Allen v. Vinsel
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[Cite as Allen v. Vinsel, 2011-Ohio-5192.] COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT JOHN DALE ALLEN Petitioner -vsJAY F. VINSEL Respondent : : : : : : : : : JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. Case No. CT11-0043 OPINION CHARACTER OF PROCEEDING: Writ of Quo Warranto JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: September 30, 2011 APPEARANCES: For Petitioner For Respondent JOHN DALE ALLEN, Pro Se 28 N. 4th Street, SB4 Zanesville, OH 43701 D. MICHAEL HADDOX Prosecuting Attorney By: WALTER K. CHESS, JR. Assistant Prosecuting Attorney Muskingum County, OH 27 N. 5th Street, Suite 201 P. O. Box 189 Zanesville, OH 43702-0189 Muskingum County, Case No. CT11-0043 2 Farmer, J. {¶1} Petitioner, John Dale Allen, has filed a Petition for Writ of Quo Warranto against Respondent Judge Jay F. Vinsel requesting a writ be granted ousting Respondent from his position as a judge in the Muskingum County Court of Common Pleas. Petitioner claims Respondent s oath of office has expired. {¶2} For a writ of quo warranto to issue, a relator must establish (1) that the office is being unlawfully held and exercised by respondent, and (2) that relator is entitled to the office. State ex rel. Paluf v. Feneli (1994), 69 Ohio St.3d 138, 141, 630 N.E.2d 708. {¶3} The Ohio Supreme Court has held, [A]n action in quo warranto may be brought by an individual as a private citizen only when he personally is claiming title to a public office. State ex rel. Coyne v. Todia (1989), 45 Ohio St.3d 232, 238, 543 N.E.2d 1271, quoting State ex rel. Annable v. Stokes (1970), 24 Ohio St.2d 32, 32-33, 53 O.O.2d 18, 262 N.E.2d 863. {¶4} Sua sponte dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate if the complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in the complaint. State ex rel. Bruggeman v. Ingraham (1999), 87 Ohio St.3d 230, 231, 718 N.E.2d 1285, 1287. State ex rel. Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 316, 725 N.E.2d 663, 667. {¶5} Petitioner does not aver in his Petition that he is entitled to the office held by Respondent, therefore, he, as a private citizen, cannot bring an action in quo warranto. For this reason, we find the Petition lacks merit on its face and dismiss the Muskingum County, Case No. CT11-0043 Petition for failure to state a claim 3 upon which relief may be granted. By Farmer, J. Hoffman, P. J. and Wise, J. concur. _s/ Sheila G. Farmer__________________ _s/ William B. Hoffman________________ _s/ John W. Wise_____________________ JUDGES SGF/as 926 Muskingum County, Case No. CT11-0043 4 IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT JOHN DALE ALLEN Petitioner vs. JAY F. VINSEL Respondent : : : : : : : : : Judgment Entry Case No. CT11-0043 For the foregoing reasons, we dismiss the Petition for failure to state a claim upon which relief may be granted. Costs to petitioner. _s/ Sheila G. Farmer__________________ _s/ William B. Hoffman________________ _s/ John W. Wise_____________________ JUDGES
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