[Cite as State ex rel. Madison Cty. Commrs. v. Madison Cty. Engineer, 2016-Ohio-7191.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           MADISON COUNTY




STATE OF OHIO EX REL. MADISON                          :
COUNTY ENGINEER,                                                   CASE NO. CA2016-01-003
                                                       :
        Relator-Appellee,                                                  OPINION
                                                       :                    10/3/2016
   - vs -
                                                       :
MADISON COUNTY BOARD OF
COMMISSIONERS,                                         :

        Respondent-Appellant.                          :



         CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                            Case No. CVH2014-0256



Lape Mansfield Nakasian & Gibson, LLC, Douglas Mansfield, 9980 Brewster Lane, Suite
150, Powell, Ohio 43065, for respondent-appellant

Kohrman Jackson & Krantz, Luther L. Liggett, Jr., 10 West Broad Street, #1900, Columbus,
Ohio 43215, for relator-appellee



        PIPER, P.J.

        {¶ 1} Respondent-appellant, the Madison County Board of Commissioners, appeals

a decision of the Madison County Court of Common Pleas granting summary judgment in

favor of relator-appellee, the Madison County Engineer.

        {¶ 2} Relator and the Commissioners disagreed over relator's official duties and

compensation as county engineer, and relator decided to pursue legal action against the

Commissioners. Relator informed the Madison County Prosecutor, who serves as legal
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advisor to both relator and the Commissioners, that he sought outside counsel because the

prosecutor would have a conflict of interest by representing both relator and the

Commissioners. The prosecutor first informed relator that relator had authority to hire

outside counsel, but that relator might be responsible for any costs incurred by hiring outside

counsel. Despite the express warning that relator may be responsible for the costs, relator

hired outside counsel.

        {¶ 3} The prosecutor sought guidance from the State Auditor's Office regarding

procurement of outside counsel to represent relator, and how such fees were to be paid. The

State Auditor responded that the matter was "entirely within" the prosecutor's discretion. At

that point, the prosecutor informed relator that relator's retained counsel could continue

representation, but that relator would be responsible for paying the legal fees associated with

representation. The prosecutor also informed relator that he was willing and able to provide

relator legal services through either the Pickaway or Greene County Prosecutor.

        {¶ 4} In November 2014, relator filed a petition seeking a writ of mandamus to

compel the Commissioners to appropriate funds to pay for independent counsel to represent

him in his official capacity in the suit against the Commissioners regarding his official duties

and compensation. Relator moved for summary judgment on his writ of mandamus petition,

and the Commissioners filed a memorandum in opposition and also a motion for judgment on

the pleadings.        The trial court granted realtor's motion for summary judgment, and

simultaneously denied the Commissioners' motion for judgment on the pleadings.

        {¶ 5} During the pendency of these proceedings, relator passed away. An interim

county engineer was appointed, and the original relator's attorney continued to pursue the

legal action given the trial court's grant of summary judgment in favor of the original relator.1



1. Any reference to the relator in this decision is specific to the original relator rather than the new engineer who
was substituted upon the relator's death.
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As such, the Commissioners now appeal the trial court's decision, raising the following

assignments of error.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN

FAVOR OF RELATOR.

       {¶ 8} The Commissioners argue in their first assignment of error that the trial court

erred by granting summary judgment in favor of relator.

       {¶ 9} This court's review of a trial court's ruling on a summary judgment motion is de

novo. Lindsay P. v. Towne Properties Asset Mgt. Co., 12th Dist. Butler No. CA2012-11-215,

2013-Ohio-4124, ¶ 16. Civ.R.56 sets forth the summary judgment standard and requires that

there be no genuine issues of material fact to be litigated, the moving party is entitled to

judgment as a matter of law, and reasonable minds can come to only one conclusion which

is adverse to the nonmoving party. Slowey v. Midland Acres, Inc., 12th Dist. Fayette No.

CA2007-08-030, 2008-Ohio-3077, ¶ 8. The moving party has the burden of demonstrating

that there is no genuine issue of material fact. Harless v. Willis Day Warehousing Co., 54

Ohio St.2d 64 (1978).

       {¶ 10} The nonmoving party "may not rest on the mere allegations of his pleading, but

his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts

showing the existence of a genuine triable issue." Mootispaw v. Eckstein, 76 Ohio St.3d 383,

385 (1996). A dispute of fact can be considered "material" if it affects the outcome of the

litigation. Myers v. Jamar Enterprises, 12th Dist. Clermont No. CA2001-06-056, 2001 WL

1567352, *2 (Dec. 10, 2001). A dispute of fact can be considered "genuine" if it is supported

by substantial evidence that exceeds the allegations in the complaint. Id.

       {¶ 11} In order to be entitled to a writ of mandamus, the relator must establish a clear

legal right to the requested acts, a corresponding clear legal duty on the part of the

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respondent to perform the requested acts, and the lack of a plain and adequate remedy in

the ordinary course of law. State ex rel. Woods v. Oak Hill Community Med. Ctr., 91 Ohio

St.3d 459, 461 (2001). Relator must prove that he is entitled to the writ by clear and

convincing evidence. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-

Ohio-974.

        {¶ 12} According to R.C. 309.09(A),

                The prosecuting attorney shall be the legal adviser of the board
                of county commissioners, board of elections, all other county
                officers and boards, and all tax-supported public libraries, and
                any of them may require written opinions or instructions from the
                prosecuting attorney in matters connected with their official
                duties. The prosecuting attorney shall prosecute and defend all
                suits and actions that any such officer, board, or tax-supported
                public library directs or to which it is a party, and no county officer
                may employ any other counsel or attorney at the expense of the
                county, except as provided in section 305.14 of the Revised
                Code.

        {¶ 13} The relevant exception, as provided by R.C. 305.14(A), permits a court of

common pleas to authorize county commissioners to employ legal counsel to assist the

prosecutor, board, or any other county officer in any matter of public business "upon the

application of the prosecuting attorney and the board of county commissioners." According

to the Ohio Supreme Court, the hiring of special counsel pursuant to R.C. 305.14(A) has "no

viability until the common pleas court approves the application, and special counsel cannot

be paid until the approval occurs." State ex rel. Hamilton Cty. Bd. of Commrs. v. Hamilton

Cty. Court of Common Pleas, 126 Ohio St.3d 111, 2010-Ohio-2467, ¶ 33.2

        {¶ 14} The record is clear that no such application was made to the common pleas

court by the Commissioners and prosecutor to appoint special counsel in this situation. Nor




2. As recognized by the Sixth District Court of Appeals, 1990 Ohio Atty.Gen.Ops. No.90-096 provides that where
no application to the court of common pleas was sought, as required by R.C. 305.14(A), the board could not
reimburse the county employee for expenses of privately retained legal counsel. Telb v. Lucas Cty. Bd. of Cty.
Commrs., 6th Dist. Lucas No. L-13-1069, 2014-Ohio-343, ¶ 22.
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did the common pleas court give such approval given that the application was never filed.

Instead, the prosecutor specifically warned relator that he "may be responsible for costs

incurred by hiring outside counsel." Despite the prosecutor expressly telling relator that two

different counties were willing and able to assist in the prosecution of his case against the

Commissioners, relator chose to continue utilizing his own choice of counsel.

       {¶ 15} According to the record, the Madison County Prosecutor very clearly agreed to

provide relator with outside counsel at no expense to relator. Despite this fact, relator asked

the trial court to direct the Commissioners to appropriate funds to pay for counsel of his own

choice. As such, and given that the prosecutor had already agreed to provide relator with

outside counsel at no cost, relator lacked the legal right to pursue a claim for a cost he

himself chose to incur.

       {¶ 16} Stated more accurately, what realtor was actually asking for was a directive

from the trial court that his particular choice of attorney be paid by county funds. However,

there is no law or rule that requires the Commissioners to provide a specific attorney to

represent a county official in a suit, nor does the law permit a county official to choose

whomever he or she wishes for representation and have those legal fees paid when that

county official brings suit.

       {¶ 17} Despite these undisputed facts, the trial court relied upon an Ohio Supreme

Court case in granting summary judgment in favor of relator. State ex rel. Corrigan v.

Seminatore, 66 Ohio St.2d 459 (1981). In Corrigan, the Cuyahoga County Prosecutor

brought an action on behalf of the state of Ohio against members of the Cuyahoga County

Board of Mental Retardation seeking to recover from the members advertising fees paid on

behalf of the board. The board in that case voted to place advertisements listing terms

offered to its employees after those employees went on strike. The prosecutor, who believed

that the board lacked authority to utilize state funds to advertise details of the strike, filed suit

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against the board members individually and in their official capacity to recover the funds

expended.

       {¶ 18} After suit was filed against the board, the Cuyahoga County Prosecutor

refused to appoint counsel to represent board members. Instead, the prosecutor determined

that the board members' actions were so improper that the "defendant board members

should not be allowed representation at public expense." Id. at 464. As such, the common

pleas court in that case directly appointed counsel for the board, and authorized payment

despite the lack of a joint application as required by R.C. 305.14 because it was clear that the

prosecutor had a conflict of interest and was not otherwise going to permit the appointment of

outside counsel to represent the board. In upholding the common pleas court's decision

appointing counsel absent the joint application, the Ohio Supreme Court reasoned, "the

prosecuting attorney not only failed to make the application but vigorously opposed

appointment of other counsel, although admitting a conflict of interest exists." Id. at 465-466.

       {¶ 19} Despite the trial court's reliance on Corrigan, we find that the facts of the case

sub judice differ significantly from what occurred in Corrigan and the circumstances therein.

Here, there is no indication that the Madison County Prosecutor was trying to deny relator the

right to counsel, or that the prosecutor "vigorously opposed appointment of other counsel."

Instead, the Madison County Prosecutor very clearly provided two options to relator for

outside counsel by making prosecutors from Pickaway and Greene Counties available to

represent relator.

       {¶ 20} Even so, the trial court found Corrigan applicable because of its determination

that no joint application would be filed by the prosecutor and Commissioners given their

respective positions in regard to relator's suit. However, there is no indication in the record

that had relator chosen to work with one of the other county's prosecutors, the Madison

County Prosecutor and Commissioners would not have made a joint application to have

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those prosecutors appointed at no cost to relator. In fact, the record is patently clear that the

Madison County Prosecutor specifically offered to have either Greene or Pickaway County

represent relator in his suit at no cost to relator.

       {¶ 21} Moreover, there is nothing in Corrigan to stand for the proposition that the

board in that case was permitted to choose its own counsel. In fact, when determining that

no prejudice ensued from the common pleas court's appointment of counsel, the Corrigan

Court noted, "if the prosecuting attorney and the board of county commissioners had made

the joint application for appointment of counsel, as proper exercise of their duties would

require, the same result would have ensued. The only possible distinction might be different

counsel being appointed if the board of county commissioners had made the appointment."

(Emphasis added.)       Id. at 466.   This statement shows that while the supreme court

recognized the right of the board to have counsel, the decision as to what counsel was

ultimately appointed would have been made by the county commissioners had they chosen

to appoint counsel. As such, the problem in Corrigan arose when the prosecutor refused to

appoint any counsel on behalf of the board, not that the prosecutor refused to appoint the

specific counsel the board wanted.

       {¶ 22} Stated again, the law permits a common pleas court to authorize a prosecutor

to employ legal counsel to assist the prosecutor, board, or county officer. R.C. 305.14(A).

However, this unambiguous language does not indicate that the prosecutor, once authorized,

must appoint the specific counsel requested by the county official, nor does the statute

provide that the county official has the authority to choose specific representation.

       {¶ 23} In the absence of any statutory requirement that a prosecutor employ specified

legal counsel at the request of its county official, the prosecutor was within his discretion in

providing relator outside counsel via the Pickaway or Greene County prosecutors, either of

whom would have represented relator at no personal cost. As such, the prosecutor had no

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legal duty to appoint the specific counsel relator was requesting, and relator had no clear

legal right to be represented cost-free by counsel of his choice.

       {¶ 24} After reviewing the record, we find that the grant of summary judgment in favor

of relator was error. As such, the Commissioners' first assignment of error is sustained.

       {¶ 25} Assignment of Error No. 2:

       {¶ 26} THE TRIAL COURT ERRED IN OVERRULING THE COMMISSIONERS'

MOTION TO DISMISS.

       {¶ 27} The Commissioners argue in their second assignment of error that the trial

court erred by denying their motion to dismiss.

       {¶ 28} The Commissioners filed a motion to dismiss pursuant to Civ.R. 12(C), which

is more specifically a motion for judgment on the pleadings. A trial court's decision on a

Civ.R. 12(C) motion for judgment on the pleadings is reviewed by an appellate court de novo.

Golden v. Milford Exempted Village School Bd. of Edn., 12th Dist. Clermont No. CA2008-10-

097, 2009-Ohio-3418, ¶ 6. Pursuant to Civ.R. 12(C), a judgment on the pleadings is

appropriate if the court finds that the plaintiff can prove no set of facts in support of his claim

that would entitle him to relief. In ruling on the Civ.R. 12(C) motion, the court construes as

true all the material allegations in the complaint, with all reasonable inferences to be drawn

therefrom, in favor of the nonmoving party. Corporex Dev. & Constr. Mgt., Inc. v. Shook, 106

Ohio St.3d 412, 2005-Ohio-5409, ¶ 2. Civ.R. 12(C) motions are specifically for resolving

questions of law. Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574, 581 (2001).

"The determination of a motion for judgment on the pleadings is limited solely to the

allegations in the pleadings and any writings attached to the pleadings." Golden at ¶ 6.

       {¶ 29} After reviewing the record, and for the same reasons set forth above, we find

that the trial court erred in not granting the Commissioners' motion for judgment on the

pleadings. The Madison County Prosecutor acted within his discretion in providing outside

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counsel to relator, and thus fulfilled the prosecutor's statutory duty to provide legal

representation. The prosecutor did not, however, have a legal duty to pay the fee of anyone

relator chose to act as private counsel. There is no indication in the record that the

prosecutor and Commissioners would not have filed the proper joint application to pay for

outside counsel once relator chose to move forward with either the Pickaway or Greene

County Prosecutor, and thus the common pleas court was not in the position to authorize

payment of relator's personal attorney fees.      As such, the Commissioners' second

assignment of error is also sustained.

      {¶ 30} Assignment of Error No. 3:

      {¶ 31} EVEN IF UPHELD (WHICH THE COMMISSIONERS STRONGLY DISPUTE

SHOULD HAPPEN), THE WRIT OF MANDAMUS THAT WAS ISSUED MUST BE

MODIFIED.

      {¶ 32} The Commissioners argue in their third assignment of error that the writ of

mandamus must be modified given that the current Madison County Engineer does not want

to pursue the case against the Commissioners. However, and given our disposition of the

first two assignments of error, we find the Commissioners' third assignment of error moot.

      {¶ 33} The judgment of the trial court is reversed, and this cause is remanded to the

trial court with instructions to enter judgment on the pleadings on behalf of the

Commissioners in accordance with Civ.R. 12(C).


      S. POWELL and RINGLAND, JJ., concur.




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