Schreyer v. Preble Cty. Bd. of Commrs.Schreyer v. Preble Cty. Bd. of Commrs.
Martin P. Votel, Preble County Prosecuting Attorney, Kathryn M. West, Preble County Courthouse, 101 East Main Street, Eaton, Ohio 45320, for defendant-appellee
Per Curiam.
{¶ 1} This cause came on to be considered upon a notice of appeal, the transcript of the docket and journal entries, and original papers from the Preble County Court of Common Pleas, and upon the briefs and oral arguments of counsel. Now, therefore, the assignment of error having been fully considered is passed upon in conformity with
{¶ 2} Plaintiff-appellant, Manfred R. Schreyer d.b.a. Taffy‘s of Eaton, appeals from a
{¶ 3} On June 11, 2012, a public forum was scheduled to be held аt Taffy‘s. The forum was organized by Taffy‘s and the Preble County Chamber of Commerce (“chamber“) to discuss a potential county development project, Goose Creek. As a part of the forum, several people were invited to serve on a panel to answer questions regarding Goose Creek, including the commissioners. All three commissioners agreed to join the panel.
{¶ 4} On June 10, 2012, one day prior to the scheduled event, two local newspapers ran an announcement stating that the forum is moved from Taffy‘s to the Preble County Commissioners’ Chambers. The reasons cited in the announcement for the move included that it was best for the commissioners to be in session, the forum needed to be recorded, and some panelists were concerned the forum was taking place at a private business. One announcement quoted “public officials” and the other announcement specifically named one of the commissioners. A fоrum was held on the specified date at the commissioners’ chambers.
{¶ 5} At a commissioners’ meeting held on July 30, 2012, a letter from the chamber was read into the reсord highlighting the chamber‘s displeasure regarding the commissioners’ action moving the forum. All three commissioners stated on the record that they had no recollection of moving the forum. However, at a subsequent commissioners’ meeting, when pressed, one of the commissioners admitted on the record that they had cаlled the newspapers regarding moving the forum.
{¶ 6} On September 27, 2012, Schreyer filed a complaint for declaratory judgment against the commissioners requesting a declaration that: (1) the commissioners acted illegally by moving a chamber-sponsored event from a private business to another location,
{¶ 7} Sсhreyer now appeals and raises one assignment of error for review:
{¶ 8} THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT‘S COMPLAINT FOR DECLARATORY JUDGMENT.
{¶ 9} Schreyer argues that the trial court erred in finding that a real and present cоntroversy did not exist between Schreyer and the commissioners because the commissioners had already acted by illegally moving a forum from a private businеss to the commissioners’ chambers and the controversy was not dependent upon some hypothetical future event. We disagree.
{¶ 10} Although Schreyer urges us tо employ a de novo standard of review, an appellate court reviews a trial court‘s dismissal of a declaratory judgment action regarding justiciаbility under an abuse of discretion standard. Mid-Am. Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, paragraph two of the syllabus; Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, ¶ 13. An abuse of discretion connotes more than an error of law or judgment; it implies that the trial court‘s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 11} Schreyer filed a declaratory judgment action pursuant to
{¶ 12} An action for a declaratory judgment may be dismissed pursuant to
{¶ 13} In order for a justiciable question to exist, “[t]he danger or dilemma of the plaintiff must be present, not contingent on the happening of hypothetical future events * * * and the threat to his position must be actual and genuine and not merely possible or remote.” Mid-Am. Fire & Cas. Co. at ¶ 9. A “controversy” exists for purposes of a declaratory judgment action when there is a genuine dispute between parties having adverse legal interest of sufficient immediacy and reality to warrant the issuanсe of a declaratory judgment.
{¶ 14} While we recognize certain exceptions exist as to whether there is a justiciable question, in order for a сase that is capable of repetition yet evades review, “there must be more than a theoretical possibility that the action will arise again.” James A. Keller, Inc. v. Flaherty, 74 Ohio App.3d 788, 792 (10th Dist.1991), citing Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1184 (1982). Similarly, an exception that is of great public or general interest should only be used with caution and on rare occasions. In re L.W., 168 Ohio App.3d 613, 2006-Ohio-644, ¶ 13 (10th Dist.). Such an exception should bе made “by the highest court in the state, rather than an intermediate appellate court.” Id.
{¶ 15} In this case, the trial court did not abuse its discretion in finding that there is no сurrent controversy between Schreyer and the commissioners. Any possible controversy has already been resolved as the forum regarding Goose Creеk was in fact moved from Taffy‘s to the commissioners’ chambers. Consequently, any action by a court regarding this past action would be purely academic. Furthermore, there is no indication that any other such forums are planned. Thus, the claim is not ripe as any future forum or act by the commissioners moving such a forum may not occur. There is no more than a mere theoretical likelihood that such an action would happen again. Accordingly, no justiciable question exists. The trial court did not abuse its discretion in granting the commissioners’ motion to dismiss and dismissing Schreyer‘s complaint for declaratory judgment.
{¶ 17} Judgment affirmed.
HENDRICKSON, P.J., S. POWELL AND PIPER, JJ., concur.