[Cite as State ex rel. Susier Co., L.L.C. v. New Philadelphia, 2017-Ohio-8139.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE, EX REL., SUSIER COMPANY,                              JUDGES:
LLC, ET AL.                                                  Hon. William B. Hoffman, P.J.
                                                             Hon. John W. Wise, J.
        Relators                                             Hon. Craig R. Baldwin, J.

-vs-                                                         Case No. 2016AP080040

CITY OF NEW PHILADELPHIA, ET AL.
                                                             OPINION
        Respondents




CHARACTER OF PROCEEDING:                                Writ of Mandamus


JUDGMENT:                                               Judgment for Respondents

DATE OF JUDGMENT ENTRY:                                  October 6, 2017

APPEARANCES:

For Relators                                            For Respondents

SEAN A. MCCARTER                                        MARVIN T. FETE
JOHN A. ALBERS                                          Law Director
ASHLEY HETZEL                                           138 Second St. N.W.
Albers and Albers, Attorneys at Law                     New Philadelphia, Ohio 44663
88 North 5th St.
Columbus, Ohio 43215
Tuscarawas County, Case No. 2016AP080040                                                     2

Hoffman, P.J.

       {¶1}   Relators, Susier Company, LLC and BiGeLo, LLC, have filed a complaint

for writ of mandamus requesting this Court order Respondents to provide water and

sewer utility service to property located outside the city limits of New Philadelphia.

Respondents have filed a motion to dismiss pursuant to Civ.R. 12(B)(6). Because the

motion presented matters outside the record, this Court converted the motion to dismiss

into a motion for summary judgment.

                              SUMMARY JUDGMENT STANDARD

       {¶2}   Civ.R. 56(C) provides before summary judgment may be granted, it must

be determined (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 such

evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the

party against whom the motion for summary judgment is made. Temple v. Wean United,

Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.



                                     MANDAMUS ELEMENTS

       {¶3}   “Mandamus is an extraordinary remedy ‘to be issued with great caution and

discretion and only when the way is clear.’ State ex rel. Taylor v. Glasser, 50 Ohio St.2d

165, 166, 364 N.E.2d 1 (1977), citing State ex rel. Kriss v. Richards, 102 Ohio St. 455,

132 N.E. 23 (1921), and State ex rel. Skinner Engine Co. v. Kouri, 136 Ohio St. 343, 25

N.E.2d 940 (1940). A relator seeking a writ of mandamus must establish (1) a clear legal

right to the requested relief, (2) a clear legal duty on the part of the respondent official or
Tuscarawas County, Case No. 2016AP080040                                                   3


governmental unit to provide it, and (3) the lack of an adequate remedy in the ordinary

course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960

N.E.2d 452, ¶ 6. The relator must prove entitlement to the writ by clear and convincing

evidence. State ex rel. Cleveland Right to Life v. State Controlling Bd., 138 Ohio St.3d

57, 2013-Ohio-5632, 3 N.E.3d 185, ¶ 2.” State ex rel. Manley v. Walsh, 142 Ohio St.3d

384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 18.

                                               FACTS

       {¶4}    Relators maintain they were given verbal assurance from the former mayor

of the City of New Philadelphia (hereinafter “the City”) that the City would provide water

and sewer services to the property owned and being developed by Relators. The property

is being developed as an apartment complex and is located outside the New Philadelphia

City limits. The current mayor and planning commission have indicated they are unaware

of the former mayor’s alleged agreement to provide the water and sewer services. The

mayor and planning commission have indicated the services will not be provided unless

the property is annexed into the City.

       {¶5}    Relators rely on New Philadelphia Codified Ordinance 935.01 in support of

their contention they are entitled to the services. Section 935.01 provides,

       {¶6}    935.01 NEW CONNECTIONS OUTSIDE CITY.

       {¶7}    (a) New water or sewer or other utility hook ups shall be permitted to the

utility system of the City, from outside the corporate limits of the City.

       {¶8}    Prior to this ordinance being passed, the City’s ordinance relative to utility

service outside the city limits was Section 931.05 titled, “Connections Outside City

Prohibited.”
Tuscarawas County, Case No. 2016AP080040                                                  4


       {¶9}   In short, the City went from prohibiting to permitting utility service outside

city limits. Relators argue the statutory language of 935.01, “shall be permitted” makes

the provision of utilities outside the city limits mandatory. Relators argue the ordinance

which states “hook ups shall be permitted” means: “hook ups must be permitted” rather

than “hook ups shall be allowed.” Relators’ complaint at Paragraph 9 states, “The only

requirement for utility connections outside of the City, is that the cost of the connection

be ‘borne entirely by the contractor, owner or party requesting service.’” (emphasis

added). Under Relators’ interpretation of the ordinance, the City would be required to

provide utility services to Cleveland, Columbus, or anywhere outside the city limits upon

request. We find Relators’ interpretation could cause an absurd result.

       {¶10} A basic tenet is “statutes [are] construed to avoid unreasonable or absurd

consequences.” State ex rel. Dispatch Printing Co. v. Wells, 18 Ohio St.3d 382, 384, 481

N.E.2d 632 (1985). Stated another way, “as a general rule of statutory construction, a

“‘statute should be given that construction, unless such is prohibited by the letter of the

statute, which will accord with common sense and reason and not result in absurdity or

great inconvenience.’” Paulus v. Paulus, 95 Ohio App.3d 612, 614, 643 N.E.2d 165

(1994), quoting Kundrat v. Kundrat, 11th Dist. Lake No. 92–L–097, 1993 WL 76243 (Feb.

26, 1993).

       {¶11} We find the ordinance is meant to permit the City to provide utilities outside

the city limits if the City chooses to provide those services. There is no genuine issue of

material fact as to the meaning of the ordinance. The ordinance can only be read to mean

the City shall be allowed to provide utilities outside of the city limits. To hold otherwise

would force the City to provide utilities to any and all properties upon request without
Tuscarawas County, Case No. 2016AP080040                                                5


regard to the City’s interests in conserving utilities for its own citizens and businesses

which would not accord with common sense and reason.

      {¶12} Because Relators have failed to demonstrate by clear and convincing

evidence that Respondents have a clear legal duty to provide utility hook ups, mandamus

does not lie. For this reason, the motion for summary judgment is granted.




By: Hoffman, P.J.

Wise, John, J. and

Baldwin, J. concur
