COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71248 S/O EX REL., MARIE KEISTER : ACCELLERATED DOCKET : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD ALLAR : : PER CURIAM Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 15, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 285759 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Kevin P. Weiler, Esq. Harry A. Hanna, Esq. Weiler & Weiler Thompson, Hine, & Flory 8920 Brecksville Road 3900 Key Tower Brecksville, Ohio 44141 127 Public Square Cleveland, Ohio 44114-1215 -2- PER CURIAM: This matter comes before this court on the accelerated docket. Therefore, pursuant to App. R. 11.1 and Loc. R.25, this court may state the reasons for its decision in brief and conclusory form. Appellant appeals the trial court's order granting appellee's motion to dismiss for failure to state a claim. As the complaint, when all factual allegations are construed as true, fails to state a claim in mandamus, the trial court did not err by granting the motion. Appellant Marie Keister (appellant) owns property in the City of Broadview Heights, Ohio. In 1993 and 1994, property neighboring the property of appellant was developed, which resulted in a change of the water course, allegedly causing flooding on appellant's property. It is appellant's position that the City Engineer, Richard Allar, (appellee) had issued a permit from the City of Broadview Heights allowing the change in the existing watershed without properly reviewing the grading and landscaping plans of the neighboring development. Thus, appellant contends the issuance of the permits allowed water to be diverted onto her property. Appellant filed an action in the court below, seeking a writ of mandamus to compel appellee to enforce the ordinances of the City of Broadview Heights. Appellee subsequently filed a motion to dismiss pursuant to Civ.R. 12(B)(6), on the grounds appellee had no clear duty to perform the requested relief, and alternatively, that appellant had an adequate remedy at law. In support of their contention that appellee had no legal duty to perform the requested -3- relief, appellee submitted ordinances of the City of Broadview Heights which defined the duties of the City Engineer. In support of their contention that appellant had an adequate remedy at law, appellee submitted a transcript documenting a settlement agreement between appellant and a developer of other neighboring property whereby appellant agreed to release all claims against the developer in exchange for a cash settlement. Appellant timely filed her notice of appeal of the trial court's order granting appellee's motion to dismiss. ASSIGNMENTS OF ERROR Appellant alleged the following two assignments of error: I. THE LOWER COURT ERRED TO THE PREJUDICE OF RELATOR-APPELLANT BY DISMISSING THE COMPLAINT PURSUANT TO RULE 12(B)(6), OHIO RULES OF CIVIL PROCEDURE. II. THE LOWER COURT ERRED TO THE PREJUDICE OF RELATOR-APPELLANT BY APPARENTLY CONVERTING THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT WITHOUT NOTIFYING THE PARTIES. It is well settled that, when considering a motion to dismiss brought pursuant to Civ. R. 12(B)(6), the court must consider all facts alleged in the complaint as true. Doe v. First United Methodist Church (1994), 68 Ohio St.3d 531. The court in State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, evaluated the standard for reviewing the sufficiency of a mandamus complaint as had been established by the court in State ex rel. Alford v. Willoughby (1979), 58 Ohio St.2d 221, 223-224, 12 O.O.3d 229, 230, 390 N.E.2d 782, 785: -4- In order to establish a claim in mandamus, it must be proved that there exists a clear legal duty to act on the part of a public officer or agency, and that the relator has no plain and adequate remedy in the ordinary course of law. State, ex rel. Pressley v. Indus. Comm. (1967) 11 Ohio St.2d 141 [40 O.O.2d 141, 228 N.E.2d 631], paragraph one of the syllabus. A complaint in mandamus states a claim if it alleges the existence of the legal duty and the want of an adequate remedy at law with sufficient particularity so that the respondent is given reasonable notice of the claim asserted. The court in State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 94, 95 subsequently noted: Thus, a complaint for a writ of mandamus is not subject to dismissal under Civ.R. 12(B)(6) if the complaint alleges the existence of a legal duty by the respondent and the lack of an adequate remedy at law for the relator with sufficient particularity to put the respondent on notice of the substance of the claim(s) being asserted against it, and it appears that the plaintiff might prove some set of facts entitling him to relief. (Emphasis added). A review of the complaint in the action, sub judice, reveals that the existence of a legal duty on behalf of the appellee is alleged. However, the complaint does not allege that appellant lacks an adequate remedy at law. Therefore, even construing all allegations in the complaint as true, the complaint fails to state an action in mandamus. The trial court did not err by granting appellee's motion to dismiss. Appellant's second assignment of error is therefore moot. This action is affirmed. -5- It is ordered that appellee recover of appellant his 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. JAMES D. SWEENEY, CHIEF JUSTICE JOHN T. PATTON, JUDGE KENNETH A. ROCCO, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .