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STATE OF OHIO, EX REL.
“MICHAEL P. KILROY and
VICKIE L, KILROY
12360 HEMPLE ROAD
FARMERSVILLE, OHIO 45325,
Plaintiffs/Relators,
v.
WILLIAM PETERS, PRESIDENT
JACKSON TOWNSHIP BOARD OF TRUSTEES
49 EAST WALNUT STREET
FARMERSVILLE, OHIO 45325
and
THOMAS SEARS, VICE PRESIDENT
JACKSON TOWNSHIP BOARD OF TRUSTEES
49 EAST WALNUT STREET
FARMERSVILLE, OHIO 45325
and
DEBRA JOHNSON, TRUSTEE
JACKSON TOWNSHIP BOARD OF TRUSTEES
49 EAST WALNUT STREET
FARMERSVILLE, OHIO 45325
and
TIMOTHY JOHNSON
12332 HEMPLE ROAD
FARMERSVILLE, OHIO 45325
and
NICOLE JOHNSON
12332 HEMPLE ROAD
FARMERSVILLE, OHIO 45325,
Defendants/Respondents.
\ \
(ufscitinvcie
IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY, OHIO
19-3533
Case No.
Judge
COMPLAINT FOR
WRIT OF MANDAMUS
AND OTHER RELIEF
(JURY DEMAND ENDORSED
HEREON)a
COMPLAINT FOR WRIT OF MANDAMUS and OTHER RELIEF
(JURY DEMAND ENDORSED HEREON)
ALLEGATIONS COMMON TO ALL COUNTS
Now come Plaintiffs/Relators Michael P. Kilroy and Vickie L. Kilroy (“Plaintiffs”), and
for their Complaint, state the following:
1. Plaintiffs are the owners in fee and occupants of certain real property in Jackson
Township, Montgomery County, located at 12360 Hemple Road, Farmersville, Ohio.
2. Defendant/Respondent William Peters (“Defendant William Peters”) is the
President of the Jackson Township Board of Trustees, located in Jackson Township,
Montgomery County, Ohio.
3. Defendant/Respondent Thomas Scars (“Defendant Thomas Sears”) is the Vice
President of the Jackson Township Board of Trustees, located in Jackson Township,
Montgomery County, Ohio.
4, Defendant/Respondent Debra Johnson (“Defendant Debra Johnson”) is a Trustee
with the Jackson Township Board of Trustees, located in Jackson Township, Montgomery
County, Ohio.
5. Defendant Timothy Johnson (“Defendant Timothy Johnson”) is co-owner of real
property located at 12332 Hemple Road, Farmersville, Ohio, which is adjacent to Plaintiffs’ real
property, and which is located in Jackson Township.
6. Defendant Nicole Johnson (“Defendant Nicole Johnson”) is co-owner of real
property located at 12332 Hemple Road, Farmersville, Ohio, which is adjacent to Plaintiffs’ real
property, and which is located in Jackson Township.COUNT I: WRIT OF MANDAMUS (Assignment of Partition Fence)
7. Plaintiffs incorporate by reference Paragraphs 1 through 6 as if fully rewritten
herein.
8. Ohio law provides a statutory procedure for allocating costs and responsibilities
among adjacent landowners whose land is separated by a partition fence, to wit: Ohio Revised
Code (ORC) Chapter 971. Under this statutory scheme, township trustees are given no discretion
in their obligation to resolve partition fence disputes.
9. ORC §971.02 states, in relevant part:
§971.02. Expense of partition fences
The owners of adjoining lands shall build, keep up, and maintain in good repair,
in equal shares, all partition fences between them, unless otherwise agreed upon
by them in writing and witnessed by two persons. The fact that any land or tract
of land is wholly unenclosed or is not used, adapted, or intended by its owner for
use for agricultural purposes shall not excuse the owner thereof from the
obligations imposed by this chapter on the owner as an adjoining owner.
10. Defendants Timothy and Nicole Johnson have failed and refused to perform their
statutory duties as set forth in ORC §971.02.
11. | Upon a party’s failure to perform his or her statutory duty pursuant to ORC
§971.02, ORC §971.04 provides the following remedy:
§971.04. Duty of board of township trustees
When a person neglects to build or repair a partition fence, or the portion thereof
which he is required to build or maintain, the aggrieved person may complain to
the board of township trustees of the township in which such land or fence is
located. Such board, after not less than ten days’ written notice to all adjoining
landowners of the time and place of meeting, shall view the fence or premises
where such fence is to be built, and assign, in writing, to each person his equal
share thereof, to be constructed or kept in repair by him.
12. Pursuant to the above quoted statute, township trustees are required by law to
comply with the notice and hearing provisions of ORC Chapter 971 and, thereafter, assign the
cost of constructing and maintaining a partition fence among adjacent landowners.13. Plaintiffs have made multiple petitions to the Jackson Township Trustees, to wit:
Defendant William Peters, Defendant Thomas Sears and Defendant Debra Johnson (collectively
“Defendant Trustees”) to perform their statutory duties under ORC Title 9, Chapter 971.
Plaintiffs’ petitions have been ignored.
14. By reason of the foregoing, Plaintiffs are entitled to a Writ of Mandamus ordering
Defendant Trustees, and each of them, to perform their duty to view the partition fence and
assign the cost of construction and maintenance in equal shares pursuant to ORC §971.04 and
other applicable provisions of ORC Chapter 971 relating to partition fences.
COUNT II WRIT OF MANDAMUS (Noxious Weed Control)
15. Plaintiffs incorporate by reference Paragraphs 1 through 14 as if fully rewritten
herein.
16. | Ohio law provides a statutory procedure for enforcing the control of noxious
weeds along a partition fence, to wit: ORC Chapter 971. Under this statutory scheme, township
trustees are given no discretion in their obligation to enforce the control of noxious weeds along
partition fence.
17. ORC §971.33 states, in relevant part:
§ 971.33. Cutting of noxious weeds
An owner of land, adjacent to a line or partition fence, shall keep all brush, briers,
thistles, or other noxious weeds cut in the fence comers and a strip four feet wide
on his side along the line of a partition fence, but this section does not affect the
planting of vines or trees for use.
18. Defendants Timothy and Nicole Johnson have failed and refused to perform their
statutory duties as set forth in ORC §971.33.
19. Upon a party’s failure to perform his or her statutory duty pursuant to ORC
§971.33, ORC §971.34 provides the following remedy:§ 971.34. Notice to landowner failing to cut noxious weeds
If the owner or tenant occupying land, neglects or refuses to cut brush, briers,
thistles, or other noxious weeds, as provided in section 971.33 of the Revised
Code, an owner or occupant of land abutting on the line or partition fence, after
having given the owner or tenant not less than ten days’ notice to cut or remove
them, may notify the board of township trustees of the township in which the land
is situated, who shall forthwith view the premises, and if satisfied that there is just
cause of complaint, shall cause them to be cut, by letting the work to the lowest
bidder, or by entering into a private contract therefor.
20. Pursuant to the above-quoted statute, upon notice, the Defendant Trustees are
required by law to take the actions set forth in the statute.
21. Plaintiffs have made repeated requests to Defendants Timothy and Nicole
Johnson to control the noxious weeds in accordance with ORC §971.33. Defendants Timothy
and Nicole Johnson have not only refused to perform their statutory duty, they have maliciously
filed criminal charges against Plaintiffs for their efforts to control noxious weeds along the
partition fence.
22. In accordance with the statutory remedy set forth above, Plaintiffs have also made
multiple petitions to Defendant Trustees to perform their statutory duties under ORC Title 9,
Chapter 971. Plaintiffs’ petitions have been ignored.
23. By reason of the foregoing, Plaintiffs are entitled to a Writ of Mandamus ordering
Defendant Trustees, and each of them, to perform their duty in accordance with ORC §971.34 to
ORC §971.36, and other applicable provisions of ORC Title 9, Chapter 971 relating to noxious
weeds.
COUNT Ill BREACH OF STATUTORY DUTIES
27. Plaintiffs incorporate by reference Paragraphs | through 26 as if fully rewritten
herein.-
28. ORC §971.02 states:
§971.02. Expense of partition fences
The owners of adjoining lands shall build, keep up, and maintain in good repair,
in equal shares, all partition fences between them, unless otherwise agreed upon
by them in writing and witnessed by two persons. The fact that any land or tract
of land is wholly unenclosed or is not used, adapted, or intended by its owner for
use for agricultural purposes shall not excuse the owner thereof from the
obligations imposed by this chapter on the owner as an adjoining owner.
28. ORC §971.33 states, in relevant part:
§971.33. Cutting of noxious weeds
An owner of land, adjacent to a line or partition fence, shall keep all brush, briers,
thistles, or other noxious weeds cut in the fence comers and a strip four feet wide
on his side along the line of a partition fence, but this section does not affect the
planting of vines or trees for use.
29. Defendants Timothy and Nicole Johnson have failed and refused to perform their
statutory duties as set forth in ORC §971.02 and §971.33.
30. By reason of the foregoing, Plaintiffs have been damaged in an amount in excess
of $25,000.
WHEREFORE, Plaintiffs respectfully requests that the Court enter Judgment as follows:
a. For Plaintiffs’ Count I, a Writ of Mandamus ordering Defendant Trustees, and
each of them, to perform their duty to view the partition fence and assign the cost of construction
and maintenance in equal shares pursuant to O.R.C. §971.04 and other applicable provisions of
ORC Title 9, Chapter 971 relating to partition fences;
b. For Plaintiffs’ Count II, a Writ of Mandamus ordering Defendant Trustees, and
each of them, to perform their duty in accordance with ORC §971.34 to ORC §971.36, and other
applicable provisions of ORC Title 9, Chapter 971 relating to noxious weeds;
c For Plaintiffs’ Count III, money damages in an amount in excess of $25,000; andd. For their costs herein, to include reasonable attorneys’ fees, costs, and for such
other relief, legal or equitable, as this Court deems appropriate under the circumstances.
Respectfully submitted,
WRIGHT LAW CO. LPA
hy ZZ—
By: David’S. Pennington (0031477)
Attorney for Plaintiffs/Relators
4266 Tuller Road, Suite 101
Dublin, Ohio 43017
Phone: (614) 791-9112
Fax: (614) 791-9116
E-Mail:dpennington@wright-law.net
JURY DEMAND
Plaintiffs/Relators hereby demand a jury on all triable issues.
Le bz
David S. Pennington (0031477)
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STATE OF OHIO, EX REL. “MICHAEL P. KILROY and VICKIE L, KILROY 12360 HEMPLE ROAD FARMERSVILLE, OHIO 45325, Plaintiffs/Relators, v. WILLIAM PETERS, PRESIDENT JACKSON TOWNSHIP BOARD OF TRUSTEES 49 EAST WALNUT STREET FARMERSVILLE, OHIO 45325 and THOMAS SEARS, VICE PRESIDENT JACKSON TOWNSHIP BOARD OF TRUSTEES 49 EAST WALNUT STREET FARMERSVILLE, OHIO 45325 and DEBRA JOHNSON, TRUSTEE JACKSON TOWNSHIP BOARD OF TRUSTEES 49 EAST WALNUT STREET FARMERSVILLE, OHIO 45325 and TIMOTHY JOHNSON 12332 HEMPLE ROAD FARMERSVILLE, OHIO 45325 and NICOLE JOHNSON 12332 HEMPLE ROAD FARMERSVILLE, OHIO 45325, Defendants/Respondents. \ \ (ufscitinvcie IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY, OHIO 19-3533 Case No. Judge COMPLAINT FOR WRIT OF MANDAMUS AND OTHER RELIEF (JURY DEMAND ENDORSED HEREON)a COMPLAINT FOR WRIT OF MANDAMUS and OTHER RELIEF (JURY DEMAND ENDORSED HEREON) ALLEGATIONS COMMON TO ALL COUNTS Now come Plaintiffs/Relators Michael P. Kilroy and Vickie L. Kilroy (“Plaintiffs”), and for their Complaint, state the following: 1. Plaintiffs are the owners in fee and occupants of certain real property in Jackson Township, Montgomery County, located at 12360 Hemple Road, Farmersville, Ohio. 2. Defendant/Respondent William Peters (“Defendant William Peters”) is the President of the Jackson Township Board of Trustees, located in Jackson Township, Montgomery County, Ohio. 3. Defendant/Respondent Thomas Scars (“Defendant Thomas Sears”) is the Vice President of the Jackson Township Board of Trustees, located in Jackson Township, Montgomery County, Ohio. 4, Defendant/Respondent Debra Johnson (“Defendant Debra Johnson”) is a Trustee with the Jackson Township Board of Trustees, located in Jackson Township, Montgomery County, Ohio. 5. Defendant Timothy Johnson (“Defendant Timothy Johnson”) is co-owner of real property located at 12332 Hemple Road, Farmersville, Ohio, which is adjacent to Plaintiffs’ real property, and which is located in Jackson Township. 6. Defendant Nicole Johnson (“Defendant Nicole Johnson”) is co-owner of real property located at 12332 Hemple Road, Farmersville, Ohio, which is adjacent to Plaintiffs’ real property, and which is located in Jackson Township.COUNT I: WRIT OF MANDAMUS (Assignment of Partition Fence) 7. Plaintiffs incorporate by reference Paragraphs 1 through 6 as if fully rewritten herein. 8. Ohio law provides a statutory procedure for allocating costs and responsibilities among adjacent landowners whose land is separated by a partition fence, to wit: Ohio Revised Code (ORC) Chapter 971. Under this statutory scheme, township trustees are given no discretion in their obligation to resolve partition fence disputes. 9. ORC §971.02 states, in relevant part: §971.02. Expense of partition fences The owners of adjoining lands shall build, keep up, and maintain in good repair, in equal shares, all partition fences between them, unless otherwise agreed upon by them in writing and witnessed by two persons. The fact that any land or tract of land is wholly unenclosed or is not used, adapted, or intended by its owner for use for agricultural purposes shall not excuse the owner thereof from the obligations imposed by this chapter on the owner as an adjoining owner. 10. Defendants Timothy and Nicole Johnson have failed and refused to perform their statutory duties as set forth in ORC §971.02. 11. | Upon a party’s failure to perform his or her statutory duty pursuant to ORC §971.02, ORC §971.04 provides the following remedy: §971.04. Duty of board of township trustees When a person neglects to build or repair a partition fence, or the portion thereof which he is required to build or maintain, the aggrieved person may complain to the board of township trustees of the township in which such land or fence is located. Such board, after not less than ten days’ written notice to all adjoining landowners of the time and place of meeting, shall view the fence or premises where such fence is to be built, and assign, in writing, to each person his equal share thereof, to be constructed or kept in repair by him. 12. Pursuant to the above quoted statute, township trustees are required by law to comply with the notice and hearing provisions of ORC Chapter 971 and, thereafter, assign the cost of constructing and maintaining a partition fence among adjacent landowners.13. Plaintiffs have made multiple petitions to the Jackson Township Trustees, to wit: Defendant William Peters, Defendant Thomas Sears and Defendant Debra Johnson (collectively “Defendant Trustees”) to perform their statutory duties under ORC Title 9, Chapter 971. Plaintiffs’ petitions have been ignored. 14. By reason of the foregoing, Plaintiffs are entitled to a Writ of Mandamus ordering Defendant Trustees, and each of them, to perform their duty to view the partition fence and assign the cost of construction and maintenance in equal shares pursuant to ORC §971.04 and other applicable provisions of ORC Chapter 971 relating to partition fences. COUNT II WRIT OF MANDAMUS (Noxious Weed Control) 15. Plaintiffs incorporate by reference Paragraphs 1 through 14 as if fully rewritten herein. 16. | Ohio law provides a statutory procedure for enforcing the control of noxious weeds along a partition fence, to wit: ORC Chapter 971. Under this statutory scheme, township trustees are given no discretion in their obligation to enforce the control of noxious weeds along partition fence. 17. ORC §971.33 states, in relevant part: § 971.33. Cutting of noxious weeds An owner of land, adjacent to a line or partition fence, shall keep all brush, briers, thistles, or other noxious weeds cut in the fence comers and a strip four feet wide on his side along the line of a partition fence, but this section does not affect the planting of vines or trees for use. 18. Defendants Timothy and Nicole Johnson have failed and refused to perform their statutory duties as set forth in ORC §971.33. 19. Upon a party’s failure to perform his or her statutory duty pursuant to ORC §971.33, ORC §971.34 provides the following remedy:§ 971.34. Notice to landowner failing to cut noxious weeds If the owner or tenant occupying land, neglects or refuses to cut brush, briers, thistles, or other noxious weeds, as provided in section 971.33 of the Revised Code, an owner or occupant of land abutting on the line or partition fence, after having given the owner or tenant not less than ten days’ notice to cut or remove them, may notify the board of township trustees of the township in which the land is situated, who shall forthwith view the premises, and if satisfied that there is just cause of complaint, shall cause them to be cut, by letting the work to the lowest bidder, or by entering into a private contract therefor. 20. Pursuant to the above-quoted statute, upon notice, the Defendant Trustees are required by law to take the actions set forth in the statute. 21. Plaintiffs have made repeated requests to Defendants Timothy and Nicole Johnson to control the noxious weeds in accordance with ORC §971.33. Defendants Timothy and Nicole Johnson have not only refused to perform their statutory duty, they have maliciously filed criminal charges against Plaintiffs for their efforts to control noxious weeds along the partition fence. 22. In accordance with the statutory remedy set forth above, Plaintiffs have also made multiple petitions to Defendant Trustees to perform their statutory duties under ORC Title 9, Chapter 971. Plaintiffs’ petitions have been ignored. 23. By reason of the foregoing, Plaintiffs are entitled to a Writ of Mandamus ordering Defendant Trustees, and each of them, to perform their duty in accordance with ORC §971.34 to ORC §971.36, and other applicable provisions of ORC Title 9, Chapter 971 relating to noxious weeds. COUNT Ill BREACH OF STATUTORY DUTIES 27. Plaintiffs incorporate by reference Paragraphs | through 26 as if fully rewritten herein.- 28. ORC §971.02 states: §971.02. Expense of partition fences The owners of adjoining lands shall build, keep up, and maintain in good repair, in equal shares, all partition fences between them, unless otherwise agreed upon by them in writing and witnessed by two persons. The fact that any land or tract of land is wholly unenclosed or is not used, adapted, or intended by its owner for use for agricultural purposes shall not excuse the owner thereof from the obligations imposed by this chapter on the owner as an adjoining owner. 28. ORC §971.33 states, in relevant part: §971.33. Cutting of noxious weeds An owner of land, adjacent to a line or partition fence, shall keep all brush, briers, thistles, or other noxious weeds cut in the fence comers and a strip four feet wide on his side along the line of a partition fence, but this section does not affect the planting of vines or trees for use. 29. Defendants Timothy and Nicole Johnson have failed and refused to perform their statutory duties as set forth in ORC §971.02 and §971.33. 30. By reason of the foregoing, Plaintiffs have been damaged in an amount in excess of $25,000. WHEREFORE, Plaintiffs respectfully requests that the Court enter Judgment as follows: a. For Plaintiffs’ Count I, a Writ of Mandamus ordering Defendant Trustees, and each of them, to perform their duty to view the partition fence and assign the cost of construction and maintenance in equal shares pursuant to O.R.C. §971.04 and other applicable provisions of ORC Title 9, Chapter 971 relating to partition fences; b. For Plaintiffs’ Count II, a Writ of Mandamus ordering Defendant Trustees, and each of them, to perform their duty in accordance with ORC §971.34 to ORC §971.36, and other applicable provisions of ORC Title 9, Chapter 971 relating to noxious weeds; c For Plaintiffs’ Count III, money damages in an amount in excess of $25,000; andd. For their costs herein, to include reasonable attorneys’ fees, costs, and for such other relief, legal or equitable, as this Court deems appropriate under the circumstances. Respectfully submitted, WRIGHT LAW CO. LPA hy ZZ— By: David’S. Pennington (0031477) Attorney for Plaintiffs/Relators 4266 Tuller Road, Suite 101 Dublin, Ohio 43017 Phone: (614) 791-9112 Fax: (614) 791-9116 E-Mail:dpennington@wright-law.net JURY DEMAND Plaintiffs/Relators hereby demand a jury on all triable issues. Le bz David S. Pennington (0031477)