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State ex rel. Delta Lookout, LLC v. City of Cincinnati

Court of Appeals of Ohio, First District, Hamilton

December 27, 2019

STATE OF OHIO, EX REL. DELTA LOOKOUT, LLC, and DELEV AND ASSOCIATES, LLC, Relators,
v.
CITY OF CINCINNATI, JOHN CRANLEY, MAYOR OF THE CITY OF CINCINNATI, HARRY BLACK, CITY MANAGER OF THE CITY OF CINCINNATI, and MICHAEL MOORE, DIRECTOR OF TRANSPORTATION AND ENGINEERING FOR THE CITY OF CINCINNATI, Respondents.

          Original Action in Mandamus

         Judgment of the Court: Writ of Mandamus is Denied

          Delev and Associates, LLC, and Gregory D. Delev, for Relators,

          Paula Boggs Muething, City Solicitor, and Shuva J. Paul, Senior Assistant City Solicitor, for Respondents.

          OPINION

          Zayas, Presiding Judge.

         {¶1} Relators Delta Lookout, LLC, and Delev and Associates, LLC, filed a petition for a writ of mandamus as an original action in this court seeking an order to compel respondent city of Cincinnati to repair and maintain two streets within the city boundary. For the following reasons, we decline to issue the writ.

         I. Background and Procedural History

         {¶2} Delta Lookout, LLC, and Delev and Associates, LLC, (collectively, "Delta Lookout") are businesses operating in a building located in the Mt. Lookout area of the city of Cincinnati. Delta Lookout filed this action against the city over the city's alleged failure to maintain two allegedly public streets called Willbarre Terrace and Close Court (collectively, the "disputed streets"). Delta Lookout argues that the city's failure to maintain the streets and install a proper storm water drainage system led to the erosion of a sidewall on Delta Lookout's property due to uncontrolled storm water runoff, which it argues has created a private nuisance.

         {¶3} Delta Lookout filed its petition and complaint for a writ of mandamus on March 16, 2017, which was amended on April 5, 2017. The city filed its answer on April 19, 2017. Delta Lookout moved for summary judgment on September 25, 2017. The city filed a response in opposition and a cross-motion for summary judgment on January 2, 2018. Delta Lookout filed a response in opposition to the cross-motion for summary judgment on January 17, 2018. The parties filed a stipulated record on April 1, 2019.

         {¶4} Delta Lookout is requesting a writ of mandamus to compel the city to keep the disputed streets in repair, free from nuisance, and in a reasonably safe condition for travel in accordance with R.C. 723.01 and 735.02. Delta Lookout is also requesting compensatory damages in the amount of $25, 000 for negligence and the creation of a nuisance on their property, the costs of the action, and attorney fees.

         II. Analysis

         Entitlement to Mandamus

         {¶5} The first question we must address is whether Delta Lookout's complaint for a writ of mandamus is the proper avenue through which to seek relief. The city argues that mandamus is inappropriate and that Delta Lookout should have instead sought a declaratory judgment and a prohibitory injunction. Delta Lookout contends that a declaration of rights and a prohibitory injunction would not provide a complete remedy, as it also seeks to compel the city to fulfill its statutory duties and remedy the damage caused by the city's past failure to maintain the streets.

         {¶6} In order to be entitled to a writ of mandamus, a relator must show that he "has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and the relator has no plain and adequate remedy at law." State ex rel. Fink v. Cincinnati,186 Ohio App.3d 484, 2010-Ohio-449, 928 N.E.2d 1152, ¶ 7 (1st Dist.). "A mandamus action is thus appropriate where there is a legal basis to compel a public entity to perform its duties under the law." State ex rel. Gen. Motors Corp. v. Indus. Comm., 117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, ¶ 9, citing State ex rel. Levin v. Schremp, 73 Ohio St.3d 733, 654 N.E.2d 1258 ...


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