[Cite as State ex rel. Chester v. Evans, 2011-Ohio-3675.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE EX REL. :
DOUGLAS H. CHESTER & : JUDGES:
ROSALYN S. CHESTER :
: Hon. W. Scott Gwin, P.J.
Relators : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: CASE NO. 11-CA-5
J. TERRY EVANS/MICHAEL L. :
SMITH :
: OPINION
Respondent :
CHARACTER OF PROCEEDING: Petition for Writ of Mandamus
JUDGMENT: WRIT DISMISSED
DATE OF JUDGMENT ENTRY: July 25, 2011
APPEARANCES:
For Relators (Pro se): For Respondent:
Douglas & Roslyn Chester Dennis E. Dove
3449 Licking Valley Rd. Assistant Prosecuting Attorney
Newark, Ohio 43055 Licking County Prosecutors Office
20 South Second Street, P.O. Box 830
Newark, Ohio 43058
2
Licking County, Case No. 11-CA-5
Delaney, J.
{¶1} Relators, Douglas and Rosalyn Chester, have filed a Petition for
Writ of Mandamus requesting this Court issue a writ which would require the
Respondent, the Licking County Auditor, to remove from his records any
reference to a mobile home currently included in Parcel Number 065-
315972.01.001.
{¶2} Relators have requested and are granted leave to amend their
Petition to name the current auditor, Michael L. Smith.
{¶3} Respondent Smith has filed a Motion to Dismiss to which Relators
have filed a response.
{¶4} Relators are the defendants in a foreclosure lawsuit filed in the
Licking County Court of Common Pleas, Case Number 09-CV-1892. In that
case, the trial court granted judgment in favor of Federal Home Loan Mortgage
Company (“Federal”). Thereafter, Federal moved the trial court for leave to
amend their complaint to include a new claim that the mobile home which was
located on the foreclosed land was a fixture and part of the land. The trial court
granted leave to amend the complaint. Both Federal and Relators filed
dispositive motions relative to the amended complaint. Each of the dispositive
motions was denied, therefore, the claim to declare the mobile home a fixture
remains unresolved in the trial court.
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Licking County, Case No. 11-CA-5
{¶5} Respondent argues Relator’s Petition should be dismissed
Because Relators have no clear legal right to have the mobile home removed
from the parcel number, Respondent has no clear legal duty to remove the
mobile home from the parcel number and Relators have or had an adequate
remedy at law.
{¶6} For a writ of mandamus to issue, the relator must have a clear legal
right to the relief prayed for, the respondents must be under a clear legal duty to
perform the requested act, and relator must have no plain and adequate remedy
in the ordinary course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio
St.3d 28, 451 N.E.2d 225.
{¶7} Relators have not directed this Court to any clear legal duty on the
part of Respondent to remove the mobile home from this parcel. Relators merely
assert they have a free and clear title to the mobile home. We have previously
recognized that a mobile home may become a fixture and part of the real estate.
In Equitable Federal Savings and Loan Association v. Hopton (1985), 1985 WL
7309, at 4, this Court held: “The trial court's conclusion that the “double wide,”
two-piece mobile home became a fixture is abundantly supported by the
evidence. The test for annexation is (1) actual annexation to the realty; (2)
application to the use; and (3) the intention of the party making the annexation to
make a permanent accession. Zangerle v. Standard Oil Co. (1945), 144 Ohio St.
506, 60 N.E.2d 52 (following Teaff v. Hewitt (1853), 1 Ohio St. 511); Taylor v.
4
Licking County, Case No. 11-CA-5
Multi-Flo, Inc. (1980), 69 Ohio App.2d 19, 429 N.E.2d 1086. Thus, a fixture is an
article which was a chattel, but which, by being affixed to realty, became
accessory to it and parcel of it.” Therefore, we find mere possession of the title
to the mobile home is not dispositive of the inquiry as to whether the mobile
home is a fixture on the property.
{¶8} Relators also have not shown that the possession of the title alone
creates a duty on the part of Respondent to remove the mobile home from the
parcel.
{¶9} As Respondent notes in his Motion to Dismiss, pursuant to Licking
County Conveyance Standards Rule C.2, Respondent has the discretion to deny
a requested transfer when Respondent has knowledge that a lawsuit is pending
involving the property at issue.
{¶10} We find the cause of action pending in the trial court to determine
whether the mobile home is a fixture provides Relators with an adequate remedy
at law.
{¶11} For these reasons, Respondent’s Motion to Dismiss is granted.
The requested Writ of Mandamus is dismissed.
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Licking County, Case No. 11-CA-5
{¶12} PETITION FOR WRIT DISMISSED.
{¶13} COSTS TO RELATORS.
By: Delaney, J.
Gwin, P.J. and
Hoffman, J. concur
____________________________
HON. PATRICIA A. DELANEY
____________________________
HON. W. SCOTT GWIN
____________________________
HON. WILLIAM B. HOFFMAN
6
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE EX REL. :
DOUGLAS H. CHESTER & : CASE NO. 11-CA-5
ROSALYN S. CHESTER :
:
Relators :
:
-vs- : JUDGMENT ENTRY
:
J. TERRY EVANS/MICHAEL L. :
SMITH :
:
Respondent :
For the reasons stated in the Memorandum-Opinion on file, Relators’
Petition for Writ of Mandamus is hereby dismissed. Costs to Relators.
______________________________
HON. PATRICIA A. DELANEY
______________________________
HON. W. SCOTT GWIN
______________________________
HON. WILLIAM B. HOFFMAN