THE STATE EX REL. VARNAU, APPELLANT AND CROSS-APPELLEE, v. WENNINGER, SHERIFF, APPELLEE AND CROSS-APPELLANT.
No. 2011-1414
Supreme Court of Ohio
Submitted January 18, 2012-Decided January 26, 2012.
131 Ohio St.3d 169, 2012-Ohio-224
Per Curiam.
{¶ 1} This is an appeal and cross-appeal from a judgment entered, upon remand, by the court of appeals denying a writ of quo warranto to oust appellee and cross-appellant, Dwayne Wenninger, from the office of sheriff of Brown County and to order that appellant and cross-appellee, Dennis J. Varnau, be entitled to the office. Because the court of appeals did not err in denying the writ or in denying an award of attorney fees to Wenninger, we affirm.
Facts
{¶ 2} Wenninger has been the Brown County sheriff since January 2001, having won elections in 2000, 2004, and 2008. The board of elections certified that he had met the applicable qualifications to be a sheriff‘s candidate for each of the elections.
{¶ 3} In 2004, a protest was lodged against Wenninger‘s candidacy for sheriff, but it was withdrawn.
{¶ 4} In 2008, Varnau, an independent candidate for sheriff, filed a protest against Wenninger‘s candidacy for sheriff. The board of elections denied the protest because, among other reasons, it was not “filed by a member of the appropriate party.”
{¶ 6} In February 2009, following the election victory by Wenninger, Varnau filed a complaint in the court of appeals for a writ of quo warranto to oust Wenninger from the office of sheriff and to place Varnau in that office. Varnau claimed that because he was the only lawful sheriff‘s candidate at the November 2008 election, he is entitled to the office. Wenninger moved to dismiss the complaint and attached his affidavit to the motion. The court of appeals converted the motion for dismissal to a motion for summary judgment, Varnau moved for summary judgment, and the parties submitted evidence.
{¶ 7} On August 16, 2010, the court of appeals granted Wenninger‘s motion for summary judgment and denied the writ. State ex rel. Varnau v. Wenninger, Brown App. No. CA2009-02-010, 2010-Ohio-3813, 2010 WL 3212016.
{¶ 8} On appeal, we held that the court of appeals erred in holding that the previous administrative determinations of the board of elections precluded the quo warranto action, and we remanded the cause to the court of appeals for further proceedings. State ex rel. Varnau v. Wenninger, 128 Ohio St.3d 361, 2011-Ohio-759, 944 N.E.2d 663.
{¶ 9} On remand, the court of appeals denied Varnau‘s motion for summary judgment, granted Wenninger‘s motion for summary judgment, and denied the writ of quo warranto. The court of appeals taxed the costs of the proceedings to Varnau, but it did not award Wenninger attorney fees as part of the costs.
{¶ 10} This cause is now before the court upon Varnau‘s appeal and Wenninger‘s cross-appeal.
Legal Analysis
Varnau‘s Appeal: Quo Warranto
{¶ 11} In his appeal as of right, Varnau asserts that the court of appeals erred in denying the writ of quo warranto.
{¶ 13} Varnau asserts that Wenninger is not entitled to the office of sheriff, because when he was elected in 2000 and took office for his first four-year term in January 2001, Wenninger did not meet the supervisory-experience requirement or the postsecondary-education requirement of
{¶ 14} We disagree. As the court of appeals correctly concluded, “any challenge to Wenninger‘s qualifications to run for or hold the office of sheriff for the 2000 and 2004 election terms has been rendered moot as those office terms have already expired,” and “Varnau cannot seek to invalidate Wenninger‘s present term of office based on an alleged prior disqualification from an expired term of office.” State ex rel. Varnau v. Wenninger, Brown App. No. CA 2009-02-010, 2011-Ohio-3904, 2011 WL 3433024, at ¶ 38, 44. Wenninger raised defenses of mootness and laches in his motion for summary judgment.
{¶ 15} A quo warranto claim must be timely directed to challenge a current term of office rather than an expired one. See Zeigler, 129 Ohio St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 14; State ex rel. Devine v. Baxter (1959), 168 Ohio St. 559, 7 O.O.2d 431, 156 N.E.2d 746 (appeal from judgment denying writ of quo warranto to remove members of board of trustees of a cemetery association dismissed as moot when one-year terms to which members were elected had expired, and those members who continued to hold office as trustees did so by authority of their reelection to new terms of office); State ex rel. Paluf v. Feneli (1995), 100 Ohio App.3d 461, 654 N.E.2d 360 (appointee‘s quo warranto claim to the office of city law director was rendered moot by the expiration of the law director‘s term of office).
{¶ 16} Similarly, in State ex rel. Newell v. Jackson, 118 Ohio St.3d 138, 2008-Ohio-1965, 886 N.E.2d 846, ¶ 11, we held that “[t]o be entitled to a writ of quo warranto to oust a good-faith appointee, a relator must take affirmative action by either filing a quo warranto action or an injunction challenging the appointment before the appointee completes the probationary period and becomes a permanent employee.” Varnau could have raised his claims by filing an action for quo
{¶ 17} This result comports with our consistent requirement in election-related cases that relators “act with the utmost diligence.” Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, ¶ 19. “If relators in election cases do not exercise the utmost diligence, laches may bar an action for extraordinary relief.” State ex rel. Craig v. Scioto Cty. Bd. of Elections, 117 Ohio St.3d 158, 2008-Ohio-706, 882 N.E.2d 435, ¶ 11. We have previously held that extraordinary-writ actions challenging a sheriff candidate‘s
{¶ 18} Although Varnau‘s status as a nonpartisan may have precluded him from instituting a timely protest against Wenninger‘s candidacy in the November 2000 sheriff‘s race, it did not preclude him from instituting a timely quo warranto action after Wenninger took office in January 2001 to oust him from office. Varnau did not do so, and he cannot belatedly raise his claim after the first term has expired and Wenninger has subsequently been elected to second and third four-year terms as sheriff.
{¶ 19} As the court of appeals observed, “[t]he focus must remain on Wenninger‘s eligibility to run for and hold the office of sheriff for the present term, not for the previous terms that have already expired.” (Emphasis sic.) Varnau, 2011-Ohio-3904, 2011 WL 3433024, at ¶ 44. For purposes of a quo warranto claim, “‘[h]is office’ means his present office under his present commission, and not an old expired term in the same office under a former election or appointment. He could not be ousted from such former term of office, because the term has expired, and he is not now in office under that term, and is not now an officer under that term.” State ex rel. Wilmot v. Buckley (1899), 60 Ohio St. 273, 299-300, 54 N.E. 272, construing the predecessor to
{¶ 20} The cases that Varnau cites are inapposite. For example, in State ex rel. Huron Cty. Prosecutor v. Westerhold (1995), 72 Ohio St.3d 392, 650 N.E.2d 463, the quo warranto action was instituted by the prosecuting attorney to challenge the appointment of a person to a veterans service commission only a month and a half after the appointment. And in Zeigler, 129 Ohio St.3d 240,
{¶ 21} Therefore, Varnau has not established that Sheriff Wenninger lacks the qualifications under
Cross-Appeal: Attorney Fees
{¶ 22} In his cross-appeal, Wenninger asserts that the court of appeals erred in not awarding him attorney fees when he prevailed on Varnau‘s quo warranto claim. During the proceedings in the court of appeals, Wenninger requested that Varnau pay his attorney fees as part of the costs of the case.
{¶ 23} “Ohio has long adhered to the ‘American rule’ with respect to recovery of attorney fees: a prevailing party in a civil action may not recover attorney fees as a part of the costs of litigation.” Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 7. “An exception to this general rule is that attorney fees may be awarded to a prevailing party when a statute specifically authorizes it.” State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 2009-Ohio-4149, 914 N.E.2d 159, ¶ 18.
{¶ 24} Wenninger claims that
{¶ 25} “If the prosecuting attorney fails, upon the written request of a taxpayer of the county, to make the application or institute the civil action contemplated in section 309.12 of the Revised Code, the taxpayer may make such application or institute such civil action in the name of the state, or, in any case wherein the prosecuting attorney is authorized to make such application, such taxpayer may bring any suit or institute any such proceedings against any county officer or person who holds or has held a county office, for misconduct in office or neglect of his duty, to recover money illegally drawn or illegally withheld from the county treasury, and to recover damages resulting from the execution of such illegal contract.
{¶ 27} “If the court hearing such case is satisfied that such taxpayer is entitled to the relief prayed for in his petition, and judgment is ordered in his favor, he shall be allowed his costs, including a reasonable compensation to his attorney.”
{¶ 28} Wenninger is not entitled to an award of attorney fees under
{¶ 29} Therefore, the court of appeals did not err in not awarding him attorney fees.
Conclusion
{¶ 30} Based on the foregoing, the court of appeals did not err in denying the writ of quo warranto and in not including Wenninger‘s attorney fees as part of the costs of the case that Varnau was ordered to pay. Therefore, we affirm the judgment of the court of appeals. We also deny Varnau‘s motion for oral argument because he specifies no reasons for it, and the parties’ briefs are sufficient to resolve this appeal. See State ex rel. Lorain v. Stewart, 119 Ohio St.3d 222, 2008-Ohio-4062, 893 N.E.2d 184, ¶ 18-19.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Thomas G. Eagle Co., L.P.A., and Thomas G. Eagle, for appellant and cross-appellee.
Gary A. Rosenhoffer, L.L.C., and Gary A. Rosenhoffer; and Patrick L. Gregory, for appellee and cross-appellant.