Court of Appeals of Ohio, First District, Hamilton
STATE OF OHIO, EX REL. DELTA LOOKOUT, LLC, and DELEV AND ASSOCIATES, LLC, Relators,
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
of the Court: Writ of Mandamus is Denied
and Associates, LLC, and Gregory D. Delev, for Relators,
Boggs Muething, City Solicitor, and Shuva J. Paul, Senior
Assistant City Solicitor, for Respondents.
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
Background and Procedural History
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.
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.
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.
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.
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 ...