[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-Ohio1627. 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.