Posted by: Patricia Salkin | September 20, 2020

OH Appeals Court Finds Res Judicata Precluded Claim for Writ of Mandamus Regarding Construction of Garage

This post was authored by Matthew Loescher, Esq.

Mr. Schell and the Village of Lakemore had been engaged in a long-standing dispute of over seven years regarding the construction of a garage on Mr. Schell’s property. Lakemore filed a separate complaint against Mr. Schell asking for a declaration that Mr. Schell was in violation of the Lakemore zoning code and that he was engaging in actions on his property that constituted a public nuisance. Mr. Schell requested the trial court issue a writ of mandamus ordering Lakemore to issue a building permit allowing him to construct the garage on his property. The trial court granted Lakemore’s motion for judgment on the pleadings with respect to Mr. Schell’s counterclaims.

As to his counterclaim for a writ of mandamus, Mr. Schell argued that he alleged facts sufficient to survive Lakemore’s motion for judgment on the pleadings. Specifically, Mr. Schell alleged that Lakemore repeatedly denied him the building permit to construct the garage on his property even though he had satisfied all the legal requirements for obtaining such a permit. Conversely, Lakemore alleged that the parties had reached a settlement agreement during their prior litigation where it was agreed that Mr. Schell had one year from August 4, 2017 to construct a garage of no more than 500 square feet on his property. Lakemore further alleged that it had no legal duty to issue a permit given that Mr. Schell had already secured a right to construct the garage pursuant to the settlement agreement. The court agreed, finding that any issues relating to securing permits to construct the garage were settled in the parties’ prior litigation and fell outside the scope of the instant matter. Accordingly, the trial court properly granted Lakemore’s motion for judgment on the pleadings.

Village of Lakemore v Schell, 2020 WL 5551933 (OH App. 9/16/2020)

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