 135. In Swander Ditch, the court held because the declaratory judgment action would resolve “all issues in one proceeding,” it was “a more servicеable option than the numerous appeals required by the administrative process.” Id. Accord Herrick v. Kosydar, 44 Ohio St.2d 128, 130-31 (1975) (holding that a class action seeking a declaratory judgment was the “superior remedy,” as the “[a]dministrative remedies would require each of those claimants to file a separate refund application, a requirement which [could] hardly be considered an equally serviceable alternative to a single declaratory judgment action“).
{62} If ODOT denies a request for a permit under the OAPA, the applicant may request a hearing, pursuant to
{63} Appellants filed a motion asking this court to take judicial notice of the construction permit with waiver issued in In re One Energy, LLC to the Putnam County Project. As ODOT “does not object” to this court taking judicial notice of the permit, we take judicial notice of the permit solely to demonstrate the effect of the administrative rules. (Memo of Appellee in Response to Appellants’ Mot. for Judicial Notice at 3.)
{64} The construction permit states that, although the Putnam County Project will exceed “obstruction standards; specifically, the structure exceeds 14 CFR Part 77.17(a)(2) by 167 feet,” a waiver was “being issued pursuant [to] ORC §4561.36 and OAC §5501:1-10-05.” (Appellants’ Mot. to Take Judicial Notice, Ex. A.) In the administrative proceedings regarding the Putnam County Project, One Energy, LLC argued that ODOT‘s regulatory
{65} Thus, by issuing the permit with a waiver to the Putnam County Project, ODOT refused to rule on appellants’ jurisdictional argument and One Energy, LLC cannot appeal the permit. Accordingly, even if appellants were to attempt to obtain a ruling on their jurisdictional question by seeking a permit under the OAPA, a permit they believe ODOT has no statutory authority to issue, the administrative rules demonstrate that ODOT could continuously avoid the jurisdictional question by granting appellants permits or permits with a waiver. The trial court‘s conclusion that appellants had failed to exhaust available administrative remedies, based on the court‘s mistaken belief that appellants were seeking an OAPA permit for the Findlay Project, was an abuse of discretion.
{66} Based on the foregoing, we hold the trial court erred in dismissing appellants’ claim for declaratory relief. Appellants’ complaint set forth a viable claim for declaratory relief which is ripe for resolution. Accordingly, we remand the action to the trial court for further proceedings on the declaratory judgment action. See Harris v. Ohio Dept. of Veterans Servs., 10th Dist. No. 16AP-895, 2018-Ohio-2165, ¶ 31 (holding that “the trial court must declare the rights of the parties when the complaint sеts forth a viable claim for declaratory relief“); Williams v. Gilligan, 10th Dist. No. 73AP-69 (May 22, 1973), citing Dyar v. Bingham, 100 Ohio App. 304 (4th Dist.1955) (noting that courts of appeal “do not have original jurisdiction which enables them to entertain an action for a declaratory judgment“).
{67} Appellants also assert the trial court erred in dismissing their claim for tortious interference with their contract for the Findlay Project and/or their prospective business relationships. The trial court concluded appellants’ tortious interference claim “rest[ed] upon and [arose] from the same allegations” as those asserted in appellants’ “request for declaratory judgment (i.e., the extent of ODOT‘s authority and jurisdiction under the OAPA).” (Decision at 8.) As such, the court dismissed the tortious interference
{68} However, appellants’ tortious interference claim was based on appellants’ contention that Stains had “physically appeared in Hancock County” and encouraged Findlay Airport officials to oppose the Findlay Project at the FAA. (Compl. at ¶ 31.) Although the FAA issued the No Hazard determination to the Findlay Project, аppellants asserted that ODOT would “continue [to] engage in similar, unlawful tactics as to [appellants‘] prospective projects involving similar turbines of similar height and in similar proximity to airports in Ohio.” (Compl. at ¶ 33.) Appellants alleged ODOT‘s conduct had caused performance of their contract to become “more burdensome and/or expensive, and otherwise threaten[ed] irreparable harm,” and further alleged that ODOT‘s conduct threatened to prevent appellants “from acquiring future contractual and/or business relationships.” (Compl. at ¶¶ 34, 38.)
{69} Thus, appellants’ tortious interference claim was not based on the same allegations as those asserted in appellants’ claim for declaratory relief. The trial court erred in dismissing the tortious interference claim for the reasons it provided. A reviewing court, however, “is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as a basis thereof.” State ex rel. Carter v. Schotten, 70 Ohio St.3d 89, 92 (1994). “An appellate court should affirm a trial court‘s judgment if any grounds support it.” Ford v. Brooks, 10th Dist. No. 11AP-664, 2012-Ohio-943, ¶ 24.
{70} Appellants assert they adequately pled a claim for relief under Restatement of the Law 2d, Torts, Section 766A (1979), which defines the tort of intentional interference with another‘s performance of his own contract. Compare Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 419 (1995) (adopting the Restatement of the Law 2d, Torts, Section 766 (1979) definition of the tort of intentional interference with performance of contract). Section 766A provides that “[o]ne who intentionally and improperly interferes with the performance of a contract * * * between another and a third person, by preventing the other from performing the contract or causing his performance to be more expensive or burdensome,” will be “subject to liability to the other for the pecuniary loss resulting to him.” Appellants contend that, because they alleged ODOT made their “performance of
{71} Although
{72} Appellants failed to plead any factual allegations to support their contention that ODOT‘s conduct made their performance more burdensome or expensive. Indeed, there is no statement in the complaint explaining what additional costs or burdens appellants allegedly took on in order to perform their contract. Accordingly, the trial court was not required to accept the unsupported conclusory statements in appellants’ complaint as true. Moreover, appellants failed to allege they suffered a pecuniary loss due to ODOT‘s conduct. Compare Patton Boggs, LLP v. Chevron Corp., 791 F.Supp.2d 13, 31-32 (D.C.Dist.2011) (holding the complaint failed to state a claim for tortious interference under Section 766A as “Section 766A itself states that it creates liability for ‘pecuniary loss,’ ” the “complaint identified no such loss resulting from defendants’ conduct,” and the plaintiff‘s contention that its contract “suffered irreparable injury” was insufficient as it did not “identify any resulting pecuniary harm“). Appellants failed to state a claim for tortious interference with another‘s performance of his own contract under Section 766A.
{73} Appellants also failed to state a claim for tortious interference with prospective contractual relationships. See Gray-Jones v. Jones, 137 Ohio App.3d 93, 100 (10th Dist.2000) (noting that “Ohio law also recognizes the tort of intentional interference with a prospective contractual relationship“). Restatement of the Law 2d, Torts, Section
One who intentionally and improperly interferes with another‘s prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of
(a) inducing or otherwise causing a third person not to enter into or continue the prospeсtive relation or
(b) preventing the other from acquiring or continuing the prospective relation.
{74} Under tortious interference with prospective contractual relation, “a formal contract does not have to be in place in order for business interference to occur“; rather, it is “sufficient if a person, without a privilege, induces or otherwise purposely causes a third party not to enter into a business relationship.” Contract Crush & Screen Co. v. Jack F. Neff Sand & Gravel, 11th Dist. No. 96-L-043 (Mar. 7, 1997), citing Smith v. Ameriflora 1992, 96 Ohio App.3d 179, 186 (10th Dist.1994). See also Advanced Power Sys., Inc. v. Hi-Tech Sys. Inc., 801 F.Supp. 1450, 1459 (E.D. Pa.1992) (noting that “a plaintiff may not rest a claim for tortious interference with prospective contractual relations on a mere hope that additional contracts or customers would have been forthcoming“; rather, the complaint must “allege facts that, if true, would give rise to a reasonable probability that particular anticipated contracts would have been entered into“); Horizon AG-Prods. v. Precision Sys. Eng., D.C.N.M. No. CIV 09-1109 JB/DJS (Sept. 28, 2010), quoting Anderson v. Dairyland Ins. Co., 97 N.M. 155, 159 (1981) (noting that, in order to state a claim for relief under Section 766B, “a plaintiff must allege that ‘there was an actual prospective contractual relation which, but for the [Defendant‘s] interference, would have been consummated’ “).
{75} Although appellants alleged ODOT‘s conduct threatened to prevent them from acquiring future contracts and/or business relationships, appellants failed to plead any operative facts to support this allegation. While it was unnecessary for appellants to allege the existence of a formal contract, appellants needed to allege they had actual prospective business relationships with which ODOT‘s conduct interfered. Appellants’ vague reference to hypothetical future contracts and business relationships was
{76} Pursuant to our de novo review, we find appellants failed to state a claim for tortious interference with their contract for the Findlay Project and/or prospective business relationships. As such, the trial court ultimately did not err in granting ODOT‘s motion to dismiss appellants’ complaint with respect to appellants’ claim for tortious interference.
{77} Based on the foregoing, appellants’ first assignment of error is sustained in part and overruled in part.
{78} Appellants’ second assignmеnt of error asserts the trial court erred in denying appellants’ motion for partial summary judgment. The trial court denied the motion for partial summary judgment as moot based solely on the court‘s decision granting ODOT‘s motion to dismiss the complaint. As we have determined the trial court erred in dismissing appellants’ claim for declaratory relief, we sustain appellants’ second assignment of error for the limited purpose of remanding the case to the trial court to consider the merits of appellants’ motion for partial summary judgment.
{79} Based on the foregoing, appellants’ second assignment of error is sustained.
{80} ODOT presents a cross-assignment of error in its brief. However, ODOT never filed a notice of cross-appeal in the present action.
{81} “The time requirements for filing a cross-appeal pursuant to
{82} As ODOT never filed a notice of cross-appeal, this court lacks jurisdiction to consider the merits of ODOT‘s purported cross-assignment of error.
{83} Having sustained in part and overruled in part appellants’ first assignment of error, and having sustained appellants’ second assignment of error, we affirm in part and reverse in part the judgment of the Franklin County Court of Common Pleas and remand this matter to that court for further proceedings in accordance with law and consistent with this decision.
Judgment affirmed in part and reversed in part; cause remanded.
TYACK and LUPER SCHUSTER, JJ., concur.