[Cite as State ex rel. Cornell v. Greene Cty. Bd. Commrs., 2014-Ohio-5584.]




                                IN THE COURT OF APPEALS OF OHIO
                                   SECOND APPELLATE DISTRICT
                                        GREENE COUNTY


STATE OF OHIO, EX REL., MICHAEL A. CORNELL

        Petitioner-Relator

v.

GREENE COUNTY BOARD OF COUNTY COMMISSIONERS, et al.

        Respondents


Appellate Case No.       13-CA-23




            DECISION AND FINAL JUDGMENT ENTRY; WRIT OF MANDAMUS
                                 December 19, 2014



PER CURIAM:

        {¶ 1} This mandamus action is before the court on competing motions for summary

judgment. The underlying dispute concerns two petitions to annex property located in Beavercreek

Township into the city of Beavercreek. One annexation petition was denied; the other has not been

denied or granted.

        {¶ 2} The petition for mandamus was filed on May 8, 2013. An amended petition was
                                                                                                    2
accepted as filed on November 15, 2013. The petitions ask this court to order the Greene County

Board of County Commissioners and the individual commissioners to review and grant the second

petition for annexation, or alternatively, to grant the first petition.

        {¶ 3} Petitioner-Relator, Michael A. Cornell, Agent for the Petitioners (“Relator”) filed a

motion for summary judgment on November 1, 2013, and a supplemental motion for summary

judgment on April 28, 2014.

        {¶ 4} Respondents, Greene County Board of County Commissioners, Thomas Koogler,

Robert J. Glaser, Jr., and Alan G. Anderson (collectively, “the Commissioners”), filed a motion for

summary judgment on October 31, 2013, and a supplemental motion for summary judgment on May

12, 2014.

        {¶ 5} Intervening Respondent, Beavercreek Township Board of Trustees (“the Township”),

filed a motion for summary judgment on October 31, 2013, and a supplemental motion for summary

judgment on May 12, 2014.

        {¶ 6} The parties have filed responses and replies to the respective motions. Also pending

are the Township’s motion to stay proceedings (and a response and reply thereto), Relator’s first

motion to strike the motion to stay (and a response and reply thereto), and Relator’s second motion

to strike the motion to stay and notice of authority (and a response thereto). The matter is ripe for

decision.

                                     Facts and Procedural History

                                          The “Initial Petition”

        {¶ 7} On October 23, 2012, Relator filed a petition for annexation of approximately

118.403 acres in Beavercreek Township to the City of Beavercreek (the “Initial Petition”). On

October 25, 2012, the Greene County Map Department filed a report stating the written legal
                                                                                                   3
descriptions for the proposed annexation would be legally sufficient if corrections were made.

       {¶ 8} On October 26, 2012, the Greene County Engineer filed a report with the

Commissioners on the accuracy of the legal description of the perimeter and map or plat of the

territory proposed to be annexed. The Engineer’s report said:

               We have reviewed the referenced annexation and find that there are

               errors and omissions in the paperwork that need to be addressed.

               These issues are marked in the paperwork and described in the Memo

               from Peggy Middleton dated October 25, 2012.          Please have all

               errors and omissions fixed prior to acceptance by the Commissioners.

       {¶ 9} Ms. Middleton’s memorandum indicated that the “legal description is legally

sufficient with corrections noted.” She noted several required additions and changes to the legal

description and map, as well as discrepancies between the two.

       {¶ 10} On October 29, 2012, the Regional Planning and Coordinating Commission of

Greene County (“RPCC”) filed a report with the Commissioners on the accuracy of the legal

description of the perimeter and map or plat of the territory proposed to be annexed. The RPCC

noted fourteen (14) “discrepancies” to be addressed in the annexation summary and adjoining

summary.

       {¶ 11} On October 30, 2012, the Commissioners journalized the filing of the Initial Petition.

On November 7, 2012, the Council of the City of Beavercreek adopted a resolution consenting to

the annexation. On November 13, 2012, the Township adopted and filed a resolution objecting to

the annexation.

       {¶ 12} On November 20, 2012, Relator filed revisions to the legal description and map with

the Commissioners. The annexation territory remained 118.403± acres.
                                                                                                     4
        {¶ 13} On November 27, 2012, the Commissioners discussed the Initial Petition during their

work session, but took no action on it. On December 6, 2012, the Commissioners unanimously

adopted Resolution 12-12-6-6 denying the Initial Petition.            In Resolution 12-12-6-6, the

Commissioners found “the following conditions have not been met: 1. The Petitioners failed to file

an accurate legal description of the perimeter and an accurate map of the territory proposed for

annexation, in contravention of R.C. 709.02(C)(2).” No other unmet conditions were identified.

        {¶ 14} Relators’ amended mandamus petition seeks an order compelling the Commissioners

to approve the Initial Petition.

                                     The “Subsequent Petition”

        {¶ 15} On December 4, 2012, two days before the Commissioners denied the Initial

Petition, Relator filed a second annexation petition (the “Subsequent Petition”). The Subsequent

Petition contained a legal description and map of the 118.403± acres at issue in the Initial Petition,

with the corrections previously noted by the County Engineer.

        {¶ 16} On December 6, 2012, immediately after denying the Initial Petition, the

Commissioners journalized the Subsequent Petition.

        {¶ 17} On December 6 or 7, 2012, the Greene County Engineer reported that the Subsequent

Petition’s legal description and map were both “legally sufficient as described.” Ms. Middleton’s

revised memorandum contained notations showing the previously indicated errors and omissions

were now “OK.”

        {¶ 18} On December 17, 2012, the RPCC, which had previously identified discrepancies on

the annexation summary and adjoining summary, advised the Commissioners that the “the property

owner adjacent to or directly across the road from the territory to be annexed is correct.”

        {¶ 19} The City of Beavercreek consented to the annexation on December 21, 2012. The
                                                                                                   5
City passed resolutions the same day stating what services it would provide upon annexation, stating

that buffers would be required for incompatible uses, and agreeing to assume the maintenance of

any portion of a street divided by the boundary line that created a maintenance problem.

       {¶ 20} Also on December 21, 2012, the Township adopted Resolution 2012-449 objecting

to the Subsequent Petition.     The Township filed the resolution with the Commissioners on

December 27, 2012.

       {¶ 21} On January 15, 2013, the Commissioners met to review the Subsequent Petition.

During the meeting, Commissioner Anderson moved to approve the Subsequent Petition.

Commissioner Glaser abstained. Commissioner Koogler took no action; the motion died for lack

of a second. The Commissioners have taken no further action on the Subsequent Petition.

       {¶ 22} Relator filed a Verified Petition for Writ of Mandamus on May 8, 2013, seeking to

compel the Commissioners to review and grant the Subsequent Petition.

                                     Relevant legal standards

                                        Writ of Mandamus

       {¶ 23} For a writ of mandamus to issue, the relator must show “(1) that he has a clear legal

right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the

requested act, and (3) that relator has no plain and adequate remedy at law.” State ex rel. Dayton

Newspapers, Inc. v. Wagner, 129 Ohio App.3d 271, 273, 717 N.E.2d 773 (2d Dist.1998); State ex

rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St.3d 165, 167, 527 N.E.2d 807 (1988). A

“writ of mandamus is an appropriate remedy should a board of county commissioners fail to

perform its statutory duty in regard to a Type 2 annexation petition.” Lawrence Twp. Bd. Of

Trustees v. Canal Fulton, 185 Ohio App.3d 267, 2009-Ohio-6822, 923 N.E.2d 1180, ¶ 16 (5th

Dist.); see also R.C. 709.023(G) (“any party may seek a writ of mandamus to compel the board of
                                                                                                  6
county commissioners to perform its duties under this section”).

                                        Summary Judgment

       {¶ 24} Mandamus actions “ordinarily proceed as civil actions under the Ohio Rules of Civil

Procedure.” Loc. App.R. 8(A). Pursuant to those rules,

       Summary judgment shall be rendered forthwith if the pleadings, depositions,

       answers to interrogatories, written admissions, affidavits, transcripts of evidence,

       and written stipulations of fact, if any, timely filed in the action, show that there is

       no genuine issue as to any material fact and that the moving party is entitled to

       judgment as a matter of law. * * * A summary judgment shall not be rendered

       unless it appears from the evidence or stipulation, and only from the evidence or

       stipulation, that reasonable minds can come to but one conclusion and that

       conclusion is adverse to the party against whom the motion for summary judgment

       is made, that party being entitled to have the evidence or stipulation construed most

       strongly in the party's favor.

Civ.R. 56(C).

       {¶ 25} Thus, to be entitled to summary judgment, the movant must show that “(1) no

genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to

judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to

but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that

conclusion is adverse to the nonmoving party.” State ex rel. Levin v. Schremp, 73 Ohio St.3d 733,

734, 654 N.E.2d 1258 (1995).

       {¶ 26} The parties filed a “Joint Stipulation of Facts.”       The Commissioners also filed

notices of filing “the Transcripts requested in Petitioner-Relator’s Praecipe for records” and
                                                                                                      7
                                                                                        1
“Transcripts of the Meetings of the Greene County Board of County Commissioners.”           The parties

agree that these documents, so identified in the “Joint Stipulation to Court’s October 20, 2014

Order,” are properly before this court. We therefore consider them in deciding the summary

judgment motions. State ex rel. Spencer v. E. Liverpool Planning Com’n, 80 Ohio St.3d 297, 301,

685 N.E.2d 1251 (1997).

                                            Expedited Type-2 Annexation

           {¶ 27} “Annexation by municipalities of adjacent territory is encouraged in the State of

Ohio.” Smith v. Bethel Twp. Bd. of Trustees, 2d Dist. Miami No. 2002-CA-32, 2003-Ohio-466, ¶

9. It is strictly a statutory process. In re Petition to Annex 320 Acres to the Village of S. Lebanon,

64 Ohio St.3d 585, 591, 597 N.E.2d 463 (1992). “Consequently, the procedures for annexation and

for challenging an annexation must be provided by the General Assembly.” Kunkel v. Champaign

Cty. Bd. of Commrs., 177 Ohio App.3d 718, 2008-Ohio-4017, 895 N.E.2d 905, ¶ 19 (2d Dist.),

citing State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Cty. Commrs., 162 Ohio

App.3d 394, 2005–Ohio–3872, 833 N.E.2d 788, ¶ 8 (2d Dist.).

                    The legislature enacted Senate Bill 5 in 2001 and substantially altered

           existing annexation statutes. The new annexation statutes add three special

           procedures for expedited annexation. These procedures eliminate discretion by

           requiring the board of commissioners to approve annexation if the petition complies

           with certain technical requirements.

                    The annexation involved in the present case is the second of the three new

           annexation procedures and is referred to as an “expedited type–2 annexation.” State

           ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., 112 Ohio


1
    The parties also filed a substitute transcript of the Commissioners’ meetings.
                                                                                                       8
       St.3d 262, 264, 2006-Ohio-6411, 858 N.E.2d 1193, at ¶ 7. The statute pertaining to

       this type of procedure is R.C. 709.023 and is not analogous to any statutes existing

       prior to 2001.

Sugarcreek Twp. v. Centerville, 184 Ohio App.3d 480, 2009-Ohio-4794, 921 N.E.2d 655, ¶ 97-98

(2d Dist.). Expedited type-2 annexation petitions allow a unanimous group of defined owners to

seek annexation in a streamlined fashion.

       {¶ 28} R.C. 709.023 sets out the timeframe. “Upon the filing of the petition in the office of

the clerk of the board of county commissioners, the clerk shall cause the petition to be entered upon

the board’s journal at its next regular session.” R.C. 709.023(B). “Within twenty days after the

date that the petition is filed, the legislative authority of the municipal corporation to which

annexation is proposed shall adopt an ordinance or resolution” concerning its anticipated provision

of municipal services. R.C. 709.023(C).

       {¶ 29} “Within twenty-five days after the date that the petition is filed, the legislative

authority of the municipal corporation to which annexation is proposed and each township any

portion of which is included within the territory proposed for annexation may adopt and file with the

board of county commissioners an ordinance or resolution consenting or objecting to the proposed

annexation.” R.C. 709.023(D).

       {¶ 30} The petition shall be granted if both the municipal corporation and the township

consent. R.C. 709.023(D). If either files an objection,

not less than thirty or more than forty-five days after the date that the petition is filed, the board of

county commissioners shall review it to determine if each of the following conditions has been met:

               (1) The petition meets all the requirements set forth in, and was

               filed in the manner provided in, section 709.021 of the Revised
                                                                          9
Code.

(2) The persons who signed the petition are owners of the real estate

located in the territory proposed for annexation and constitute all of

the owners of real estate in that territory.

(3) The territory proposed for annexation does not exceed five

hundred acres.

(4) The territory proposed for annexation shares a contiguous

boundary with the municipal corporation to which annexation is

proposed for a continuous length of at least five per cent of the

perimeter of the territory proposed for annexation.

(5) The annexation will not create an unincorporated area of the

township that is completely surrounded by the territory proposed for

annexation.

(6) The municipal corporation to which annexation is proposed has

agreed to provide to the territory proposed for annexation the services

specified in the relevant ordinance or resolution adopted under

division (C) of this section.

(7) If a street or highway will be divided or segmented by the

boundary line between the township and the municipal corporation as

to create a road maintenance problem, the municipal corporation to

which annexation is proposed has agreed as a condition of the

annexation to assume the maintenance of that street or highway or to

otherwise correct the problem.
                                                                                                                        10
R.C. 709.023(E) (emphasis added). Of these seven requirements, the parties do not appear to

dispute that subsections E(2), E(3), E(4), and E(5) are met here.2

         {¶ 31} The parties’ arguments center around the following statutory provision:

                  Not less than thirty or more than forty-five days after the date that the

                  petition is filed, * * * the board of county commissioners, if it finds

                  that each of the conditions specified in division (E) of this section has

                  been met, shall enter upon its journal a resolution granting the

                  annexation. If the board of county commissioners finds that one or

                  more of the conditions specified in division (E) of this section have

                  not been met, it shall enter upon its journal a resolution that states

                  which of those conditions the board finds have not been met and that

                  denies the petition.

R.C. 709.023(F).

         {¶ 32} As noted above, R.C. 709.023(E)(1) requires the board of county commissioners to

find that the “petition meets all the requirements set forth in, and was filed in the manner provided

in, section 709.021 of the Revised Code.” R.C. 709.021(B) provides in part that

                  Application for annexation shall be made by a petition filed with the

                  clerk of the board of county commissioners of the county in which the

                  territory is located, and the procedures contained in divisions (C), (D),


2
  While these Petitions were pending before the Commissioners, the Township objected on the grounds that R.C.
709.023(E)(6) and (E)(7) were not met. The various summary judgment motions, however, contain little argument on
those grounds. This is likely because of two resolutions in the record that on their face appear to satisfy these sections.
We note that the Commissioners did not indicate they denied the Initial Petition because (E)(6) and (E)(7) were not met.
Because the Township and Commissioners’ summary judgment motions do not support their vague statements with
record evidence showing subsections (E)(6) and (E)(7) are unsatisfied, they have neither satisfied their burden on
summary judgment to show they are undisputedly unmet, nor have they demonstrated a material factual dispute as to
whether they are met.
                                                                                               11
              and (E) of section 709.02 of the Revised Code shall be followed,

              except that all owners, not just a majority of owners, shall sign the

              petition.

R.C. 709.021(B).

       {¶ 33} In turn, as relevant here, R.C. 709.02(C) provides:

              The petition required by this section shall contain the following:

              (1) The signatures of a majority of the owners of real estate in the

              territory proposed for annexation. * * *

              (2) An accurate legal description of the perimeter and an accurate

              map or plat of the territory proposed for annexation;

              (3) The name of a person or persons to act as agent for the petitioners.

              ***

R.C. 709.02(C) (emphasis added). The accuracy requirement is at the heart of this dispute.

                                             Analysis

       {¶ 34} We consider the annexation petitions in the order they were filed, and the summary

judgment motions in reverse order, as the timing of each is relevant. Relator also asserts that a

decision granting summary judgment on the Initial Petition would moot the motions for summary

judgment on the Subsequent Petition.

                                          Initial Petition

               Clear Legal Right and Clear Legal Duty to Grant the Initial Petition

       {¶ 35} Because they are intertwined, we consider the first two elements of the mandamus

claim together. Relator argues the Commissioners have a clear legal duty to grant a petition that

satisfies the seven conditions of R.C. 709.023(E)(1)-(7). The Commissioners do not specifically
                                                                                                     12
take issue with this proposition, but argue that not all the requirements, namely, the requirement that

the legal description and map be accurate, are met.         R.C. 709.02(C)(2); R.C. 709.023(E)(1).

Therefore, the Commissioners argue, there is no clear legal right or duty.

       {¶ 36} As a preliminary matter, the Commissioners direct this court to a previous decision

in which we held that “[t]he determination of accuracy * * * is a question of fact within the

discretion of the board.” In re Petition for Annexation of 131.983 Acres, 2d Dist. Miami No.

94-CA-15, 1995 WL 418694, * 3 (July 7, 1995) (“131.983 Acres”), citing Lariccia v. Board of

Commrs., 38 Ohio St.2d 99, 102, 310 N.E.2d 257 (1974). Because the Commissioners have

discretion to determine the accuracy of a legal description and map, they suggest, they have no duty

to find the statute satisfied as a matter of law, thus defeating a mandamus claim. See State ex rel.

Husted v. Brunner, 123 Ohio St.3d 119, 122, 2009-Ohio-4805, 914 N.E.2d 397 (noting that a court

may compel the exercise of discretion on mandamus, but cannot control it).

       {¶ 37} In re 131.983 Acres is distinguishable on the facts and the applicable law. In that

case, this court affirmed the trial court’s review of the Miami County Board of Commissioners’

denial of an annexation petition. Notably, that petition was subject to the full statutory annexation

process, including a public hearing, an appeal, and the requirement of a finding that the “territory

included in the annexation petition is not unreasonably large; the map or plat is accurate; and the

general good of the territory sought to be annexed will be served if the annexation petition is

granted.” Id., *3.

       {¶ 38} This court held that the three criteria were questions of fact within the board’s

discretion. Id. We noted that an amendment to the statute had narrowed the board’s discretion

from previous versions. Id.

Prior to the enactment of R.C. 709.033 in 1967, the board of county commissioners, after a public
                                                                                                        13
hearing, could grant an annexation petition if it found, inter alia, it to be “right that the prayer of the

petition be granted.” This gave the board almost unlimited discretion in approving or denying the

petition. The enactment of R.C. 709.033 significantly diminished the board’s discretion in

annexation proceedings.

In re Petition to Annex 320 Acres to the Village of S. Lebanon, 64 Ohio St.3d 585, 596, 597 N.E.2d

463 (1992) (internal citations omitted).

       {¶ 39} The instant case concerns subsequent amendments to the annexation statutes and

further discretion-narrowing in the expedited procedures:

               The legislature enacted Senate Bill 5 in 2001 and substantially altered

               existing annexation statutes. The new annexation statutes add three

               special procedures for expedited annexation. These procedures

               eliminate discretion by requiring the board of commissioners to

               approve annexation if the petition complies with certain technical

               requirements.

Sugarcreek Twp. v. Centerville, 184 Ohio App.3d 480, 2009-Ohio-4794, 921 N.E.2d 655, ¶ 94 (2d

Dist.) (emphasis added).

       {¶ 40} In this case, the Commissioners have a different level of discretion than under the

regime described in In re 131.983 Acres. We reject the suggestion that the Commissioners have

discretion as to accuracy that bars mandamus relief as a matter of law. To hold otherwise would

render nonsensical the statute’s explicit provision for mandamus relief in type-2 annexations,

because every such annexation requires accuracy. R.C. 709.023(G); State ex rel. Cincinnati Post v.

Cincinnati, 76 Ohio St.3d 540, 543-44, 668 N.E.2d 903 (1996) (courts construe statutes to avoid

unreasonable or absurd results). Here, rather than exercise discretion, the Commissioners were
                                                                                                    14
required “to approve annexation if the petition complies with certain technical requirements,”

including accuracy. Sugarcreek Twp. at ¶ 94.

                    Accuracy of the Initial Petition’s Legal Description and Map

       {¶ 41} The parties agree that an “accurate legal description of the perimeter and an accurate

map or plat of the territory proposed for annexation” is required before a Board of County

Commissioners grants an annexation petition.         R.C. 709.02(C)(2).     For summary judgment

purposes, the initial (and material) dispute between the parties is whether the legal description and

map in the Initial Petition were “accurate.” Relator argues they were; the Commissioners and the

Township argue they were not.

       {¶ 42} Before reviewing the facts presented as to accuracy, we first resolve the parties’ legal

arguments concerning the level and timing of accuracy required. Relator argues that the Initial

Petition’s legal description and map were accurate when filed and when reviewed, with the

exception of “minor scrivener’s errors or stylistic changes” that were then corrected. Relator

asserts the Commissioners were required to “cure technical errors and defects” pursuant to R.C.

709.015 (concerning procedural defects). Further, Relator asserts that annexation petitioners are

permitted to correct discrepancies in filed petitions where they do not add to the territory and the

owners do not change. Relator argues, in essence, that substantial compliance with the statutes,

including the accuracy requirement, is sufficient.

       {¶ 43} The Commissioners respond that the legal description and map filed with the Initial

Petition were not accurate. They also argue that no statute authorizes amendments to type-2

petitions, and that amendments are therefore not permitted. With respect to R.C. 709.015, the

Commissioners emphasize the difference between procedural and substantive requirements, and

assert that the accuracy requirement is substantive.      Finally, the Commissioners dispute the
                                                                                                    15
characterization of changes as the correction of scrivener’s errors.

       {¶ 44} We first address the Commissioners’ argument that no statute authorizes

amendments to type-2 annexation petitions.        Revised Code Chapter 709 contains a provision

allowing annexation petitioners to amend regular, non-expedited petitions:

               The petition may be amended without further notice by leave of the

               board of county commissioners and with the consent of the agent for

               the petitioners if the amendment does not add to the territory

               embraced in the original petition and is made at least fifteen days

               before the date of the hearing.

R.C. 709.031(B).

       {¶ 45} The amendment provision does not apply to expedited petitions, pursuant to R.C.

709.021(C):

               Except as otherwise provided in this section, only this section and

               sections 709.014, 709.015, 709.04, 709.10, 709.11, 709.12, 709.192,

               709.20, and 709.21 of the Revised Code apply to the granting of an

               annexation described in this section.

R.C. 709.021(C).      As the amendment provision is not included in this list or otherwise

incorporated, it is inapplicable to expedited type-2 petitions. And, because “annexation is strictly a

statutory process,” the absence of a statute authorizing amendments means that amendments are not

permitted. In re Petition to Annex 320 Acres to the Village of S. Lebanon, 64 Ohio St.3d 585, 591,

597 N.E.2d 463 (1992).       This is particularly true where the statute contains an amendment

provision but specifically labels it inapplicable in type-2 annexations. See State ex rel. Butler Twp.

Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., 124 Ohio St.3d 390, 394, 2010-Ohio-169, 922
                                                                                                     16
N.E.2d 945, ¶ 20-21 (“The canon expressio unius est exclusio alterius tells us that the express

inclusion of one thing implies the exclusion of the other.”) (internal citations omitted).

       {¶ 46} In In re 320 Acres, the Ohio Supreme Court considered a similar argument

concerning statutory authorization.     There, appellants argued that boards must grant or deny

annexation petitions in toto, rather than granting or denying them in part. The Court agreed that

“there is no statutory scheme which permits the partial allowance or disallowance of a proposed

annexation.” In re 320 Acres at 597. Without such authority, the board could not partially grant or

deny the petition. Id. We find this analysis instructive.

       {¶ 47} We also find our previous decision in Moore v. Union Twp. Bd. of Trustees

analogous. In Moore, we agreed that

               “it seems axiomatic that a formal petition of legal import and standing

               should include, at the time of its execution, all of the information and

               material required by law so as to apprise signatories of its content, and

               that it should not be supplemented, modified, or remodified after its

               signing except pursuant to amendment procedures countenanced by

               law.” This interpretation by the Board was a reasonable one, and we

               agree with it.

2d Dist. Miami No. 2002CA44, 2003-Ohio-914, ¶ 19 (emphasis added). Although these decisions

were rendered in different contexts, they support our determination that because there is no statutory

authority for amending filed type-2 petitions, such petitions may not be amended. This is not the

end of our analysis, however.

       {¶ 48} R.C. 709.015, entitled “Directory nature of procedural requirements,” is contained in

the statutory list of provisions applicable to type-2 petitions, and does allow “procedural defects” to
                                                                                                    17
be cured. R.C. 709.015 provides:

                     The procedural requirements set forth in sections 709.02 to 709.21 of

                     the Revised Code are directory in nature. Substantial compliance with

                     the procedural requirements of those sections is sufficient to grant the

                     board of county commissioners jurisdiction to hear and render its

                     decision on a petition for annexation filed under those sections. The

                     board shall cure a procedural defect and shall not deny a petition for

                     annexation solely upon the basis of procedural defects.

R.C. 709.015 (emphasis added).

        {¶ 49} This statute speaks in terms of both “procedural requirements” and “procedural

defects.”      Id.     “In examining the language of the statute, the legislature has indicated that

substantial compliance with the procedural requirements is sufficient to grant the Board jurisdiction

to hear the matter and to ultimately render its decision.” Wadsworth Twp. Bd. of Trustees v.

Medina Cty. Bd. of Commrs., 9th Dist. Medina No. 09CA0036-M, 2010-Ohio-5921, ¶ 16 (emphasis

in original).

In other words, when faced with a procedural defect, the defect will not be a bar to the Board’s legal

authority to proceed to hear the matter, provided there has been substantial compliance with the

procedure. However, the legislature has also as made clear that “the board shall cure a procedural

defect[.]” Id. Thus, R.C. 709.015 does not absolve compliance with the procedural requirements of

the statutes; rather it directs the Board to cure any procedural defect.

Id. at ¶ 16.

        {¶ 50} Here, the parties disagree whether the attempted changes to the petition – correcting

the errors and omissions on the map and legal description – correct “procedural defects.” Relator
                                                                                                     18
suggests a meaning of procedural defects that equates with minor errors, and argues that substantial

compliance with the annexation requirements is sufficient to require the Commissioners to grant the

petition under R.C. 709.015. We find this argument too broad.

       {¶ 51} Substantial compliance with procedural requirements is sufficient to grant the board

jurisdiction to consider the matter. Wadsworth Twp. at ¶ 16. The statute does not say, and we will

not construe it to mean, that substantial compliance with every annexation requirement is sufficient

to compel the board to exercise its jurisdiction and grant the petition. See generally State ex rel.

Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., 124 Ohio St.3d 390,

2010-Ohio-169, 922 N.E.2d 945, ¶ 21 (“a court cannot read words into a statute but must give effect

to the words used in the statute.”). As the Commissioners here have already exercised their

jurisdiction to consider the Initial Petition, the question of whether there was substantial compliance

with the procedural requirements sufficient to invoke that jurisdiction is no longer an issue.

       {¶ 52} The more relevant question is whether Relator’s failure to provide an accurate legal

description and map (if the petition is indeed inaccurate) is a “procedural defect” that the

Commissioners must cure.       Procedural law, a deviation from which may be described as a

procedural defect, is defined as “rules that prescribe the steps for having a right or duty judicially

enforced, as opposed to the law that defines the specific rights or duties themselves.” Black’s Law

Dictionary (9th ed. 2009). Substantive law is the “part of the law that creates, defines, and

regulates the rights, duties, and powers of parties. Id.

       {¶ 53} Timely journalization of the petition (R.C. 709.023(B)), giving notice to the proper

parties (R.C. 709.023(B)), and the filing of objections by the township on the relevant statutory

factors (R.C. 709.023(D)) are examples of the procedural rules governing annexation.               The

requirement that a filed petition contain an accurate legal description and map describing the
                                                                                                     19
territory to be annexed, like the requirement that all the defined owners have signed (R.C.

709.023(E)(2)) that the area not exceed 500 acres (R.C. 709.023(E)(3)), or that the area contain at

least five per cent contiguous border with the annexed property (R.C. 709.023(E)(4)), are more

properly viewed as substantive requirements. Defects or deviations from those requirements in the

petition affect the parties’ substantive rights, duties, and powers. For example, if petitioners sought

to annex 501 acres, they would be substantively barred from using the expedited type-2 annexation

procedure.   R.C. 709.023(E)(3).      The requirement has nothing to do with the procedure for

pursuing annexation; it concerns the standard against which annexation is evaluated.

       {¶ 54} The same is true for the requirement that the petition contain an accurate legal

description and map. No procedure is implicated by the requirement, which is confirmed by the

absence of a procedure for amending the petition and its legal description. While defects in the

Initial Petition’s legal description or map may indeed be minor or technical as Relator argues, they

are substantive defects and not curable by the Commissioners. R.C. 709.015.

       {¶ 55} We are aware of the Fifth District’s decision in Lawrence Twp. Board of Trustees v.

City of Canal Fulton, 185 Ohio App.3d 267, 2009-Ohio-6822, 923 N.E.2d 1180 (5th Dist.), which,

in our view, is factually distinguishable.

       {¶ 56} In Lawrence Twp., the board had before it a type-2 annexation petition, which it

approved, finding all the requirements of 709.023(E)(1)-(7) met.         Id. at ¶ 3.    The day after

approval, the Stark County Engineer’s Office informed the board that the legal description

contained a single error: the length of a curve was L=1131.64’, rather than L=1311.64’. An

additional discrepancy was later found, where the legal description included a central angle of

05’04’06, and the plat was incorrectly marked 05’04’05. Id. at ¶ 17.

       {¶ 57} In moving for summary judgment in Lawrence Twp., the township argued the
                                                                                                  20
petition was inaccurate and defective. The trial court denied the township’s summary judgment

motion and upheld the annexation. The court cited R.C. 709.015 and briefly analyzed the situation:

               We concur with the trial court that the description contained in the

               plat was a scrivener’s error that was readily corrected and that did

               “not rise to the level of a reason that the Commissioners should have

               denied the annexation.” We find that there was substantial compliance

               with the requirements of R.C. 709.02(C)(2) and that any procedural

               defects have since been cured.

Lawrence Twp. at ¶ 20. The Lawrence Twp. court did not consider the situation before this court –

where the County Engineer reported several errors and omissions in the petition before it was

considered. The number and type of inaccuracies identified by the County Engineer here, as

discussed below, is also distinguishable.

       {¶ 58} Although it uses the “substantial compliance” language of R.C. 709.015, we read

Lawrence Twp. to suggest that scrivener’s errors discovered after a petition’s approval have little

retroactive impact on the approval’s legitimacy.     It neither squarely answers the question of

whether “minor” errors presented to the board during review could properly be grounds for denial of

a petition, nor specifically holds that scrivener’s errors are the equivalent of procedural defects.

Because the statute is clear that only procedural defects may be corrected, we decline to hold that

minor errors in substantive requirements may also be corrected.

       {¶ 59} Although the standard for accuracy we describe here is indeed high, it is consistent

with the expedited nature of type-2 proceedings, including their truncated timeframes and the

eliminated requirement for public hearing, as well as the board’s lack of discretion in granting or

denying such petitions.
                                                                                                   21
An examination of Senate Bill 5 indicates that some of the overall goals of the bill—including those

of the new expedited procedures—were to promote consistency in decision-making by putting in

place firm standards to govern the consideration of annexation petitions, to improve the efficiency

of annexations by creating the expedited processes, and to promote cooperation among local

governments.

State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., 112 Ohio St.3d 262,

2006-Ohio-6411, 858 N.E.2d 1193, ¶ 8. Here, the General Assembly created a process without

much discretion for boards – either the petition meets the requirements, or it does not. To import a

“substantial compliance” standard into the substantive requirements for annexation would blur those

analytic lines and thwart the General Assembly’s goals in creating the expedited annexation

procedures.

       {¶ 60} Against this background, we review the matters that were before the Commissioners

here concerning the legal description and map. The Greene County Engineer reported that there

were “errors and omissions in the paperwork that need to be addressed.” The errors and omissions

are detailed in a report from Peggy Middleton, initially dated October 25, 2012 and revised several

times thereafter. Three corrections were required to the written legal description. Specifically, the

words “to the right” were inserted at three points to describe the direction of the perimeter curve.

In addition, the corresponding description of these perimeter curves were shown on the map as

straight lines, rather than curves. Ms. Middleton later identified an additional discrepancy: the

written description reflected a curve radius of 2082.26, while the map reflected the same curve

radius as 2086.26.

       {¶ 61} The map also required the acreage of each parcel to be labelled; the addition of the

plat cabinet and page in place of the plat book and page; and the correction of the direction of
                                                                                                                     22
              3
several lines (one from N to S, and six from E to W), and one degree notation (N40°13’41”W to

N4°13’41”W).

        {¶ 62} There is no dispute between the parties that these numerous discrepancies, errors, and

omissions existed in the Initial Petition as filed. The legal description and map are therefore

inaccurate, and the Initial Petition does not meet the requirements of R.C. 709.023 and R.C.

709.021.

        {¶ 63} Each party has moved for summary judgment, alleging there is no genuine issue of

material fact remaining. We find that reasonable minds could only conclude that the discrepancies,

errors, and omissions rendered the legal description and map inaccurate. Because it is inaccurate, it

does not satisfy the requirements of a type-2 annexation petition. The annexation petitioners had

no clear legal right to have the Initial Petition granted, and the Commissioners had no clear legal

duty to grant it.

                                       Conclusion on the Initial Petition

        {¶ 64} Because the legal description and map were not accurate, because the attempted

changes were not procedural but substantive, and because there is no statute authorizing

amendments to type-2 petitions to correct substantive errors, we hold that the first two elements of

the mandamus claim are not satisfied. We therefore sustain the Commissioners and Township’s

supplemental motions for summary judgment, and overrule Relator’s supplemental motion for

summary judgment. The writ of mandamus is denied as to the Initial Petition.

                                               Subsequent Petition

             Clear Legal Right and Clear Legal Duty to Consider the Subsequent Petition

        {¶ 65} We also consider together the first two elements of the mandamus claim concerning

3
 Although not written in Ms. Middleton’s report, notes on the map also show a directional correction required for Line
14 in the chart on the lower left corner of the map.
                                                                                                     23
the Subsequent Petition. Relator argues that all seven statutory requirements were met when he

filed the Subsequent Petition, and that the Commissioners had a duty to “enter upon its journal a

resolution granting the annexation.” R.C. 709.023(F). Relator notes that the statute requires

boards to either grant or deny annexation petitions; there is no authority for other courses of action,

such as simply failing to reach a decision.

       {¶ 66} Relator directs the court to State ex rel. Smith v. Frost, 74 Ohio St.3d 107, 111-112,

656 N.E.2d 673 (1995), in which the Ohio Supreme Court considered whether relators had a clear

legal right, and the board a corresponding clear legal duty, to consider an annexation petition. The

court held:

                       Therefore, as to the issues of clear legal right and clear legal

               duty, “[w]hen a duty is enjoined by statute upon an administrative

               board to hear and decide an issue within a specific time limitation, it

               is mandatory that the board act accordingly, unless to do so would

               lead to an inevitable conflict with rights which are superior to those of

               the party for whose benefit the duty is to be discharged.” State ex rel.

               Hannan v. DeCourcy (1969), 18 Ohio St.2d 73, 47 O.O.2d 193, 247

               N.E.2d 465, paragraph one of the syllabus. Under R.C. 709.031, the

               commissioners were required to conduct a hearing on relators’

               annexation petition no later than ninety days after the petition was

               filed in the office of the county auditor. When a board of county

               commissioners defers consideration of landowners’ annexation

               petitions pending a vote of electors on a municipal annexation

               petition, a writ of mandamus will lie to compel the commissioners to
                                                                                                 24
               consider the annexation petitions in the order in which they should

               have been considered had the time limitations been followed initially.

               Holcomb v. Summit Cty. Bd. of Commrs. (1980), 62 Ohio St.2d 241,

               16 O.O.3d 278, 405 N.E.2d 262. As in Holcomb, relators have

               established a clear legal right to have the commissioners proceed on

               their annexation petition and a corresponding clear legal duty on the

               part of the commissioners to do so.

Frost at 111-112.

       {¶ 67} As in Frost, we find that the type-2 annexation statute requires the Commissioners to

consider and decide the Subsequent Petition on the following timeframe:

               Not less than thirty or more than forty-five days after the date that the

               petition is filed, * * * the board of county commissioners, if it finds

               that each of the conditions specified in division (E) of this section has

               been met, shall enter upon its journal a resolution granting the

               annexation. If the board of county commissioners finds that one or

               more of the conditions specified in division (E) of this section have

               not been met, it shall enter upon its journal a resolution that states

               which of those conditions the board finds have not been met and that

               denies the petition.

R.C. 709.023(F).        Here, the Subsequent Petition was filed on December 4, 2012, and the

Commissioners were statutorily required to grant or deny it thirty to forty-five days thereafter.

They failed to do so.

       {¶ 68} The Commissioners offer three justifications for their inaction on the Subsequent
                                                                                                    25
Petition, all of which are premised on the same basic argument. The Commissioners argue that

there is no statutory authority for the filing of multiple annexation petitions, and therefore the

Subsequent Petition was “invalid” when filed. They further assert that the Subsequent Petition did

not comply with their internal Resolution No. 02-6-4-5, which states that “[a] petition dismissed by

the board may be re-filed at any time upon correction of the deficiency.”             According to the

Commissioners, because the Subsequent Petition was filed before they dismissed the Initial Petition,

they have no duty to act on it.

       {¶ 69} With respect to the Commissioner’s argument that there is no statutory authority for

filing more than one petition at a time, we agree that the statute contains no provision expressly

allowing or prohibiting concurrently-filed petitions.       Unlike the situation discussed above,

however, there is no parallel statutory provision expressly allowing or prohibiting concurrent

petitions in any other circumstances.     The statute instead contains a provision that presumes

multiple petitions will be filed and instructs boards how to proceed when they are filed:

               If, after a petition for annexation is filed with the board of county

               commissioners, one or more other petitions are filed containing all or

               a part of the territory contained in the first petition, the board shall

               hear and decide the petitions in the order in which they were filed.

R.C. 709.013(A).

       {¶ 70} This provision does not apply to type-2 annexation petitions. R.C. 709.021(C). It

also does not authorize the filing of multiple petitions, but rather dictates the order in which the

board must hear such petitions, addressing the board’s responsibilities, not the annexation

petitioner’s rights or abilities. The provision implicitly recognizes that more than one petition may

be filed covering the same territory. Application of the canon expressio unius est exclusio alterius
                                                                                                    26
here means only that the board need not hear multiple type-2 petitions in the order they were filed,

not that petitioners are prohibited from filing multiple petitions.

       {¶ 71} Were there a requirement that Relator wait to file a second petition until the

Commissioners denied a previous one, we would find a deviation from that requirement the type of

procedural defect the Commissioners must cure. R.C. 709.015. Here, the Initial Petition was

denied on December 6, 2012. The Subsequent Petition was filed on December 4, 2012, but not

journalized until after the Board denied the Initial Petition. The two day overlap, if it mattered

from a procedural perspective, would not justify the Commissioners’ denial, or in this case, failure

to act on, the Subsequent Petition. It would not, in the language of R.C. 715.015, deprive the

Commissioners of jurisdiction to consider the petition; they “shall not deny a petition for annexation

solely upon the basis of procedural defects.” We reject the Commissioners’ argument they have no

duty to act because the Subsequent Petition was not filed after denied the Initial Petition.

       {¶ 72} With respect to the Commissioners’ argument that the Subsequent Petition violated

their internal Resolution, we initially question whether the Commissioners have the authority to set

additional requirements for type-2 expedited petitions. See State ex rel. Shriver v. Bd. of Commrs.

of Belmont County, 148 Ohio St. 277, 280, 74 N.E.2d 248, 250 (1947) (a “board of county

commissioners is a mere creature of statute and has only such power and jurisdiction as are

expressly conferred by statutory provision.”) (internal citation and quotation omitted).         R.C.

709.023 contains no requirement, in addition to the seven factors the General Assembly provided,

that any local board requirements must also be satisfied. We decline to read into R.C. 709.023 such

a requirement, as it could vitiate the streamline and discretionless regime created for type-2

petitions. Moreover, we would consider any additional requirement in the same fashion as the

procedural defect discussed above. The Commissioners would be required to cure the defect, and
                                                                                                      27
could not deny the petition because of it. R.C. 709.015.

        {¶ 73} We likewise consider the Commissioners’ argument that they only must act on

“valid” petitions to be without merit. The Commissioners assert that “[i]t is only when a valid

petition is before the Board that a clear legal duty is imposed on the Board.” They cite to State ex

rel. Overholser Builders, L.L.C. v. Clark Cty. Bd. of Commrs., 174 Ohio App.3d 631,

2007-Ohio-7230, 884 N.E.2d 71 (2d Dist.), which states, in the context of a type-1 petition under

R.C. 709.022:

                Assuming arguendo that relators’ petition was valid, the Board of

                Clark County Commissioners would have been required to enter upon

                its journal a resolution granting the annexation; the board of Clark

                County Commissioners would have lacked the discretion to act

                otherwise. R.C. 709.022(A). Accordingly, relators would have been

                entitled to have their petition granted. Thus, when a valid petition has

                been filed under R.C. 709.022, that statute creates a legal duty on the

                part of the board of county commissioners to grant the petition and a

                corresponding right on the part of annexation petitioners to have the

                petition granted.

Id. at ¶ 15.

        {¶ 74} R.C. 709.023 does not interpose an additional “validity” requirement between the

filing of an annexation petition and a board’s duty to consider it, and this court did not create such a

requirement in Overholser. Rather, we used the term “valid” to describe a petition that meets all

the statutory requirements. If those requirements are met, we held, the reviewing board has a legal

duty to grant the petition. Conversely, if the requirements are not met, the board is statutorily
                                                                                                       28
required to deny the petition, and provide its reasons for denial.           R.C. 709.023(F).     As in

Overholser, we find that R.C. 709.023 imposes a clear legal duty in type-2 annexations. We

decline to read an additional “validity” requirement into the statute. A board’s duty to act on a

petition is triggered by the filing of a petition; its duty to grant it is conditioned upon the substance

of the petition. See R.C. 709.023(F). In other words, the “validity” of a petition (the satisfaction

of the statutory requirements) determines how the board acts on the petition, not whether it has a

duty to act. Accordingly, we hold that Relator’s filing of the Subsequent Petition triggered the

Commissioners’ clear legal duty to act on the petition within the statutory timeframe.

             Clear Legal Right and Clear Legal Duty to Grant the Subsequent Petition

       {¶ 75} Relator also asks this court to compel the Commissioners to grant the Subsequent

Petition, and points to record evidence that all seven statutory factors are met. The Commissioners

argue that they, not this court, must review whether the seven statutory factors for annexation are

met. The Commissioners do not, however, argue that any specific factor is not met, and they fail to

point to evidence showing any remaining genuine issue of material fact as to the satisfaction of the

seven factors. R.C. 709.023(E)(1)-(7).

       {¶ 76} Civ.R. 56(E) provides:

               When a motion for summary judgment is made and supported as provided in

               this rule, an adverse party may not rest upon the mere allegations or denials of

               the party’s pleadings, but the party’s response, by affidavit or as otherwise

               provided in this rule, must set forth specific facts showing that there is a

               genuine issue for trial. If the party does not so respond, summary judgment, if

               appropriate, shall be entered against the party.

Civ.R. 56(E). Here, Relator adequately supports his argument that all seven statutory requirements
                                                                                                   29
are met. He points to, among other things, unrebutted evidence that the legal description and map

filed with the Subsequent Petition were accurate. Notably, the Commissioners do not dispute

accuracy in this context. They have not satisfied their reciprocal burden to show that one or more

statutory requirement is not met, or that genuine issues remain for resolution. Civ.R. 56(E).

Summary judgment in Relator’s favor, and against the Commissioners, is therefore appropriate.

       {¶ 77} The Township, also moving for summary judgment against Relator, also fails to

point to any remaining factual issues under R.C. 709.023. Rather, the Township asserts that

Relator’s evidence before this court “cannot substitute for the judgment and review of a board of

county commissioners were there to be a valid petition before it. That scrutiny is the role of a

board of county commissioners when it has before it a valid petition – not the role of a court of

appeals in a mandamus action.” We reject the argument that we lack the authority to evaluate the

evidence before us.

       {¶ 78} R.C. 709.023(G) allows a party to “seek a writ of mandamus to compel the board of

county commissioners to perform its duties under this section.” The Commissioners’ duties here

do not end at consideration of the petition. They must either grant or deny the petition. R.C.

709.023(F). As we held in Overholser, the filing of a petition that meets the statutory requirements

“creates a legal duty on the part of the board of county commissions to grant the petition.” State ex

rel. Overholser Builders, L.L.C. v. Clark Cty. Bd. of Commrs., 174 Ohio App.3d 631,

2007-Ohio-7230, 884 N.E.2d 71, ¶ 15 (2d Dist.) (emphasis added). Mandamus will lie to compel

the Commissioners to grant an annexation petition. Here, the Commissioners had a clear legal duty

to grant the petition, and Relator had a clear legal right to have it granted.

                                   Lack of Adequate Remedy at Law

       {¶ 79} “The writ of mandamus must not be issued when there is a plain and adequate
                                                                                                  30
remedy in the ordinary course of the law.” R.C. 2731.05. “In order for an alternative remedy to

constitute an adequate remedy at law, it must be complete, beneficial, and speedy.” State ex rel.

Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 249, 673 N.E.2d 1281 (1997). A “writ

of mandamus is an appropriate remedy should a board of county commissioners fail to perform its

statutory duty in regard to a Type 2 annexation petition.” Lawrence Twp. Bd. Of Trustees v. Canal

Fulton, 185 Ohio App.3d 267, 2009-Ohio-6822, 923 N.E.2d 1180, ¶ 16 (5th Dist.).

       {¶ 80} Here, Relator asserts that mandamus is the annexation petitioners’ sole remedy, as

the statute bars any appeal. R.C. 709.023(G) (“There is no appeal in law or equity from the board’s

entry of any resolution under this section, but any party may seek a writ of mandamus to compel the

board of county commissioners to perform its duties under this section.”). The Commissioners and

the Township argue that Relator has another remedy: he may withdraw the Subsequent Petition

and file a third petition for annexation.

       {¶ 81} We find that Relator has no adequate remedy for seeking approval of the Subsequent

Petition. Relator notes that while the petitions were pending, the Township transferred a portion of

the territory sought to be annexed to a third, non-governmental party, allegedly in an attempt to

defeat later attempts at annexation under R.C. 709.023 (requiring 100% “owner” participation).

But see R.C. 709.02(E) (“no * * * private corporation * * * that has become an owner of real estate

by a conveyance, the primary purpose of which is to affect the number of owners required to sign a

petition for annexation, is included within” the definition of “owner”). We need not resolve this

issue here. Depending on the effect of the ownership change, a refiled Subsequent Petition may

appropriately be denied as not adequately reflecting the owners of the various parcels. See R.C.

709.02(E) (“An owner is determined as of the date the petition is filed with the board of county

commissioners”).     And a new, revised third petition may have different issues related to the
                                                                                                 31
changed ownership.

       {¶ 82} While Relator may have a manner in which to pursue similar relief, he lacks an

adequate remedy at law to enforce the right to annexation as sought in the Subsequent Petition.

State ex rel. Caspar v. City of Dayton, 53 Ohio St.3d 16, 19, 558 N.E.2d 49 (1990) (a proposed

remedy “is inadequate because it cannot provide appellants the relief sought in their complaint.”).

Here, Relator seeks to compel the Commissioners to grant the already-filed Subsequent Petition.

There is no other adequate remedy for pursuing that relief.

                               Conclusion on the Subsequent Petition

       {¶ 83} Relator has shown a clear legal right to have the Subsequent Petition considered and

granted, and a corresponding duty of the Commissioners to consider and grant it. Relator has also

shown he lacks an adequate remedy at law.          No genuine issues of material fact remain for

resolution.

       {¶ 84} We therefore sustain Relator’s motion for summary judgment. We overrule the

Commissioners and Township’s respective motions for summary judgment. The petition for writ

of mandamus is granted as to the Subsequent Petition.

                                          Ancillary Issues

                                           Proper parties

       {¶ 85} The Commissioners assert that while this court can issue a writ of mandamus against

the Respondent, the Greene County Board of County Commissioners, it cannot compel the

individual commissioners to perform the Board’s duties. The Commissioners have not, however,

moved to dismiss the individual commissioners as parties. They provide no authority for the

suggestion that they, individually, have no duty to act in conformance with the annexation statute.

Relator counters that “[t]he Board cannot avoid its duty simply because individual commissioner(s)
                                                                                                   32
refuse to take any official action on the petition after it was properly accepted for review.”

        {¶ 86} Because we grant the writ to compel the Greene County Board of County

Commissioners to grant the Subsequent Petition, we decline to decide whether we must also

specifically compel the individual commissioners to follow the law. The Board, acting as it must

through the individual commissioners, must grant the Subsequent Petition.

                                              Attorney Fees

        {¶ 87} In their summary judgment motion, the Commissioners argue that Relator is not

entitled to attorney fees as requested in the mandamus petition. The Commissioners assert there is

no statutory provision for attorney fees, and that attorney fees are generally not available in

mandamus, and not without a showing of bad faith. Relator does not specifically respond to this

argument or point to facts establishing bad faith.

        {¶ 88} R.C. 2731.11 describes the damages available in a mandamus action:

If judgment in a proceeding for a writ of mandamus is rendered for the plaintiff, the relator may

recover the damages which he has sustained, to be ascertained by the court or a jury, or by a referee

or master, as in a civil action, and costs.

        {¶ 89} The Ohio Supreme Court has held that “attorney fees are not recoverable as damages

under R.C. 2731.11.” State ex rel. Chapnick v. E. Cleveland City School Dist. Bd. of Edn., 93 Ohio

St.3d 449, 451, 755 N.E.2d 883 (2001). In the absence of statutory authority, a party may seek

attorney fees under Ohio’s general rule that a prevailing party may be entitled to an award of

attorney fees where the non-prevailing party acted in bad faith. Id., citing State ex rel. Kabatek v.

Stackhouse, 6 Ohio St.3d 55, 55-56, 451 N.E.2d 248 (1983).

        Bad faith, although not susceptible of concrete definition, embraces more than bad

        judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious
                                                                                                     33
       wrongdoing, breach of a known duty through some ulterior motive or ill will

       partaking of the nature of fraud. It also embraces actual intent to mislead or deceive

       another.

State ex rel. Gerchak v. Tablack, 117 Ohio App.3d 222, 227-228, 690 N.E.2d 93 (7th Dist.1997),

quoting Ohio Jurisprudence 3d Words and Phrases 20. Here, Relator does not direct us to any facts

rising to the level of bad faith. See Civ.R. 56(E).

       {¶ 90} “[T]he fact that [the Commissioners] interposed a defense which was ultimately

overruled does not, in and of itself, demonstrate bad faith.” State ex rel. Kabatek v. Stackhouse, 6

Ohio St.3d 55, 56, 451 N.E.2d 248, 249 (1983). The record shows that the Commissioners’ refusal

to act on the second petition was supported by legal advice, which “merely demonstrates that

counsel in this case held disparate legal views as to relator's entitlement to” annexation. State ex

rel. Crockett v. Robinson, 67 Ohio St.2d 363, 369, 423 N.E.2d 1099 (1981). “This, without more,

does not constitute bad faith.” Id. Although Relator suggests elsewhere that the Commissioners’

transfer of land during the pendency of the annexation petitions was improper or devious, there is

nothing before this court showing such transfer was unlawful. And, as Relator notes, the statute

appears to protect annexation petitioners from transfers by removing such transferees from the

definition of “owners.” R.C. 709.02(E) (“no * * * private corporation * * * that has become an

owner of real estate by a conveyance, the primary purpose of which is to affect the number of

owners required to sign a petition for annexation, is included within” the definition of “owner”).

       {¶ 91} Accordingly, we sustain the Commissioners’ summary judgment motion as to

attorney fees. We need not and do not reach the related argument concerning the Commissioners’

asserted immunity from attorney fees.

                     Motion to Stay and Motions to Strike the Motion to Stay
                                                                                                        34
           {¶ 92} While the parties were briefing the supplemental summary judgment motions, the

Township filed a motion to stay the proceedings. As grounds for the motion, the Township

asserted that the annexation petitioners had directed their agent, Relator, to file a notice of voluntary

dismissal. The Township filed a document purporting to show such direction to Relator.

           {¶ 93} Relator disputed that a voluntary dismissal would be forthcoming, and in fact no

voluntary dismissal was filed.        Relator also moved to strike the motion to stay, arguing the

document attached to the motion to stay was improper and should be stricken or disregarded.

           {¶ 94} The document at issue is neither particularly inappropriate nor particularly relevant to

the issues presented here, and Relator has filed his own evidence to counter it. We therefore

overrule both the motion to stay and the motions to strike the motion to stay.

                                              CONCLUSION

           {¶ 95} We grant the Amended Verified Petition for Writ of Mandamus in part, and deny it

in part.

           {¶ 96} We deny the writ of mandamus to compel the Greene County Board of County

Commissioners to grant the Initial Petition.

           {¶ 97} We grant a writ of mandamus to compel the Greene County Board of County

Commissioners to consider and grant the Subsequent Petition.

           {¶ 98} We overrule the Township’s Motion to Stay.

           {¶ 99} We overrule Relator’s Motions to Strike.

           SO ORDERED.




                                                        JEFFREY E. FROELICH, Presiding Judge
                                                                                                      35




                                                      MARY E. DONOVAN, Judge




                                                      JEFFREY M. WELBAUM, Judge


         To The Clerk: Within three (3) days of entering this judgment on the journal, you are
directed to serve on all parties not in default for failure to appear notice of the judgment and the date
of its entry upon the journal, pursuant to Civ.R. 58(B).




                                                      JEFFREY E. FROELICH, Presiding Judge



Copies mailed to:

Stephen McHugh
Attorney for Petitioner-Relator
33 W. First Street, Suite 600
Dayton, Ohio 45402


Catherine Cunningham
Attorney for Petitioner-Relator
65 E. State Street, Suite 1800
Columbus, Ohio 43215

Lawrence Barbiere
Attorney for Respondents
5300 Socialville-Foster Road, Suite 200
Mason, Ohio 45040

Wanda Carter
Attorney for Intervening Respondent
5025 Arlington Centre Blvd., Suite 400
Columbus, Ohio 43220
         36
CA3/KY
