COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67105 MILES & LEE MARKET, INC., dba : DAMON'S DELI, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION CUYAHOGA COUNTY BOARD OF : ELECTIONS, ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : MARCH 16, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 261341 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: John A. Ghazoul 1280 West Third Street 3rd Floor Cleveland, Ohio 44113 For defendant-appellee, Michael P. Butler Board of Elections: Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee, Chester T. Lyman, Jr. Michael A. Akrouche: Assistant Attorney General 30 East Broad Street 26th Floor Columbus, Ohio 43266-0410 -3- NAHRA, J.: Appellants, Miles & Lee Market, Inc., et al., are appealing the trial court's grant of summary judgment in favor of appellees, the Cuyahoga County Board of Elections, et al. Appellee, Ohio Department of Liquor Control set forth two assignments of error contending the trial court improperly issued an injunction against the department. For the following reasons, we affirm. On June 14, 1993, local option election petitions were filed with the Board of Elections in order to qualify for the ballot the issue of whether Ward 1, Precinct D of the city of Cleveland should be a "dry" precinct, prohibiting the sale of alcohol. Appellant Miles & Lee Market, Inc. is a store with a liquor permit in the precinct and appellant Michel Abboud owns the store. Michel Abboud wrote a letter to Thomas Hayes, Director of the Cuyahoga County Board of Elections, on August 23, 1993. The letter expresses disagreement with the option petition, because in Mr. Abboud's opinion, the selling of liquor was not responsible for the problem of "young men hanging on the street corners today." Furthermore, the petition was filed "as a personal threat to certain businesses in the area." The letter did not complain of any defects in the petitions themselves. Thomas Hayes replied in writing that the Board of Elections found no defects in the petitions, but would investigate if Mr. Abboud had any complaints regarding defects in the petitions. Appellants' complaint alleges that on November 1, 1993, the day before the election, Michel Abboud was informed by his -4- customers that a man was circulating the petition. All the signatures on the petitions had been witnessed by Ms. Phyllix Means. Mr. Abboud phoned Thomas Hayes concerning this problem with the petitions. Hayes told Abboud it was too late to file a protest, but Abboud could pursue post-election remedies. An affidavit by Hayes confirms this conversation took place. On November 2nd, the majority of electors voted to make the precinct dry. Appellants filed suit on November 18, 1993, contesting the election and asserting claims for declaratory and injunctive relief. The defendants-appellees include the Board of Elections, several members of the Board of Elections, the Secretary of State, and the director of the Ohio Department of Liquor Control. Appellants also sued the individuals who circulated the option petition, but later dismissed these individuals. The complaint also included twenty-five (25) electors of precinct 1-D as "contestors" in order to satisfy the requirements of R.C. 3515.09. Affidavits signed by thirty-seven (37) electors were attached to the complaint. The affidavits stated the purpose of the election petition was misrepresented to the electors. The affidavits do not indicate any intent or desire to contest the election. The Board of Elections submitted evidence that twelve of these "electors" did not vote in the election, and one of them had passed away in 1992. Michel Abboud signed a verification of the complaint. The court denied a preliminary injunction to prevent certification of the results of the election. The election results -5- were certified on November 29, 1993. The court restrained the Department of Liquor Control from cancelling or picking up appellant's permit. The trial court granted a stay of execution pending appeal, so the injunction against the Department of Liquor Control remained in effect. I. Appellants' sole assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT AS THERE ARE GENUINE ISSUES OF MATERIAL FACT PRECLUDING SUMMARY JUDGMENT AND DEFENDANTS ARE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. Summary judgment was granted in favor of appellees for two reasons: (1) lack of subject matter jurisdiction, and (2) the complaint was barred by laches. The trial court held it lacked subject matter jurisdiction because appellants' complaint did not meet the mandatory requirements for an election contest, under R.C. 3515.09. Appellants voluntarily dismissed the election contest, their remaining claim being relief for denial of a protest hearing. This action is not an election contest, so the requirements of R.C. 3515.09 do not have to be met. Appellee, Ohio Department of Liquor Control argues that an election contest is the sole remedy for errors, frauds or mistakes which may have occurred in an election. State ex rel. Shriver v. Hayes (1947), 148 Ohio St. 681, see R.C. 4303.391. A suit for declaratory and injunctive relief is an available remedy to contest a decision of the Board of Elections on a protest matter for allegations of fraud, corruption, abuse of discretion or disregard -6- of a statute. See State ex rel. Beck v. Casey (1990), 51 Ohio St.3d 79, see Kelli Joe, Inc. v. Cuyahoga County Board of Elections (June 9, 1992), Franklin App. No. 91AP-1421, unreported. As appellants are precluded from filing an election contest for matters that should have been corrected by pre-election remedies, Portis v. Summit County Board of Elections (1993), 67 Ohio St.3d 590, a remedy is needed in case of wrongful action by the Board in a protest matter. Thus, the suit was not an election contest, and the trial court did not lack subject matter jurisdiction for failure to meet the requirements of R.C. 3515.09. We now turn to the issue of whether appellants' action is barred by laches. In general, a party asserting the defense of laches must prove: (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for such delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) material prejudice. State ex rel. N. Olmsted Fire Fighters Assn. v. N. Olmsted (1992), 64 Ohio St.3d 530, 536. In an election context, the plaintiff must show extreme diligence in prosecuting the action. Foster v. Bd. of Elections (1977), 53 Ohio App.3d 213, State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 48-49. If the plaintiff delayed in asserting his rights, plaintiff must explain the delay. Id. Appellants delayed in asserting their right to a protest hearing for an unreasonable length of time. Protests must be in writing and filed sixty-four days before the election. R.C. -7- 1 4301.33. Appellants' letter dated August 23rd did not constitute a protest, because it asserted no defects in the petitions. Appellants orally protested the day before the election. Not only did appellants fail to meet the requirement that protests be in writing, this protest was untimely. Laches applies once the Board has begun to conduct the election by printing and issuing absentee ballots. State ex rel. White, supra, State ex rel. Hinkle v. Franklin Cty. Bd. of Elections (1989), 47 Ohio St.3d 117. On November 1st, absentee ballots had already been issued. This lawsuit was not a timely assertion of appellants' right to a protest hearing either. Brink v. Franklin Cty. Bd. of Elections (1985), 21 Ohio App.3d 283. Appellants assert they did not know about the problems with the petitions until November 1st. If appellants had investigated in a timely fashion, they would have discovered any problems with the petitions. See Colson v. Cuyahoga Cty. Board of Elections (Feb. 17, 1994), Cuyahoga App. No. 64789, unreported. Appellants' claimed ignorance as to election protest procedures is not a valid excuse for the delay either. The Board of Elections was materially prejudiced by appellants' untimely protest because the Board had already printed ballots and issued absentee ballots. Allowing a protest after the 1 Appellants assert that the sixty-four day deadline is not mandatory, citing State ex rel. Hinkle v. Franklin Cty. Bd. of Elections (1991), 62 Ohio St.3d 145. Appellants misread Hinkle. Hinkle held that the sixty-six day deadline for the Board to determine the validity of petitions was not mandatory. -8- election when an opportunity to challenge the petition beforehand existed would unjustly disenfranchise the voters who voted in favor of the local option. Brink, supra, at 285. Appellants should have known their delay would result in material prejudice. Whitt v. Cook (M.C. 1970), 22 Ohio Misc. 254 is distinguishable on its facts and was overruled to the extent relevant here by Brink, supra. Thus, appellants unreasonably delayed in asserting their protest to the petition, had no excuse for the delay and the delay resulted in material prejudice. Appellants suit is barred by laches, so summary judgment in favor of appellees was proper. Accordingly, this assignment of error is overruled. II. Appellee, Ohio Department of Liquor Control asserts two assignments of error. They state: 1. THE TRIAL COURT LACKED JURISDICTION OVER THE DEPARTMENT OF LIQUOR CONTROL, AND THEREFORE IMPROPERLY ISSUED AN INJUNCTION AGAINST THE DEPARTMENT. 2. THE TRIAL COURT ABUSED ITS DISCRETION AND EXCEEDED ITS AUTHORITY BY ITS DECISION AND ORDER KEEPING THE INJUNCTION IN EFFECT PENDING APPELLATE REVIEW. These assignments of error are moot given our disposition of appellants' assignment of error. Additionally, appellee Department of Liquor Control did not file a cross-appeal as required by App.R. 3(C)(1). Accordingly, these assignments of error are overruled. The decision of the trial court is affirmed. -9- It is ordered that appellees recover of appellants their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., and DYKE, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .