[Cite as Huntsman v. State, 2017-Ohio-2622.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                       JUDGES:
CYNTHIA HUNTSMAN, ET AL                        :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Craig R. Baldwin, J.
                     Plaintiffs-Appellants     :       Hon. Earle E. Wise, Jr, J.
                                               :
-vs-                                           :
                                               :       Case No. 2016CA00206
STATE OF OHIO, ET AL                           :
                                               :
                  Defendants-Appellees         :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Stark County Court of
                                                   Common Pleas, Case No. 2016CV01293


JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            May 1, 2017

APPEARANCES:

For Plaintiffs-Appellants                          For Defendant-Appellee

JOHN JUERGENSEN                                    LYDIA ARKO
6545 Market Avenue North                           30 E. Broad Street
North Canton, OH 44721                             26th Floor
                                                   Columbus, OH 43215
Stark County, Case No. 2016CA00206                                                      2

Gwin, P.J.

      {¶1}    Appellant appeals the October 13, 2016 judgment entry of the Stark County

Court of Common Pleas granting appellee’s motion to dismiss.

                                  Facts & Procedural History

      {¶2}    On September 5, 2012, Ohio enacted the Dangerous Wild Animal Act

(“DWA”), R.C. Chapter 935. The law went into effect on January 1, 2014. Under the

DWA, no person may possess a dangerous wild animal after January 1, 2014 without a

permit from the Ohio Department of Agriculture (“ODA”), unless the owner falls under one

of the statute’s exceptions.     R.C. 935.02; R.C. 935.05(A); R.C. 935.07(A); R.C.

935.101(A). Under R.C. 935.03(B)(10), the permit requirement does not apply to an

owner who has been issued a permit under R.C. 1533.08, provided that permit lists each

specimen of wild animal that is a dangerous wild animal or restricted snake in the owner’s

possession.

      {¶3}    Appellant Cynthia Huntsman (“Huntsman”) operates Stump Hill Farm, Inc.

(“Stump Hill”), which houses and cares for various animals, including dangerous wild

animals. In her complaint, Huntsman alleges that twice in 2014, appellee ODA contacted

her because she lacked a permit for these dangerous wild animals. Huntsman informed

the ODA she was exempt from the DWA because of a previously-issued permit under

R.C. 1533.08. However, the ODA told Huntsman she was not exempt based upon this

previously-issued permit as her bald-eagle permit did not cover any of the dangerous wild

animals in her possession.

      {¶4}    On March 3, 2016, the ODA issued a quarantine order to Huntsman

pursuant to R.C. 935.20(A), which provides if the ODA believes a person possesses a
Stark County, Case No. 2016CA00206                                                      3


dangerous wild animal without a permit, it may quarantine the animals on site and restrict

any movement on and off the property.        The quarantine order prohibited her from

acquiring or removing dangerous wild animals from her premises without approval from

the ODA. Huntsman filed a request for a hearing with the ODA as to the quarantine order

as provided for pursuant to R.C. 935.20 and R.C. Chapter 119.

      {¶5}   On May 4, 2016, the ODA obtained a search warrant under R.C. 935.20 for

Huntsman’s premises from the Stark County Common Pleas Court. On the same day,

the ODA executed an administrative order to transfer the dangerous wild animals from

Huntsman’s property pursuant to R.C. 935.20, which provides the ODA may order the

immediate transfer of the animals under an administrative transfer order. The ODA

transferred five tigers, two pumas, two baboons, and one chimpanzee from Huntsman’s

property. Huntsman appealed the transfer order pursuant to R.C. 935.20(D). Her appeal

was heard at an administrative hearing held on December 8, 2016.

      {¶6}   In response to the transfer, Huntsman filed a motion for temporary

restraining order and preliminary injunction seeking to block the ODA from enforcing the

transfer order and to require the ODA to return the transferred animals to Huntsman’s

possession. In support of her motion, Huntsman argued she was exempt from R.C.

Chapter 935 and should thus not be required to obtain a permit for the animals. Huntsman

was granted a temporary restraining order against the ODA by a trial court judge, who

ordered the ODA to return the seized animals by May 19, 2016.

      {¶7}   On May 10, 2016, the ODA sought a writ of prohibition against the trial court

judge to prevent him from continuing to exercise jurisdiction over the case in which he

granted the restraining order. The ODA argued the trial court judge improperly exercised
Stark County, Case No. 2016CA00206                                                           4


judicial power over the underlying action and that his exercise of that power was

unauthorized by law. Further, that he patently and unambiguously lacked jurisdiction over

transfer orders authorized under R.C. 935.20.

       {¶8}   On May 18, 2016, the Ohio Supreme Court issued State ex rel. Director,

Ohio Department of Agriculture v. Forchione, 148 Ohio St.3d 105, 2016-Ohio-3049, 69

N.E.3d 636.      The Supreme Court held that the trial court judge patently and

unambiguously lacked jurisdiction to order the return of the dangerous wild animals

seized from Huntsman. Further, that the Director of the ODA has exclusive authority to

implement and enforce R.C. Chapter 935, including the exclusive authority to order the

removal and quarantine of dangerous wild animals being held by an owner without a

permit to do so. Thus, the Ohio Supreme Court granted a peremptory writ of prohibition

preventing the trial court from exercising any further jurisdiction and ordered the trial court

to vacate its previous orders in the case.

       {¶9}   Huntsman filed a separate complaint with the Stark County Court of

Common Pleas on June 1, 2016 against the State of Ohio and the Director of the ODA.

According to the complaint, Huntsman had a permit issued under R.C. 1533.08 as of

January 1, 2014 (“ODNR permit”) and this permit states Huntsman “may possess

mammals, a bald eagle, and other non-releasable raptors for educational purposes.” A

copy of the permit was not attached to the complaint.

       {¶10} In the first count of her complaint, Huntsman sought a declaratory judgment

pursuant to R.C. 2721.03 that she is exempt from the permit requirements of the DWA

based upon her ODNR permit and thus the ODA did not have jurisdiction or authority to

issue the transfer order or the quarantine order. In the second count of her complaint,
Stark County, Case No. 2016CA00206                                                        5


Huntsman alleged the ODA and State of Ohio violated her Fifth and Fourteenth

Amendment rights of the U.S. Constitution because they took her personal property

without compensation and without due process due to the fact that she is exempt from

the DWA. In the third count, Huntsman similarly alleged the ODA and State of Ohio

violated her rights under the Ohio Constitution because they took her personal property

without compensation as she was exempt from the DWA.

       {¶11} Huntsman requested the following relief in her complaint: a declaration she

is exempt from the provisions of Chapter 935 of the Revised Code; a declaration the ODA

and State of Ohio violated her rights protected under the United States and Ohio

Constitutions; and for a court order requiring the return of the seized animals at the State

of Ohio’s cost.

       {¶12} On July 1, 2016, appellees ODA and State of Ohio filed a motion to dismiss

pursuant to Civil Rules 12(B)(1) and 12(B)(6). They argued that, pursuant to State ex rel.

Director, Ohio Dept. of Agriculture v. Forchione, 148 Ohio St.3d 105, 2016-Ohio-3049, 69

N.E.2d 636, the ODA has exclusive jurisdiction to deal with all issues arising from the

enforcement of the DWA in the administrative process, including whether or not

Huntsman is exempt; thus, the trial court lacked subject matter jurisdiction to address

whether Huntsman was exempt from the DWA. Further, that administrative orders under

the DWA are subject to administrative review and the administrative process is the proper

means by which to challenge the administrative order.

       {¶13} The ODA and State of Ohio also argued a declaratory judgment cannot be

used to create or extend jurisdiction that does not otherwise exist and is not a substitute
Stark County, Case No. 2016CA00206                                                          6


for an administrative remedy. Also, that Huntsman failed to exhaust her administrative

remedies.

       {¶14} Huntsman filed a memorandum in opposition to the motion to dismiss on

July 15, 2016. Huntsman argued: Forchione is wholly inapplicable to the instant case;

this case has nothing to do with the transfer order issued by the State; the trial court had

inherent authority to determine its own jurisdiction; statutory interpretation is the function

of the judiciary; and she is not required to exhaust her administrative remedies.

       {¶15} The trial court held an oral hearing on the motion to dismiss and allowed the

parties to submit supplemental briefs after the hearing. The trial court issued a judgment

entry on October 13, 2016. The trial court found the Ohio Supreme Court ruled the ODA

has the exclusive authority to implement and enforce R.C. 935 and rejected Huntsman’s

assertion that the Forchione case has no bearing on the instant case. Further, the trial

court found that because the administrative proceeding in the DWA as set forth in R.C.

935.20 is a special procedure, declaratory relief is inappropriate.

       {¶16} The trial court stated Huntsman may raise the applicability of any exemption

to the DWA at her administrative hearing and, after this hearing, Huntsman has the right

to object to the hearing officer’s report, may appeal the Director’s order to the Franklin

County Court of Common Pleas, and may appeal any trial court ruling to the Tenth District

Court of Appeals. Further, if Huntsman had applied for and been denied a wild animal

permit, an appeal of that administrative decision by the ODA would be heard in the Stark

County Court of Common Pleas pursuant to R.C. 119.12(A). Since Huntsman failed to

apply for such a permit, there is no remedy available in the Stark County Court of

Common Pleas.
Stark County, Case No. 2016CA00206                                                     7


      {¶17} The trial court held that under R.C. Chapter 935, the ODA has exclusive

jurisdiction over enforcement of the DWA and this jurisdiction includes reviewing the

validity of any exemption from the permit requirement. Accordingly, the trial court found

it was without subject matter jurisdiction and granted the ODA and State of Ohio’s motion

to dismiss.

      {¶18} Huntsman appeals the October 13, 2016 judgment entry of the Stark County

Court of Common Pleas and assigns the following as error:

      {¶19} “I. THE TRIAL COURT ERRED IN DISMISSING APPELLANTS’

COMPLAINT FOR DECLARATORY JUDGMENT FOR LACK OF SUBJECT MATTER

JURISDICTION.”

                                               I.

      {¶20} Huntsman challenges the trial court’s Civil Rule 12(B) dismissal of her

complaint. The motion to dismiss filed by appellees contained both Civil Rule 12(B)(1)

and (6) arguments, i.e. issues of subject matter jurisdiction, and the exhaustion of

administrative remedies. Our standard of review on a Civil Rule 12(B) motion to dismiss

is de novo. Greeley v. Miami Valley Maintenance Contractors Inc., 49 Ohio St.3d 228,

551 N.E.2d 981 (1990).

      {¶21} 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 County Bd. of Commissioners, 65 Ohio St.3d 545, 605 N.E.2d 378 (1992).

Under a de novo analysis, we must accept all factual allegations of the complaint as true

and all reasonable inferences must be drawn in favor of the nonmoving party. Byrd v.

Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991). In order to dismiss a complaint pursuant
Stark County, Case No. 2016CA00206                                                            8


to Civil Rule 12(B)(6), it must appear beyond doubt that the plaintiff can prove no set of

facts in support of the claim that would entitle plaintiff to relief. York v. Ohio State Highway

Patrol, 60 Ohio St.3d 143, 573 N.E.2d 1063 (1991).

       {¶22} The standard of review for dismissal for want of subject matter jurisdiction

pursuant to Civil Rule 12(B)(1) is whether any cause of action cognizable by the forum

has been raised in the complaint. State ex rel. Bush .v Spurlock, 42 Ohio St.3d 77, 537

N.E.2d 641 (1989). This determination involves a question of law that we review de novo.

       {¶23} Huntsman contends the Stark County Common Pleas Court has jurisdiction

over the instant case as R.C. 2721.03 specifically grants such jurisdiction to the common

pleas court to determine the construction of R.C. 935.03 as it applies to Huntsman.

Further, that the trial court has jurisdiction because Huntsman sought a declaration from

the trial court that R.C. Chapter 935 does not apply to her because of the exemption

language in R.C. 935.03(B)(10).

       {¶24} A declaratory judgment action is a civil action and provides a remedy in

addition to other legal and equitable remedies available. Aust v. Ohio State Dental Board,

136 Ohio App.3d 677, 737 N.E.2d 605 (10th Dist. 2000). The essential elements for

declaratory relief are: (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. Id. All three requirements must be met in order for declaratory relief to be proper.

Id.

       {¶25} The ODA makes several arguments to why the trial court properly dismissed

the complaint. First, the ODA contends the Ohio Supreme Court has already ruled on the

issue of who has jurisdiction in State ex rel. Director, Ohio Dept. of Agriculture v.
Stark County, Case No. 2016CA00206                                                      9

Forchione, 148 Ohio St.3d 105, 2016-Ohio-3049, 69 N.E.2d 636. Huntsman argues the

Forchione case has no bearing on the instant case because this case has nothing to do

with the transfer order and deals only with whether she is exempt from the DWA pursuant

to R.C. 935.03(B)(10).

       {¶26} In May of 2016, the ODA obtained a search warrant under R.C. 935.20 for

the Huntsman premises. The ODA then executed a transfer order for several animals on

Huntsman’s property. In response to the transfer order, Huntsman filed a motion for

temporary restraining order and preliminary injunction seeking to block the ODA from

enforcing the transfer order and to require the ODA to return the transferred animals to

Huntsman. In support of the motion for temporary restraining order and preliminary

injunction, Huntsman asserted she was exempt from R.C. Chapter 935 and should thus

not be required to obtain a permit for her animals. After the trial court issued an order

requiring the ODA to return the animals to Huntsman, the ODA sought a peremptory writ

of prohibition from the Ohio Supreme Court, arguing the Stark County Common Pleas

Court lacked subject matter jurisdiction with regard to the administration of R.C. Chapter

935.

       {¶27} The Ohio Supreme Court first noted that, pursuant to R.C. 935.20, the

owner may request a hearing to dispute either a quarantine order or transfer action, and

the administrative review includes a hearing, objections, and judicial review under R.C.

Chapter 119. Id. Further, that only after these remedies are exhausted may the director

initiate proceedings for the permanent seizure of the animals. R.C. 935.20(H). Id.
Stark County, Case No. 2016CA00206                                                     10


      {¶28} The Ohio Supreme Court found R.C. Chapter 935 is a comprehensive

statutory scheme regarding the regulation of wild animals, which vests exclusive authority

over such matters to the direction of the ODA. Id. The Supreme Court stated:

      We hold that [the trial judge] patently and unambiguously lacks jurisdiction

      to order the return of the dangerous wild animals seized from Cynthia

      Huntsman and Stump Hill Farms. Daniels, as director of the ODA, has

      exclusive authority to implement and enforce R.C. Chapter 935, including

      the exclusive authority to order the removal and quarantine of dangerous

      wild animals being held by an owner without a permit to do so.

Id. The Supreme Court thus granted the peremptory writ of prohibition preventing the trial

court from exercising any further jurisdiction and vacated the previous orders issued in

the case. Id.

      {¶29} Though Huntsman argues the instant case is not a collateral attack on the

transfer order, the plain language contained in the complaint demonstrates she is

attempting to attack the transfer order in this case. In the first count of her complaint,

Huntsman avers she is “not subject to the jurisdiction of the State with respect to the

quarantine or transfer order because of her properly issued permit” and “the State did not

have jurisdiction and/or authority to issue the quarantine order or the transfer order.”

Further, Huntsman avers the common pleas court had jurisdiction to adjudicate the issues

because the State’s exclusive jurisdiction over the seizure of dangerous wild animals is

not applicable to her. In her prayer for relief, Huntsman sought a declaration that she is

exempt from the permitting requirements of the DWA on the basis of her ODNR permit

and asked the court for an order requiring the return of the seized animals at the State’s
Stark County, Case No. 2016CA00206                                                       11


costs. If the trial court were to issue an order requiring the return of the seized animals,

it would be reversing the administrative transfer order.

       {¶30} Further, while a declaratory judgment action may provide an additional

remedy which may be granted by a court, R.C. 2721.02 cannot be used to extend the

jurisdiction as to the subject matter upon which a court may act. State ex rel. Ford v.

Ruehlman, -- N.E.3d ----, 2016-Ohio-3529, citing State ex rel. Foreman v. Bellefontaine

Municipal Court, 12 Ohio St.2d 26, 231 N.E.2d 70 (1967). For this reason, a common

pleas court cannot use the declaratory judgment statute to decide matters over which it

otherwise has no jurisdiction.

       {¶31} Accordingly, we find the Ohio Supreme Court case of State ex rel. Director,

Ohio Dept. of Agriculture v. Forchione, 148 Ohio St.3d 105, 2016-Ohio-3049, 69 N.E.2d

636 is dispositive of the issues in this case. As held by the Supreme Court, the ODA has

the exclusive authority to implement and enforce R.C. Chapter 935, including the review

of the validity of an exemption from the permit requirement. Id. R.C. 2721.02 cannot be

used to extend jurisdiction to the common pleas court, when the Ohio Supreme Court has

determined the common pleas court does not have jurisdiction. Thus, the trial court did

not err in concluding the Ohio Supreme Court’s decision in Forchione is applicable to this

case and it was without subject matter jurisdiction in the instant case.

                                  Special Statutory Proceeding

       {¶32} The ODA also contends the trial court did not err in granting its motion to

dismiss, as Huntsman failed to state a claim upon which relief can be granted because

declaratory judgment is improper where special statutory proceedings would be
Stark County, Case No. 2016CA00206                                                       12


bypassed. Huntsman argues the statutory scheme is not bypassed because she seeks

a declaration of her rights under the statutory scheme in effect.

       {¶33} Pursuant to R.C. 2721.02 and R.C. 2721.03, courts of common pleas

generally have jurisdiction to issue a declaratory judgment regarding a question of

construction or validity arising under a statute and to declare the rights, status, or legal

relations under it. Burger Brewing Co. v. Liquor Control Commission, Dept. of Liquor

Control, 34 Ohio St.2d 93, 296 N.E.2d 261 (1973).

       {¶34} However, the Ohio Supreme Court has held that a court cannot attempt to

bypass a special statutory proceeding of an agency that has exclusive jurisdiction over a

particular subject matter. State ex rel. Director, Ohio Dept. of Agriculture v. Forchione,

148 Ohio St.3d 105, 2016-Ohio-3049, 69 N.E.2d 636; State ex rel. Albright v. Court of

Common Pleas of Delaware County, 60 Ohio St.3d 40, 572 N.E.2d 1387 (1991) (holding

actions for declaratory judgment are inappropriate where special statutory proceedings

would be bypassed); State ex rel. Smith v. Frost, 74 Ohio St.3d 107, 656 N.E.2d 673

(1995) (finding where a special statutory procedure like that provided for annexation is

available, an action for declaratory judgment cannot be used to bypass the statutory

procedure); City of Galion v. Am. Federation of State, County, and Municipal Employees,

Ohio Council, 71 Ohio St.2d 620, 646 N.E.2d 813 (1995) (holding since Chapter 2711

provides the exclusive statutory remedy which parties must use in appealing arbitration

awards, an action in declaratory judgment cannot be maintained).

       {¶35} Further, courts of appeals have rejected declaratory judgment actions when

a special statutory proceeding is available. Autumn Health Care v. Todd, 5th Dist.

Muskingum No. CT2014-0020, 2014-Ohio-5851 (finding in R.C. Chapter 3721, the
Stark County, Case No. 2016CA00206                                                     13


General Assembly enacted a complete and comprehensive statutory scheme and thus

declaratory judgment was inappropriate); State ex rel. Gelesh v. State Medical Board of

Ohio, 172 Ohio App.3d 365, 2007-Ohio-3328, 874 N.E.2d 1256 (10th Dist.) (finding R.C.

Chapter 4731 governing the practice of medicine in Ohio is a special statutory proceeding

making a claim for declaratory judgment an improper attempt to bypass the special

statutory procedures governing physician discipline and finding R.C. Chapter 119

provides an appeal of the administrative proceedings to the court of common pleas);

Arbor Health Care Co. v. Jackson, 39 Ohio App.3d 183, 530 N.E.2d 928 (10th Dist. 1987)

(finding R.C. 3702 provided a special statutory proceeding to apply for a certificate of

need and since the procedure outlined in R.C. 3702 is a specialized procedure,

declaratory relief is inappropriate); Aust v. State Dental Board, 136 Ohio App.3d 677, 737

N.E.2d 605 (10th Dist. 2000) (finding the Dental Practice Act was a special statutory

proceeding and the appellant was attempting to improperly bypass the special statutory

proceeding through a declaratory judgment action).

      {¶36} In this case, the General Assembly has given to the ODA the exclusive

power to regulate dangerous wild animals. As part of the special statutory proceeding,

Huntsman can assert she is exempt from the law during the administrative hearing. The

issue involved in this declaratory judgment action is the same issue that is being decided

in the administrative proceeding. Thus, this declaratory judgment action is merely a

substitute for the administrative process provided by the legislature in R.C. Chapter 935

to determine such questions. The administrative process gives Huntsman numerous

rights, including notice of the administrative hearing and the right to appear with legal

counsel before an impartial decision-maker who conducts a hearing and determines the
Stark County, Case No. 2016CA00206                                                          14


admissibility of evidence from both sides. The decision-maker will issue a report and

recommendation in writing, to which Huntsman may file objections. Further, R.C. Chapter

119 provides for an appeal of the administrative proceeding to the Franklin County Court

of Common Pleas by any party adversely affected by any order of the ODA. R.C.

935.20(D). Huntsman could then appeal any adverse decision to the Tenth District Court

of Appeals.

       {¶37} Accordingly, we find the trial court did not err in determining Huntsman’s

declaratory judgment action was an improper attempt to circumvent the special statutory

proceeding and administrative process.

                           Failure to Exhaust Administrative Remedies

       {¶38} The ODA contends the trial court did not err in dismissing the complaint

because Huntsman failed to exhaust her administrative remedies. Huntsman argues

there is no mechanism for her to challenge the denial of her exemption with the ODA, so

there was no remedy to exhaust.

       {¶39} In this case, Huntsman avers in the second and third counts of her

complaint that the ODA violated her constitutional rights by taking her personal property

without compensation. Such a challenge is an as-applied constitutional challenge, as it

alleges that the application of a statute in a particular context in which the party has acted,

or proposes to act, would be unconstitutional. Wymsylo v. Bartec, Inc., 132 Ohio St.3d

167, 2012-Ohio-2187, 970 N.E.2d 898. Because an as-applied challenge depends upon

a particular set of facts, this type of a constitutional challenge must be raised before the

administrative agency to develop the factual record.          Id; Hetrick v. Ohio Dept. of

Agriculture, 10th Dist. Franklin No. 15AP-944, 2017-Ohio-303.
Stark County, Case No. 2016CA00206                                                       15


       {¶40} Huntsman’s constitutional claims must first be raised through the

administrative process outlined in R.C. 935.20(D), which provides for an administrative

hearing and appeal to the Franklin Court of Common Pleas pursuant to R.C. 119.12. See

Fairview General Hospital v. Fletcher, 63 Ohio St.3d 146, 586 N.E.2d 80 (1992). In this

case, Huntsman seeks a declaration of her constitutional rights in addition to a declaration

of her statutory rights under the administrative procedure in the DWA. If Huntsman

prevails in the administrative process and obtains a ruling that she is exempt from the

DWA and thus the transfer order was improper, her constitutional claims would be

rendered moot. Further, as noted by the Tenth District Court of Appeals, where an

administrative procedure might provide relief sought without deciding a constitutional

issue, the administrative remedy should be pursued first. Arbor Health Care Co. v.

Jackson, 39 Ohio App.3d 183, 530 N.E.2d 928 (10th Dist. 1987). Further, the DWA has

already withstood constitutional challenges based on due process, takings challenges,

and free speech in Wilkins v. Daniels, 744 F.3d 409 (6th Cir. 2014).

       {¶41} The Ohio Supreme Court has also held that an action for declaratory relief

is inappropriate when a plaintiff seeks a determination of statutory rights when she failed

to exhaust her administrative remedies. Fairview General Hospital v. Fletcher, 63 Ohio

St.3d 146, 586 N.E.2d 80 (1992). Generally, courts will not entertain proceedings for

declaratory relief when “another equally serviceable remedy has been provided for the

character of the case at hand.” Swander Ditch Landowners’ Assn v. Joint Board of Huron

& Seneca County Commissioners, 51 Ohio St.3d 131, 554 N.E.2d 1324 (1990). The

“equally serviceable remedy” in this case is the administrative process contained in R.C.

935.20(D) and further review pursuant to R.C. Chapter 119.
Stark County, Case No. 2016CA00206                                                       16

       {¶42} In Autumn Health Care v. Todd, 5th Dist. Muskingum No. CT2014-0020,

2014-Ohio-5851, the appellant filed a separate declaratory judgment action while an

administrative appeal was pending. This Court upheld the dismissal of the declaratory

judgment action by the trial court because the appellant failed to fully exhaust its

administrative remedies. Id. We found that “without a full venting of the administrative

remedies, there cannot be an enforceable right, as Ohio requires exhaustion of

administrative remedies.”    Id.   Further, that until all administrative remedies were

exhausted, the appellant did not have a justiciable claim. Id.

       {¶43} We find this case analogous to Autumn Health Care. Huntsman has failed

to fully exhaust her administrative remedies and without a full venting of these

administrative remedies, Huntsman has no enforceable right. In this case, the declaratory

judgment action is merely a substitute for the administrative appeal process provided by

the legislature. Additionally, without an exhaustion of administrative remedies, the risk of

conflicting judgments or decisions exists.     If, during the administrative process, the

hearing officer, the Franklin County Court of Common Pleas, and/or the Tenth District

Court of Appeals determines the transfer order was invalid due to an exemption and

orders the return of the animals to Huntsman, this determination could directly conflict

with a decision by the Stark County Common Pleas Court and/or the Fifth District Court

of Appeals in the instant declaratory judgment case that could determine the transfer

order was valid as an exemption does not apply.

       {¶44} Though Huntsman argues her claim pre-dated the transfer order, until the

quarantine and transfer orders were issued, there was no administrative action against

Huntsman and, until the transfer of the animals on May 3, 2016, Huntsman suffered no
Stark County, Case No. 2016CA00206                                                       17


injury. Since there was no administrative action prior to the quarantine and transfer

orders, there was not a real controversy presenting issues ripe for judicial resolution, and

no justiciable controversy existed until that time. Lehman Bros. Holdings v. United

Petroleum Marketing, LLC, 5th Dist. Stark No. 2012 CA 00060, 2013-Ohio-233. A claim

is not ripe if the claim rests upon “future events that may not occur as anticipated, or may

not occur at all.” Id.

          {¶45} Accordingly, we find the trial court did not err in dismissing Huntsman’s

complaint for the failure to exhaust her administrative remedies.

                                       Separation of Powers

          {¶46} Huntsman contends the trial court’s dismissal of her complaint violates the

separation of powers doctrine. We first note that Huntsman did not make this argument

to the trial court. Thus, she has waived this argument for purposes of this appeal.

FirstMerit Bank, N.A. v. Shaheen, 5th Dist. Stark No. 2011CA00079, 2011-Ohio-6146.

          {¶47} However, even if we were to consider Huntsman’s argument, we disagree

with her assertion that the trial court’s dismissal of her complaint violates the separation

of power doctrine. The Ohio Supreme Court has determined the ODA has the exclusive

authority over the regulation and enforcement of the DWA. State ex rel. Director, Ohio

Dept. of Agriculture v. Forchione, 148 Ohio St.3d 105, 2016-Ohio-3049, 69 N.E.2d 636.

Finally, as detailed above, the administrative process includes a review pursuant to

Revised Code Chapter 119, which provides the judiciary, through the Franklin County

Court of Common Pleas and Tenth District Court of Appeals, an opportunity to review the

action.
Stark County, Case No. 2016CA00206                                                18


      {¶48} Based on the foregoing, we find the trial court did not err in dismissing

Huntsman’s complaint. Huntsman’s assignment of error is overruled. The October 13,

2016 judgment entry of the Stark County Court of Common Pleas is affirmed.



By Gwin, P.J.,

Baldwin, J., and

Wise, Earle, J., concur




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