State ex rel. SuperAmerica Group v. Licking County Board of Elections

Per Curiam. Referendum Petitioners’ Motion to Intervene The referendum petitioners request intervention as respondents under Civ.R. 24. They oppose the ordinance passed by the Granville Village Council that approved, subject to certain conditions, SuperAmerica’s plan to build a convenience store and gas station. If SuperAmerica is victorious in this case, the referendum election on the ordinance will not be held and SuperAmerica will begin the construction that the referendum petitioners seek to prevent. They thus possess a sufficient interest in this case to intervene. Civ.R. 24(A) and (B). In addition, while SuperAmerica contends that intervention is not warranted because the board adequately represents the referendum petitioners’ interests and their defenses are identical to the board’s, the referendum petitioners aptly note that SuperAmerica’s attack is not limited to matters relating to the validity and sufficiency of the petition. Further, the referendum petitioners’ asserted defenses manifestly raise questions of law and fact in common with those raised by the board in this action, as required for permissive intervention under Civ.R. 24(B). Therefore, given the liberal construction generally accorded Civ.R. 24 in favor of intervention and the movants’ compliance with the mandatory procedural requirements of Civ.R. 24(C), we grant the referendum petitioners’ motion and permit them to intervene as respondents in this action. State ex rel. LTV Steel Co. v. Gwin (1992), 64 Ohio St.3d 245, 247, 594 N.E.2d 616, 619; cf. State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 143, 144, 656 N.E.2d 1277, 1278. Res Judicata The board and the referendum petitioners claim that SuperAmerica’s action for writs of mandamus and prohibition is barred by res judicata.1 As SuperAmerica concedes, we recently dismissed an identical action by SuperAmerica for want of prosecution when it failed to file its evidence and a merit brief within the period required in expedited election matters. See S.Ct.Prac.R. X(9) (“Unless otherwise ordered by the Supreme Court, relator shall file any evidence and a merit brief in support of the complaint within three days following the response * * *.”) and S.Ct.Prac.R. X(ll) (“Unless all evidence is presented and relator’s brief is filed within the schedule issued by the Supreme' Court, an original action shall be dismissed for want of prosecution.”). In expedited election matters filed in this court, both the schedule and alternative writ contemplated by S.Ct.Prac.R. X(ll) [185] are incorporated into S.Ct.Prac.R. X(9). See Staff Commentary to S.Ct.Prac.R. X(9) (“In an expedited election case under the former rules, the Court was required to make a determination promptly under S.Ct.Prac.R. X, Section 5. This virtually always resulted in the grant of an alternative writ and an expedited schedule for the presentation of evidence and briefs. Since the Court usually grants alternative units in expedited election cases, this amendment returns to the practice in the pre-199j rules and incorporates into the rule itself an expedited schedule for the presentation of evidence and briefs”). (Emphasis added.) S.Ct.Prac.R. X(2) provides that all original actions other than habeas corpus filed in this court “ ‘shall proceed under the Ohio Rules of Civil Procedure, unless clearly inapplicable.’ ” State ex rel. Master v. Cleveland (1996), 75 Ohio St.3d 23, 26, 661 N.E.2d 180, 183; see, also, S.Ct.Prac.R. X(l). Civ.R. 41 governs the dismissal of actions, and Civ.R. 41(B) applies to the involuntary dismissal of actions. Civ.R. 41(B)(3) provides that “[a] dismissal under this subdivision and any dismissal not provided for in this rule * * * operat[e] as an adjudication on the merits unless the court, in its order for dismissal, otherwise specifies.” (Emphasis added.) By its own terms, Civ.R. 41(B)(3) is not “clearly inapplicable” to dismissals for want of prosecution pursuant to S.Ct.Prac.R. X(ll). We dismissed SuperAmerica’s complaint under S.Ct Prac.R. X(ll) and did not specify that the dismissal was not an adjudication on the merits. Therefore, under Civ.R. 41(B)(3), our dismissal operated as an adjudication on the merits. Civ.R. 41(B)(l)’s requirement of notice to plaintiffs counsel before dismissal is inapplicable to dismissals under S.Ct.Prac.R. X(ll). Cf. Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 128, 647 N.E.2d 1361, 1365 (“Generally, notice is a prerequisite to dismissal for failure to prosecute under Civ.R. 41[B][1].”). As noted by respondents, notice of dismissal is, in effect, provided by S.Ct.Prac.R. X(11) itself. Res judicata consequently bars SuperAmerica’s present action. State ex rel. Gabriel v. Youngstown (1996), 75 Ohio St.3d 618, 620, 665 N.E.2d 209, 210, quoting Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226, syllabus (“ ‘A valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.’ ”). While SuperAmerica claims that this violates the fundamental tenet of judicial review in Ohio that fairness and justice are best served when cases are decided on their merits, see State ex rel. Wilcox v. Seidner (1996), 76 Ohio St.3d 412, 414, 667 N.E.2d 1220, 1221, fairness and justice are best served here by application of the meritorious defense of res judicata. SuperAmerica should have known that S.Ct.Prac.R. X(11) and Civ.R. 41(B)(3) mandated dismissal on the merits of its earlier, identical action for want of prosecution if it failed to file its evidence and [186] brief within the time specified in S.Ct.Prac.R. X(9). As the board asserts, a contrary holding would circumvent S.Ct.Prac.R. XIV(1XC) (“No pleading, memorandum, brief, or other document may be filed after the filing deadlines imposed by these rules * * *.”) by permitting parties to refile and proceed with their original actions following dismissal for want of prosecution. Laches The board and referendum petitioners further contend that SuperAmerica’s action is barred by laches. The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the other party. Polo, 74 Ohio St.3d at 145, 656 N.E.2d at 1279. In election-related matters, extreme diligence and promptness are required. In re Election of Member of Rock Hill Bd. of Edn. (1996), 76 Ohio St.3d 601, 606, 669 N.E.2d 1116, 1121. Extraordinary relief has been routinely denied in election-related cases based on laches. State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 48-49, 600 N.E.2d 656, 659; Paschal v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 141, 142, 656 N.E.2d 1276, 1277. In this case, SuperAmeriea delayed almost three months from the board’s certification to bring this action. SuperAmeriea lacks any justifiable excuse for the delay even though it had knowledge of the basis of its claims when the board certified the validity of the petition in early June. Prejudice occurred because SuperAmerica’s inexcusable and unreasonable delay made this case an expedited election matter under S.Ct.Prac.R. X(9), thereby restricting respondents’ time to prepare and defend against SuperAmerica’s claims. In addition, as noted by the board, by the time this case is completely resolved by our issuance of a mandate, the board’s ability tp prepare, print, and distribute appropriate ballots will be jeopardized due to the expiration of the date to provide absentee ballots. See R.C. 3509.01; S.Ct.Prac.R. XI(4)(A).2 SuperAmeriea does not deny that the foregoing elements of laches are evident here. Instead, it contends that (1) laches does not apply as long as an election case is brought within ninety days of the election, and (2) the inaction and delay of the board in certifying the validity of the referendum petition principally contributed to the delay. SuperAmerica’s first contention lacks merit because S.CtPrac.R. X(9) does not provide or suggest that simply because an election case is filed within ninety days [187] prior to the election, laches is never applicable. Rather, the purpose of S.Ct. Prac.R. X(9) is to incorporate an expedited schedule for the presentation of evidence and briefs in election cases filed in that time period to assist the court in resolving such cases promptly. See, e.g., Staff Commentary to S.Ct.Prac.R. X. Laches may still bar relief in election cases filed within ninety days of an election. See, e.g., State ex rel. Drew v. Vinton Cty. Bd. of Elections (1996), 75 Ohio St.3d 1416, 661 N.E.2d 1117; Polo. SuperAmerica’s remaining contention concerns the alleged delay of the board of elections in certifying the validity of the referendum petition after it had received it from the Granville Clerk. SuperAmerica’s contention lacks merit for the following reasons. First, the ten-day limit specified in R.C. 731.29 refers only to the board’s duty to review the petition and attest to the number of electors who signed the petition. It does not restrict the board’s separate duties under R.C. 3501.11(K) to “[rjeview, examine, and certify the sufficiency and validity of petitions and nomination papers” and R.C. 3501.39 to consider written protests to petitions, such as the one filed by SuperAmerica. Cf. State ex rel. Williams v. Iannucci (1988), 39 Ohio St.3d 292, 294, 530 N.E.2d 869, 870. Second, even if the board unnecessarily delayed its certification determination, that delay did not in any way excuse or justify SuperAmerica’s own nearly three-month delay in bringing this expedited election case. Third, the referendum petitioners, who also raise laches, were not a party to the claimed delay by the board. Accordingly, since respondents have established that SuperAmerica failed to exercise the requisite diligence in bringing this expedited election case, laches bars this case. Conclusion Based on the foregoing, res judicata and laches bar SuperAmerica’s action. Therefore, we deny the requested writs of mandamus and prohibition. Writs denied. Moyer, C.J., F.E. Sweeney and Cook, JJ., concur. Pfeifer, J., concurs separately. Cook, J., concurs separately. Resnick, J., concurs in judgment only. Douglas and Lundberg Stratton, JJ., dissent. Footnotes [1] The board also raises this defense in its motion to dismiss. But a motion to dismiss is generally not the proper method to raise the affirmative defense of res judicata. Shaper v. Tracy (1995), 73 Ohio St.3d 1211, 1212, 654 N.E.2d 1268. [2] While the referendum petitioners also correctly note that the R.C. 3505.01 date for certifying the ballot form has passed, it does not appear that the mere passage of this date, which affects certification of candidates’ names, prejudiced the respondents. Cf. R.C. 3505.06, concerning preparation of ballots on questions and issues.