[Cite as State ex rel. Jeffers v. Athens Cty. Commrs., 2016-Ohio-8119.]


                          IN THE COURT OF APPEALS OF OHIO
                             FOURTH APPELLATE DISTRICT
                                  ATHENS COUNTY

STATE OF OHIO, EX REL.,           :
RICHARD JEFFERS,                  :
                                  :   Case No. 15CA27
     Plaintiff/Relator-Appellant, :
                                  :
     vs.                          :
                                  :   DECISION AND JUDGMENT
ATHENS COUNTY                     :   ENTRY
COMMISSIONERS, ET AL.             :
                                  :
     Defendants/Respondents-      :
     Appellees.                   :   Released: 12/06/16
_____________________________________________________________
                            APPEARANCES:

John P. Lavelle and Robert R. Rittenhouse, Lavelle and Associates, Athens,
Ohio, for Appellant Richard L. Jeffers.

Mark Landes and Aaron M. Glasgow, Isaac Wiles Burkholder & Teetor,
LLC, Columbus, Ohio, for Appellee Board of County Commissioners of
Athens County, Ohio.

Keller Blackburn, Athens County Prosecutor, for Appellee Board of County
Commissioners of Athens County, Ohio.1

Robert H. Stoffers and Michael S. Loughry, Mazanec, Raskin & Ryder Co.,
L.P.A., Columbus, Ohio, for Appellee and Cross-Appellant Board of
Trustees of Alexander Township, Ohio.
_____________________________________________________________




1
    The Athens County Prosecutor has not participated in this appeal.
Athens App. No. 15CA27                                                        2

Per Curiam.

      {¶1} Appellant Richard Jeffers appeals the following decisions and

judgment entries of the Athens County Common Pleas Court:

      1. The June 23, 2015 “Decision on Motion to Lift Stay of the
      Constitutional Claims; (sic) To Allow Additional Causes of
      Action to be Presented”; and,

      2. The October 8, 2013 “Nunc Pro Tunc Decision and
      Judgment on Complaint for Writ of Mandamus; Final
      Appealable Order.”

Jeffers contends the trial court erred by: (1) concluding that a pro tanto

taking of his property did not occur, and thus, denying and dismissing his

complaint for a writ of mandamus; (2) dismissing his remaining Section

1983, Title 42, U.S. Code claims based on the doctrine of issue preclusion;

and (3) denying his motion for leave to amend his complaint to assert

additional claims. For the reasons which follow, we find no merit to the

arguments made under Appellant’s first and third assignments of error.

However, we sustain the second assignment of error. Accordingly, we

affirm the judgment in part, reverse in part, and remand the matter to the

trial court for further proceedings consistent with this opinion.

            FACTUAL AND PROCEDURAL BACKGROUND

      {¶2} Richard Jeffers owns approximately 530 acres in Alexander

Township, Athens County, Ohio. In 2004, the Athens County Board of
Athens App. No. 15CA27                                                        3

Commissioners (“Board”), voted to vacate Red Lane Road and Jeffers Road,

public roads which abut Jeffers’ property. Since 2004, litigation between

Jeffers and the defendants, Board, and the Board of Trustees of Alexander

Township (“Trustees”) has continued. At the outset, Jeffers alleged a de

facto taking of his property and collusion between county officeholders and

entities in doing so. More than once, the parties and this Court have

commented on the “tortured history” of the Jeffers’ matter, which has made

its way to this Court on several occasions. See Bd. of Cty. Commrs. of

Athens Cty. v. Goldsberry, 4th Dist. Athens No. 05CA18, 2005-Ohio-4705;

and Jeffers v. Athens County Commrs., 4th Dist. Athens No. 06CA39, 2007-

Ohio-2458, paragraphs 2-5, (“Jeffers I”) for a detailed factual and procedural

history.

      {¶3} Relevant to the case before us now on appeal, Jeffers filed a

petition requesting a writ of mandamus to order the Board to institute

damages proceedings pursuant to Chapter 163 of the Ohio Revised Code.

Jeffers later amended his complaint to add various claims for money

damages under Section 1983, Title 42, U.S. Code. On April 5, 2010, the

trial court issued the writ of mandamus. The Board appealed. In Jeffers v.

Athens County Commrs., 4th Dist. Athens Nos. 10CA3, 10CA15, 2011-

Ohio-675, ¶ 5, (“Jeffers II”), we held the trial court did not abuse its
Athens App. No. 15CA27                                                           4

discretion in ordering the Board to comply with Revised Code Chapter 163.

Jeffers II was decided on February 9, 2011.

      {¶4} However, in April 2011, the Board voted to rescind its prior

decisions to vacate the two roads. Jeffers appealed this decision. The Board

also filed a motion to dismiss Jeffers’ constitutional claims. On September

6, 2011, the trial court issued a decision denying the Board’s motion to

dismiss. The trial court further found Appellant was not entitled to R.C. 163

proceedings because, in the interim, the vacation process had been

abandoned prior to there being a legal taking of Jeffers’ property.

       {¶5} In the September 6, 2011 decision, however, the trial court also

held there was a disputed issue of fact as to whether the Board physically

interfered with Jeffers’ use of his roads to such an extent that there was a pro

tanto taking of his property. The trial court subsequently scheduled a bench

trial to hear evidence regarding the alleged interference. On September 8,

2011, Jeffers filed a motion to lift the stay of his constitutional claims and

further requested permission to amend his complaint to assert a claim for

retaliation and promotion of Ex Post Facto legislation in order to unlawfully

affect his constitutional rights.

      {¶6} The trial court heard the mandamus action on October 9 and 10,

2012. The court heard testimony from various witnesses. Additional facts
Athens App. No. 15CA27                                                         5

gleaned from the witnesses’ testimony will be set forth below, where

relevant. Counsel filed post-trial briefs. On May 10, 2013, the trial court

found as follows:

      “[T]he Court finds that a pro tanto taking of relator’s property
      has not occurred, due to a lack of the prerequisite substantial or
      unreasonable interference with relator’s property rights.
      Relator does not have a clear legal right to the commencement
      of R.C. Chapter 163 appropriation proceedings. Therefore, his
      complaint for a writ of mandamus is denied and dismissed at
      his cost.”

      {¶7} Jeffers appealed. On October 7, 2013, this court found the trial

court’s decision was not a final appealable order. On October 8, 2013, the

trial court filed a nunc pro tunc decision and judgment. However, on

November 5, 2013, this Court again found the order not final and appealable

due to Jeffers’ remaining outstanding and unresolved Section 1983 claims.

      {¶8} In April 2014, the parties filed briefs arguing the merits of the

remaining federal claims. On June 23, 2015, the trial court dismissed

Jeffers’ federal claims, based on the doctrine of issue preclusion, and denied

Jeffers’ motion for leave to amend his complaint to add additional federal

claims.

      {¶9} On July 22, 2015, Jeffers’ timely appeal of the trial court’s

October 8, 2013 and June 23, 2015 decisions followed. In addition, the

Trustees assert one cross-assignment of error.
Athens App. No. 15CA27                                                           6



                      ASSIGNMENT OF ERROR ONE

      “I. THE TRIAL COURT ABUSED ITS DISCRETION IN
      CONCLUDING THAT APPELLANT FAILED TO PROVE
      THAT THERE WAS A SUBSTANTIAL OR
      UNREASONABLE INTERFERENCE WITH HIS
      PROPERTY RIGHTS.”

                        A. STANDARD OF REVIEW

       {¶10} We review a trial court's decision on whether to issue a writ of

mandamus under the abuse of discretion standard. Jeffers II, supra, at ¶ 27;

Athens Cty. Commrs. v. Ohio Patrolmen's Benevolent Assn., 4th Dist.

Athens No. 06CA49, 2007-Ohio-6895, at ¶ 45, citing Truman v. Village of

Clay Center, 160 Ohio App.3d 78, 825 N.E.2d 1182, 2005-Ohio-1385, (6th

Dist.), at ¶ 16. “An abuse of discretion connotes more than a mere error of

judgment; it implies that the court's attitude is arbitrary, unreasonable or

unconscionable.” Jeffers II, supra, at ¶ 14, quoting Pryor v. Pryor, 4th Dist.

Ross No. 09CA3096, 2009-Ohio-6670, at ¶ 22, citing Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). In order to

demonstrate an abuse of discretion, “the result must be so palpably and

grossly violative of fact or logic that it evidences not the exercise of will but

the perversity of will, not the exercise of judgment but the defiance of

judgment, not the exercise of reason but instead passion or bias.” Nakoff v.
Athens App. No. 15CA27                                                            7

Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 1996-Ohio-159, 662 N.E.2d

1.

                           B. LEGAL ANALYSIS

      {¶11} “Mandamus is a writ, issued in the name of the state to an

inferior tribunal, a corporation, board, or person, commanding the

performance of an act which the law specially enjoins as a duty resulting

from an office, trust, or station.” Jeffers II, supra, at ¶ 26; R.C. 2731.01.

“ ‘Mandamus is the appropriate action to compel public authorities to

institute appropriation proceedings where an involuntary taking of private

property is alleged.’ ” State ex rel. Duncan v. Mentor City Council, 105 Ohio

St.3d 372, 826 N.E.2d 832, 2005-Ohio-2163, at ¶ 11, quoting State ex rel.

Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63, 765 N.E.2d 345, 2002-Ohio-

1627. As we previously stated in Jeffers II, in order to be entitled to a writ

of mandamus, Jeffers must establish that he had a clear legal right to the

requested relief, that the Board had a corresponding clear legal duty to

comply, and that Jeffers has no adequate remedy in the ordinary course of

the law. Jeffers II, supra, at ¶ 27. See State ex rel. Savage v. Caltrider, 100

Ohio St.3d 363, 800 N.E.2d 358, 2003-Ohio-6806, at ¶ 8, citing State ex rel.

Ferguson v. Court of Claims of Ohio, Victims of Crime Div., 98 Ohio St.3d

399, 786 N.E.2d 43, 2003-Ohio-1631, at ¶ 10. The Supreme Court of Ohio
Athens App. No. 15CA27                                                          8

has held that the appropriate standard of proof in mandamus cases is proof

by clear and convincing evidence. State ex rel. Doner v. Zody, 130 Ohio

St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 55; State ex rel. Pressley v.

Indus. Comm., 11 Ohio St.2d 141, 161, 228 N.E.2d 631 (1967); State ex rel.

Henslee v. Newman, 30 Ohio St.2d 324, 325, 59, 285 N.E.2d 54 (1972),

Ohio Jurisprudence 2d (1959) 285, Section 37.

      {¶12} Under the first assignment of error, Jeffers contends the trial

court erred and abused its discretion when it denied his complaint for a writ

of mandamus. Jeffers asserts that he submitted a totality of clear and

convincing evidence at trial that there had been substantial or unreasonable

interference with his property rights. However, the Board urges affirmance

of the trial court’s decision. The Board points out the trial court heard

multiple witnesses and two days of testimony regarding Jeffers’ use of his

property. Jeffers submitted over 70 exhibits. The trial court also reviewed

the record and considered lengthy post-trial briefs of the parties. The Board

argues Jeffers failed to demonstrate the obstructions placed on the roads

were placed there by the Board, that the obstructions interfered with Jeffers’

use or access for extended periods of time, or that his claims regarding his

subdivision plans and the marketability of his land were anything but

speculation. Upon review of the evidence submitted at trial, we agree with
Athens App. No. 15CA27                                                            9

the trial court’s decision. Jeffers failed to prove that he was deprived of all

economically valuable uses of his property as a consequence of government

action.

      {¶13} The Fifth Amendment to the United States Constitution, made

applicable to the States by virtue of the Fourteenth Amendment, guarantees

that private property shall not “be taken for public use, without just

compensation.” Morris v. Chillicothe, 4th Dist. Ross No. 1720, 1991 WL

207246 (Oct. 2, 1991), *3. Analogously, Article I, Section 19 of the Ohio

Constitution provides as follows:

      “Private property shall ever be held inviolate, but subservient to
      the public welfare. * * * Where private property shall be taken
      for public use, a compensation therefore shall first be made in
      money * * *.” Id.

      {¶14} The determination that governmental action constitutes a taking

is, in essence, a determination that the public at large, rather than a single

owner, must bear the burden of an exercise of state power in the public

interest, with the question necessarily requiring a weighing of private and

public interests. Morris, supra, citing First Lutheran Church v. Los Angeles

County, 482 U.S. 304, 318-319 (1987); Agins v. Tiburon, 447 U.S. 255, 260,

100 S.Ct. 2138 (1980) (abrogated by Linger v. Chevron U.S.A. Inc., 12 S.Ct.

2074, 544 U.S. 528 (2005). Property interests protected by the Fifth and

Fourteenth Amendments to the United States Constitution and by Article I,
Athens App. No. 15CA27                                                            10

Section 19, of the Ohio Constitution are diverse and extend beyond actual

fee ownership of real estate, and include the property owner's absolute right

of dominion, use or disposition over it. Knepper and Frye, Ohio Eminent

Domain Practice (1977) 155, Sec. 6.01; Lucas v. Carney, 167 Ohio St. 416,

423, 149 N.E.2d 238 (1958); City of Mansfield v. Balliett, 65 Ohio St. 451,

471, 63 N.E. 86 (1901).

      {¶15} Ordinarily in order to constitute a taking, the governmental

activity must physically displace a person from space in which he was

entitled to exercise dominion consistent with the rights of ownership.

Morris, supra, at *4. However, in Morris we also observed that physical

displacement is not always necessary. Id. A taking may also be found where

it is clear that the injury sustained by a person differs substantially in kind

from that sustained by others in the neighborhood, even though there has

been no physical displacement. Id. And, the fact that property is rendered

less desirable as a result of the governmental activity does not in and of itself

constitute a taking so as to entitle the owner thereof to compensation. Id. See

also Miller v. PPG Industries, 48 Ohio App.3d 20, 23, 547 N.E.2d 1216 (4th

Dist.1988).

      {¶16} In the absence of a physical taking of property, a taking occurs

only where there is a substantial interference with the rights of ownership of
Athens App. No. 15CA27                                                         11

private property. Seiler v. Norwalk, 949 N.E.2d 63 2011-Ohio-548, (6th

Dist.) ¶ 46; Smith v. Erie RR. Co., 134 Ohio St. 135, 16 N.E.2d 310 (1938).

Any such substantial interference with the rights of ownership of private

property is deemed to be a taking pro tanto. Seiler, supra; J.P. Sand &

Gravel Co. v. State, 51 Ohio App.2d 83, 89-90, 367 N.E.2d 54 (1976).

          {¶17} To establish a taking, the landowner must prove that the state

entity caused a “substantial or unreasonable interference with [his] property

right[s].” Seiler, supra, at ¶ 47, quoting State ex rel. OTR v. Columbus, 76

Ohio St.3d 203, 206, 667 N.E.2d 8 (1996). This right is applicable even

when the owner is only partially deprived of the uses of his land. The

rationale behind recognizing a pro tanto taking is that the act of depriving an

owner of any valuable use of his land is the equivalent of depriving him of

his land. Id. at 207. The issue in a taking is not whether the public entity

acted negligently or contrary to its authority. Rather, the issue is solely

whether the landowner was deprived of an economically valuable use of his

property as a consequence of governmental action. Masley v. Lorain, 48

Ohio St.2d at 341, 358 N.E.2d 596 (1976), and Carney, supra, 167 Ohio St.

at 423.

      {¶18} Appellant testified he had farmed all of his life. He had owned

his acreage in Alexander Township, since the early 1970’s. In particular,
Athens App. No. 15CA27                                                                             12

“Jeffers Lane,” was the only public road bordering a 78-acre tract of land.

“Red Lane,” was the only public road bordering a 23-acre tract of land.2

These were the roads sought to be vacated in 2004. With these roads

vacated, Jeffers’ tracts would be landlocked. He testified the two tracts had

been used for agricultural purposes since he first owned them until the

present time and acknowledged he has always received a tax incentive for

using the land for agricultural purposes.

          {¶19} Appellant testified he appeared before the Trustees in 2002 to

discuss a subdivision he was planning. The only access for the subdivision

would be via Red Lane and he also believed the Board was supportive of his

project. He was working on the subdivision full time. He identified

Planning Commission records which demonstrated steps he had taken to

begin the planning process, and a letter from the Board indicating they

would approve a sewage treatment facility to support his subdivision if it

met applicable standards. Between 90 and 180 lots were planned. He also

testified he had hired Paul Mara of Mara Engineering and also retained

surveyors and he spent a great deal of money in the engineering, surveying

and planning of the subdivision.




2
    Jeffers Road is also known as “Township Road 554.” Red Lane is known as “Township Road 548.”
Athens App. No. 15CA27                                                       13

      {¶20} Appellant testified sometime in 2003, after he was improving

Red Lane and moving forward, he learned of a petition being circulated to

vacate Red Lane. Later on, an abutting landowner circulated a petition to

vacate Jeffers Road. Appellant testified he made his opposing view known

and attended all the public viewings and hearings on the petitions. At a

Trustee meeting on August 10, 2004, he asked the trustees to grade his

roads. He testified he was informed the roads were closed and the Trustees

were not responsible to maintain the closed roads. He then sought legal

counsel.

      {¶21} After the trial court ruled that the original vacation proceeding

was void, the Trustees circulated another petition. Appellant again attended

all meetings to protest. At the September 28, 2004 meeting, Commissioner

Lenny Eliason informed him that the roads were vacated and closed to the

public until the court ruled otherwise. Appellant testified his adjoining

neighbors were present at this meeting.

      {¶22} He testified subsequently, in the fall and winter of 2004, the

township road signs were taken down and replaced with “no trespassing”

signs and identified photographs of the signs and a metal gate with chain on

Jeffers Road. He also identified photographs of “no trespassing” signs and
Athens App. No. 15CA27                                                         14

hay bales placed on Red Lane. The signs were placed during the summer of

2004.

        {¶23} In January 2005, Appellant consulted the Athens County

Sheriff’s Office to advise them of the locked gate and of the legal

proceedings which had commenced. He advised the sheriff’s office he could

not get in to feed his cattle. He subsequently used bolt cutters to cut the

chain. He then went to the sheriff’s department and spoke with Lt. Darrell

Cogar to file a complaint.

        {¶24} Appellant testified thereafter he received a letter from Lt.

Cogar, on behalf of the Athens County Sheriff’s Office. Lt. Cogar later

testified he was familiar with narrative reports and incident reports coming

into the sheriff’s office and maintained in the ordinary course of business.

He identified several reports called in by Mr. Jeffers, as well as the letter he

sent to Jeffers. Jeffers testified and Lt. Cogar read the letter into the record,

which stated that the county prosecutor advised the matter of the road

vacations was a civil issue. The letter further advised the sheriff’s

department would not be involved.

        {¶25} He further testified to the interference with his property rights

as follows:

        “ * * * I was very limited with what I could do with the
        property. I’d worked a hundred hours a week for forty-five
Athens App. No. 15CA27                                                        15

      years and I was ready to slow down and retire and I wanted to
      sell this ground. And all at once I was forced to use it as a farm
      (inaudible) only. And then I was afraid every time I would go
      in there would be a Sheriff’s cruiser there when I came back.
      You know. And every opportunity I had to sell property there
      was this stigma over it. I couldn’t show it. I couldn’t sell it.
      And I just felt like my violates, my rights had been violated by
      my neighbors that I didn’t dream would shut me off from my
      farm. It was, you know, I was forced to use the land for
      agricultural purposes only. And I was blocked from nay
      opportunity to sell it at a decent price.”

      {¶26} Appellant then testified he had “no luck” marketing or selling

the 23-acre tract at Red Lane. He testified to several inquiries, and

explained he could not sell without advising potential buyers of the road

vacation issues. He testified the interference was unreasonable in that he

was demoralized, defeated, and, “worn out.” He further testified during the

eleven-month delay in scheduling a damage hearing, he had no idea that one

of the Commissioners was lobbying the legislature to change the law.

      {¶27} Appellant also presented the testimony of Larry McDaniel, a

licensed real estate appraiser since 1975, who prepared an appraisal on

behalf of Appellant in 2007. McDaniel testified that Jeffers’ property

became landlocked, and marketability was limited when Jeffers Road and

Red Lane were vacated. He testified although Appellant owned other

parcels contiguous to Fisher Road, the other parcels had mixed terrain-flat
Athens App. No. 15CA27                                                                                       16

areas, but also steep hillsides and a rock cliff.3 He testified the “no

trespassing” signs and a gate would have a negative effect upon

marketability. However, McDaniel also admitted he had not performed

analysis of the effect of the hay bales, “no trespassing” signs, or the gate to

the property values.

         {¶28} In the decision denying Appellant’s request for the writ of

mandamus, the trial court observed:

         “Whether the subdivision would have been economically
         successful then or now is speculation.* * * [T]here was no
         specific evidence that he was trying to sell it.”

         {¶29} We find the trial court did not abuse its discretion in its finding

that Appellant’s testimony regarding the losses associated with his real

estate to be speculative. In addition to the above, he testified he had no

evidence of lost sales and he had not obtained permits or otherwise

proceeded with the subdivision planning since the vacations were

rescinded.4
3
  The testimony indicates that Fisher Road was a main road which the subdivision would need to access.
The testimony of Appellant and Larry McDaniel also indicated the topography of the parcels connecting
the proposed subdivision area to Fisher Road was of poor quality and improving the parcels to connect to
Fisher Road would be a laborious and expensive project.
4
  Jeffers also argues his ability to lease his property to hunters was thwarted. He testified he had hunting
leases for his property and the abutting property owners would not allow hunters to enter after the roads
were closed. He argues this additional financial loss for the first time on appeal. However, we decline to
consider this alleged loss. It is well-settled that failure to raise an argument in the trial court results in
waiver of the argument for purposes of appeal. Community Action of Pike County v. Maynard, 4th Dist.
Pike No. 02CA695, 2003-Ohio-4312 ¶ 16. (Internal citations omitted.)
Athens App. No. 15CA27                                                                               17

        {¶30} And, Appellant also claims obstructions were placed on Jeffers

and Red Lane Roads and he had to find ways to circumvent the obstructions

in order to use his property. The trial court also observed:

        “There was testimony at the October 2012 hearing that during
        the course of the Commissioners’ road vacation proceedings the
        identifying public road signs were removed, a locked gate was
        engaged, and blocking hay bales taken to the sites. ‘No
        Trespassing’ signs were installed. These impediments did not
        prevent relator from feeding and caring for his cattle on his
        premises * * *.” [H]e was able to able (sic) continue to use the
        land for the purpose to which it had been previously devoted.”

        {¶31} While Appellant apparently blames Appellees for the

obstructions, Lt. Cogar testified no one from the sheriff’s office placed the

hay bales or the metal gate on the roads. Former Athens County Prosecutor

C. David Warren, retired, testified, to his knowledge, no one on behalf of the

county placed obstructions on Jeffers or Red Lane Roads.5 To his

knowledge, no one on behalf of the county advised private parties to obstruct

those roads. Also, Lenny Eliason, Athens County Commissioner, testified

that to his knowledge the Board did nothing to physically barricade Jeffers

or Red Lane Roads or to attempt to block Jeffers’ access to his property.

        {¶32} The trial court also heard testimony of Michael Canterbury,

operations manager for the Athens County Engineer’s Department, and a


5
 Warren was the elected prosecutor between 2004 and 2011. By statute, he was the legal representative for
all county officeholders, including the Board, the Trustees, and the sheriff’s office.
Athens App. No. 15CA27                                                         18

member of the Planning Commission. Canterbury testified the Engineer’s

office is responsible for maintenance of the county roadways and advises the

townships. Canterbury testified he is familiar with subdivision regulations.

He is familiar with the vacation processes that took place with Jeffers Road

and Red Lane Road. He recalled a lot of opposition to Appellant’s

subdivision. However, Canterbury testified he was not aware of anyone

from the Engineer’s Office physically blocking the roads - placing hay bales,

installing a gate, taking down road signs, or placing “no trespassing” signs.

      {¶33} Again, we find the trial court did not abuse its discretion with

regards to its findings as to the obstructions. And, Appellant admitted at

trial he used the roads nearly every day, despite the obstructions. He

admitted he moved the bales of hay with his tractor when he needed to get in

the areas. He admitted the “no trespassing signs” and hay bales did not

impede him from access or using the roads. He admitted after cutting the

chain on the gate, he opened and closed it each time as needed. He testified

the locked metal gate was in place for approximately one month. This

testimony demonstrates Appellant was able to use his property as he always

had - for agricultural purposes.

      {¶34} The trial court further observed:

      “Relator may have had some justifiable anxiety because of his
      fear of arrest.* * * However, relator was not able to prove the
Athens App. No. 15CA27                                                         19

        identity of those person(s) who erected the obstructions. * * *
        The road ‘closures’ were erroneously and publicly announced
        by the County’s chief legal officer and by one of the
        Commissioners. But these actions, though they may qualify as
        ‘interference,’ do not rise to the level of substantial interference
        required for finding a compensable taking of property.”

        {¶35} The trial court’s findings above are supported by Appellant’s

own admissions that he had no personal knowledge if the Board was

responsible for removing the road signs and placing “no trespassing” signs,

hay bales, and the chained gate. He also testified the sheriff came to his

house shortly after his complaint in January 2005, and he thought he was

going to be arrested. Ultimately, the officer only verified a report made by

Appellant. He also admitted neither a deputy nor cruiser was ever present

when he used his roads.

        {¶36} Finally, Appellant argues the Board’s lobbying efforts with the

Ohio Legislature caused delay of the second damage hearing for the purpose

of enacting new law which would apply to bar him from receiving

compensation for his alleged losses relating to the vacations. He also argued

the lobbying efforts affected and delayed his ability to fully utilize his land.

Furthermore, he contends he suffered additional costs in defending the

Board’s action. With regard to the Board’s lobbying efforts, the trial court

held:
Athens App. No. 15CA27                                                     20

      “During the course of these cases the General Assembly,
      prompted by the Court’s rulings and leaders from Athens
      County, changed the law that had applied for over one hundred
      years to provide closing a public road does not result in
      entitlement to damages. See R.C. 5553.11, eff. 4-7-09. It may
      have been a goal to have this change apply to the current case.
      The actions show the desire to deprive relator of a jury
      assessment. While the political actions were not subject of
      testimony at the October hearing, the Court can take judicial
      notice of them because the law was in fact changed and
      respondents represented to the Court they had a role in
      promoting the statutory change. The motive to close the two
      roads remains unclear but it cannot be mistaken that the local
      governments involved for years have tried to accomplish that
      result. That such a prolonged effort would have inconvenience
      to relator is beyond question, but the Commissioners’
      successful lobbying efforts cannot be construed as substantial
      interference within the meaning of takings law.”

      {¶37} Lenny Eliason testified he had been an Athens County

Commissioner since 1998. He acknowledged communicating with Brad

Cole, a lobbyist for the County Commissioners Association of Ohio, seeking

a change in the law. Eliason testified he told Cole that the language of

5553.01 needed to be changed to make sure it did not include vacation of a

private road. He testified the Board was seeking change in the law in order

that it would be applied in Athens County as it had been in other areas of the

state. He also testified he was aware of discussion of the legislation between

Brad Cole and Larry Long, Executive Director of the County

Commissioners’ Association.
Athens App. No. 15CA27                                                         21

      {¶38} In sum, Eliason’s testimony was the only relevant evidence

presented at the October 2012 hearing, about the lobbying efforts and

motives of the Board. We agree with the trial court’s finding that, within the

meaning of Ohio takings law, this evidence cannot be construed as

substantial or unreasonable interference.

      {¶39} For the foregoing reasons, we find the trial court did not abuse

its discretion when it denied the complaint for writ of mandamus. The trial

court was not unsympathetic to the financial losses Appellant obviously

suffered, or the inconveniences he experienced. Neither are we. However,

we agree with the trial court that they did not rise to the level of a pro tanto

taking. A pro tanto taking cannot be found where there is no substantial or

unreasonable interference with Appellant’s rights of ownership by the

named government entities. Based on the evidence presented at the October

2012 trial, we cannot say Appellant provided clear and convincing evidence

that a he was entitled to the writ. As such, we overrule the first assignment

of error and affirm the judgment of the trial court.

                      ASSIGNMENT OF ERROR TWO

      “II. THE TRIAL COURT ERRED IN DISMISSING THE
      APPELLANT’S REMAINING CLAIMS BASED ON THE
      DOCTRINE OF ISSUE PRECLUSION.”

                        A. STANDARD OF REVIEW
Athens App. No. 15CA27                                                         22

      {¶40} Under the doctrine of res judicata, “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.” Beneficial Ohio Inc., v. Parish, 4th Dist. Ross No.

11CA3210, 2012-Ohio-1146, ¶ 11, quoting Grava v. Parkman Twp., 73

Ohio St.3d 379, 382, 1995-Ohio-331, 653 N.E.2d 226. 1. The doctrine of res

judicata involves both claim preclusion (historically called estoppel by

judgment in Ohio) and issue preclusion (traditionally known as collateral

estoppel). Id. See Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108, 254

N.E.2d 10 (1969); Krahn v. Kinney, 43 Ohio St.3d 103, 107, 538 N.E.2d

1058, 1062 (1989); 46 American Jurisprudence 2d (1994) 780, Judgments,

Section 516. “The applicability of res judicata is a question of law that is

subject to de novo review.” Althof v. State, 4th Dist. Gallia No. 04CA16,

2006-Ohio-502, at ¶ 13.

                           B. LEGAL ANALYSIS

      {¶41} Relevant to this appeal, Appellant’s amended complaint, filed

in January 2007, set forth the following causes of action:

      5. A denial of procedural due process with regard to Jeffers Road;

      6. A denial of procedural due process with regard to Red Lane;

      9. A denial of any meaningful procedure to afford him the right to
      seek compensation, under color of law;
Athens App. No. 15CA27                                                         23


      10. A taking of private property for private use; and,

      11. A denial of equal protection of the law.

      {¶42} On June 23, 2015, the trial court dismissed Appellant’s

remaining claims, finding as follows:

      “[T]he remaining causes of action, collectively referred to as
      constitutional claims or Section 42 U.S.C. 1983 claims
      (numbered 5, 6, 9, 10, and 11) are challenged as moot or
      required to be dismissed because of the doctrine of issue
      preclusion.”

      {¶43} Under the second assignment of error, Jeffers contends the trial

court’s decision dismissing his remaining federal claims based on the

doctrine of issue preclusion was in error because his mandamus claim had a

higher evidentiary standard than did his remaining constitutional claims.

Regarding the difference in evidentiary standards, he is correct. As cited

above, the evidentiary standard for mandamus cases is “clear and

convincing.” By contrast, an action under § 1983 requires a plaintiff to

provide proof by a preponderance of the evidence. Pointer v. Detroit, 2011

WL 2580664, (U.S.D.C.).

      {¶44} The Board directs us to Trafalgar Corp. v. Miami County

Board of Commissioners, 519 F.3d 285 (U.S.D.C. 6th), which discussed the

principles of preclusion, beginning with the tenet that a federal court must

give prior state court judgments the same effect those judgments would be
Athens App. No. 15CA27                                                         24

given in the courts of the rendering state. 28 U.S.C. § 1738. A federal court

must therefore apply the principles of preclusion from the rendering state to

state court decisions. Trafalgar, supra, citing Hamilton's Bogarts, Inc., v.

State of Michigan, 501 F.3d 644, 650 (6th Cir. 2007). Trafalgar noted that

Ohio state courts recognize both claim and issue preclusion. Fort Frye

Teachers Ass'n, OEA/NEA v. State Employment Relations Bd., 81 Ohio St.3d

392, 692 N.E.2d 140, 144 (1998). In the Fort Frye decision, we observed:

      “[C]laim preclusion * * * holds that 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.” Id. (citing Grava v.
      Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226, 228
      (1995)).

       ***

      “The doctrine of issue preclusion, also known as collateral
      estoppel, holds that a fact or a point that was actually and
      directly at issue in a previous action, and was passed upon and
      determined by a court of competent jurisdiction, may not be
      drawn into question in a subsequent action between the same
      parties or their privies, whether the cause of action in the two
      actions be identical or different.” Id. (citing Norwood v.
      McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943)).

      {¶45} In Trafalgar, supra, the Sixth District Court of Appeals held

that issue preclusion barred further litigation under the Takings clause.

Trafalgar initially sought compensation under the United States and Ohio

Constitutions for a regulatory taking of its property, alleging that Trafalgar
Athens App. No. 15CA27                                                           25

had “been deprived of the economic viable use of [its] Property.” The Ohio

state courts determined that Trafalgar could not make out a claim for

compensation because it failed to present sufficient evidence that it had been

deprived of all economically viable uses of the land. In its action before the

district court, Trafalgar again sought to litigate the issue of just

compensation under the Takings clause, arguing that the defendants “have

stripped the property of any viable, economic use.” The district court held

because that issue was directly decided in a previous state court action, it

could not be re-litigated in federal district court.

      {¶46} Trafalgar protested that it did not actually argue the federal

takings issue, and therefore it should not be precluded from litigating that

issue in federal court. But, the district court held Trafalgar put directly at

issue the question of whether it was entitled to just compensation under the

Ohio and United States Constitutions by including them in its complaint and

by alleging that it had “been deprived of the economic viable use of [its]

property.” The court stated:

       “[Trafalgar] thus ‘effectively asked the state court to resolve
      the same federal issues’ that it now claims it reserved for
      federal court. San Remo Hotel, L.P. v. City of San Francisco,
      545 U.S. 323, 341, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005);
      see C. Wright And A. Miller, 18 Federal Practice and
      Procedure, § 4419 (2007). The court of appeals and the Ohio
      Supreme Court held that the takings claims were without merit.
      Trafalgar, 104 Ohio St.3d 350, 819 N.E.2d 1040, 1045 (2004).
Athens App. No. 15CA27                                                        26

      Thus issue preclusion bars further litigation of Trafalgar's
      takings claim.”

      {¶47} Appellant has directed us to Schweller v. Schweller, 1997 WL

793106 (Dec. 26, 1997); Premier Courier Inc., v. Flaherty, 1995 WL

571846 (Sept. 26, 1995); In re Weaver, 41 Ohio St.2d 97, 322 N.E.2d 665,

(1975); and Buddie Contracting, Inc., v. Seawright, 595 F.Supp. 422 (D.C.

1984). Schweller involved contentious parties in post-divorce proceedings

which culminated in the trial court’s grant of summary judgment to the wife

on a malicious prosecution claim and grant of summary judgment to the

husband on assault and battery claims. The First District appellate court

generally commented upon the differing standards of proof required in civil

and criminal cases. In sustaining the parties’ assignments of error, the

appellate court observed:

       “The trial court relied upon the rulings of the criminal court in
      order to justify summary judgment on both civil intentional
      torts. Not only are the elements of the offense different from
      the elements of the torts, the standards used to judge civil
      liability and criminal guilt are also different.”

      {¶48} In Premier Courier, the plaintiff, Premier Courier, was a

package delivery service serving the greater Columbus area. Premier

Courier hired Flaherty as a manager of its Columbus operation. When hired,

Flaherty executed an employment contract containing provisions restricting

his right to operate a competing business, restricting his right to solicit
Athens App. No. 15CA27                                                       27

plaintiff's customers and prohibiting him from disclosing trade secrets for a

period of three years after termination. When Flaherty's employment with

Premier Courier was terminated, Flaherty started his own package delivery

business. Premier Courier filed an action in the Franklin County Court of

Common Pleas seeking a preliminary and permanent injunction preventing

Flaherty from operating the business and seeking damages as a result of an

alleged breach of the restrictive covenants in his employment agreement and

upon an alleged violation of Ohio's trade secret law. Following an

evidentiary hearing, the referee recommended that the trial court deny the

request for injunctive relief. Premier Courier objected. The trial court

overruled the objections and adopted the referee's report as its own. Premier

Courier appealed and the appellate court dismissed for lack of a final

appealable order.

      {¶49} Flaherty filed a motion for summary judgment with respect to

plaintiff's remaining claims for monetary relief. The trial court granted

Flaherty’s motion for summary judgment and denied defendants' motion.

On appeal Premier Courier pointed out certain restrictive covenants in

Flaherty's employment contract and the trade secret violation. Based on

facts in the referee’s decision, that defendants' company was not in direct or

indirect competition with any business activity conducted by plaintiff at the
Athens App. No. 15CA27                                                         28

time of Flaherty's termination, the trial court determined that all material

factual issues had been finally resolved in defendants' favor in the prior

proceedings upon plaintiff's motion for preliminary and permanent

injunction.

      {¶50} On appeal of the summary judgment ruling, the appellate court

noted Ohio law on collateral estoppel, observing:

      “[C]ourts have refused to apply the doctrine to prevent a litigant
      from challenging the trial court's prior rulings, when the
      quantum of proof necessary to render both the original and
      subsequent judgment is not identical. See e.g. State Bar Assn. v.
      Weaver, 41 Ohio St.2d 97 (1975); F. Buddy Contracting, Inc. v.
      Seawright (D.C.Ohio 1984), 595 F.Supp. 422.”

      {¶51} The appellate court further found:

      “In the present case, the burden of proof placed upon plaintiff in
      the proceedings upon the motion for a preliminary and
      permanent injunction was that of proof by clear and convincing
      evidence. Call v. G.M. Sader Excavating & Paving, Inc., 68
      Ohio App.2d 41, 46 (1980). This is clearly a higher quantum of
      proof than that required to prevail in its claims for monetary
      relief, which may be established by a preponderance of the
      evidence. Id.”

      {¶52} Buddie v. Seawright arose from the award of a contract

to build a solid waste transfer station for the City of Cleveland in May 1975.

Buddie later filed a taxpayer's action in Cuyahoga County Common Pleas

Court (Buddie I) alleging a violation of the state laws regulating the award of

public contracts. Buddie sought an injunction barring execution of the
Athens App. No. 15CA27                                                         29

contract and re-advertisement of the bids. A trial judge later found, in

relevant part, no evidence of improper conduct or collusion involving any

public official or bidder.

      {¶53} Buddie appealed the decision of the Buddie I court to the Eighth

District Court of Appeals. The appellate court affirmed the trial judge's

decision in December 1976. Subsequent to the close of the Buddie I action,

press revelations and a subsequent prosecution disclosed an unlawful

relationship between various parties involved in the case. In 1978, the

Cuyahoga County Grand Jury indicted several parties on criminal charges

arising out of their involvement in the award of the contract for the transfer

station. Ultimately, Seawright pled guilty to one count of attempt and

complicity to have an unlawful interest in a public contract.

      {¶54} After entry of the guilty pleas, Buddie instituted federal court

action alleging violations of the antitrust laws. Buddie alleged conspiracy to

secure the award of the contract for Peabody, violating both § 1 of the

Sherman Act, 15 U.S.C. § 1, and Ohio's Valentine Act, Ohio Rev.Code §

1331.01 et seq. Peabody moved for summary judgment arguing in part, that

collateral estoppel prevented Buddie from establishing facts required to

make out its cause of action. In ruling the collateral estoppel would not be
Athens App. No. 15CA27                                                       30

applied, the court commented that an exception to the doctrine applied in

that:

        “The issue confronting the Court is whether the Buddie I court's
        findings regarding collusion preclude Buddie from presenting
        evidence on the conspiracy issue to this Court.

        ***

        There is a clear and convincing need for a new determination of
        the issue * * * (c) because the party sought to be precluded, as a
        result of the conduct of his adversary or other special
        circumstances, did not have an adequate opportunity or
        incentive to obtain a full and fair adjudication in the initial
        action.

        {¶55} However, the Buddie court cautioned:

        “In reaching this conclusion, the Court is mindful that this
        decision represents a deviation from established concepts of
        collateral estoppel. This decision should not be interpreted as
        opening the floodgates to relitigation of the vast majority of
        factual issues. The peculiar facts presented by this case make
        this case an unusually good candidate for use of the exceptions
        to the general rule of issue preclusion. It is important to
        interpret the exceptions to the general rule of issue preclusion
        so as not to overwhelm the general rule. Thus, while
        concluding that the general rule does not apply to this case, the
        Court emphasizes the narrowness of this holding.”

        {¶56} Weaver, also cited above by Premier Courier, involved an

attorney’s disciplinary proceeding subsequent to the attorney’s,[Weaver’s]

acquittal on criminal charges. In its discussion of the inapplicability of the

doctrine of res judicata, the Supreme Court of Ohio emphasized the differing

evidentiary standards. The Court held:
Athens App. No. 15CA27                                                      31

      “The doctrine of res judicata renders final judgments conclusive
      only when subsequent actions involve the same parties, or those
      in privity with them, as in the first action; when the issues to
      which the evidence is directed are identical in both actions; and
      when the quantum of proof necessary to render both the
      original and subsequent judgments is identical.”

      {¶57} Turning to application of these legal principles in the case sub

judice, we point out in Jeffers I, this Court held at paragraph 8:

      “Jeffers’ property abuts the closing roads. Therefore, pursuant
      to Eastland Woods, he is entitled to compensation and
      damages.”

      {¶58} In Jeffers II, at paragraph 7, we held:

      “In the mandamus action, Jeffers amended the complaint to add
      various claims. Jeffers included a series of claims for money
      damages under Section 1983, Title 42 U.S.Code. Essentially,
      these claims rely on the same facts as Jeffers’s claim for
      mandamus.”

      {¶59} We also made the observation that the constitutional claims

relied on the same underlying facts as the mandamus action in Jeffers II at

paragraph 22. As in Trafalgar, supra, Appellant placed the alleged pro tanto

taking directly at issue in his mandamus proceeding. We have affirmed the

trial court’s decision that no taking occurred. Appellant’s federal claims rely

on the same facts as did his mandamus action. However, we must agree

with Appellant that because the standards of proof are different for the

Section 1983 claims than on the mandamus action, this renders his case an

exception to the general rule, and res judicata does not apply to bar his
Athens App. No. 15CA27                                                        32

federal causes of action. The standard of proof to establish the Section 1983

claims, preponderance of the evidence, is less than the standard of proof

necessary to establish the mandamus action, which is a clear and convincing

burden.

         {¶60} For the foregoing reasons, we find merit to Appellant’s

argument that the doctrine of res judicata should not bar his Section 1983

claims. Based on our de novo review and the relevant Ohio law, we find the

trial court erred by finding that the doctrine of issue preclusion applied to bar

further consideration of Jeffers’ constitutional claims. As such, we sustain

Appellant’s second assignment of error and reverse the judgment of the trial

court.

                      ASSIGNMENT OF ERROR THREE

         “III. THE TRIAL COURT ABUSED ITS DISCRETION
         WHEN IT DENIED APPELLANT’S MOTION FOR LEAVE
         TO AMEND HIS COMPLAINT.”

                         A. STANDARD OF REVIEW

         {¶61} “The decision to grant or deny a motion for leave to amend a

pleading is within the sound discretion of the trial court. * * * Thus, we will

not reverse a court's decision denying a motion for leave to amend, absent an

abuse of discretion.” Rose v. Cochran, 4th Dist. Ross No. 14CA3445, 2014-

Ohio-4979, ¶ 17, quoting Mollette v. Portsmouth City Council, 169 Ohio
Athens App. No. 15CA27                                                         33

App.3d 557, 2006-Ohio-6289, 863 N.E.2d 1092, ¶ 28 (4th Dist.); Fifth Third

Bank v. Rankin, 4th Dist. Pickaway No. 10CA45, 2011-Ohio-2757, ¶ 36. As

discussed above, an abuse of discretion occurs when a decision is

unreasonable, arbitrary, or unconscionable. Rose, supra, citing State ex rel.

Nese v. State Teachers Retirement Bd. of Ohio, 136 Ohio St.3d 103, 2013-

Ohio-1777, 991 N.E.2d 218, ¶ 25.

                           B. LEGAL ANALYSIS

      {¶62} On September 8, 2011, Appellant filed a motion seeking leave

of court pursuant to Civil Rule 15 to amend his complaint to include a

retaliation cause of action and one regarding the endorsement, lobbying, and

promoting of ex post facto legislation by Commissioner Eliason designed

specifically to curtail Appellant’s constitutional rights. Appellant alleged

that his right to a damage hearing was unnecessarily delayed while the new

legislation was promoted and passed by the General Assembly, exacerbating

his damages, costs, and legal fees. The trial court denied the motion, finding

that “[during the course of this protracted case the Ohio General Assembly

legislated in the subject area and (sic) parties and witnesses in this case

played a significant role in recommending changes to that body. * * * While

the efforts to secure change were successful, the Court of Appeals expressed
Athens App. No. 15CA27                                                           34

that such changes could not apply to or affect this case.” Jeffers II at ¶ 35.

Under the final assignment of error, Appellant contends the trial court’s

decision found the Board engaged in actions intended to deprive him of a

jury assessment and that the delay of the second hearing caused him

additional costs in defending. Appellant concludes to deny his motion to

amend was an abuse of discretion.

      {¶63} The Board responds that overruling Appellant’s motion to

amend the claim was not an abuse of discretion because the motion was: (1)

untimely; (2) barred by the Noerr-Pennington doctrine which bars liability

under Section 1983 for efforts to petition the government for changes in the

law; and (3) a Section 1983 action for money damages is not a remedy for an

alleged “Ex Post Facto” violation. The Board concludes multiple valid

reasons support the trial court’s decision overruling Appellant’s motion for

leave to amend his complaint and thus, the trial court did not abuse its

discretion in doing so.

      {¶64} “Pursuant to Civ.R. 15(A), once an answer to a complaint is

served, a party may amend a pleading only by leave of the court or by

written consent of the adverse party.” Rose, supra, at ¶ 16. See Martin v.

Ohio Dept. of Rehab. and Corr., 140 Ohio App.3d 831, 837, 749 N.E.2d 787

(4th Dist.2001). Although Civ.R. 15(A) provides that leave of court shall be
Athens App. No. 15CA27                                                         35

freely given when justice so requires, there is no absolute or unlimited right

to amend a complaint. Rose, supra, at ¶ 20. See generally Kinchen v. Mays,

8th Dist. Cuyahoga No. 100672, 2014-Ohio-3325, ¶ 17. “Where a plaintiff

fails to make a prima facie showing of support for new matters sought to be

pleaded, a trial court acts within its discretion to deny a motion to amend the

pleading.” Wilmington Steel Products, Inc. v. Cleveland Elec. Illuminating

Co., 60 Ohio St.3d 120, 573 N.E.2d 622 (1991), syllabus; Townsend v. Ohio

Dept. of Transp., 10th Dist. Franklin No. 11 AP-672, 2012-Ohio-2945, ¶ 34;

Kinchen at ¶ 17. This requirement ensures that a proposed amendment is not

a delaying tactic or one which would cause prejudice to the opposing party.

Darby v. A–Best Products Co., 102 Ohio St.3d 410, 2004-Ohio-3720, 811

N.E.2d 1117, ¶ 20, citing Wilmington Steel at 122.

      {¶65} We recognize, as pointed out by Jeffers, that the trial court’s

decision made no reference to the constitutional claims as being time-barred

or being barred by application of the Noerr-Pennington Doctrine. Similarly,

the trial court’s decision did not discuss the availability of money damages

for an alleged “Ex Post Facto” violation. The trial court’s decision stated:

      “The remaining causes of action, collectively referred to as
      constitutional claims or Section 42 U.S.C. 1983 claims
      (numbered 5, 6, 7, 9, 10, and 11) are challenged as moot or
      required to be dismissed because of the doctrine of issue
      preclusion. This Court agrees with this position * * *.”
Athens App. No. 15CA27                                                         36

         {¶66} Despite our resolution of Appellant’s second assignment of

error above, we find that the trial court did not abuse its discretion in

overruling his motion for leave. While Appellant’s claims for retaliation and

improper Ex Post Facto legislation rely on the same underlying facts and

evidence as argued in his mandamus action, they are first and foremost

untimely. Therefore, we find the trial court did not abuse its discretion in

denying Appellant’s motion for leave to amend his complaint to add the

additional claims. As such, we overrule the third assignment of error and

affirm the judgment of the trial court.

   CROSS-ASSIGNMENT OF ERROR OF APPELLEE BOARD
     OF TRUSTEES OF ALEXANDER TOWNSHIP, OHIO

         “I. THE TRIAL COURT’S DECISIONS AND JUDGMENTS
         AT ISSUE ARE APPROPRIATE BY VIRTUE OF OTHER
         SEPARATE GROUNDS SUPPORTED BY THE RECORD.”

         {¶67} Having affirmed the judgment of the trial court as to

assignments of error one and three above, having reversed the judgment of

the trial court as to assignment of error number two, and having set forth our

reasoning fully, the cross-assignment of error is rendered moot. As such, we

decline to consider it. Accordingly, we affirm the judgment of the trial

court.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.
Athens App. No. 15CA27                                                         37

Harsha, J., concurring:

      {¶68} I concur in the judgment and opinion overruling Jeffers’s first

and third assignments of error. In addition, I concur in the judgment

sustaining Jeffers’s second assignment of error and reversing the trial court’s

dismissal of his Section 1983 claims based on res judicata for the following

reasons.

      {¶69} Jeffers asserts in his second assignment of error that the trial

court erred in dismissing his Section 1983 claims based on res judicata. He

claims that because the standards of proof are different for his Section 1983

claims than his mandamus claim, res judicata did not bar his claims. The

Supreme Court of Ohio has expressly held that “[t]he doctrine of res

judicata renders final judgments conclusive only when subsequent actions

involve the same parties, or those in privity with them, as in the first action;

when the issues to which the evidence is directed are identical in both

actions; and when the quantum of proof necessary to render both the

original and subsequent judgments is identical.” (Emphasis added.) Ohio

State Bar Assn. v. Weaver, 41 Ohio St.2d 97, 99-100, 322 N.E.2d 665

(1975). Consequently, “courts have refused to apply the doctrine to prevent

a litigant from challenging the trial court’s prior rulings, when the quantum

of proof necessary to render both the original and subsequent judgment is
Athens App. No. 15CA27                                                        38

not identical.” See Premier Courier, Inc. v. Flaherty, 10th Dist. No.

95APE01-34, 1995 WL 571846, *3.

      {¶70} This is not a case where the exception to this general rule

applies because Jeffers’s burden of proof is lower for his Section 1983

claims than for his previously decided mandamus claim. Compare Queener

v. Dayton, 2d Dist. Montgomery No. 16494, 1997 WL 797760, * 3 (Dec. 31,

1997) (“Even where the burdens of proof are not identical, res judicata will

apply against a party to a subsequent proceeding in which he bears a higher

burden of proof or bears a burden carried by the other party in the earlier

proceeding”).

      {¶71} As the majority opinion notes, the standard to establish his

Section 1983 claims-preponderance of the evidence-is less than the standard

to establish his mandamus claim-clear and convincing evidence. Therefore,

based on Weaver and its progeny, res judicata could not bar Jeffers’s Section

1983 claims.

      {¶72} And because the trial court held that res judicata applied, the

board’s and trustees’ argument that the court presumably applied the correct

standard of proof is meritless. By misapplying the doctrine of res judicata,

the court never proceeded to apply the correct evidentiary standard. Nor am

I convinced that the law-of-the-case doctrine should apply here given the
Athens App. No. 15CA27                                                       39

differing standards of proof and because our prior appeals did not

specifically resolve Jeffers’s Section 1983 claims. Although this court in

Jeffers II, 2011-Ohio-675, did indeed note that he amended his prior

mandamus complaint to add claims for money damages under Section 1983,

we further noted that the trial court had not yet resolved those claims. Id. at

¶ 7, 22-24.

      {¶73} Because the federal cases cited by the board were not asked to

apply our controlling state law concerning res judicata, I concur in the

sustaining of Jeffers’s second assignment of error.
Athens App. No. 15CA27                                                         40

                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVERSED IN PART, AND CAUSE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and
Appellees shall split the costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J.:    Concurs with Concurring Opinion.
Hoover, J:     Concurs in Per Curiam Opinion and Concurring Opinion.
McFarland, J.: Concurs in Judgment and Opinion as to Assignments of
               Error I & III and Cross Assignment Error;
               Dissents as to Assignment of Error II.

                                       For the Court,

                                 BY: _____________________________
                                     William H. Harsha, Judge

                                 BY: _____________________________
                                     Marie M. Hoover, Judge

                                 BY: _____________________________
                                     Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.