COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71444 ROCKY RIVER CITY SCHOOL : DISTRICT, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION OHIO DEPARTMENT OF EDUCATION, : ET AL., : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION : JULY 3, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 282816 JUDGMENT : REVERSED AND DISMISSED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Susan C. Hastings SQUIRE, SANDERS & DEMPSEY 4900 Key Tower 127 Public Square Cleveland, Ohio 44114-1304 Loren L. Braverman SQUIRE, SANDERS & DEMPSEY 1300 Huntington Center 41 South High Street Columbus, Ohio 43215 For defendants-appellants: John P. Ware Roger F. Carroll Assistant Attorney Generals Education Section 30 East Broad Street 15th Floor Columbus, Ohio 43215-3428 -3- NAHRA, J.: Appellants, the Ohio Board of Education, the Superintendent of Public Instruction, and the Directors of the Ohio Department of Education Divisions of School Finance and Special Education, (collectively the "State"), appeal from the trial court's declaratory judgment operating in favor of appellee, the Rocky River City School District Board of Education (the "RRSD"). Because the trial court lacked subject matter jurisdiction, we reverse its judgment and dismiss the case. This case stems from a mandamus action filed with this court in January, 1994, to wit, State, ex rel. Fleming v. Rocky River School Dist. Bd. of Educ. (July 22, 1996), Cuyahoga App. No. 66757, unreported. Therein, a group of certified tutors sought to recover back wages and other benefits allegedly withheld by its employer, the appellee herein. In January, 1995, appellee filed this action in common pleas court. Through its complaint, the RRSD sought a declaration of its rights under Ohio Adm. Code 3301-51-06(B)(7)(b) which essentially provides for state reimbursement of employment expenses for a specific class of instructor. Specifically, the RRSD requested the trial court to issue a judgment declaring that the State was liable for fifty percent of any liability imposed on the RRSD in the related mandamus action. The State moved to dismiss the case asserting that the trial court lacked subject matter jurisdiction. By agreement of the parties, the motion was never ruled on. In November, 1995, the -4- parties filed cross motions for summary judgment. In its motion for summary judgment, the State again challenged the jurisdiction of the trial court. On July 22, 1996, we granted a limited writ in the mandamus action and ordered the RRSD to pay approximately twenty thousand dollars in back wages and benefits to the certified tutors. Several months after our order, the trial court below entered summary judgment in favor of the RRSD and declared that the State was liable to reimburse the RRSD for "one-half of the local cost per instructional period `in the event a judgment is entered against [appellee] in [the related mandamus action]'". The State timely appealed and assigned two errors for our review. I. Appellants' first assignment of error states: The Court of Common Pleas Erred in Refusing to Dismiss Rocky River's Complaint for Lack of Subject Matter Jurisdiction. The State maintains that at the commencement of the lawsuit, RRSD had not suffered a cognizable injury, e.g., there was no duty to pay back wages to the certified tutors. While framed in the context of a standing argument, ultimately, appellants contend that the lack of actual liability rendered the trial court without jurisdiction because no real controversy existed. Article IV, Section 4(B), of the Ohio Constitution defines the jurisdiction of the common pleas court and provides in pertinent part: -5- The courts of common pleas and divisions thereof shall have such original jurisdiction over all justiciable matters * * * as may be provided by law. Pursuant to this provision, the legislature established the authority for a common pleas court to issue a declaratory judgment in R.C. 2721.02. Courts of record may declare rights, status and other legal relations whether or not further relief is or could be claimed. * * *. While the power conferred by R.C. 2721.02 is broad, it is well established that in order to entertain a request for declaratory relief, the following must exist: (1) a real controversy between the parties, (2) a justiciable controversy, and (3) a situation where speedy relief is necessary to preserve the rights of the parties. Haig v. Ohio State Bd. of Edn. (1992), 62 Ohio St.3d 507, 511, 584 N.E.2d 704; Perrico Property Sys. v. Independence (1994), 96 Ohio App. 3d 134, 139, 644 N.E.2d 714. Essentially, the parties disagree as to whether appellee's complaint alleges a real controversy. A "controversy" exists for purposes of a declaratory judgment when there 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, 574 N.E.2d 533, citing, Burger Brewing Co. Liquor Control Comm. (1973), 34 Ohio St.2d 93, 63 O.O.2d 149, 296 N.E.2d 261; Master v. O'Malley (April 4, 1996), Cuyahoga App. No. 68895, unreported, discretionary appeal not allowed, 77 Ohio St.3d 1422 (1996). Where no controversy -6- exists, or where the controversy has not yet arisen, a court will ordinarily not entertain a declaratory judgment action. As a general rule, the courts will not render a declaratory judgment as to future rights, but just as in ordinary actions will wait until the event giving rise to the rights has happened, or, in other words, until the rights have become fixed under an existing state of facts. Hence the courts will not, ordinarily, attempt to decide or declare the rights or status of parties upon a state of facts which is contingent or uncertain or until the question as to which a declaration is sought has actually arisen. Williams v. Ledbetter (1950), 87 Ohio App. 171, 180, 57 Ohio Law Abs. 289, 42 O.O. 391, 94 N.E.2d 377. See, also, Corron v. Corron (1988), 40 Ohio St.3d 75, 79, 531 N.E.2d 708 (in order to seek a declaratory judgment there must be an actual controversy, which upon resolution will confer certain rights or status upon a party). The requirement of an actual controversy embodies the deeply rooted philosophy against rendering purely advisory opinions. It has become settled judicial responsibility for courts to refrain from giving opinions on abstract propositions and to avoid the imposition [of] judgment [by] premature declarations or advice upon potential controversies. Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 51 O.O.2d 35, 257 N.E.2d 371. See, e.g., Murr v. Celebrezze (June 13, 1989), Franklin App. No. 88AP-1111, unreported (R.C. 2721.02 "does not contemplate the rendition of advisory opinions"). For these reasons, this court has not hesitated to require the accrual of an actual controversy in declaratory judgment actions. See, e.g., Kittrells v. Perry (Sept. 5, 1996), Cuyahoga App. No. 69445, unreported (plaintiff could not demonstrate adverse employment -7- action and consequently no controversy occurred); Rothchild v. Central Motors Corp. (Oct. 7, 1993), Cuyahoga App. No. 63743, unreported, (complaint based upon threatened future conduct did not allege an actual controversy); D.H. Overmyer Telecasting Co. v. American Home Assurance Co. (1986), 29 Ohio App.3d 31, 29 OBR 32, 502 N.E.2d (judgment on liability for legal malpractice must exist before the injured party can commence a lawsuit against the attorney's insurance carrier); cf. Halley v. Ohio Co. (1995), 107 Ohio App.3d 518, 669 N.E.2d 70 (actual controversy existed independent of threatened future injury because breach of duty had already occurred). In this case, we find that appellee's action was premature and hold that the trial court lacked subject matter jurisdiction. Appellee commenced this litigation before we had determined liability in the related mandamus action. On the face of its complaint, the RRSD did not allege current liability to the certified tutors nor did it aver that the State was presently liable to it. Rather, the RRSD's complaint admits the non- existence of the facts it relies upon to establish the State's liability. Accordingly, the RRSD did not commence an action involving a "genuine dispute between parties having adverse legal interests of sufficient immediacy and reality." See Wagner, 62 Ohio App.3d at 13. Furthermore, no measure of immediacy existed regarding the declaration sought. The RRSD's complaint was filed in January, 1995. At that time, there was no indication when this court would -8- rule in the related mandamus action. Indeed, this court did not rule in the mandamus action until July, 1996. From that judgment, an appeal could have been taken to the Ohio Supreme Court. In short, at the time of the filing of appellee's complaint, there was no determination of any liability and no indication when any such liability would be finally established. This fact, coupled with the possibility that said judgment might have been favorable to the RRSD, destroys any claim that the RRSD's complaint presented a "situation where speedy relief [was] necessary to preserve the rights of the parties." See Haig, 62 Ohio St.3d at 511. Appellee cites Pack v. City of Cleveland (1982), 1 Ohio St.3d 129, 1 OBR 166, 438 N.E.2d 434, for the proposition that it need not demonstrate an actual controversy. Specifically, appellee quotes the following passage from Pack, 1 Ohio St.3d at 131: Where a complainant asserts the validity of a law in a declaratory judgment proceeding and shows that he is affected by, or materially interested in, a statute or ordinance, and that he has a justiciable cause concerning such law, the litigant's standing may be established. A justiciable cause may be shown in these instances by the relationship of the parties concerned with the application of the law, and there need not be an actual controversy or violation of the ordinance to give one standing. Thus, under Pack, someone who is affected by, or materially interested in a law, may challenge its validity without violating the law in order to gain standing. Pack, 1 Ohio St.3d at 131. Appellee's suggestion that Pack applies to this claim is incorrect for two reasons. First, the RRSD did not challenge the validity of a law; rather, it sought a declaration of its rights -9- under the law given a possible set of facts. Second, appellee failed to demonstrate that it was affected by the law. See, e.g., Ohio State Pharmaceutical Assn. v. Wickham (1989), 61 Ohio App.3d 488, 573 N.E.2d 148 (plaintiffs not affected by statute could not challenge its validity); Cf. South Euclid Fraternal Order of Police, Lodge 80 v. D'Amico (1982), 4 Ohio App.3d 15, 4 OBR 36, 446 N.E.2d 198 (where plaintiff demonstrated financial injury resulting from operation of ordinance, it was affected by the ordinance and could bring suit to challenge the validity of the ordinance). Ohio Adm. Code 3301-51-06(B)(7)(b) did not apply to the facts presented in the RRSD's complaint. Only once we rendered judgment in the related mandamus action could Ohio Adm. Code 3301-51-06-(B)(7)(b) affect either party. Appellee also cites R.C. 2721.03 which invests a court with substantial authority to provide a construction or an interpretation of a rule. Any person * * * whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, * * * may have determined any question of construction or validity arising under such instrument, constitutional provision, statute, rule * * *. R.C. 2721.03. However, this language does not circumvent the requirement that an actual controversy exist. GRE Ins. Group v. Internatl. EPDM Rubber Roofing Systems, Inc. (June 28, 1996), Lucas App. No L-95-306, unreported; State ex rel. Bolin v. Ohio Environmental Protection Agency (1992), 82 Ohio App.3d 410, 612 N.E.2d 498, jurisdictional motion overruled, 66 Ohio St.3d 1404 -10- (1993). Further, R.C. 2721.03 clearly requires that the law affect the party seeking the construction or interpretation. On the face of its complaint, the RRSD was not affected by Ohio Adm. Code 3301- 51-06-(B)(7)(b). Finding no basis for subject matter jurisdiction in the court below, we sustain appellants' first assignment of error. Judgment reversed and case dismissed. -11- This cause is reversed and case dismissed for proceedings consistent with this opinion. Costs assessed against plaintiff-appellee. It is ordered that a special mandate be sent to said 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. MATIA, DAVID T., P.J., and DYKE, J., CONCUR. JOSEPH J. NAHRA 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 .