[Cite as Reeves v. Chief of Police, 2015-Ohio-3075.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
Christopher Reeves Court of Appeals No. E-14-124
Appellant Trial Court No. 2014CV0567
v.
Chief of Police, et al. DECISION AND JUDGMENT
Appellees Decided: July 31, 2015
*****
Christopher Reeves, pro se.
Justin D. Harris and Clifford C. Masch, for appellees.
*****
PIETRYKOWSKI, J.
{¶ 1} This is an accelerated appeal from a judgment of the Erie County Court of
Common Pleas which granted the motion of defendants-appellees, the Chief of Police of
the Cedar Point Police Department (“chief”), et al., to dismiss the complaint filed by
pro se plaintiff-appellant, Christopher Reeves.
{¶ 2} The facts of this case are as follows. On September 2, 2014, appellant filed
an action for monetary and declaratory relief in the court below against the Chief of
Police of the Cedar Point Police Department, attorney Justin Harris, and Reminger Co.,
L.P.A. The complaint alleged that Reeves had made a public records request of the chief,
seeking access to all police reports with narratives taken on July 5, 2014. The complaint
further alleged that appellees refused to comply with the request, on the grounds that
because the Cedar Point Police Department is a private entity it did not have to comply
with R.C. 149.43, Ohio’s Public Records Act, and, if the records were public, Reeves was
not entitled to receive them because the judge who sentenced him did not authorize the
release of the records pursuant to R.C. 149.43(B)(8). The complaint asserted that
appellees have demanded that Reeves send all public records requests to Harris and
Reminger, who represent the chief in litigation. The complaint then clarified that “this
case is not to deal with the denial of the public records request[.]” Rather, as stated in the
complaint, this case was filed “to deal with future public record requests made by
Reeves.” Reeves then, in relevant part, sought a declaratory judgment clarifying that the
Cedar Point Police Department is the functional equivalent of a public entity that is
required to comply with R.C. 149.43, and that R.C. 149.43(B)(8) only applies to persons
sentenced to an Ohio sentence by an Ohio judge.
{¶ 3} In response, appellees filed a motion to dismiss pursuant to Civ.R. 12(B)(6).
Appellees asserted that Reeves’ complaint did not state a justiciable controversy because
it sought relief for a hypothetical claim based upon an undefined future request for public
2.
records. Appellees further asserted that the Cedar Point Police Department is neither a
public entity, subject to the requirements of R.C. 149.43, nor the “functional equivalent”
of a public entity, which would be subject to those requirements. Finally, appellees
argued that even if Cedar Point could arguably be deemed a public entity under the
functional equivalent test, Reeves’ public record request would be barred by R.C.
149.43(B)(8).
{¶ 4} On October 14, 2014, the lower court filed a judgment entry granting
appellees’ motion to dismiss. The court found as a matter of law that Reeves’ complaint
did not state a justiciable controversy and otherwise failed to state a cognizable claim
recognized by Ohio law. The court further found, however, that the Cedar Point Police
Department was neither a public entity subject to R.C. 149.43, nor the “functional
equivalent” of a public entity which would be subject to the requirements of R.C. 149.43.
Reeves now challenges that judgment on appeal, asserting the following assignments of
error:
First Assignment of Error
The trial court committed reversible and prejudicial error in finding
the Cedar Point Police Department is not the functional equivalent of a
governmental entity mandating compliance with R.C. 149.43.
3.
Second Assignment of Error
The trial court committed reversible and prejudicial error in
dismissing the case below finding there exists no justicable [sic]
controversy.
{¶ 5} The second assignment of error is dispositive of this appeal. We review an
order granting a Civ.R. 12(B)(6) motion to dismiss de novo. Perrysburg Twp. v.
Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. “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 Cty. Bd. of Commrs., 65
Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). In our review, we must accept the factual
allegations in the complaint as true and make all reasonable inferences in favor of the
non-moving party. Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio-5717,
816 N.E.2d 1061, ¶ 11. The motion should be granted when it is beyond doubt from the
complaint that the plaintiff cannot prove a set of facts entitling him to recover. Doe v.
Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11,
citing O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d
753 (1975), syllabus.
{¶ 6} Given our standard of review, we must assume that the Cedar Point Police
Department is the functional equivalent of a public entity, mandating compliance with
R.C. 149.43. Regardless, Reeves did not state a cause of action that could survive
appellees’ motion to dismiss.
4.
In order to maintain an action for declaratory judgment, a party must
show that a real controversy exists between the parties, which is justiciable
in character, and that speedy relief is necessary to the preservation of rights
which may be otherwise impaired or lost. Burger Brewing Co. v. Liquor
Control Comm. (1973), 34 Ohio St.2d 93, 97. A trial court may dismiss a
complaint for declaratory relief only if no real controversy or justiciable
issue exists, or if the declaratory judgment will not terminate the
uncertainty or controversy. Fioresi v. State Farm Mut. Auto. Ins. Co.
(1985), 26 Ohio App.3d 203, syllabus [sic]. Essentially, courts have the
power to resolve present disputes and controversies, but do not have
authority to issue advisory opinion [sic] to prevent future disputes.
A real, justiciable controversy is a “genuine dispute between parties
having adverse legal interests of sufficient immediacy and reality to warrant
the issuance of a declaratory judgment.” Wagner v. Cleveland (1988), 62
Ohio App.3d 8, 13. The controversy must be a real or actual controversy.
See Burger Brewing Co., supra. The resolution of that controversy must
confer certain rights or status upon the litigants. J.C. Penney Cas. Ins. Co.
v. Professionals Ins. Co. of Ohio (1990), 67 Ohio App.3d 167, 172. An
action will not lie to obtain a judgment which is merely advisory in nature
or which answers a moot or abstract question. Cincinnati Metro Housing
Auth. v. Cincinnati Dist. Council No. 51 (1969), 22 Ohio App.2d 39, 43. A
5.
court will not indulge in advisory opinions. Egan v. National Distillers &
Chemical Corp. (1986), 25 Ohio St.3d 176, syllabus. Indiana Ins. Co. v.
M.D.O. Homes, Inc., 11th Dist. Lake No. 2000-L-167, 2001 WL 1561063,
*2 (Dec. 7, 2001)
{¶ 7} Reeves’ complaint did not allege a present controversy, but rather asked the
lower court to declare that the chief is required to comply with R.C. 149.43 in the future.
Such an opinion would be advisory. Moreover, the Supreme Court of Ohio has stated
time and again that “‘[m]andamus is the appropriate remedy to compel compliance with
R.C. 149.43, Ohio’s Public Records Act.’” State ex rel. Striker v. Smith, 129 Ohio St.3d
168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 21, quoting State ex rel. Physicians Commt. for
Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-
Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1). Reeves did file a mandamus action in
this court following the chief’s denial of Reeves’ request for records. In a decision and
judgment dated September 25, 2014, we dismissed that action for Reeves’ failure to
deposit a filing fee or file a proper affidavit of indigency sufficient to waive the fee. See
Reeves v. Chief of Police, 6th Dist. Erie No. E-14-108. Reeves has appealed that decision
to the Supreme Court of Ohio.
{¶ 8} Accordingly, as there was no justiciable controversy, the lower court did not
err in granting appellee’s motion to dismiss, and the second assignment of error is not
well-taken.
6.
{¶ 9} Because the court properly dismissed the case for Reeves’ failure to state a
claim, the court had no authority to find that the Cedar Point Police Department is neither
a public entity nor the functional equivalent of a public entity under R.C. 149.43.
Appellant’s first assignment of error is, therefore, well-taken.
{¶ 10} On consideration whereof, the judgment of the Erie County Court of
Common Pleas is affirmed, in part, and reversed, in part. The court’s dismissal of the
action is affirmed. The court’s ruling that the Cedar Point Police Department is neither a
public entity nor the functional equivalent of a public entity is reversed and vacated.
Costs of this appeal are to be shared equally by the parties pursuant to App.R. 24.
Judgment affirmed, in part,
and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
7.