[Cite as Borchers v. Grand Lake St. Mary's State Park, 2005-Ohio-6115.]
IN THE COURT OF CLAIMS OF OHIO
DANIEL J. BORCHERS
:
Plaintiff
:
v.
:
CASE NO. 2005-05485-AD
:
MEMORANDUM DECISION
GRAND LAKE ST. MARYS
STATE PARK
:
Defendant
: : : : : : : : : : : : : : : : :
{¶ 1} From 1996 through 2004, plaintiff, Daniel J. Borchers,
purchased
annual
season
dock
licenses
to
dock
his
boat
defendant, Grand Lake St. Marys State Park (“Grand Lake”).
at
On
March 16, 2005, before plaintiff purchased a dock license for the
2005 season, he received a post card from defendant stating Grand
Lake would no longer accept a dock license renewal from him.
This
post card notice from Assistant Park Manager, Brian Miller (dated
March 11, 2005) noted:
{¶ 2} “Grand
Lake
St.
Marys
State
Park
will
no
longer
be
exercising administrative authority upstream from the State Park’s
boundary.
Therefore, we will not be collecting dock fees from you
effective immediately.
If you feel that your dock or seawall is
inside the park’s boundaries . . .”
{¶ 3} Apparently, all past license fees plaintiff had paid to
defendant, represented license purchases for a private dock outside
the boundary and jurisdiction of Grand Lake.
Therefore, plaintiff
maintained defendant wrongfully collected dock license fees from
him during the period 1996 through 2004.
On April 14, 2005,
plaintiff filed this complaint seeking to recover $275.00, the
total amount he paid Grand Lake for dock license fees covering the
nine-year period of 1996-2004.
The filing fee was paid.
{¶ 4} Defendant contended plaintiff is not entitled to a refund
of any past fees collected for the purchase of annual boat dock
licenses.
collected
Defendant
for
docks
explained
outside
license
Grand
Lake
fees
were
previously
boundaries,
because
defendant exercised administrative authority over areas upstream
from Grand Lake and collected dock license fees as a partial offset
for expenses incurred on projects to enhance or maintain navigation
on the waterway.
Due to the fact defendant had insufficient
funding to continue projects on waterways upstream from Grand Lake,
the dock license collection program was discontinued.
The decision
to discontinue the dock license program was a discretionary choice
of defendant’s personnel.
Defendant did not offer any explanation
regarding what mechanism was invoked granting authority to collect
license fees for docking outside the Grand Lake boundary.
{¶ 5} Initially, it would appear that plaintiff’s claim for the
refund of fees collected from 1996 through 2003 is barred by the
two-year statute of limitations for filings actions in this court.
R.C. 2743.16(A), the statute of limitations for commencing actions
in this court states:
{¶ 6} “Subject to division (B) of this section, civil actions
against the state permitted by sections 2743.01 to 2743.20 of the
Revised Code shall be commenced no later than two years after the
date of accrual of the cause of action or within any shorter period
that is applicable to similar suits between private parties.”
{¶ 7} In the instant claim, defendant collected fees from 1996
to 2004.
Plaintiff filed his complaint on April 15, 2005.
Based
on the time frames involved much of the wrongful collections
claimed involved license purchases made outside the two-year period
for commencing actions.
{¶ 8} However, defendant failed to raise the defense of statute
of limitations at any time after the commencement of this action.
Where the bar of statute of limitations is not raised as an
affirmative
defense
then
the
defense
is
waived.
Whitehouse Trucking Co. (1974), 40 Ohio St. 2d 22.
Mills
v.
Consequently,
defendant in the present claim is estopped from asserting a statute
of limitations defense and this action will proceed on plaintiff’s
entire monetary claim.
{¶ 9} The facts of the present action show plaintiff’s claim is
based on the wrongful collection of fees for licenses issued by
defendant.
Since this particular action is for the recovery of an
alleged wrongful collection, the claim is grounded solely in
equity.
Ohio Hosp. Assn. v. Ohio Dept. of Human Servs. (1991), 62
Ohio St. 3d 97.
“[T]he reimbursement of monies withheld pursuant
to an invalid administrative rule is equitable relief, not money
damages . . .”
id. at 105.
“Thus, for restitution to lie in
equity, the action generally must seek not to impose personal
liability
on
the
defendant,
but
to
restore
to
the
plaintiff
particular funds or property in the defendant’s possession.”
Great
West Life & Annuity Ins. Co. v. Knudson (2002), U.S. 204, at 214,
122 S. Ct. 708, 151 L. Ed 2d 635.
{¶ 10}
“A
suit
that
seeks
the
return
of
specific
funds
wrongfully collected or held by the state is brought in equity.”
Santos v. Ohio Bur. of Workers’ Comp., 101 Ohio St. 3d 74, 2004Ohio-28 at paragraph one of the syllabus.
R.C. 2743.03(A)(1) and
(2) states:
{¶ 11}
“(A)(1) There is hereby created a court of claims.
The
court of claims is a court of record and has exclusive, original
jurisdiction of all civil actions against the state permitted by
the waiver of immunity contained in section 2743.02 of the Revised
Code, exclusive jurisdiction of the causes of action of all parties
in civil actions that are removed to the court of claims, and
jurisdiction to hear appeals from the decisions of the court of
claims commissioners.
The court shall have full equity powers in
all actions within its jurisdiction and may entertain and determine
all counterclaims, cross-claims, and third party claims.”
{¶ 12}
division
“(2) If the claimant in a civil action as described in
(A)(1)
of
this
section
also
files
a
claim
for
a
declaratory judgment, injunctive relief, or other equitable relief
against the state that arises out of the same circumstances that
gave rise to the civil action described in division (A)(1) of this
section, the court of claims has exclusive, original jurisdiction
to hear and determine that claim in that civil action.
This
division does not affect, and shall not be construed as affecting,
the original jurisdiction of another court of this state to hear
and determine a civil action in which the sole relief that the
claimant
seeks
against
the
state
is
a
declaratory
judgment,
injunctive relief, or other equitable relief.”
{¶ 13}
Additionally, R.C. 2743.10(A) states in pertinent part:
“Civil actions against the state for two thousand five hundred
dollars or less shall be determined administratively by the clerk
of the court of claim . . .”
R.C. 2743.10 does not confer equity
jurisdiction at the Administrative Determination level of this
court.
damages.
Administrative Determination actions are solely for money
Equity jurisdiction in matter involving the state are
reserved for judicial review.
Although plaintiff, in the instant
claim, is seeking to recover funds he asserted were wrongfully
withheld, the funds sought for recovery represent a claim for
equitable relief and not money damages.
Consequently, this court
at the Administrative Determination level has no jurisdiction over
claims grounded in equity based on the alleged wrongful collection
of license fees.
IN THE COURT OF CLAIMS OF OHIO
DANIEL J. BORCHERS
:
Plaintiff
:
v.
:
CASE NO. 2005-05485-AD
:
ENTRY OF ADMINISTRATIVE
DETERMINATION
GRAND LAKE ST. MARYS
STATE PARK
:
Defendant
: : : : : : : : : : : : : : : : :
Having considered all the evidence in the claim file and, for
the reasons set forth in the memorandum decision filed concurrently
herewith, judgment is rendered in favor of defendant.
are assessed against plaintiff.
Court costs
The clerk shall serve upon all
parties notice of this judgment and its date of entry upon the
journal.
________________________________
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
Daniel J. Borchers
9393 Studer Road
Versailles, Ohio 45380
Plaintiff, Pro se
Charles G. Rowan
Deputy Chief Counsel
Ohio Department of
Natural Resources
2045 Morse Road, Building D-3
Columbus, Ohio 43229-6693
For Defendant
RDK/laa
9/21
Filed 10/27/05
Sent to S.C. reporter
11/17/05
