[Cite as Allen v. Vinsel, 2011-Ohio-5192.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

JOHN DALE ALLEN                              :      JUDGES:
                                             :      Hon. William B. Hoffman, P.J.
        Petitioner                           :      Hon. Sheila G. Farmer, J.
                                             :      Hon. John W. Wise, J.
-vs-                                         :
                                             :      Case No. CT11-0043
JAY F. VINSEL                                :
                                             :      OPINION
        Respondent                           :




CHARACTER OF PROCEEDING:                         Writ of Quo Warranto




JUDGMENT:                                        Dismissed




DATE OF JUDGMENT ENTRY:                          September 30, 2011




APPEARANCES:

For Petitioner                                   For Respondent

JOHN DALE ALLEN, Pro Se                          D. MICHAEL HADDOX
28 N. 4th Street,                                Prosecuting Attorney
SB4
Zanesville, OH 43701                             By: WALTER K. CHESS, JR.
                                                 Assistant Prosecuting Attorney
                                                 Muskingum County, OH
                                                 27 N. 5th Street, Suite 201
                                                 P. O. Box 189
                                                 Zanesville, OH 43702-0189
Muskingum County, Case No. CT11-0043                                                       2

Farmer, J.

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

against Respondent Judge Jay F. Vinsel requesting a writ be granted ousting

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

Pleas. Petitioner claims Respondent’s oath of office has expired.

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

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

entitled to the office.” State ex rel. Paluf v. Feneli (1994), 69 Ohio St.3d 138, 141, 630

N.E.2d 708.

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

brought by an individual as a private citizen only when he personally is claiming title to a

public office.’ “ State ex rel. Coyne v. Todia (1989), 45 Ohio St.3d 232, 238, 543 N.E.2d

1271, quoting State ex rel. Annable v. Stokes (1970), 24 Ohio St.2d 32, 32-33, 53

O.O.2d 18, 262 N.E.2d 863.

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

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

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

v. Ingraham (1999), 87 Ohio St.3d 230, 231, 718 N.E.2d 1285, 1287.” State ex rel.

Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 316, 725 N.E.2d 663, 667.

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

by Respondent, therefore, he, as a private citizen, cannot bring an action in quo

warranto. For this reason, we find the Petition lacks merit on its face and dismiss the
Muskingum County, Case No. CT11-0043                                                          3


Petition   for   failure   to   state   a   claim    upon   which   relief   may   be   granted.




By Farmer, J.

Hoffman, P. J. and

Wise, J. concur.




                                                    _s/ Sheila G. Farmer__________________


                                                    _s/ William B. Hoffman________________


                                                    _s/ John W. Wise_____________________

                                                             JUDGES


SGF/as 926
Muskingum County, Case No. CT11-0043                                               4


         IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


JOHN DALE ALLEN                         :
                                        :
      Petitioner                         :            Judgment Entry
                                        :
vs.                                     :
                                        :
JAY F. VINSEL                           :             Case No. CT11-0043
                                        :
      Respondent                        :



      For the foregoing reasons, we dismiss the Petition for failure to state a claim

upon which relief may be granted.

      Costs to petitioner.




                                             _s/ Sheila G. Farmer__________________


                                             _s/ William B. Hoffman________________


                                             _s/ John W. Wise_____________________

                                                      JUDGES
