COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68114 PROGRESSIVE SPECIALTY : INSURANCE CO., ET AL. : : Plaintiffs-appellees : : JOURNAL ENTRY -vs- : AND : OPINION JOHN WURZ : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 4, 1995 CHARACTER OF PROCEEDING : Civil appeal from Cleveland Municipal Court : Case No. 93-CVE-27522 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: PLAINTIFFS-APPELLEES: FOR DEFENDANT-APPELLANT: William P. Kienzl Albert E. Fowerbaugh Roderick J. Crane 505 Nat'l. City Bank Bldg. P.O. Box 43258 629 Euclid Avenue Richmond Heights, Ohio 44143 Cleveland, Ohio 44114 -2- -3- HARPER, J.: Defendant-appellant, John Wurz, appeals from a judgment rendered in favor of plaintiffs-appellees, Progressive Specialty Insurance Co. ("Progressive") and Jackie Adams, by the Cleveland Municipal Court. He submits that the trial court's judgment is against the manifest weight of the evidence. On March 25, 1993, James Brown was operating Adams' automobile when a collision occurred with appellant's vehicle at the intersection of East Boulevard and Euclid Avenue, Cleveland, Ohio. Appellees filed their complaint in the trial court on November 23, 1993, seeking compensation for the damages sustained in the collision. A referee heard the matter on August 28, 1994, and issued a report on September 26, 1994. The report divulges the following facts: James Brown testified that he dropped Adams off at work on March 25, 1993 and proceeded home. As he travelled westbound on Euclid Avenue toward downtown in the inside lane, he observed an eastbound bus on Euclid Avenue. The bus approached and then turned left onto East Boulevard, in a northbound direction. Brown then maneuvered Adams' automobile into the intersection of Euclid Avenue and East Boulevard in a continuous and straight movement. Appellant at this time was travelling southbound on East Boulevard. He then turned east onto Euclid Avenue, and struck Adams' vehicle. Brown denied that he either swerved into appellant's vehicle or changed lanes as he proceeded through the intersection. He -4- acknowledged that he decelerated slightly when the bus turned onto East Boulevard. Appellant testified that he stopped at the stop sign located at the corner of Euclid Avenue and East Boulevard. He remained there while Brown swerved from his westbound lane of travel into appellant's stopped vehicle. Appellant conceded that he was slightly into the intersection on Euclid Avenue, but claimed he did not proceed beyond the outer westbound lane. Brown, therefore, swerved into his lane unnecessarily. The testimony of a passenger in appellant's vehicle at the time of the collision corroborated that of appellant. Both she and appellant testified to the presence of a bus which was immediately in front of appellant's vehicle. The bus turned east onto Euclid Avenue from East Boulevard thereby causing appellant to be stopped at the stop sign. Appellant and his passenger surmised that Brown swerved into appellant's lane of travel after the bus turned the corner and Brown did not see appellant's vehicle. Brown reacted to appellant's testimony by claiming that appellant was not only moving but was failing to yield to oncoming westbound traffic on Euclid Avenue. Appellant moreover continued to operate his vehicle after the collision and only stopped to exchange information when chased by Brown. The parties recognized that little visible damages was sustained on appellant's vehicle, but there was significant damage to Adams' vehicle "consistent with having been struck on the passenger side." -5- Appellant attempted to make a "technical distinction." He asserted that any perceived failure to yield on his part occurred when he proceeded onto Euclid Avenue. However, he stopped at the stop sign, but Brown failed to see him and then failed to yield, "thereby striking a stopped car." (Emphasis sic.) Brown countered that he observed appellant when he was stopped at the stop sign, but did not see him when he pulled into the intersection. Tim Weber, an adjustor for Progressive, testified as to the adjusted damages and estimate to repair Adams' vehicle. The estimate, an exhibit, amounted to $3,782. Progressive remitted $3,282 of this amount to Adams, and thus became subrogated to that extent to Adams' rights pursuant to his policy of insurance. Adams was responsible for a $500 deductible pursuant to the same policy. Adams proposed that appellant made an illegal turn and otherwise failed to yield Brown's right-of-way, proximately causing damages to his vehicle. He and Progressive sought to recover damages in the amount of $3,782. Based upon the testimony offered at the hearing, the referee found that appellant encroached into Brown's lane of travel as Brown proceeded westbound on Euclid Avenue. The referee noted appellant's testimony that he could not have been moving at the time because his vehicle's transmission was malfunctioning. However, the referee discounted this theory by stating, "the fact is the parties only exchanged information after the collision and after James Brown followed [appellant] onto Euclid Avenue going eastbound. Defendant's Wurz's car obviously had to move in order -6- to get onto Euclid Avenue ***." (Emphasis sic.) The referee then found that the damage to Adams' vehicle was consistent with having been struck by another vehicle. The referee concluded that Brown had the right of way on Euclid Avenue. Appellant, therefore, was required under R.C. 4511.42 to confirm he possessed sufficient time and room before entering Euclid Avenue. Failing to do so, the referee concluded that appellant proximately caused damages to Adams' vehicle. Finally, though Brown observed appellant's vehicle stopped at the intersection, Brown properly assumed that appellant would obey the law and not enter his lane of travel because Brown had the absolute right of way. The referee, therefore, recommended that Progressive be awarded $3,282 as a subrogated insurer, and Adams $500 for his unreimbursed deductible. Appellant, in a counterclaim, demanded judgment against Adams based upon negligence. The referee recommended that the counterclaim be dismissed on the merits. The trial court approved and confirmed the referee's report and entered judgment accordingly on October 6, 1994. This appeal followed with appellant raising one error for review. He submits that the referee's conclusions and the trial court's adoption thereof are not supported by the weight of the evidence. This court is guided by the presumption that the findings of the trial court were correct in reviewing its judgment. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. It is well -7- established that judgments will not be reversed by a reviewing court as being against the manifest weight of the evidence where they are "supported by some competent, credible evidence going to all the essential elements of the case." C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. The report of the referee in the instant case contains competent, credible evidence in support of his conclusion that appellant failed to yield to Brown's right of way. See, Lumaye v. Johnson (1992), 80 Ohio App.3d 141. Deference is given to this conclusion since the referee was best able to determine the credibility of the witnesses. See, Seasons Coal Co., 80. Additionally, App.R. 9(B) definitively states that if an appellant urges on appeal that a conclusion is contrary to the weight of the evidence, a transcript of the evidence relevant to the conclusion is to be included in the record. If a transcript is unavailable, options are available to the appellant under App.R. 9(C) and (D) to perfect the record. The within case, by agreement of counsel, was designated as an App.R. 9(A) record on appeal on December 2, 1994. We must, therefore, presume the validity of the trial court's proceedings for this reason as well. See, Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197; Wiltsie v. Teamor (1993), 89 Ohio App.3d 380. Appellant's assignment of error is accordingly overruled. Judgment affirmed. -8- It is ordered that appellees recover of appellant its 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 Cleveland Municipal 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. PATRICIA BLACKMON, P.J., JOSEPH NAHRA, J., CONCUR JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza-tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68223 STATE OF OHIO EX REL. JAY A. : KLEIN, : : : Relator : JOURNAL ENTRY : v. : AND : CUYAHOGA COUNTY BOARD OF : OPINION ELECTIONS, ET AL., : : : (Motion Nos. 58295, 58794 Respondents : and 60864) DATE OF ANNOUNCEMENT OF DECISION : MAY 1, 1995 CHARACTER OF PROCEEDING : PROHIBITION/MANDAMUS JUDGMENT : DENIED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For relator: Donald J. McTigue McTIGUE & BROOKS 4921 Dierker Road Columbus, Ohio 43220 William Michael O'Neill 145 Main Street Chardon, Ohio 44024 For respondents, Cuyahoga Michael P. Butler County Board of Elections, Patrick J. Murphy Jimmy Dimora, Marguerite S. Assistant County Prosecutors Hughes, Roger M. Synenberg, Justice Center - 8th Floor and Ann White: 1200 Ontario Street Cleveland, Ohio 44113 -3- NAHRA, J.: On December 5, 1994, the relator, Jay Klein, commenced this prohibition and mandamus action against the respondents, the Cuyahoga County Board of Elections, Jimmy Dimora, Ann White, Roger Synenberg and Marguerite Hughes to compel them to oust Michael Corrigan as a judge of the Cuyahoga County Common Pleas Court. Subsequently, Mr. Klein admitted that the prohibition action was moot; thus, it is dismissed and an application for an alternative writ of prohibition filed therewith is denied. The parties have submitted the mandamus action on cross-motions for summary judgment. For the following reasons, the court denies the application for a writ of mandamus. The parties agree that in 1992 and 1993 Michael Corrigan was a member of the Democratic Party and voted the Democratic primary election ballot. In January 1994, he filed his declaration of candidacy for Common Pleas Judge in the May 3, 1994 Democratic Primary. On March 9, 1994, the Board of Elections approved the validity and sufficiency of Judge Corrigan's petition and certified his name on the ballot. No one filed a protest to his candidacy, and no one suggests that as of that date Judge Corrigan was not properly certified as a Democratic candidate. Moreover, Judge Corrigan was unopposed for that particular judgeship. On April 5, 1994, the absentee balloting began. On primary election day, May 3, Michael Corrigan voted the Republican Party primary ballot, as established by the public records relating to the election. No one challenged Judge Corrigan's vote. On June 7 -4- the Board of Elections certified the results of the primary election and declared Judge Corrigan the victor in the Democratic Primary for that particular judgeship. In the November 8, 1994, non-partisan General Election, Judge Corrigan won unopposed. Again no one, including Mr. Klein, protested his candidacy in any way. On or about November 16, 1994, Mr. Klein read a newspaper article in which Judge Corrigan discussed his change from Democrat to Republican; the article stated his reasons were philosophical. Approximately three weeks later Mr. Klein filed this writ action. He asserts that he is a Cuyahoga County Democratic Party Central and Executive Committee member and a ward leader for Lyndhurst, that he supported and worked for Judge Corrigan's candidacy and that he voted for him at the May 3, 1994 primary. Mr. Klein further alleges that had he known that Michael Corrigan would change parties, he would not have supported or voted for him. On December 6, 1995, the Board of Elections certified the election results, including Judge Corrigan's victory. The gravamen of Mr. Klein's argument is that Judge Corrigan violated R.C. 3513.191 by declaring himself a Democratic candidate for the primary and then voting Republican in the same primary. That statute provides: "No person shall be a candidate for nomination or election at a party primary if he voted as a member of a different political party at any primary election within the current year and the next preceding two calendar years." Mr. Klein seizes upon the language "in the current year" and deduces that because Judge Corrigan voted Republican in the May 3, 1994 primary, -5- he disqualified himself as a Democratic candidate, even though he had already properly qualified as a candidate. As a mechanism to decertify Judge Corrigan's election, Mr. Klein relies upon R.C. 3513.22 which provides in pertinent part: "If, after certifying and sending abstracts and parts thereof, a board finds that any such abstract or part thereof is incorrect, it shall promptly prepare, certify, and send a corrected abstract or part thereof to take the place of each incorrect abstract or part thereof theretofore certified and sent." He argues, without any case authority, that this section allows a board of elections retroactively and without protest or hearing to test the eligibility and qualifications of a candidate after an election and, if appropriate, decertify him as the winner and effectively oust him from office. Mr. Klein's application for a writ of mandamus fails on the merits. The requisites for mandamus are well established: (1) the relator must have a clear legal right to the relief requested, (2) the respondent must have a clear legal duty to perform the requested relief, and (3) there must be no adequate remedy at law. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914; State ex rel. Taylor v. Lucas County Board of Elections (1988), 43 Ohio App.3d 176, 540 N.E.2d 292. A board of elections has no duty to apply R.C. 3513.191 in a retroactive fashion to decertify a candidate, whom the board properly declared eligible, and effectively to disfranchise the electors who voted for that candidate. -6- First, Mr. Klein has not cited, nor has this court found, any controlling or persuasive authority for the specific proposition that a board of elections must decertify or rule as ineligible a candidate who properly qualified as a candidate for one party and then voted as a member of another party at the relevant election. The focus of R.C. 3513.191 is on the prerequisites to be a candidate for nomination or election at a party primary. The right to be a candidate must necessarily be established before the primary. The use of the word candidate, rather than the phrase, no person shall be elected to office, reveals that the scope of this statute is limited to qualifying a person before the primary. The need for certainty and finality in election matters requires that the outcome of an election, including a primary election, not be overturned or thwarted by events subsequent to the point when candidates have been established as properly eligible for the ballot. Accordingly, the latter qualifying phrases in R.C. 3513.191 must have their effect prior to the relevant primary. An analysis of R.C. Chapter 3513 "Primaries; Nominations", especially the timing allotted for protests, verifies the above principle. The vehicle for challenging a candidate's qualifications is the statutorily provided protest under R.C. 3513.05 which governs various primary procedures, including protests. A candidate's qualifications are not tested by an election contest, the certification process under 3513.22 or some other means. The Supreme Court of Ohio clarified this point of law in Portis v. Summit County Board of Elections (1993), 67 Ohio St.3d -7- 590, 621 N.E.2d 1202, in which it rejected the proposition that an election contest could be used to submit an untimely protest. The court unequivocally ruled that a candidate's qualifications are tested via the protest. Under Chapter 3513 the time specified for making a protest to a person's candidacy is up to sixty-four days before the primary. R.C. 3513.05. After that time period the board of elections has no duty to consider protests. In Pierce v. Brushart (1950), 153 Ohio St. 372, 378, 92 N.E.2d 4, the Supreme Court of Ohio held that when "a protest is not filed with the board of elections before the required day prior to the election, it is too late to be effective and the board of elections may disregard it ***." See also, State ex rel. Cassidy v. Zaller (1943), 142 Ohio St. 186. Similarly, R.C. 3513.262 and 3513.263 limit the time specified for protesting candidates who use nominating petitions for the general election. The code provides no other opportunities for protesting the qualifications of a candidate. Furthermore, these statutes provide that the determinations of the boards of election are to be final. The absence of a means to protest a candidate on his qualifications after the primary election evinces the legislative intent that events simultaneous or subsequent to the election are not grounds for protesting and disqualifying a candidate. The "within the current year" language of R.C. 3513.191 is necessitated by the possibility of primaries for special elections pursuant to R.C. 3513.32. The previous version of R.C. 3513.191 prohibited a person from being a candidate for nomination or -8- election at a party primary if he voted as a member of a different political party at a primary election within the preceding four calendar years. However, it said nothing of primaries which might have been previously held in the same year. Thus, all of the preceding primaries might not be considered. The "current year" language fills this omission and allows the board of elections to examine all of the relevant preceding time to determine whether the candidate fulfills the prerequisites for running in a primary election. Considering only the previous voting record for purposes of determining eligibility to be a candidate at a party primary is consistent with the amendments to R.C. 3513.19. Under the previous version of that statute, a person challenged at a primary when switching parties had to swear in an affidavit that at the last general election he voted for more members of his "new" party than he did of his "old" party. The amendments greatly liberalize a person's ability to change parties. Now, when challenged, a person must only state under penalty of election falsification that he desires to be affiliated with and supports the principles of his "new" party. No law prohibits candidates or anyone else from changing parties at a primary election which is the only time such a declaration is required. Thus, the mandamus claim fails because what Judge Corrigan did was permissible. State ex rel. Taylor v. Lucas County Board of Elections, supra, is instructive on the issue of whether a board of elections has a duty to consider events subsequent to certifying a candidate -9- for a primary for purposes of evaluating eligibility. In Taylor between the time of the primary and general elections the candidate moved to another precinct within her city, but she omitted to inform the board of the move until it was too late for her to be eligible to vote in the general election. The relator argued that the candidate was no longer a qualified elector and thus, she was ineligible to continue as a candidate, and any votes for her should not be counted and certified. The court of appeals in ruling that the candidate had actually not lost her status as either a candidate or a qualified elector further indicated that the board of elections was not under a continuing duty to monitor candidates' credentials once they were certified. In the present case there is no doubt that Judge Corrigan properly qualified as a candidate before the primary. The respondents had properly completed their duty at that time. The statutory scheme of Chapter 3513 and the common law concerning protests establishes that the board had no duty to conduct further examinations after the time for protests had lapsed. The board had no duty to consider events subsequent to the time of certification for the primary and no duty to summarily decertify a candidate for eligibility after the general election. To rule otherwise would improperly and imprudently expand the scope of R.C. 3513.191 and rewrite Chapter 3513, would disfranchise voters from two elections and would risk infringing liberty and property interests. Without the requisite duty to examine qualifications after the election, Mr. Klein's application for mandamus again fails on the merits. -10- The court further notes that Mr. Klein did not timely pursue this mandamus action. In election cases extreme diligence and the promptest of action are required. Brink v. Franklin County Board of Elections (1985), 21 Ohio App.3d 283, 488 N.E.2d 240; Foster v. Cuyahoga County Board of Elections (1977), 53 Ohio App.2d 213, 373 N.E.2d 1274. Thus, the courts of Ohio have ruled that commencing a writ action even before the general election is dilatory. State ex rel. Friedlander v. Myers (1934), 128 Ohio St. 568, 192 N.E. 737; State ex rel. Bargahiser v. Board of Elections (1968), 14 Ohio St.2d 129, 237 N.E.2d 133; State ex rel. Hinkle v. Franklin County Board of Elections (1989), 47 Ohio St.3d 117, 548 N.E.2d 230. In the present case, Mr. Klein never filed a protest. Rather, he waited until the day before the results of the general election were to be certified to file this action. This demonstrates an extreme lack of diligence. As the court in Brink noted, granting relief would disfranchise all those who voted for Judge Corrigan in both the primary and general elections. Mr. Klein endeavors to excuse his dilatory actions by claiming that Judge Corrigan concealed his actions, i.e., voting Republican at the primary and not announcing it to the news media immediately. However, making one's actions a matter of public record cannot be characterized as concealment. Judge Corrigan's voting Republican became a matter of public record when he requested the Republican ballot. Any failure to act on this record reflects a lack of due diligence on the part of the relator rather than concealment on the part of Judge Corrigan. Laches precludes granting relief under these facts. -11- Moreover, the Supreme Court of Ohio has repeatedly ruled that protests and other matters relating to candidacies become moot after the election has been held. State ex rel. Patrick v. Board of Elections of Cuyahoga County (1962), 174 Ohio St. 12, 185 N.E.2d 433; State ex rel. Keller v. Loney (1959), 169 Ohio St. 394, 159 N.E.2d 896; State ex rel. Maranze v. Montgomery County Board of Elections (1958), 167 Ohio St. 323, 148 N.E.2d 229, appeal dismissed (1958), 358 U.S. 47, 3 L.E.2d 45, 79 S.Ct. 84. See also, State ex rel. Whetsel v. Murphy (1930), 122 Ohio St. 620, 174 N.E.2d 252, 253: "The primary election having been closed and the result declared the court will not order the choice of the people at the primary election to be disregarded." Accordingly, because relief is barred by laches, because the matter is moot, because the respondents have no duty to perform the requested relief, and because no impropriety was committed, Mr. Klein's application for mandamus is denied. Relator to pay costs. HARPER, J., and JOSEPH J. NAHRA PORTER, J., CONCUR. PRESIDING JUDGE .