author: DIANE V. GRENDELL, J.

text:
    Antoinette TREDANARY, Petitioner-Appellant, v. Daniel FRITZ, Respondent-Appellee.
    NO. 2017-L-173
    Court of Appeals of Ohio, Eleventh District, Lake County.
    Decided June 19, 2018
    David M. Lynch, 333 Babbitt Road, Suite 333, Euclid, OH 44123 (For Petitioner-Appellant).
    Elaine Tassi, 34955 Chardon Road, Willoughby Hills, OH 44094 (For Respondent-Appellee).
   DIANE V. GRENDELL, J.

{¶ 1} Petitioner-appellant, Antoinette Tredanary, appeals an award of attorney fees from the Lake County Court of Common Pleas, Domestic Relations Division. The issue before this court is whether a court may avoid holding a hearing on a motion for sanctions pursuant to R.C. 2323.51 and Civil Rule 11 where the court determines such a hearing would be burdensome for the parties. For the following reasons, we reverse the decision of the court below and remand for further proceedings.

{¶ 2} On July 19, 2017, Tredanary filed a Petition for Domestic Violence Civil Protection Order ( R.C. 3113.31 ) alleging that the respondent-appellee, Daniel Fritz, had committed acts of domestic violence against their son. A Civil Protection Order was issued ex parte allocating to Tredanary "temporary possession of the protected child."

{¶ 3} On August 17, 2017, following the full hearing on the Petition mandated by Civil Rule 65.1, a Magistrate's Order issued, dismissing the Petition and terminating the ex parte Order as Tredanary failed to meet her burden of proof.

{¶ 4} On August 29, 2017, Tredanary filed Objections to the Magistrate's Decision with a Request for Leave to Supplement these Objections once the Transcript of the Hearing is Prepared. The domestic relations court granted Tredanary until September 29, 2017, to file the transcript and supplemental objections.

{¶ 5} On September 15, 2017, Fritz filed a Motion for Attorney Fees and Expenses pursuant to R.C. 2323.51 and a Motion for Sanctions pursuant to Civil Rule 11.

{¶ 6} On September 25, 2017, a Magistrate's Order issued, ruling that "the respondent's motions shall be set for hearing, once the petitioner's objections have been decided."

{¶ 7} On October 23, 2017, the domestic relations court adopted the August 17 Magistrate's Order and overruled Tredanary's Objections. The court noted that Tredanary failed to file a transcript of supplementary objections and, inasmuch as "the Petitioner's objection is fact based, said objection cannot be considered without a transcript." With respect to Fritz' Motions for Attorney Fees and Sanctions, the court ruled: "Counsel for the Respondent is ordered to file by November 9, 2017, her affidavit of fees and companion billing invoice detailing the legal services provided in the instant case for the Court's consideration."

{¶ 8} On November 3, 2017, counsel for Fritz submitted an Affidavit of Reasonable Attorney Fees and Costs in the amount of $3,690.

{¶ 9} On November 27, 2017, the domestic relations court awarded Fritz attorney fees in the amount of $3,690. The court held:

The Court finds a hearing on the Respondent's August 29, 2017 Motion for Attorney Fees and Costs will only increase the attorney fees incurred by both parties. Such a hearing would be burdensome for both parties and inequitable as to the Respondent. The Petitioner has had over 21 days to file a response to the Respondent's fee affidavit and chose not to do so. The Court finds the fee affidavit of Respondent's counsel as to the fees incurred herein reasonable and equitable.

{¶ 10} On December 27, 2017, Tredanary filed a Notice of Appeal. On appeal, she raises the following assignment of error:

{¶ 11} "[1.] The trial court committed error in awarding attorney fees without a hearing after specifically ordering that a hearing would be held on that issue, the motion for fees not timely filed to begin with."

{¶ 12} It has generally been held that a trial court is required to hold a hearing when sanctions are imposed under R.C. 2323.51 or Civil Rule 11. State ex rel. Ebbing v. Ricketts , 133 Ohio St.3d 339, 2012-Ohio-4699, 978 N.E.2d 188, ¶ 24 ("[i]t is an abuse of discretion to award attorney fees [under Civ.R. 11 and R.C. 2323.51 ] without [an evidentiary] hearing") (citation omitted).

{¶ 13} The requirement is express in the statute authorizing an award of attorney fees for frivolous conduct:

An award may be made * * * only after the court does all of the following:
(a) Sets a date for a hearing to be conducted in accordance with division (B)(2)(c) of this section * * *;
(b) Gives notice of the date of the hearing described in division (B)(2)(a) of this section * * *;
(c) Conducts the hearing described in division (B)(2)(a) of this section in accordance with this division, allows the parties and counsel of record involved to present any relevant evidence at the hearing, * * * determines that the conduct involved was frivolous and that a party was adversely affected by it, and then determines the amount of the award to be made.

R.C. 2323.51(B)(2) ; Dennison v. Lake Cty. Commrs. , 11th Dist. Lake No. 2013-L-097, 2014-Ohio-4295, 2014 WL 4825264, ¶ 15 ("a hearing is required by R.C. 2323.51(B)(2) before a court can grant an award of attorney fees").

{¶ 14} Although an evidentiary hearing is not expressly required by the Civil Rule, when sanctions have been imposed for violations of the Rule the "courts have held that an evidentiary hearing is required." Ebbing at ¶ 24, citing Burnett v. Burnett , 11th Dist. Ashtabula No. 2010-A-0035, 2011-Ohio-2839, 2011 WL 2415389, ¶ 26 ("the trial court erred in finding appellant's conduct to be frivolous and awarding attorney fees * * * without first engaging in a hearing").

{¶ 15} In the present case, there is no indication that Tredanary waived the required hearing or otherwise agreed to have the matter determined based on affidavits. Although Tredanary did not respond to Fritz' Affidavit of Reasonable Attorney Fees and Costs, the expectation that the matter would be set for an evidentiary hearing was reasonable in light of the statutory mandate, case law interpreting the Rule, and the magistrate's statement that the matter would be set for hearing "once the petitioner's objections have been decided." Furthermore, we are aware of no case law holding that the hearing on sanctions may be dispensed with to avoid burdening the parties.

{¶ 16} We must also address Tredanary's argument that Fritz' Motion violated Lake County Court of Common Pleas, Domestic Relations Division, Local Rule 17 which provides that "[p]arties must file a motion for attorney fees or expenses no later than seven days before the hearing on the issue that gives rise to the request for the fees," and that the failure to do so "shall result in the Court's denial of the motion for attorney fees or expenses." Local Rules 17.01(A) and 17.02. Tredanary notes that Fritz' September 15, 2017 Motion was filed 49 days after the July 28, 2017 hearing on the Petition.

{¶ 17} Tredanary's argument is meritless. As Fritz notes, this court has often recognized that "the enforcement of local rules is a matter within the discretion of the court promulgating the rules, and a violation of a local rule is generally insufficient support for a reversal." Iacampo v. Oliver-Iacampo , 11th Dist. Geauga No. 2011-G-3026, 2012-Ohio-1790, 2012 WL 1391852, ¶ 39.

{¶ 18} We further note that R.C. 2323.51(B)(1) allows a movant until "thirty days after the entry of final judgment in a civil action or appeal" to file a motion for sanctions. Statutory enactments may not be abrogated by local rules of court. Krupansky v. Pascual , 27 Ohio App.3d 90, 92, 499 N.E.2d 899 (9th Dist.1985) ("while the courts of common pleas have the inherent power to make reasonable rules regulating practice and procedure in those courts, these rules must not be in conflict with the statutes"), citing Cassidy v. Glossip , 12 Ohio St.2d 17, 231 N.E.2d 64 (1967), paragraph three of the syllabus ("[a] Common Pleas Court has inherent power to make reasonable rules regulating the practice and procedure in such court where such rules do not conflict with the Constitution or with any valid statute"). To the extent that Local Rule 17 conflicts with R.C. 2323.51(B)(1), the Rule is unenforceable.

{¶ 19} The sole assignment of error is with merit.

{¶ 20} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas, Domestic Relations Division, awarding Fritz attorney fees is reversed and this case is remanded for further proceedings consistent with this opinion. Fritz' request, raised in his appellee's brief, that we determine this to be a frivolous appeal is denied. Costs to be taxed against the appellee.

THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

      Tredanary and Fritz are former spouses. Following the parties' divorce, Fritz has full custody of the minor child while Tredanary has supervised parenting time.

      As this court has acknowledged on multiple occasions, the standard of review employed by an appellate court when reviewing the imposition of sanctions for frivolous conduct "varies and is contingent upon the basis for the trial court's decision." Keith-Harper v. Lake Hosp. Sys., Inc. , 2017-Ohio-7361, 96 N.E.3d 823, ¶ 23 (11th Dist.). Inasmuch as neither the statute nor the case law interpreting the Rule hold that the decision to hold a hearing when granting a motion for sanctions is discretionary, we shall apply the de novo standard of review appropriate "when reviewing legal conclusions" to the issue. (Citation omitted.) Burnett v. Burnett , 11th Dist. Ashtabula No. 2010-A-0035, 2011-Ohio-2839, 2011 WL 2415389, ¶ 10.


source: Caselaw Access Project

author: CYNTHIA WESTCOTT RICE, J.

license: Public Domain

text:
    Susan LLOYD, Plaintiff-Appellant, v. Joshua THORNSBERY, et al., Defendants-Appellees.
    NO. 2017-P-0101
    Court of Appeals of Ohio, Eleventh District, Portage County.
    Decided June 29, 2018
    Bradley Hull, IV, Bradley Hull, IV Esq., L.L.C., 3681 South Green Road, Suite 208, Beachwood, OH 44122 (For Plaintiff-Appellant).
    Mark J. Hanna, P.O. Box 301, Kent, OH 44240 (For Defendants-Appellees).
    MEMORANDUM OPINION
   CYNTHIA WESTCOTT RICE, J.

{¶ 1} On December 28, 2017, appellant, Susan Lloyd, through counsel, filed a notice of appeal from an entry of the Portage County Court of Common Pleas.

{¶ 2} Appellant filed her original complaint in 2016, against Joshua Thornsberry and C and N Forestry. Mr. Thornsberry filed a counterclaim. Appellant amended her complaint and added several other defendants. Mr. Thornsberry filed a motion for a definite statement and/or motion for separate claims. On March 31, 2017, the magistrate issued an order granting the motion for definite statement and/or motion for separate claims, and ordered appellant to file a second amended complaint. Appellant appealed that decision. We dismissed that matter for lack of jurisdiction.

{¶ 3} Subsequently, appellant filed her second amended complaint. Appellees moved for a more definite statement and/or for separate claims. On December 14, 2017, the trial court granted the motion for a more definite statement and ordered appellant to file an amended complaint. It is from that entry that this appeal ensued.

{¶ 4} On March 13, 2018, this court issued an entry indicating that we may not have jurisdiction to consider this appeal and ordered appellant to show cause why it should not be dismissed. In response, appellant argued that the December 14, 2017 entry is final because the trial court required appellant to divulge privileged information, which makes it a provisional remedy.

{¶ 5} Initially, we must determine whether there is a final appealable order since this court may entertain only those appeals from final judgments or orders. Noble v. Colwell , 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989). Under Section 3(B)(2), Article IV of the Ohio Constitution, a judgment of a trial court can be immediately reviewed by an appellate court only if it constitutes a "final order" in the action. Germ v. Fuerst , 11th Dist. Lake No. 2003-L-116, 2003-Ohio-6241, 2003 WL 22764564, ¶ 3. If a lower court's order is not final, then an appellate court does not have jurisdiction to review the matter, and the matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. , 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).

{¶ 6} R.C. 2505.02(B) defines a "final order" and sets forth seven categories of appealable judgment, and if the judgment of the trial court satisfies any of them, it will be deemed a "final order" and can be immediately appealed and reviewed by a court of appeals.

{¶ 7} R.C. 2505.02(B) states, in part:

{¶ 8} "An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:

{¶ 9} "(4) An order that grants or denies a provisional remedy and to which both of the following apply:

{¶ 10} "(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.

{¶ 11} "(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action. * * *"

{¶ 12} A "provisional remedy" is defined as a proceeding ancillary to an action, including "discovery of privileged matter." R.C. 2505.02(A)(3). An order that requires the release of privileged or confidential information in discovery determines the action with respect to a provisional remedy and prevents the appealing party from obtaining an effective remedy following final judgment because the privileged information has already been released. Randall v. Cantwell Mach. Co. , 10th Dist. Franklin No. 12AP-786, 2013-Ohio-2744, 2013 WL 3341201, ¶ 7. The proverbial bell cannot be unrung after privileged information has been released; thus, orders requiring the production of privileged material are final and appealable. Id. Likewise, the denial of a protective order is final and appealable when it relates to the discovery of privileged matters. Id. Therefore, we must consider whether the trial court's order is a final, appealable order.

{¶ 13} Here, the record does not reflect that appellant filed a motion for a protective order to protect any "privileged information." Had such a motion been filed and denied by the trial court, that entry would have been appealable. However, the December 14, 2017 entry does not grant or deny a provisional remedy. It simply grants appellees' motion for a more definite statement and orders appellant to file an amended complaint. Since the entry does not comply with R.C. 2505.02, there is no final appealable order.

{¶ 14} Based upon the foregoing analysis, the judgment of the trial court is not a final appealable order, and this appeal is dismissed, sua sponte, for lack of jurisdiction.

{¶ 15} Appeal dismissed.

THOMAS R. WRIGHT, P.J., TIMOTHY P. CANNON, J., concur.


author: Hoover, P.J.

text:
    IN RE: Application of COLUMBUS BITUMINOUS CONCRETE CORPORATION and Shelly Materials, Inc. for a conditional use for Sand and Gravel Mining on approximately 178.9 acres in Harrison Township, Pickaway County, Ohio.
    Columbus Bituminous Concrete Corp., et al., Appellants-Appellants/Cross-Appellees, v. Harrison Township Board of Zoning Appeals, et al., Appellees-Appellees/Cross-Appellants.
    No. 17CA15
    Court of Appeals of Ohio, Fourth District, Pickaway County.
    RELEASED June 5, 2018
    Catherine A. Cunningham, Kegler, Brown, Hill & Ritter LPA, Columbus, Ohio, and Paul D. Rice, Granville, Ohio, for appellants-appellants/cross-appellees, Columbus Bituminous Concrete Corporation and Shelly Materials, Inc.
    Judy C. Wolford, Pickaway County Prosecuting Attorney, and Jayme Hartley Fountain, Pickaway County Assistant Prosecuting Attorney, Circleville, Ohio, for appellees-appellees Harrison Township Board of Zoning Appeals, Pickaway County, Ohio, Harrison Township Zoning Inspector Dale Hoover, and Harrison Township.
    Jennifer A. Flint, Christopher N. Slagle, and Matthew R. Koppitch, Bricker & Eckler LLP, Columbus, Ohio, for appellee-appellee/cross-appellant, Berger Health System.
    DECISION AND JUDGMENT ENTRY
   Hoover, P.J.

{¶ 1} After the Harrison Township Board of Zoning Appeals ("board") denied the application of Columbus Bituminous Concrete Corporation and Shelly Materials, Inc. (collectively referred to as "CBCC") for a conditional-use zoning certificate to operate a sand and gravel quarry in Harrison Township, CBCC appealed the decision to the Pickaway County Court of Common Pleas under R.C. Chapter 2506.

{¶ 2} The common pleas court denied CBCC's appeal and affirmed the board's decision denying its application for a conditional-use zoning certificate because: (1) the board properly considered Section 9.03 of the Harrison Township Zoning Resolution, as allowed by R.C. 519.141, in denying CBCC's application; and (2) substantial, reliable, and probative evidence was introduced at the board's proceedings to support the board's findings that some sections of Section 9.03 of the zoning resolution were not met. The court also granted CBCC's motion to strike a binder containing evidence and argument submitted by Berger Health System ("Berger Health") in the board proceedings because it was not considered by the board in its decision.

{¶ 3} On appeal, CBCC asserts that the common pleas court erred by failing to limit its review of its request for a conditional-use zoning certificate for sand and gravel mining to criteria that are "only in the interest of public health or safety" and "matters that are [not] regulated by any federal, state, or local agency" as required by R.C. 519.02 and 519.141(A). We conclude that the court, the board, and Berger Health properly relied on a reading of R.C. 519.141(A) that comports with its plain language: that the board "may require as a condition of the approval of a conditional zoning certificate for such an activity compliance with any general standards contained in the zoning resolution that apply to all conditional uses that are provided for in the zoning resolution * * *." That is, the board of zoning appeals is authorized to treat compliance with general standards in a zoning resolution as a condition precedent to the approval of a conditional zoning certificate. Therefore, Sections 9.03(B), (E), and (F) of the township zoning resolution could be considered by the board to deny CBCC's application for a conditional zoning certificate for sand and gravel mining on its property.

{¶ 4} CBCC next claims that the common pleas court's decision is not supported by a preponderance of substantial, reliable, and probative admissible evidence as a matter of law. We reject this claim because our review of the record establishes that the common pleas court's decision was supported by a preponderance of reliable, probative, and substantial evidence. We overrule CBCC's first and second assignments of error and affirm the judgment affirming the board's decision denying CBCC's application for a conditional-use zoning certificate.

{¶ 5} On cross-appeal, Berger Health contends that if the court reverses the common pleas court's judgment, we should consider its claim that the common pleas court erred by granting CBCC's motion to strike its binder of evidence and argument from the administrative record. Because our affirmance of the court's judgment on the merits renders the cross-appeal moot, we need not address it.

I. Facts and Procedural Posture

{¶ 6} Columbus Bituminous Concrete Corporation owns 178.9 acres of land in Harrison Township, Pickaway County, Ohio that Shelly Materials, Inc. wants to mine for sand and gravel. The property is zoned General Business District and Flood Plain Overlay District, and the township zoning resolution permits quarrying and mining as conditional uses in the General Business District.

{¶ 7} CBCC applied for a conditional zoning certificate to use the property for sand and gravel surface mining at a quarry on Weigand Road in Harrison Township. The property is bordered on the north by property owned by the city of Columbus that is vacant and zoned Agricultural District, on the east by property owned by Davon, Inc., that is zoned Agricultural District and Flood Plain District and contains a concrete batch plant, on the south by property owned by Berger Health that is zoned and used as an Agricultural District, and on the west by U.S. 23 and beyond the highway by property that is zoned Agricultural District. The Pickaway County Engineer approved CBCC's proposed ingress and egress to the mining site and concluded that the road improvements should be sufficient to accommodate the additional truck traffic related to the quarry and also vastly improve the safety of the nearby intersection of Weigand Road and U.S. 23. The Pickaway County Commissioners adopted the engineer's approval of the proposed ingress/egress improvements to the quarry site.

{¶ 8} The board conducted a hearing on CBCC's application. CBCC presented the testimony of several individuals, who testified that: (1) the mining operation will include mounds that will act as sound, sight, and safety barriers from adjoining property; (2) spill-protection plans for the project will be monitored by the Ohio EPA; (3) roughly 180 truck trips a day are estimated for the project; (4) the project will adhere to all federal, state, and local regulations; (5) the dust from the operation will be regulated by the Ohio EPA and mitigated by using water; (6) the project will not have any effect on the level or quality of nearby residential wells; (7) the project will not cause a rise in the 100-year floodplain; (8) the project, with its included mounds, would not increase the noise level of the surrounding area; and (9) the project complies with all applicable standards of the township zoning resolution.

{¶ 9} A Berger Health representative testified that the plan conflicted with the North Gate Alliance Strategic Land Use Plan and was at odds with its own plans for the future development of land they owned to the south of the CBCC property. An engineer testified that he believed that another hydraulic and hydrologic study was required to test the impact of the proposed mining upstream. And an economic development director testified that the proposed mining would violate the North Gate plan by disrupting planned north-south access roads that would run parallel to U.S. 23 and exit onto Weigand Road and not limiting gravel quarrying to the west side of U.S. 23. At the conclusion of the hearing, the board denied CBCC's application without stating any findings. In a written decision mailed almost two weeks later, the board of zoning appeals stated that "[a]fter considering all of the evidence submitted to the [board], the [board] determined that applicant was unable to affirmatively prove all the requirements of Section 9.03 of the Harrison Township Zoning [Resolution]."

{¶ 10} CBCC timely appealed the denial of its application for a conditional zoning certificate to the Pickaway County Court of Common Pleas pursuant to R.C. Chapter 2506. It named the board of zoning appeals, the township zoning inspector, Harrison Township, Berger Health, and two individuals as appellees. After the parties submitted briefs and CBCC moved to strike a binder submitted by Berger Health at the final board hearing, the court issued a decision granting the motion to strike and affirming the decision of the board.

{¶ 11} The trial court concluded that under R.C. 519.141(A), the board of zoning appeals was permitted to require compliance with all of its general standards that apply to all conditional uses as well as any specified measure listed in the statute. It further concluded that the administrative record contained substantial, reliable, and probative evidence that divisions (B), (E), and (F) of Section 9.03 of the Harrison Township Zoning Resolution were not met because: (1) the proposed use was not harmonious and appropriate to the existing or intended character of the general vicinity and would change its essential character by increasing vehicle traffic and not providing a sight and sound barrier to the south of the property; (2) the proposed use was potentially detrimental to the general welfare because of potential complications from water overflow and increased particulate matter and fugitive dust; and (3) the proposed use would not be consistent with the North Gate plan because of traffic on U.S. 23, disruption of new access roads parallel to U.S. 23, and the plan contemplates future gravel quarry activity only on the west side of U.S. 23.

{¶ 12} CBCC appeals the common pleas court's affirmance of the board's denial of its application for a conditional zoning certificate, and Berger Health cross-appeals the court's grant of CBCC's motion to strike.

II. Assignments of Error

{¶ 13} In its appeal, CBCC assigns the following errors for our review:

1. The trial court erred in failing to limit its review of a request for a conditional use for sand and gravel mining permitted and regulated by R.C. Chapter 1514 to criteria that are "only in the interest of public health or safety" and "matters that are [not] regulated by any federal, state, or local agency" as required by R.C. 519.02 and R.C. 519.141(A).
2. The trial court's decision is not supported by the necessary preponderance of substantial, reliable and probative admissible and relevant evidence as a matter of law.

{¶ 14} In its cross-appeal, Berger Health assigns the following error:

The common pleas court erred in granting the Motion to Strike the "Berger Binder" from the administrative record. (Aug. 31, 2017 Decision and Entry.)

III. Standard of Review

{¶ 15} "In an R.C. 2506.01 administrative appeal, the common pleas court considers the whole record and determines whether the administrative order is 'unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence." Independence v. Office of the Cuyahoga Cty. Executive , 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, ¶ 13, quoting R.C. 2506.04. "The court weighs the evidence to determine whether a preponderance of reliable, probative, and substantial evidence supports the administrative decision, and if it does, the court may not substitute its judgment for that of the board." Id. citing Dudukovich v. Lorain Metro. Hous. Auth. , 58 Ohio St.2d 202, 207, 389 N.E.2d 1113 (1979). "If it does not, the court may reverse, vacate, or modify the administrative decision." Id. ; R.C. 2506.04.

{¶ 16} "Under R.C. Chapter 2506, the standard of review for a court of appeals is even more limited." Ellison v. Hillsboro , 2016-Ohio-1556, 63 N.E.3d 555, ¶ 20 (4th Dist.), citing Henley v. Youngstown Bd. of Zoning Appeals , 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000). "The court of appeals reviews the common pleas court's judgment only on questions of law and does not have the same extensive authority to weigh the evidence."

Independence at ¶ 14, citing Henley at 147, 735 N.E.2d 433. "Within the ambit of questions of law for appellate-court review is whether the common pleas court abused its discretion [and] [t]he court of appeals must affirm unless it finds, as a matter of law, that the trial court's decision is not supported by a preponderance of reliable, probative, and substantial evidence." Id.

{¶ 17} "In sum, the standard of review for courts of appeals in administrative appeals is designed to strongly favor affirmance. It permits reversal only when the common pleas court errs in its application or interpretation of the law or its decision is unsupported by a preponderance of the evidence as a matter of law." Cleveland Clinic Found. v. Bd. of Zoning Appeals of Cleveland , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 30 ; Ellison at ¶ 21. Therefore, with this restricted standard of review guiding our analysis-and with other principles of review as set forth under the applicable assignments of error-we address the merits of the assigned errors.

IV. Law and Analysis

A. CBCC's Appeal: General Principles and Standard of Review for Statutory Interpretation

{¶ 18} In CBCC's first assignment of error, it asserts that the common pleas court erred in failing to limit its review of its request for a conditional-use zoning certificate for sand and gravel mining permitted and regulated by R.C. Chapter 1514 to criteria that are "only in the interest of public health or safety" and "matters that are [not] regulated by any federal, state, or local agency" as required by R.C. 519.02 and 519.141(A).

{¶ 19} "Ohio townships have no inherent or constitutionally granted police or zoning power." Terry v. Sperry , 130 Ohio St.3d 125, 2011-Ohio-3364, 956 N.E.2d 276 ¶ 18. Consequently, the zoning authority possessed by Ohio townships is limited to that which is specifically conferred by the General Assembly. Id. citing Bd. of Bainbridge Twp. Trustees v. Funtime, Inc. , 55 Ohio St.3d 106, 108, 563 N.E.2d 717 (1990).

{¶ 20} For any activities permitted and regulated under R.C. Chapter 1513 or 1514, including sand and gravel mining, "the board of township trustees may regulate under the authority conferred by this section only in the interest of public health or safety ." (Emphasis added.) R.C. 519.02(A). R.C. 519.14(C) authorizes a township board of zoning appeals to grant conditional zoning certificates for the use of land if provided for in the zoning resolution and requires the board to proceed in accordance with R.C. 519.141(A) when considering conditional zoning certificates for activities permitted and regulated under R.C. Chapter 1514:

The township board of zoning appeals may:
* * *
(C) Grant conditional zoning certificates for the use of land, buildings, or other structures if such certificates for specific uses are provided for in the zoning resolution. If the board considers conditional zoning certificates for activities that are permitted and regulated under Chapter 1514. of the Revised Code or activities that are related to making finished aggregate products, the board shall proceed in accordance with section 519.141 of the Revised Code.

{¶ 21} R.C. 519.141(A) precludes a township board of zoning appeals from considering or basing its determination on conditional zoning certificates on matters that are regulated by any federal, state, or local agency, but permits the board to require "as a condition of the approval of a conditional zoning certificate for such an activity compliance with any general standards contained in the zoning resolution that apply to all conditional uses that are provided for in the zoning resolution" (emphasis added):

(A) If a township board of zoning appeals considers conditional zoning certificates for activities that are permitted and regulated under Chapter 1514. of the Revised Code or activities that are related to making finished aggregate products, the board shall not consider or base its determination on matters that are regulated by any federal, state, or local agency. However, the board may require as a condition of the approval of a conditional zoning certificate for such an activity compliance with any general standards contained in the zoning resolution that apply to all conditional uses that are provided for in the zoning resolution and, except as provided in division (C) of this section, may require any specified measure, including, but not limited to, one or more of the following:
(1) Inspections of nearby structures and water wells to determine structural integrity and water levels;
(2) Compliance with applicable federal, state, and local laws and regulations;
(3) Identification of specific roads in accordance with division (B) of section 303.141 of the Revised Code to be used as the primary means of ingress to and egress from the proposed activity;
(4) Compliance with reasonable noise abatement measures;
(5) Compliance with reasonable dust abatement measures;
(6) Establishment of setbacks, berms, and buffers for the proposed activity;
(7) Establishment of a complaint procedure;
(8) Any other measure reasonably related to public health and safety.
* * *
(C) When granting a conditional zoning certificate, a township board of zoning appeals shall not require the identification of specific roads, as otherwise authorized in division (A)(3) of section 303.141 of the Revised Code, and the identification of specific roads in accordance with division (B) of that section shall not apply, for any of the following:
(1) The transfer of unfinished aggregate material between facilities that are under the control of the same owner or operator;
(2) The loading or unloading of finished aggregate product within a ten-mile radius of a surface mining operation;
(3) The expansion of an existing surface mining operation when the specific road that is used as the primary means of ingress to and egress from the operation will be the same road that is used for that purpose after the expansion of the facility.

{¶ 22} This assignment of error turns on a question of law-the statutory interpretation of R.C. 519.141(A). "The interpretation of a statute is a question of law that we review de novo." Stewart v. Vivian , 151 Ohio St.3d 574, 2017-Ohio-7526, 91 N.E.3d 716, ¶ 23 ; Wray v. Gahm Properties, Ltd. , 2018-Ohio-50, 103 N.E.3d 148, ¶ 8 (4th Dist.) ("This case also involves statutory construction, which raises a question of law that we review de novo"); see also Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 25 (statutory interpretation is a question of law that can be raised in an R.C. Chapter 2506 administrative appeal that the appellate court decides de novo).

{¶ 23} Our paramount concern when construing a statute is legislative intent.

State ex rel. Natl. Lime and Stone Co. v. Marion Cty. Bd. of Commrs. , 152 Ohio St.3d 393, 2017-Ohio-8348, 97 N.E.3d 404, ¶ 14. In determining this intent, we first review the language of the statute, reading words and phrases in context and construing them in accordance with the rules of grammar and common usage. State ex rel. Tam O'Shanter Co. v. Stark Cty. Bd. of Elections , 151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 17 ; R.C. 1.42. "Our role is to evaluate the statute as a whole and to interpret it in a manner that will give effect to every word and clause, avoiding a construction that will render a provision meaningless or inoperative." State ex rel. Natl. Lime and Stone Co. at ¶ 14.

B. R.C. 519.141(A) Authorizes a Township Board of Zoning Appeals to Deny a Conditional Zoning Certificate Based on General Standards Contained in a Zoning Resolution that Apply to All Conditional Uses

{¶ 24} Neither the common pleas court nor the parties deny that under R.C. 519.02(A), the board may regulate "only in the interest of public health or safety" and that under the first sentence in R.C. 519.141(A), when it considers whether to grant a conditional zoning certificate, the board "shall not consider or base its determination on matters that are regulated by any federal, state, or local agency."

{¶ 25} The common pleas court concluded that under the second sentence of R.C. 519.141(A), however, the board could deny a conditional zoning certificate based on compliance with any general standards contained in the zoning resolution that apply to all conditional uses that are provided for in the resolution. Berger Health and the board agree with this interpretation, while CBCC asserts in its first assignment of error that it is erroneous. The second sentence reads in pertinent part: "However, the board may require as a condition of the approval of a conditional zoning certificate for such an activity compliance with any general standards contained in the zoning resolution that apply to all conditional uses that are provided for in the zoning resolution and, except as provided in division (C) of this section, may require any specified measure, including, but not limited to, one or more of the following [listed items, i.e., inspection of nearby water wells, compliance with reasonable noise and dust-abatement procedures, and the establishments of setbacks, berms, and buffers for the proposed activity]." (Emphasis added.)

{¶ 26} The common pleas court and the appellees construe the foregoing language of R.C. 519.141(A) to permit a board of zoning appeals to consider an applicant's compliance with the general standards of the zoning resolution in determining whether to grant the conditional zoning certificate, even if these general standards are not limited to "public health or safety" as required by R.C. 519.02(A) or involve matters regulated by other federal, state, and local agencies as precluded by the first sentence in R.C. 519.141(A). This is a construction that requires us to read the statutory language as a condition precedent to the approval of the conditional zoning certificate, or as Berger Health phrases it in its appellate brief, " R.C. 519.141(A) expressly permits township zoning regulations that require compliance with general standards as a condition to approving such an operation " or "The common pleas court correctly recognized the authority granted to townships in R.C. 519.141(A) to require compliance with general standards as a condition to approving a sand and gravel mining operation ." (Emphasis added.) (Berger App Response Brief, p. 1)

{¶ 27} The statutory language is that "the board may require as a condition of the approval of a conditional zoning certificate for such an activity " compliance with general standards. (Emphasis added.) Applying the normal rules of grammar and common usage to the "of" in the phrase "condition of the approval of a conditional zoning certificate," the first "of" is synonymous with "to" because the "approval of the conditional zoning certificate" for the proposed sand and gravel mining may be conditioned on the applicant's compliance with general standards in the zoning resolution that apply to all conditional zoning uses, i.e., the board of zoning appeals may require that a source or reason for the approval of the conditional zoning certificate be the applicant's compliance with the general standards specified in the zoning resolution. See Webster's New Universal Unabridged Dictionary at 1343, defining "of" to include "used to indicate derivation, origin, or source," "used to indicate cause, motive, occasion, or reason," and "used to indicate the objective relation, the object of the action noted by the preceding noun or the application of a verb or adjective." Therefore, the plain language of the statute supports the common pleas court's and the board's interpretation.

{¶ 28} This construction is also supported by the context of the second sentence in which the phrase appears. See D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health , 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 19 ("our attention should be directed beyond single phrases, and we should consider, in proper context, all words used by the General Assembly in drafting [the statute] with a view to its place in the overall statutory scheme"). Although the first sentence notes the general principle that "the board shall not consider or base its determination on matters that are regulated by any federal, state, or local agency," the second sentence starts with "[h]owever," establishing that the second sentence is an exception to the general principle. The pertinent part of the second sentence then authorizes the board to condition the approval of the zoning certificate on the applicant's compliance with the general standards contained in the zoning resolution notwithstanding the foregoing general principle. The second sentence finally provides that "except as provided in division (C) of this section, may require any specified measure, including, but not limited to, one or more of the following [listed items]." Division C of R.C. 519.141 provides that "[w]hen granting a conditional zoning certificate, a township board of zoning appeals shall not require the identification of specific roads" for certain situations. The import of the final part of the second sentence is that the board may also specify measures contained in an approved or granted conditional zoning certificate. So construed, the General Assembly has balanced the competing interests and authorized the board of zoning appeals to limit surface mining activities if they do not comply with the general standards in the zoning resolution. In the alternative or in conjunction with that authority, the board can also attach the stated requirements to an approved conditional-use zoning certificate.

{¶ 29} This construction of R.C. 519.141(A) also comports with the longstanding general principle that "[t]he power of townships to enact zoning resolutions to regulate surface mining, pursuant to R.C. Chapter 519, has not been preempted by enactment of R.C. Chapter 1514." Set Prods., Inc. v. Bainbridge Twp. Bd. of Zoning Appeals , 31 Ohio St.3d 260, 510 N.E.2d 373 (1987), paragraph three of the syllabus; Baldwin's, Ohio Township Law , Section 30:2 (2017). Townships may regulate surface mining, as long as its resolutions do not directly conflict with R.C. Chapter 1514. Baldwin's, Ohio Township Law , Section 30:2 (2017), citing Ohio Op, Att'y Gen. No. 81-065. Our construction of R.C. 519.141 does not conflict with R.C. Chapter 1514, but instead clearly authorizes a township board of zoning appeals to deny an application for a conditional zoning certificate based on general standards contained in the zoning resolution that apply to all conditional uses that are provided for in the zoning resolution.

{¶ 30} Finally, CBCC's reliance on other appellate court cases to support its interpretation of R.C. 519.141(A) is misplaced. In Highlanders Ent., L.L.C. v. Chester Twp. Bd. of Zoning Appeals , 5th Dist. Morrow No. 2009CA0001, 2009-Ohio-3402, 2009 WL 2005240, ¶ 20, the court of appeals reversed a common pleas court's affirmance of a board of zoning appeals' denial of a conditional-use permit based on general zoning standards like increased traffic, dust, and noise because the board was not authorized to deny conditional zoning certificates on these grounds:

Section 1513 governs coal mining, and section 1514 pertains to surface mining. Highlanders is a mining company regulated under R.C. 1514; therefore, the BZA could regulate only in the interest of public health and safety issues. Accordingly, BZA's denial of the conditional use application citing the increase in traffic, dust and noise, and a decrease in property values does not meet the statutory criteria. The record is void of evidence demonstrating the adverse affect [sic] of the use on public health and safety. The surface mining for which Highlanders sought the conditional use permit is governed by both the Ohio Department of Natural Resources and the Ohio Environmental Protection Agency.

{¶ 31} Similarly, in Shamrock Materials, Inc. v. Butler Cty. Bd. of Zoning Appeals , 12th Dist. Butler No. CA2007-07-172, 2008-Ohio-2906, 2008 WL 2404721, ¶¶ 19-21, the court of appeals reversed a common pleas court's affirmance of a board of zoning appeals' denial of a conditional-use permit because the board improperly considered criteria concerning the general welfare of neighboring residents under the similarly worded provisions of R.C. Chapter 302:

The common pleas court held that "[u]nder R.C. 303.02(A), the BZA was permitted to consider only the interests of public health and safety. Based on the transcript of the hearing and the written conclusions, the BZA considered the health, safety, and welfare of the neighboring residents, thus exceeding the scope authorized by the Ohio Revised Code."
However, the common pleas court further determined that "[a]lthough the BZA scope of review was broader than the permitted health and safety, the inclusion of 'welfare' does not render BZA's decision illegal. Even if the welfare concerns are stricken from the BZA findings, the remaining safety reasons are valid and sufficient reasons to deny Shamrock's application. * * * In its conclusions the BZA explicitly denied Shamrock's application because of a concern for the safety of children and implicitly denied it out of safety concerns due to the limited ingress-egress to the residences located on Radabaugh Road."
We disagree with the common pleas court's decision. The lower court correctly found that the Revised Code limits a county to only consider interests of public health and safety when regulating mining operations. Further, the common pleas court properly found that the BZA exceeded its statutory authority by considering welfare.

{¶ 32} But neither Highlanders Ent. nor Shamrock Materials considered or applied the language of the second sentence of R.C. 519.141(A), which is at issue here. Consequently, their holdings are inapplicable to the case sub judice.

{¶ 33} Therefore, after construing the pertinent plain language of R.C. 519.141(A), including in the context of the entire statute, as well as the general principle that the power of townships to enact zoning resolutions to regulate surface mining, pursuant to R.C. Chapter 519, has not been preempted by enactment of R.C. Chapter 1514, we hold that the common pleas court did not err in interpreting R.C. 519.141(A) to permit the board of zoning appeals to deny CBCC's application for a conditional zoning certificate to use its property for surface sand and gravel mining based on general standards in the township zoning resolution that apply to all conditional uses. We overrule CBCC's first assignment of error.

C. The Board's Decision Denying CBCC's Application for a Conditional Zoning Certificate was Supported by a Preponderance of Substantial, Reliable, and Probative Evidence

{¶ 34} In its second assignment of error, CBCC contends that "[a]ssuming, arguendo , [Harrison Township Zoning Resolution Sections] 9.03(B), (E), and (F) could be considered by the trial court (and [the board of zoning appeals] ), which [CBCC] den[ies], the general decision of the [board of zoning appeals] and the findings and decision of the trial court denying [CBCC] their right to mine their valuable mineral resources were not supported by substantial, reliable or probative evidence, as a matter of law." " 'Reliable' evidence is dependable or trustworthy; 'probative' evidence tends to prove the issue in question and is relevant to the issue presented; and 'substantial' evidence carries some weight or value." Ohio Civ. Rights Comm. v. Case W. Res. Univ. , 76 Ohio St.3d 168, 178, 666 N.E.2d 1376 (1996), citing Our Place, Inc. v. Ohio Liquor Control Comm. , 63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (1992) ; see also Hinton Adult Care Facility v. Ohio Dept. of Mental Health , 4th Dist. Ross No. 16CA3566, 2017-Ohio-4113, 2017 WL 2417088, ¶ 17.

{¶ 35} We agree with Berger Health that CBCC's argument relies primarily on reiterating the failed contentions in its first assignment of error, i.e., that the trial court erred in determining that the board's denial of its application for a conditional zoning certificate was supported by a preponderance of reliable, probative, and substantial evidence when the matters were not in the interest of public health or safety and were regulated by other agencies. Insofar as CBCC repeats these meritless contentions, they fail under this assignment of error as well.

{¶ 36} Moreover, our review of the record supports the common pleas court's determination. The court determined that CBCC failed to comply with Sections 9.03(B), (E), and (F) of the Harrison Township Zoning Resolution, which provide the following general standards applicable to all conditional uses:

B. The use will be designed, constructed, operated and maintained so as to be harmonious and appropriate with the existing or intended character of the general vicinity and that such use will not change the essential character of the same area.
* * *
E. The use will not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons, property, or the general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare or odors.
F. The use will be consistent with the objectives of this Zoning Resolution and any adopted comprehensive plan for the area.

{¶ 37} As detailed by the common pleas court, CBCC's own testimony and exhibits supported a finding that CBCC's proposed use did not comply with Section 9.03(B) because of significant changes to the vehicular traffic and visual character of the area: CBCC expected traffic of at least 180 truck trips per day and traffic could exceed that estimate, and while CBCC planned mounds for certain areas of the sand and gravel quarry that would act as sound, site, and safety barriers, they did not plan one for the south side, which faced the Berger Health property.

{¶ 38} There was also evidentiary support for the conclusion that CBCC's proposed use violated Section 9.03(E), again in part because of the increased heavy truck traffic. And although a CBCC witness testified that fugitive dust would be watered on an as-needed basis to prevent its proliferation to nearby residences, its zoning application noted that this procedure would be available only during normal business hours. In addition, an engineer testified that another hydraulic and hydrological study was required to determine whether the quarry operation would change the upstream condition or affect the flood plain.

{¶ 39} Finally, the economic development director testified that CBCC's proposed mining would violate the North Gate development plan by disrupting traffic patterns on U.S. 23 and planned access roads that would run parallel to that road and by allowing sand and gravel mining in an area that the plan reserves for future agricultural and low-density residential use. This evidence supported the court's finding that the proposed use violated Section 9.03(F).

{¶ 40} We acknowledge that CBCC presented competing evidence that, if credited, could have established compliance with at least some of these general standards. But given our limited standard of review, which does not include the same extensive authority to weigh the evidence as the common pleas court, we are not persuaded that the common pleas court abused its discretion or that its decision is not supported by a preponderance of reliable, probative, and substantial evidence. We overrule CBCC's second assignment of error.

D. Berger Health's Cross-Appeal is Moot

{¶ 41} In Berger Health's cross-appeal, it argues that the common pleas court erred by granting CBCC's motion to strike the notebook submitted by Berger Health containing evidence and argument from the administrative record on appeal. It "requests that if this Court reverses the common pleas court's judgment on the merits, the Court also remand with instructions that the Berger Binder be included in the record." Because our affirmance of the court's judgment on the merits renders Berger Health's cross-appeal moot, we need not address it. See In re Contest of Election Held on Stark Cty. Issue 6 , 132 Ohio St.3d 98, 2012-Ohio-2091, 969 N.E.2d 1172, ¶ 21 ("Because we affirm the judgment of the common pleas court, the [appellees'] cross-appeal is moot and need not be addressed").

V. Conclusion

{¶ 42} Having overruled CBCC's assignments of error, we affirm the judgment of the common pleas court affirming the decision of the board of zoning appeals.

JUDGMENT AFFIRMED.

Abele, J. and McFarland, J.: Concur in Judgment and Opinion.


author: BRUNNER, J. SADLER, J., dissenting.

text:
    Randall E. HARRIS, Plaintiff-Appellant, v. OHIO DEPARTMENT OF VETERANS SERVICES, et al., Defendants-Appellees.
    No. 16AP-895
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on June 5, 2018
    DECISION
   BRUNNER, J.

{¶ 1} Plaintiff-appellant, Randall E. Harris ("Harris"), appeals from a judgment of the Franklin County Court of Common Pleas, granting the Civ.R. 12(B)(6) motion to dismiss of defendants-appellees, Ohio Department of Veterans Services ("ODVS") and the Ohio Veterans' Homes ("OVH") (collectively "ODVS/OVH"). For reasons that follow, we reverse the trial court's decision.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} In July 1999, Harris began working as a pharmacy supervisor, a classified civil service position, at OVH. In 2008, the legislature created ODVS, legislating that OVH would become part of and administratively governed by the new ODVS. On August 1, 2010, in organizing the new department, ODVS and OVH appointed Harris to an unclassified civil service position, pharmacy operations manager. Harris worked in this position until February 10, 2014. On February 10, 2014, OVH terminated Harris for cause by a written notice of removal for "incompetency, inefficiency, dishonest, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of any policy or work rule of the officer's or employee's appointing authority, violation of this chapter or the rules of the director of administrative services or the commission, any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office." (Mar. 29, 2016 Compl. at ¶ 15.) Harris asserted his fall-back rights to his previous classified position.

{¶ 3} On March 3, 2014, Harris appealed his removal to the State Personnel Board of Review ("SPBR") and on the same date filed a letter/appeal with SPBR alleging retaliation under R.C. 124.341. On April 23, 2015, SPBR issued stays of both cases that later expired when Harris subsequently withdrew his SPBR appeals on February 2, 2017, and SPBR closed the cases on May 19, 2017. On March 29, 2016, Harris filed a complaint for a writ of mandamus and for declaratory relief in the Franklin County Court of Common Pleas and amended his complaint twice. ODVS/OVH filed a motion to dismiss the second amended complaint on July 7, 2016. The trial court granted the motion to dismiss on November 30, 2016 and Harris filed a notice of appeal on December 29, 2016.

II. ASSIGNMENTS OF ERROR

{¶ 4} Harris filed a notice of appeal and raised the following assignments of error for review:

[1.] THE LOWER COURT ERRED WHEN IT RULED THAT APPELLANT HAD NO CLEAR LEGAL RIGHT TO HIS PREVIOUSLY-HELD CLASSIFIED CIVIL SERVICE POSITION OF PHARMACY SUPERVISOR.
[2.] THE LOWER COURT ERRED WHEN IT RULED THAT APPELLEES HAD NO CLEAR LEGAL DUTY UNDER R.C. SEC. 124.11(D) TO PLACE APPELLANT INTO HIS PREVIOUSLY-HELD CLASSIFIED CIVIL SERVICE POSITION OF PHARMACY SUPERVISOR.
[3.] THE LOWER COURT ERRED WHEN IT RULED THAT APPELLANT HAD NO RIGHT TO RELIEF UNDER R.C. SEC. 2721.03 -05 AS TO A DECLARATION OF HIS RIGHTS UNDER R.C. SEC. 124.11(D).

III. STANDARD OF REVIEW

{¶ 5} Harris filed a complaint for a writ of mandamus and a claim for declaratory judgment that the trial court dismissed pursuant to Civ.R. 12(B)(6). " 'A court can dismiss a mandamus action under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted if, after all factual allegations of the complaint are presumed true and all reasonable inferences are made in the relator's favor, it appears beyond doubt that he can prove no set of facts entitling him to the requested writ of mandamus.' " State ex rel. Womack v. Marsh , 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 8, quoting State ex rel. Russell v. Thornton , 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 9. A court of appeals uses a de novo standard to review a dismissal by the trial court pursuant to Civ.R. 12(B)(6). Agrawal v. Univ. of Cincinnati , 10th Dist. No. 16AP-293, 2017-Ohio-8644, 2017 WL 5608180, ¶ 8.

{¶ 6} "A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint." State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. , 65 Ohio St.3d 545, 605 N.E.2d 378 (1992). When reviewing the complaint, the court must regard all the material allegations as admitted and construe all reasonable inferences in favor of the nonmoving party. Id. "In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted ( Civ.R. 12(B)(6) ), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. Univ. Community Tenants Union , 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. "Thus, a complaint for a writ of mandamus is not subject to dismissal under Civ.R. 12(B)(6), if the complaint alleges the existence of a legal duty by the respondent and the lack of an adequate remedy at law for the relator with sufficient particularity to put the respondent on notice of the substance of the claim(s) being asserted against it, and it appears that the plaintiff might prove some set of facts entitling him to relief." Talwar v. State Med. Bd. , 156 Ohio App.3d 485, 2004-Ohio-1301, 806 N.E.2d 1009, ¶ 4 (10th Dist.).

IV. DISCUSSION

A. First and Second Assignments of Error

{¶ 7} At the outset, we note that Harris has sought relief under both mandamus and declaratory judgment. Declaratory judgment is provided for under R.C. 2721.12 et seq., and, as such, it is a legal remedy. While Ohio statute does contain provisions for a remedy in mandamus, that law, R.C. 2731.05, plainly provides the adequacy of a legal remedy (such as declaratory judgment) is a bar to the writ of mandamus. R.C. 2731.05 ("The writ of mandamus must not be issued when there is plain and adequate remedy in the ordinary course of the law.").

{¶ 8} However, the Supreme Court of Ohio has held that there cannot be a per se finding that the two actions are incompatible. State ex rel. Fenske v. McGovern , 11 Ohio St.3d 129, 464 N.E.2d 525 (1984) ; State ex rel. Acres v. Ohio Dept. of Job & Family Servs. , 123 Ohio St.3d 54, 2009-Ohio-4176, 914 N.E.2d 170, ¶ 17. Allegations based in declaratory judgment, for example, encompass a statutory question and would provide a complete and adequate remedy, bar mandamus. State ex rel. Viox Builders, Inc. v. Lancaster , 46 Ohio St.3d 144, 145, 545 N.E.2d 895 (1989). But where declaratory judgment would not be a complete remedy unless coupled with mandatory injunction, the availability of declaratory judgment is not an appropriate basis for denying a writ of mandamus to which a relator may be otherwise entitled. Fenske ; State ex rel. Manley v. Walsh , 142 Ohio St.3d 384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 29. As a threshold matter, we must determine if Harris's mandamus claim is barred by availability of complete relief in declaratory judgment.

{¶ 9} Because Harris's claims arise from his termination as an unclassified civil service pharmacy operations manager, he cannot seek relief (including appeal of denial of fall-back rights and/or an award of back pay) before the SPBR, since the SPBR only has jurisdiction to hear appeals regarding classified employees. See R.C. 124.03 ; State ex rel. Barley v. Ohio Depart. of Job & Family Servs. , 132 Ohio St.3d 505, 2012-Ohio-3329, 974 N.E.2d 1183, ¶ 8. And while mandamus is not available as a substitute for civil service appeals, State ex rel. Weiss v. Indus. Comm. , 65 Ohio St.3d 470, 477, 605 N.E.2d 37 (1992), when no such appeal can be had, mandamus may be appropriate.

"It is well settled that 'if the allegations of a complaint for a writ of mandamus indicate that the real objects sought are a declaratory judgment and a prohibitory injunction, the complaint does not state a cause of action in mandamus.' " Id. at ¶ 11, quoting State ex rel. Grendell v. Davidson [ (1999) ], 86 Ohio St.3d 629, 634, 1999-Ohio-30, 716 N.E.2d 704. The Supreme Court of Ohio and the Ohio courts of appeals lack original jurisdiction over actions that, although styled in mandamus, actually seek a declaration of rights, status or other legal relations. [ State ex rel. Ohio Civ. Serv. Employees Assn., AFSCME, Local 11, AFL-CIO v. State Emp. Relations Bd. , 104 Ohio St.3d 122, 2004-Ohio-6363, 818 N.E.2d 688 ("OCSEA "),] ¶ 11. Nevertheless, " 'where declaratory judgment would not be a complete remedy unless coupled with ancillary relief in the nature of mandatory injunction, the availability of declaratory injunction is not an appropriate basis to deny a writ to which the relator is otherwise entitled.' " State ex rel. Dayton Fraternal Order of Police Lodge No. 44 v. State Emp. Relations Bd. (1986), 22 Ohio St.3d 1, 8, 22 Ohio B. 1, 488 N.E.2d 181, quoting State ex rel. Fenske v. McGovern (1984), 11 Ohio St.3d 129, 11 Ohio B. 426, 464 N.E.2d 525, paragraph two of the syllabus. A declaratory judgment that merely announces the existence of a duty has generally not been deemed as adequate as a writ of mandamus that compels performance. OCSEA at ¶ 16, citing 1 Antieau, The Practice of Extraordinary Remedies (1987) 300, Section 2.06.

State ex rel. Kingsley v. State Emp. Relations Bd. , 10th Dist. No. 09AP-1085, 2011-Ohio-428, 2011 WL 335033, ¶ 7.

{¶ 10} In order for a writ of mandamus to issue, the relator must demonstrate (1) that relator has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts requested, and (3) that relator has no plain and adequate remedy in the ordinary course of law. State ex rel. Berger v. McMonagle , 6 Ohio St.3d 28, 451 N.E.2d 225 (1983). "[A] writ of mandamus can only be issued to require a public official to perform that duty which is required of an office, trust, or station." May v. State , 10th Dist. No. 87AP-1193, 1988 WL 35816 (Mar. 24, 1988).

{¶ 11} Harris's first two assignments of error relate to mandamus. Because mandamus requires a determination that the relator has no plain and adequate remedy in the ordinary course of the law, we look first to whether declaratory judgment supplies such a plain and adequate remedy, negating the need for mandamus. In reliance on Kingsley , we find, even though Harris asserts the need for declaratory judgment on some of his issues, on the issues raised in mandamus Harris has no plain and adequate remedy in the ordinary course of the law, and these issues must be determined in mandamus by a court of competent jurisdiction. R.C. 2731.16 sets forth the explicit power of the court in issuing a writ of mandamus "to carry its order and judgment into execution, or to punish any officer named therein for contempt or disobedience of its orders or writs" and that other sections of the mandamus statute do not limit these powers. We also note that pursuant to R.C. 2731.11, Harris may recover damages against the State in a mandamus action, but the State has waived immunity from such damages only through statutory enactment of the Ohio Court of Claims, which has no original jurisdiction in mandamus. R.C. 2743.02. "[T]he Court of Claims has no authority to allow writs of mandamus [because] [t]hese are extraordinary writs, and are not encompassed within the grant of 'full equity powers' to the Court of Claims as found in R.C. 2743.03(A)." State ex rel. Mahoning Cty. Community Corrs. Assoc. v. Shoemaker , 12 Ohio App.3d 36, 37, 465 N.E.2d 1351 (10th Dist.1983), citing R.C. 2731.02, and Brockman v. Ohio Dept. of Public Welfare , 7 Ohio App.3d 239, 454 N.E.2d 1362 (10th Dist.1982) ; Rosso v. Dept. of Adm. Serv. , 4 Ohio App.3d 312, 448 N.E.2d 524 (10th Dist.1982). See also Dancy v. Molitoris , 10th Dist. No. 09AP-1382, 2010-Ohio-1382, 2010 WL 1248844, ¶ 5, citing Mahoning . The upshot of this is that if Harris were to prove he is entitled to mandamus and damages for the circumstances that led him to bring the action, his financial recourse is against the State, and he would be required to seek his damages in a separate action in the Court of Claims.

{¶ 12} But Harris must begin by proving two elements of mandamus as asserted in his first two assignments of error-that is, whether he had a clear legal right and whether the State had a clear legal duty. Harris argues first that the trial court erred when it held he had no clear legal right to his previously held classified civil service position of pharmacy supervisor. In his second assignment of error, Harris argues that the trial court erred because it held ODVS/OVH had no clear legal duty to provide him with his fall-back rights pursuant to R.C. 124.11. Since these are both prerequisites for a writ of mandamus to issue, we address them together.

{¶ 13} Ohio's civil service scheme is embedded in the Ohio Constitution and is enacted in R.C. Chapter 124. Civil service employees are divided into classified and unclassified positions and the distinction is significant. R.C. 124.11. A classified employee can be removed only for good cause and only after the procedures set forth in R.C. 124.34 have been followed. Yarosh v. Becane , 63 Ohio St.2d 5, 9, 406 N.E.2d 1355 (1980). However, unclassified public employees may be terminated from their employment without cause and are not afforded the procedural safeguards in R.C. 124.34. Barr v. Harrison Cty. Common Pleas Court , 10th Dist. No. 05AP-760, 2006-Ohio-1348, 2006 WL 726900, ¶ 9 ; Eudela v. Ohio Dept. of Mental Health & Mental Retardation , 30 Ohio App.3d 113, 114, 506 N.E.2d 947 (10th Dist.1986). Pursuant to R.C. 124.03, the SPBR has jurisdiction to hear appeals relating to job terminations filed by classified public employees.

{¶ 14} Harris argues he had a constitutionally protected property interest in his classified employment and was entitled to fall-back rights and due process protections under R.C. 124.11(D) and the Ohio Constitution, Article II, Section 34, and Article XV, Section 10. Harris argues that the trial court abused its discretion in deciding his case because the decision was unreasonable and arbitrary.

{¶ 15} Former R.C. 124.11(D) provided, in pertinent part:

(1) This division does not apply to persons in the unclassified service who have the right to resume positions in the classified service under sections 4121.121, 5119.18, 5120.38, 5120.381, 5120.382, 5123.08, 5139.02, and 5501.19 of the Revised Code or to cities, counties, or political subdivisions of the state.
(2) A person who holds a position in the classified service of the state and who is appointed to a position in the unclassified service shall retain the right to resume the position and status held by the person in the classified service immediately prior to the person's appointment to the position in the unclassified service, regardless of the number of positions the person held in the unclassified service. An employee's right to resume a position in the classified service may only be exercised when an appointing authority demotes the employee to a pay range lower than the employee's current pay range or revokes the employee's appointment to the unclassified service and:
(a) That person held a certified position prior to July 1, 2007, in the classified service within the appointing authority's agency; or
(b) That person held a permanent position on or after July 1, 2007, in the classified service within the appointing authority's agency.
(3) An employee forfeits the right to resume a position in the classified service when:
(a) The employee is removed from the position in the unclassified service due to incompetence, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of this chapter or the rules of the director of administrative services, any other failure of good behavior, any other acts of misfeasance, malfeasance, or nonfeasance in office, or conviction of a felony; or
(b) Upon transfer to a different agency.
(4) Reinstatement to a position in the classified service shall be to a position substantially equal to that position in the classified service held previously, as certified by the director of administrative services. If the position the person previously held in the classified service has been placed in the unclassified service or is otherwise unavailable, the person shall be appointed to a position in the classified service within the appointing authority's agency that the director of administrative services certifies is comparable in compensation to the position the person previously held in the classified service. Service in the position in the unclassified service shall be counted as service in the position in the classified service held by the person immediately prior to the person's appointment to the position in the unclassified service. When a person is reinstated to a position in the classified service as provided in this division, the person is entitled to all rights, status, and benefits accruing to the position in the classified service during the person's time of service in the position in the unclassified service.

{¶ 16} Based on this former statute and because ODVS/OVH separated him from his unclassified civil service position after he previously served in a classified position, Harris asserts "fall-back" rights to a previously held classified civil service position under former R.C. 124.11(D)(2). Harris relies on State ex rel. Asti v. Ohio Dept. of Youth Servs. , 107 Ohio St.3d 262, 2005-Ohio-6432, 838 N.E.2d 658, for the proposition that in order to assert his statutorily created fall-back rights, he need only demonstrate that he previously held employment in the classified civil service, and he was subsequently displaced from an unclassified position. However, we have previously recognized that R.C. 124.11 was amended after Asti was decided such that the amended statutory language indicates when a right under the statute arises. State ex rel. Haller v. Ohio Dept. of Pub. Safety , 10th Dist. No. 13AP-975, 2015-Ohio-3778, 2015 WL 5485258, ¶ 5. Accordingly, Asti is not controlling in this case.

{¶ 17} ODVS/OVH argue that Harris is not entitled to fall-back rights because he was fired for cause and, by operation of R.C. 124.11(D)(3), forfeited any rights to fall back he may have held. They argue that as a result he cannot demonstrate a clear legal right to his previously held classified position. ODVS/OVH similarly argue they had no clear legal duty to place him in the classified civil service, and, therefore, mandamus was properly denied by the trial court.

{¶ 18} The trial court applied R.C. 124.11 and held that Harris's situation was governed by this law. Under R.C. 124.11, an unclassified employee whose employment is revoked has the right to fall back to a previously held classified position when (1) the previously held classified position was within the same agency that revoked the employee's unclassified employment, (2) the employee has not transferred to another agency since the time he last worked in the classified position, and (3) the appointing authority never indicated that the revocation was for "just cause." The trial court found, since Harris's employment was revoked for "just cause," he did not have a clear legal right to demand that his employer return him to his previously held classified position, and the employer did not have a clear legal duty to place Harris in that position.

{¶ 19} Whether Harris has a clear legal right to fall back to his classified position rests on whether he was revoked for just cause. Under R.C. 124.11(D)(3)(a), an employee forfeits the right to resume a position in the classified service when the employee is removed from the position in the unclassified service due to incompetence, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of this chapter or the rules of the director of administrative services, any other failure of good behavior, any other acts of misfeasance, malfeasance, or nonfeasance in office, or conviction of a felony. In this case, Harris was removed for the following reasons: "incompetency, inefficiency, dishonest, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of any policy or work rule of the officer's or employee's appointing authority, violation of this chapter or the rules of the director of administrative services or the commission, any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office." (Compl. at ¶ 15.)

{¶ 20} "It is fundamental that where rights are created by statutes such rights can vest only when all the statutory conditions have been met. It is then, and only then, that a vested right accrues." State ex rel. Frye v. Bachrach , 175 Ohio St. 419, 423, 195 N.E.2d 803 (1964). Because he does not have the benefit of review by the SPBR of whether he was wrongly terminated for cause, Harris has sought review by the courts to test the efficacy of his termination for cause through declaratory judgment, addressing it in his third assignment of error.

{¶ 21} At this juncture, Harris has not shown he had a clear legal right to fall back to his previous, classified position and he has not shown ODVS/OVH had a clear legal duty to provide to him that opportunity. At this juncture, Harris has not developed or sustained arguments necessary for us to find as a matter of law that the trial court erred when it denied him a writ of mandamus. Accordingly, we decline to address Harris's first and second assignments of error unless and until he can successfully prove that he was not rightfully terminated from his unclassified position for cause.

B. Third Assignment of Error

{¶ 22} In his third assignment of error, Harris contends that the trial court erred when it held he had no right to relief under R.C. 2721.03 through 2721.05 as to a declaration of his rights under R.C. 124.11(D) ; that is, was he rightfully terminated for cause from his unclassified position and thereby not entitled to fall back to a classified position? ODVS/OVH argue that Harris is not entitled to challenge the reason for revoking his unclassified appointment.

{¶ 23} For a trial court to grant relief in declaratory judgment, a plaintiff must demonstrate that (1) a real controversy exists between the parties, (2) the controversy is justiciable in character, and (3) speedy relief is necessary to preserve the rights of the parties. Burger Brewing Co. v. Liquor Control Comm. , 34 Ohio St.2d 93, 97, 296 N.E.2d 261 (1973).

" 'There are only two reasons for dismissing a complaint for declaratory judgment before the court addresses the merits of the case: (1) there is neither a justiciable issue nor an actual controversy between the parties requiring speedy relief to preserve rights which may be lost or impaired; or (2) in accordance with R.C. 2721.07, the declaratory judgment will not terminate the uncertainty or controversy.' " Hill v. Croft , 10th Dist. No. 05AP-424, 2005-Ohio-6885, 2005 WL 3528839, ¶ 12, quoting Halley v. Ohio Co. , 107 Ohio App.3d 518, 534, 669 N.E.2d 70 (8th Dist.1995).

{¶ 24} The Supreme Court of Ohio clarified the appellate standard of review of a trial court's dismissal of a declaratory judgment action. Ordinarily, an appellate court reviews dismissals under Civ.R. 12(B)(6) de novo. See Fugett v. Ghee , 10th Dist. No. 02AP-618, 2003-Ohio-1510, 2003 WL 1563816, ¶ 11. But the "[d]ismissal of a declaratory judgment action is reviewed under an abuse-of-discretion standard." Mid-Am. Fire & Cas. Co. v. Heasley , 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, paragraph two of the syllabus, following Bilyeu v. Motorists Mut. Ins. Co. , 36 Ohio St.2d 35, 37, 303 N.E.2d 871 (1973). In the longstanding case of Heasley , the trial court granted a Civ.R. 12(B)(6) motion to dismiss the plaintiff-insurance company's action for a declaration that it owed no uninsured/underinsured motorist coverage to Heasley, because no actual, justiciable controversy existed between the parties. We affirmed. Noting a conflict between appellate districts on the appropriate standard of appellate review from a trial court's dismissal of a declaratory judgment action, the Supreme Court rejected the insurance company's argument for de novo review and "reaffirm[ed] that declaratory judgment actions are to be reviewed under an abuse-of-discretion standard." Heasley at ¶ 14.

{¶ 25} Accordingly, we review the trial court's dismissal of Harris's claim for declaratory relief based on whether we find the trial court abused its discretion in reaching its decision. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's action was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 26} Harris pled that he suffered an adverse employment action in that his employment was terminated, and as a consequence, he sustained economic loss due to ODVS/OVH's violation of a state statute affording him protection from loss of employment through fall-back rights to a former classified position. As we noted in reviewing his first and second assignments of error, Harris has no administrative remedy, such as review by the SPBR.

{¶ 27} Due process requires that Harris be afforded the opportunity to challenge the reasons for his removal from his position for cause, since this revocation for "cause" is the basis for his forfeiture of what would otherwise be his right to fall back to his former, classified position. For Harris, it is only in the judicial forum that he can adjudicate his fall-back rights.

{¶ 28} "A 'controversy' exists for purposes of a declaratory judgment when there is a genuine dispute between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Wagner v. Cleveland , 62 Ohio App.3d 8, 13, 574 N.E.2d 533 (8th Dist.1988). Harris has presented a real controversy that is justiciable.

{¶ 29} ODVS/OVH argue that speedy relief, required for a declaratory judgment, is not necessary to preserve the rights of the parties. ODVS/OVH contend that speedy relief requires a showing of a threat "of sufficient immediacy and reality" to warrant intervention by the court. Reinbolt v. Natl. Fire Ins. Co. of Hartford , 158 Ohio App.3d 453, 2004-Ohio-4845, 816 N.E.2d 1083, ¶ 14 (6th Dist.), citing Wagner at 13, 574 N.E.2d 533. ODVS/OVH further contend that since the events took place years ago, any rights Harris had have now expired.

{¶ 30} ODVS/OVH's argument is that, since this litigation to enforce Harris's rights has taken years, Harris's rights have expired. We reject this argument as woefully inadequate and wholly invalid. Were we to do otherwise, litigation "foot dragging," whether aided by a court's overcrowded docket or dilatory actions on the part of any party or court in the process, would be an acceptable excuse for the denial of due process.

{¶ 31} While declaratory relief is subject to the discretion of the trial court, Bilyeu at syllabus; Arbor Health Care Co. v. Jackson , 39 Ohio App.3d 183, 185, 530 N.E.2d 928 (10th Dist.1987), the trial court must declare the rights of the parties when the complaint sets forth a viable claim for declaratory relief. Fioresi v. State Farm Mut. Auto Ins. Co. , 26 Ohio App.3d 203, 499 N.E.2d 5 (1st Dist.1985). The trial court's discretion to refuse to entertain an action for declaratory judgment must be predicated on a plaintiff's failure to state a claim upon which declaratory relief may be granted; once the trial court determines that a complaint states a viable claim for declaratory relief, it has discretion only to grant or deny the relief plaintiff seeks when it declares the rights of the parties.

{¶ 32} Here, Harris asserted that he suffered an adverse employment action in that his employment was terminated, and he suffered a consequent economic loss that resulted from ODVS/OVH's violation of a state statute affording him protection from loss of employment by restoration to a former classified position. Harris has presented a real controversy that is justiciable; speedy relief is necessary to preserve the rights of the parties. The trial court abused its discretion in granting ODVS/OVH's Civ.R. 12(B)(6) motion to dismiss Harris's cause of action in declaratory judgment. The trial court should have determined the legal question that SPBR could not determine-whether Harris was terminated for cause and thereby forfeited his fall-back rights. Harris's third assignment of error is sustained and we reverse the trial court.

V. CONCLUSION

{¶ 33} For the foregoing reasons, we decline to address Harris's first and second assignments of error as premature, the third assignment of error is sustained, and the judgment of the Franklin County Court of Common Pleas is reversed. This cause is remanded to the trial court to give full consideration to and determine whether Harris was terminated for cause and thereby forfeited his fall-back rights to return to his former classified position.

Judgment reversed; cause remanded with instructions.

TYACK, J., concurs.

SADLER, J., dissents.

SADLER, J., dissenting.

{¶ 34} Because I find that Harris's complaint fails to state a claim for relief in mandamus, I would affirm the judgment of the common pleas court. Because the majority does not, I respectfully dissent.

{¶ 35} In support of its motion to dismiss in the trial court, the Ohio Veterans' Homes ("OVH") argued that Harris's "currently pending SPBR appeal constitutes an adequate remedy at law until he exhausts his administrative remedies." (Trial Ct. Decision at 6.) I agree.

{¶ 36} "The exhaustion of administrative remedies doctrine requires a person to exhaust available statutory administrative remedies before seeking redress from the judicial system." Johnson v. Ferguson-Ramos , 10th Dist. No. 04AP-1180, 2005-Ohio-3280, 2005 WL 1515324, ¶ 28, citing Basic Distrib. Corp. v. Ohio Dept. of Taxation , 94 Ohio St.3d 287, 290, 762 N.E.2d 979 (2002). "[I]t is well-established that the failure to pursue an administrative remedy bars mandamus relief." State ex rel. Buckley v. Indus. Comm., 10th Dist. No. 02AP-498, 2003-Ohio-667, 2003 WL 321537, ¶ 3, aff'd , 100 Ohio St.3d 68, 2003-Ohio-5072, 796 N.E.2d 522. Similarly, a complaint in mandamus fails to state a claim on which relief may be granted and is subject to dismissal where the complaint shows relator has an adequate remedy at law. State ex rel. Williams v. Bessey , 10th Dist. No. 08AP-158, 2009-Ohio-5852, 2009 WL 3674672, aff'd , 125 Ohio St.3d 447, 2010-Ohio-2113, 928 N.E.2d 1091 ; State ex rel. Brown v. Dana , 66 Ohio App.3d 709, 586 N.E.2d 150 (10th Dist.1990).

{¶ 37} As the majority decision correctly observes, Harris alleged in his State Personnel Board of Review ("SPBR") appeal that OVH removed him from his position in retaliation for his activities as a "whistleblower." (Second Am. Compl. in Mandamus at Appx. A.) Harris further alleged that his removal was the result of an "investigation."(Second Am. Compl. at Appx. A.)

{¶ 38} R.C. 124.341 provides, in relevant part, as follows:

(A) If an employee in the classified or unclassified civil service becomes aware in the course of employment of a violation of state or federal statutes, rules, or regulations or the misuse of public resources, and the employee's supervisor or appointing authority has authority to correct the violation or misuse, the employee may file a written report identifying the violation or misuse with the supervisor or appointing authority. * * *
If the employee reasonably believes * * * the violation or misuse is also a violation of Chapter 102., section 2921.42, or section 2921.43 of the Revised Code, the employee may report it to the appropriate ethics commission.
* * *
(D) If an appointing authority takes any disciplinary or retaliatory action against a classified or unclassified employee as a result of the employee's having filed a report or complaint under division (A) of this section, the employee's sole and exclusive remedy, notwithstanding any other provision of law, is to file an appeal with the state personnel board of review within thirty days after receiving actual notice of the appointing authority's action. If the employee files such an appeal, the board shall immediately notify the employee's appointing authority and shall hear the appeal. The board may affirm or disaffirm the action of the appointing authority or may issue any other order as is appropriate. The order of the board is appealable in accordance with Chapter 119. of the Revised Code.

(Emphasis added.)

{¶ 39} In Kulch v. Structural Fibers, Inc. , 78 Ohio St.3d 134, 677 N.E.2d 308 (1997), the Supreme Court of Ohio noted the General Assembly "truly intended" R.C. 124.341 to be the "sole and exclusive" remedy available to classified and unclassified employees who claim whistleblower status. Id. at 158-59, 677 N.E.2d 308. The operative facts alleged in Harris's mandamus complaint and the appendix thereto are as follows:

The reason for my termination is the failure of my department to complete monthly Medication Regimen Reviews for residents of the Ohio Veterans Home, beginning in December 2012, which I reported in January 2013. An investigation of this incident was conducted September through November 2013, which reveals a long-term pattern of administrative neglect (intentional or otherwise), on the part of OVH Superintendent Rick Hatcher and Assistant Superintendent Jim Eckerle. This neglect I believe was retaliation for my contacting the Ohio Ethics Commission in April 2012 concerning the conduct of OVH Superintendent Rick Hatcher.
Superintendent Rick Hatcher resigned in January 2014. I believe his resignation was requested, in part, as a consequence of the above investigation. In addition, Kevin Whaley, the employee conducting the investigation and his supervisor, Buffy Andrews, have also both been terminated. I believe they were terminated in retaliation for conducting a comprehensive investigation that reveals all of the mitigating factors in the case, and the conduct of Rick Hatcher and Tim Eckerle.
I was terminated by OVH Interim Superintendent Frederick Stratmann, a personal friend of Rick Hatcher. There was no consideration given to the mitigating circumstances that were revealed in the investigation. I believe that my termination was an act of retaliation, and intimidation of current OVH employees is an additional goal in this action.

(Second Am. Compl. at ¶ 17, Appx. A.)

{¶ 40} Given Harris's narrative in support of his SPBR appeal, there can be no doubt that Harris's appeal from OVH's removal order invokes SPBR jurisdiction under R.C. 124.341. Pursuant to R.C. 124.341, Harris's SPBR appeal is the sole and exclusive remedy available to an unclassified employee, notwithstanding any other provision of law. Accordingly, Harris's whistleblower appeal to SPBR represents Harris's sole and exclusive remedy at law, notwithstanding Harris's fall-back rights under R.C. 124.11(D). In my view, Harris's complaint in this case fails to state a claim on which relief may be granted due to the availability of a whistleblower claim under R.C. 124.341.

{¶ 41} R.C. 124.341 authorizes SPBR to hear and determine whistleblower claims filed by unclassified employees.

R.C. 124.341(D) permits SPBR to "affirm or disaffirm the action of the appointing authority or may issue any other order as is appropriate." Because SPBR has yet to consider the merits of Harris's R.C. 124.341 appeal, there has been no determination regarding Harris's available remedies under the statute, if any. Ohio law requires Harris to exhaust his available administrative remedies before commencing a mandamus action, and Harris's complaint conclusively demonstrates that he did not do so.

{¶ 42} The complaint alleges Harris moved SPBR to hear and determine his fall-back rights but that SPBR "issued a stay until a judicial determination as to whether he was entitled to * * * fall-back * * * rights to his former classified civil service position." (Second Am. Compl. at ¶ 19.) In his complaint, Harris claims SPBR "has now adopted the position that it does not have authority or jurisdiction under R.C. Chapter 124 to determine the question of whether [he] has displacement rights under R.C. Sec. 124.11(D)." (Second Am. Compl. at ¶ 27.) Accordingly, Harris concludes he had "exhausted his administrative remedies, and has no other recourse." (Second Am. Compl. at ¶ 28.)

{¶ 43} In State ex rel. Rennell v. Indus. Comm. , 10th Dist. No. 07AP-67, 2007-Ohio-4597, 2007 WL 2505143, the state employee signed an agreement for early retirement pursuant to an incentive plan, but he later decided that he did not intend to retire on the date planned. The state employer responded a replacement was already being selected, and the employee could not rescind the retirement agreement. The employee filed an appeal with the SPBR seeking reinstatement to his position in the classified civil service, which was dismissed due to lack of jurisdiction under R.C. 124.03(A). The employee did not appeal from that decision. The employee subsequently filed a mandamus action in this court seeking reinstatement.

{¶ 44} In support of his mandamus action, the employee argued an R.C. Chapter 119 administrative appeal from SPBR's dismissal order was not an adequate remedy because SPBR lacked jurisdiction of his claim. This court determined relator's contention regarding SPBR's authority was irrelevant because "[t]he relevant issue is whether an adequate remedy at law existed because [the relator] could have appealed the SPBR's [dismissal] to the court of common pleas." Id. at ¶ 4. This court concluded because " R.C. 119.12 permitted relator to appeal the SPBR's order to the common pleas court; * * * an adequate remedy existed." Id. We reasoned the availability of an R.C. 119.12 appeal from SPBR's dismissal order was dispositive of the issue whether an adequate remedy existed at law. Id.

{¶ 45} In my view, the facts alleged in Harris's complaint require this court to apply the rule of law in Rennell as a complete bar to Harris's mandamus claim. Harris timely appealed to SPBR from OVH's removal order pursuant to R.C. 124.341. In the context of that appeal, Harris also sought fall-back rights. R.C. 124.341(D) permits SPBR to "affirm or disaffirm the action of the appointing authority or may issue any other order as is appropriate ." (Emphasis added.) R.C. 124.341(D) provides that any SPBR decision in an employee's whistleblower appeal is "appealable in accordance with Chapter 119. of the Revised Code." Pursuant to Rennell , the availability of an R.C. Chapter 119 appeal provides an adequate remedy at law, even though SPBR has taken the position it does not have jurisdiction to determine Harris's fall-back rights. As previously noted, because SPBR has yet to consider the merits of Harris's R.C. 124.341 appeal, there has been no determination regarding Harris's available remedies under the statute, if any.

{¶ 46} Under the "well-established" law in Ohio, Harris's failure to exhaust his administrative remedy bars mandamus relief. Buckley at ¶ 3. See also Johnson ; Basic Distrib. Corp. The fact Harris has apparently chosen to abandon his SPBR appeal during the stay does not alter the fact that Harris had not exhausted his available administrative remedies prior to initiating his mandamus action. Harris's failure to do so bars his mandamus action. Rennell.

{¶ 47} To date, no Ohio court has addressed the question whether an unclassified employee seeking to enforce fall-back rights may challenge the employer's decision to remove the employee for cause by filing a mandamus action in the common pleas court. Because R.C. 124.341 vests SPBR with jurisdiction to determine Harris's whistleblower appeal, which is Harris's sole and exclusive legal remedy under the facts alleged in the complaint, and because R.C. 124.341 provides Harris with an R.C. 119.12 appeal from any subsequent decision by SPBR, I see no justifiable reason to address the question in this appeal.

{¶ 48} For the foregoing reasons, I would affirm the trial court decision denying the writ of mandamus, albeit for a different reason than the trial court. Accordingly, I respectfully dissent from the majority decision.

      R.C. 124.11, effective Sept. 29, 2013.

      "Material incorporated in a complaint may be considered part of the complaint for purposes of determining a Civ.R. 12(B)(6) motion to dismiss." State ex rel. Crabtree v. Franklin Cty. Bd. of Health , 77 Ohio St.3d 247, 673 N.E.2d 1281 (1997), fn. 1, citing State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn. , 72 Ohio St.3d 106, 109, 647 N.E.2d 799 (1995) ; State ex rel. Midwest Pride IV, Inc. v. Pontious , 75 Ohio St.3d 565, 569, 664 N.E.2d 931 (1996), fn. 1.

      In order to establish a prima facie case under the analogous provisions of R.C. 4113.52, plaintiff must show that "(1) he engaged in activity which would bring him under the protection of the statute; (2) he was subject to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action." Pohmer v. JPMorgan Chase Bank, N.A. , 10th Dist. No. 14AP-429, 2015-Ohio-1229, 2015 WL 1432546, ¶ 52, citing Blackburn v. Am. Dental Ctrs. , 10th Dist. No. 10AP-958, 2011-Ohio-5971, 2011 WL 5825391, ¶ 8, citing Wright v. Petroleum Helicopters, Inc. , 8th Dist. No. 71168, 1997 WL 578939 (Sept. 18, 1997), citing Cooper v. N. Olmsted , 795 F.2d 1265, 1272 (6th Cir.1986).

      I also find no support in Ohio law for the proposition that Harris may recover damages from OVH in the Court of Claims based on "the circumstances that led him to bring the action." (Majority Decision at ¶ 11.)