[Cite as Allen v. Fleegle, 2011-Ohio-5585.]


        IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                               FIFTH APPELLATE DISTRICT



JOHN DALE ALLEN,                              :       JUDGES:
                                              :       Hon. John W. Wise, P.J.
        Petitioner,                           :       Hon. Sheila G. Farmer, J.
                                              :       Hon. Patricia A. Delaney, J.
v.                                            :
                                              :       CASE NO. CT11-0035
MARK C. FLEEGLE,                              :
                                              :       OPINION
        Respondent.                           :




CHARACTER OF PROCEEDING:                          Petition for Writ of Quo Warranto


JUDGMENT:                                         WRIT DISMISSED


DATE OF JUDGMENT ENTRY:                           October 18, 2011


APPEARANCES:


For Petitioner – Pro se:                          For Respondent:

JOHN DALE ALLEN                                   The Honorable Mark C. Fleegle
c/o 28 N. 4th St, - SB4                           401 Main Street
Zanesville, OH 43701                              Zanesville, OH 43701
Muskingum County, Case No. CT11-0035

Delaney, J.,

       {¶ 1} Petitioner, John Dale Allen, has filed a Petition for Writ of Quo

Warranto against Respondent Judge Mark Fleegle requesting a writ be granted

ousting Respondent from his position as a judge in the Muskingum County Court

of Common Pleas. Petitioner claims Respondent violated his oath of office by

setting an excessive bail.

       {¶ 2} For a writ of quo warranto to issue, “a relator must establish (1) that

the office is being unlawfully held and exercised by respondent, and (2) that

relator is entitled to the office.” State ex rel. Paluf v. Feneli (1994), 69 Ohio St.3d

138, 141, 630 N.E.2d 708.

       {¶ 3} The Ohio Supreme Court has held, “‘[A]n action in quo warranto

may be brought by an individual as a private citizen only when he personally is

claiming title to a public office.’ “ State ex rel. Coyne v. Todia (1989), 45 Ohio

St.3d 232, 238, 543 N.E.2d 1271, quoting State ex rel. Annable v. Stokes (1970),

24 Ohio St.2d 32, 32-33, 53 O.O.2d 18, 262 N.E.2d 863.

       {¶ 4} “Sua sponte dismissal of a complaint for failure to state a claim

upon which relief can be granted is appropriate if the complaint is frivolous or the

claimant obviously cannot prevail on the facts alleged in the complaint. State ex

rel. Bruggeman v. Ingraham (1999), 87 Ohio St.3d 230, 231, 718 N.E.2d 1285,

1287.” State ex rel. Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 316, 725

N.E.2d 663, 667.
Muskingum County, Case No. CT11-0035

Delaney, J.,

      {¶ 5} Petitioner does not aver in his Petition that he is entitled to the

office held by Respondent, therefore, he, as a private citizen, cannot maintain an

action in quo warranto. For this reason, we find the Petition lacks merit on its

face and dismiss the Petition for failure to state a claim upon which relief may be

granted.

      {¶ 6} For this reason, Petitioner’s request for Writ of Quo Warranto is

denied.

      {¶ 7} PETITION FOR WRIT DISMISSED.

      {¶ 8} COSTS TO PETITIONER.



By: Delaney, .J.
    Farmer, .J. and Wise, P.J. concur.




                                          ____________________________
                                          HON. PATRICIA A. DELANEY

                                          ____________________________
                                          HON. SHEILA G. FARMER

                                          ____________________________
                                          HON. JOHN W. WISE
      IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


JOHN DALE ALLEN,                        :     CASE NO. CT11-0035
                                        :
      Petitioner,                       :
                                        :
v.                                      :     JUDGMENT ENTRY
                                        :
MARK C. FLEEGLE,                        :
                                        :
      Respondent.                       :




      For the reasons stated in the Memorandum-Opinion on file, Petitioner’s

Writ of Quo Warranto is hereby dismissed. Costs taxed to Petitioner.




                                        ______________________________
                                        HON. PATRICIA A. DELANEY


                                        ______________________________
                                        HON. SHEILA G. FARMER


                                        ______________________________
                                        HON. JOHN W. WISE
