Wurdlow v. TurvyWurdlow v. Turvy
Rendered on September 25, 2012
Lawrence Earl Wurdlow, pro se.
Taft Stettinius & Hollister LLP, and Jason H. Beehler, for appellees.
APPEAL from the Franklin County Municipal Court
CONNOR, J.
{¶ 1} Plaintiff-appellant, Lawrence Earl Wurdlow, appeals from a judgment of the Franklin County Municipal Court in favor of defendants-appellees, Dale Turvy and CVS Drug Stores.
{¶ 2} Although the record reveals little attempt to establish the corporate identity or business organization of appellee CVS Drug Stores, for purposes of this action this entity can be presumed to be the operator of the CVS drug store chain. Appellee Dale Turvy is the manager of the CVS location at 2160 North High Street, in Columbus, Ohio (the “campus CVS“). For purposes of this action, we may characterize appellant Lawrence Earl Wurdlow as a private citizen and frequent patron of the campus CVS.
{¶ 4} The matter proceeded to a bench trial, at the outset of which the trial court denied as untimely Mr. Wurdlow‘s attempt to file an amended complaint. Trial testimony established that Mr. Wurdlow‘s vehicle had never been towed pursuant to the allegedly unlawful signage. Mr. Wurdlow introduced photographic evidence of the alleged nonconforming signs and compared them with the statutorily required language set forth in
{¶ 5} The trial court concluded that
[I.] The Court erred as a matter of law in not ruling that no Private Two-Away Zone was properly established at 2160 North High Street for the CVS Drugstore.
[II.] The Court erred in not ruling that a violation of law, ORC 4513.60(B)(1) — (2), occurred when the signage requirements at 2160 North High Street were not met by the defendants/appellees.
[III.] The Court erred in not recognizing that the imposition of an implied illegal contract upon the appellant was an injury to the appellant, a denial of a property right created by Ohio statutory law, [ORC] 4513.60(B)(1) — (G), a clear and not speculative deprivation, as the Ohio Jur 3rd proclaims in section 18, “Thus, any person whose right, status, or other legal relations are affected by a law may have determined any question of construction or validity arising under such law where actual, or threatened, prosecution under such law creates a justiciable controversy?[“]
{¶ 7} This case allows us to address the three assignments of error jointly. Together, these raise two issues: (1) whether Ohio statutes governing private tow-away zones in Ohio create a private right of action under which a civil litigant may enforce compliance, even in the absence of any actual removal of the litigant‘s vehicle from the private tow-away zone, and (2) whether Mr. Wurdlow had standing to bring a declaratory judgment action under
{¶ 8} We first find that the statute governing creation of a private tow-away zone does not create a private right of action independent from other remedies generally available at law.
{¶ 9}
{¶ 10} In order to establish a private tow-away zone in Ohio, parking lot owners or operators must comply with
The owner of private property may establish a private tow-away zone only if all of the following conditions are satisfied:
(a) The owner posts on the owner‘s property a sign, that is at least eighteen inches by twenty-four inches in size, that is visible from all entrances to the property, and that contains at least all of the following information:
(i) A notice that the property is a private tow-away zone and that vehicles not authorized to park on the property will be towed away;
(ii) The telephone number of the person from whom a towed-away vehicle can be recovered, and the address of the place to which the vehicle will be taken and the place from which it may be recovered;
(iii) A statement that the vehicle may be recovered at any time during the day or night upon the submission of proof of ownership and the payment of a towing charge, in an amount not to exceed ninety dollars, and a storage charge, in an amount not to exceed twelve dollars per twenty-four-hour period; except that the charge for towing shall not exceed one hundred fifty dollars, and the storage charge shall not exceed twenty dollars per twenty-four-hour period, if the vehicle has a manufacturer’s gross vehicle weight rating in excess of ten
thousand pounds and is a truck, bus, or a combination of a commercial tractor and trailer or semitrailer. * * *
(2) If a vehicle is parked on private property that is established as a private tow-away zone in accordance with division (B)(1) of this section, without the consent of the owner of the property or in violation of any posted parking condition or regulation, the owner or the owner‘s agent may remove, or cause the removal of, the vehicle, the owner and the operator of the vehicle shall be deemed to have consented to the removal and storage of the vehicle and to the payment of the towing and storage charges specified in division (B)(1)(a)(iii) of this section, and the owner, subject to division (C) of this section, may recover a vehicle that has been so removed only in accordance with division (E) of this section.
{¶ 11} The question of whether Mr. Wurdlow has a private right of action to enforce compliance with these provisions is somewhat subsumed under his general claim for declaratory judgment, since one aspect of that claim is that he seeks a declaration of his right to bring an action under the parking statutes. We nonetheless examine it separately here out of deference to the structure of Mr. Wurdlow‘s arguments as presented in his brief on appeal and because of his reference to the criminal provisions in the parking statute. Nowhere in these provisions do we find any language that allows an action by a private citizen to compel a parking lot owner to correctly post the signs necessary to create a private tow-away zone.
{¶ 12} We now examine whether Mr. Wurdlow had standing to pursue a declaratory judgment action on any basis other than a specific right granted by the
{¶ 13} A court may deny declaratory relief when no justiciable issue or actual controversy exists between the parties, or if the declaratory judgment will not terminate the uncertainty or controversy. Wilburn v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 01AP-198 (Nov. 27, 2001). For purposes of a declaratory judgment action, a “justiciable issue” requires the existence of a legal interest or right, and a “controversy” exists where there is a genuine dispute between parties with adverse legal interests. Id.
{¶ 14} A declaratory judgment action cannot be used to elicit a merely advisory opinion. Smolak v. Columbus, 10th Dist. No. 07AP-373, 2007-Ohio-4671. As with other forms of action, a plaintiff must establish standing as a proper plaintiff to seek declaratory relief: “It is well established that before an Ohio court can consider the merits of a legal claim, the person seeking relief must establish standing to sue.” State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 469 (1999). ” ‘Standing’ is defined at its most basic as ‘[a] party‘s right to make a legal claim or seek judicial enforcement of a duty or right.’ ” Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, ¶ 27, quoting Black‘s Law Dictionary 1442 (8th Ed.2004). ” ‘[T]he question of standing depends upon whether the party has alleged such a “personal stake in the outcome of the controversy * * *” as to ensure that “the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” ’ ” Id., quoting State ex rel. Dallman v. Franklin Cty. Ct. of Common Pleas, 35 Ohio St.2d 176, 178-79 (1973), quoting Sierra Club v. Morton, 405 U.S. 727, 732 (1972), quoting Baker v. Carr, 369 U.S. 186, 204 (1962) and Flast v. Cohen, 392 U.S. 83 (1968).
{¶ 15} Injury that is borne by the population in general and does not affect plaintiff in particular is typically insufficient to confer standing upon the plaintiff to bring suit against a defendant. Tiemann v. Univ. of Cincinnati, 127 Ohio App.3d 312, 325 (10th Dist.1998), citing Allen v. Wright, 468 U.S. 737 (1984). The proposed plaintiff‘s injury cannot be merely speculative. A bare allegation that plaintiff fears that some injury will or may occur is insufficient to confer standing. Id., citing Los Angeles v. Lyons, 461 U.S. 95 (1983).
{¶ 16} We find under this standard that Mr. Wurdlow does not have standing to bring this action. Mr. Wurdlow has not been towed in this case. His complaint and testimony in this case establish that his past use of the campus CVS lot is not unauthorized, and that he has no present intention of parking in the campus CVS lot other than as a customer of the campus CVS. He nonetheless seeks a declaration under the law of what would happen were he to (1) park impermissibly in the campus CVS lot, while (2) improper signage was in place, and (3) find his vehicle towed. The injury is too remote, the application of
{¶ 17} Even if we were to find standing in the matter, however, we would find dismissal proper because Mr. Wurdlow has asked the court to examine his rights under an inapplicable statute. The predicate to Mr. Wurdlow‘s complaint in this matter is that the signage on the campus CVS parking lot does not comply with
{¶ 18} There is no direct penalty under the statute for failure to properly establish a private tow-away zone, just as there would be no penalty for failure to post any signage
{¶ 19} Based upon the foregoing, we overrule appellant‘s three assignments of error and affirm the judgment of the Franklin County Municipal Court.
Judgment affirmed.
KLATT and SADLER, JJ., concur.