[Cite as Schreyer v. Preble Cty. Bd. of Commrs., 2013-Ohio-3087.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            PREBLE COUNTY




MANFRED R. SCHREYER d.b.a Taffy's                       :
of Eaton,
                                                        :           CASE NO. CA2012-12-018
        Plaintiff-Appellant,
                                                        :                DECISION
                                                                          7/15/2013
   - vs -                                               :

                                                        :
BOARD OF COMMISSIONERS OF
PREBLE COUNTY, OHIO,                                    :

        Defendant-Appellee.                             :



            CIVIL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                               Case No. 12 CV 029618



Jane E. Schreyer, 100 West Main Street, Eaton, Ohio 45320, for plaintiff-appellant

Martin P. Votel, Preble County Prosecuting Attorney, Kathryn M. West, Preble County
Courthouse, 101 East Main Street, Eaton, Ohio 45320, for defendant-appellee



        Per Curiam.

        {¶ 1} This cause came on to be considered upon a notice of appeal, the transcript of

the docket and journal entries, and original papers from the Preble County Court of Common

Pleas, and upon the briefs and oral arguments of counsel. Now, therefore, the assignment of

error having been fully considered is passed upon in conformity with App.R. 12(A) as follows:

        {¶ 2} Plaintiff-appellant, Manfred R. Schreyer d.b.a. Taffy's of Eaton, appeals from a
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decision of the Preble County Court of Common Pleas dismissing his complaint for

declaratory judgment against defendant-appellee, Preble County Board of Commissioners

("commissioners").

      {¶ 3} On June 11, 2012, a public forum was scheduled to be held at Taffy's. The

forum was organized by Taffy's and the Preble County Chamber of Commerce ("chamber")

to discuss a potential county development project, Goose Creek. As a part of the forum,

several people were invited to serve on a panel to answer questions regarding Goose Creek,

including the commissioners. All three commissioners agreed to join the panel.

      {¶ 4} On June 10, 2012, one day prior to the scheduled event, two local newspapers

ran an announcement stating that the forum is moved from Taffy's to the Preble County

Commissioners' Chambers. The reasons cited in the announcement for the move included

that it was best for the commissioners to be in session, the forum needed to be recorded,

and some panelists were concerned the forum was taking place at a private business. One

announcement quoted "public officials" and the other announcement specifically named one

of the commissioners. A forum was held on the specified date at the commissioners'

chambers.

      {¶ 5} At a commissioners' meeting held on July 30, 2012, a letter from the chamber

was read into the record highlighting the chamber's displeasure regarding the commissioners'

action moving the forum. All three commissioners stated on the record that they had no

recollection of moving the forum. However, at a subsequent commissioners' meeting, when

pressed, one of the commissioners admitted on the record that they had called the

newspapers regarding moving the forum.

      {¶ 6} On September 27, 2012, Schreyer filed a complaint for declaratory judgment

against the commissioners requesting a declaration that: (1) the commissioners acted

illegally by moving a chamber-sponsored event from a private business to another location,
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(2) that the commissioners acted dishonestly in contravention of the spirit, if not the word, of

the Ohio Ethics Statute when they denied, and later admitted, to moving the forum, and (3)

the commissioners retaliated or threatened to retaliate against Taffy's when one

commissioner stated that whether he attended a forum in the future would depend on where

the forum was held. Schreyer requested a written public apology be placed on the record at

a commissioners' meeting. In response, the commissioners filed a motion to dismiss and

motion for fees and sanctions. The trial court sustained the commissioners' motion to

dismiss. The trial court held that there was no real and present controversy between

Schreyer and the commissioners. Additionally, the trial court overruled the commissioners'

motion for sanctions.

       {¶ 7} Schreyer now appeals and raises one assignment of error for review:

       {¶ 8} THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S

COMPLAINT FOR DECLARATORY JUDGMENT.

       {¶ 9} Schreyer argues that the trial court erred in finding that a real and present

controversy did not exist between Schreyer and the commissioners because the

commissioners had already acted by illegally moving a forum from a private business to the

commissioners' chambers and the controversy was not dependent upon some hypothetical

future event. We disagree.

       {¶ 10} Although Schreyer urges us to employ a de novo standard of review, an

appellate court reviews a trial court's dismissal of a declaratory judgment action regarding

justiciability under an abuse of discretion standard. Mid-Am. Fire & Cas. Co. v. Heasley, 113

Ohio St.3d 133, 2007-Ohio-1248, paragraph two of the syllabus; Arnott v. Arnott, 132 Ohio

St.3d 401, 2012-Ohio-3208, ¶ 13. An abuse of discretion connotes more than an error of law

or judgment; it implies that the trial court's attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
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       {¶ 11} Schreyer filed a declaratory judgment action pursuant to R.C. 2721.02, which

allows courts of record to "declare rights, status, and other legal relations whether or not

further relief is or could be claimed." "A declaratory judgment action provides a means by

which parties can eliminate uncertainty regarding their legal rights and obligations." Mid-Am.

Fire & Cas. Co. at ¶ 8. The purpose of a declaratory judgment action is to dispose of

"uncertain or disputed obligations quickly and conclusively." Id.

       {¶ 12} An action for a declaratory judgment may be dismissed pursuant to Civ.R.

12(b)(6) for failure to state a claim upon which relief can be granted. Home Builders Assn. of

Dayton & Miami Valley v. Lebanon, 12th Dist. No. CA2003-12-115, 2004-Ohio-4526, ¶ 13.

"[W]hen a party files a motion to dismiss for failure to state a claim, all the factual allegations

of the complaint must be taken as true and all reasonable inferences must be drawn in favor

of the nonmoving party." Byrd v. Faber, 57 Ohio St.3d 56, 60 (1991). Before a trial court

may dismiss a complaint under Civ.R. 12(B)(6), it must appear beyond a reasonable doubt

from the complaint that the plaintiff can prove no set of facts entitling him to recovery.

O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus.

"[T]here are only two reasons for dismissing a complaint for declaratory judgment pursuant to

Civ.R. 12(B)(6): 1.) where there is no real controversy or justiciable issue between the

parties, and 2.) when the declaratory judgment will not terminate the uncertainty or

controversy." Lebanon at ¶ 13.

       {¶ 13} In order for a justiciable question to exist, "[t]he danger or dilemma of the

plaintiff must be present, not contingent on the happening of hypothetical future events * * *

and the threat to his position must be actual and genuine and not merely possible or remote."

Mid-Am. Fire & Cas. Co. at ¶ 9. A "controversy" exists for purposes of a declaratory

judgment action when there is a genuine dispute between parties having adverse legal

interest of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.
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Brewer v. City of Middletown, 12th Dist. No. CA91-02-039, 1992 WL 185691, *4 (Aug. 3,

1992), citing Burger Brewing Co. v. Liquor Control Comm., 34 Ohio St.2d 93 (1973). A claim

is not ripe if it rests upon "'future events that may not occur as anticipated, or may not occur

at all.'" State v. McCarty, 12th Dist. No. CA2006-04-093, 2007-Ohio-2290, ¶ 15, quoting

Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257 (1998). Furthermore, actions

become moot when resolution of the issues presented is purely academic and will have no

practical effect on the legal relations between the parties. Brewer at *4.

       {¶ 14} While we recognize certain exceptions exist as to whether there is a justiciable

question, in order for a case that is capable of repetition yet evades review, "there must be

more than a theoretical possibility that the action will arise again." James A. Keller, Inc. v.

Flaherty, 74 Ohio App.3d 788, 792 (10th Dist.1991), citing Murphy v. Hunt, 455 U.S. 478,

482, 102 S.Ct. 1181, 1184 (1982). Similarly, an exception that is of great public or general

interest should only be used with caution and on rare occasions. In re L.W., 168 Ohio

App.3d 613, 2006-Ohio-644, ¶ 13 (10th Dist.). Such an exception should be made "by the

highest court in the state, rather than an intermediate appellate court." Id.

       {¶ 15} In this case, the trial court did not abuse its discretion in finding that there is no

current controversy between Schreyer and the commissioners. Any possible controversy has

already been resolved as the forum regarding Goose Creek was in fact moved from Taffy's to

the commissioners' chambers. Consequently, any action by a court regarding this past

action would be purely academic. Furthermore, there is no indication that any other such

forums are planned.      Thus, the claim is not ripe as any future forum or act by the

commissioners moving such a forum may not occur. There is no more than a mere

theoretical likelihood that such an action would happen again. Accordingly, no justiciable

question exists. The trial court did not abuse its discretion in granting the commissioners'

motion to dismiss and dismissing Schreyer's complaint for declaratory judgment.
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                                                           Preble CA2012-12-018

{¶ 16} Schreyer's sole assignment of error is overruled.

{¶ 17} Judgment affirmed.


HENDRICKSON, P.J., S. POWELL AND PIPER, JJ., concur.




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