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Myers v. The Vill. of SCIO

Court of Appeals of Ohio, Seventh District, Harrison
Jul 31, 2024
2024 Ohio 2982 (Ohio Ct. App. 2024)

Opinion

23 HA 0006

07-31-2024

RONALD J. MYERS, AS CO-TRUSTEE OF THE MYERS FAMILY DECLARATION OF TRUST et al. Plaintiffs-Appellees, v. THE VILLAGE OF SCIO, Defendant-Appellant.

Atty. John B. Albers, Atty. Sean McCarter, Albers and Albers for Appellee North Township Board of Trustees and Atty. Joseph R. Miller, Atty. Christopher L. Ingram, Atty. John M. Kuhl, Vorys, Sater, Seymour & Pease LLP for Landowners-Appellees and Atty. James F. Mathews, Atty. Brittany A. Bowland, Baker, Dublikar for Defendant-Appellant.


Civil Appeal from the Court of Common Pleas of Harrison County, Ohio Case No. CVH 2021-0103

Atty. John B. Albers, Atty. Sean McCarter, Albers and Albers for Appellee North Township Board of Trustees and Atty. Joseph R. Miller, Atty. Christopher L. Ingram, Atty. John M. Kuhl, Vorys, Sater, Seymour & Pease LLP for Landowners-Appellees and

Atty. James F. Mathews, Atty. Brittany A. Bowland, Baker, Dublikar for Defendant-Appellant.

BEFORE: Carol Ann Robb, Mark A. Hanni, Katelyn Dickey, Judges.

OPINION AND JUDGMENT ENTRY

Robb, P.J.

{¶1} Defendant-Appellant Village of Scio appeals the decision of the Harrison County Common Pleas Court granting judgment in favor of Plaintiff-Appellee Ronald J. Myers as Co-Trustee of the Myers Family Declaration of Trust et al. (the landowners). The trial court issued an injunction and declaratory judgment on the invalidity of a village ordinance adopted in violation of the Open Meetings Act (OMA) in R.C. 121.22.

{¶2} The village initially claims any OMA violation was rendered moot after the village adopted another ordinance just prior to the trial court's decision. The village also contends the language of the injunction would not allow for an OMA monetary award (such as attorney fees). However, OMA violations are not rendered moot by replacement ordinances, and a monetary award under the OMA was permitted.

{¶3} Next, the village is concerned the trial court may have attempted to make an additional declaration on the landowners' non-OMA claims without expressly determining rights and obligations as required by declaratory judgment law. The village points out the contractual and constitutional issues were not ripe for adjudication where an OMA violation invalidated the ordinance. In case we were to find the trial court was permitted to (and did) rule on the landowners' constitutional claims, the village's "conditional" assignment of error contests those claims. However, the trial court's judgment was based solely on the village's violation of the OMA; the court did not rule on the other claims and expressly found them moot. Accordingly, we do not reach those issues.

{¶4} For the following reasons, the trial court's judgment is affirmed.

STATEMENT OF THE CASE

{¶5} On September 22, 2021, the Village of Scio adopted Ordinance 2021 -007, which required any existing or prospective extraterritorial customer of municipal water or sewer services to agree to annexation of their property to the village as a condition of utility service. The ordinance required these customers to sign an agreement containing an irrevocable power of attorney, which consented to annexation and gave the village the authority to execute and process any petition for annexation regarding the property. If the customer failed to approve and return the agreement within 30 days of the notice, the ordinance stated their water and/or sewer services would be suspended, with no restoration in the absence of a returned agreement. The ordinance was said to constitute an emergency measure and declared on its face that all formal actions and deliberations occurred in meetings open to the public.

{¶6} Two days after passing the ordinance, the village sent the agreement to certain extraterritorial customers along with a notice stating their utilities would be terminated if they did not return the signed agreement by October 25, 2021. (Complaint Ex. C). This limited, irrevocable power of attorney said the village administrator would have the right to perform any act and exercise any right the landowner had or may acquire "in connection with, arising from or relating to the annexation" of their described property to the village. It was binding on the landowners successors and allowed the administrator to appoint a subagent, delegate duties, and assign the rights granted by the agreement.

{¶7} On October 19, 2021, a group of extraterritorial customers (the landowners) filed a complaint against the village, seeking a declaratory judgment and injunctive relief. The complaint pointed out the village had recently attempted to annex from North Township a large industrial site and other properties, but the annexation petition was denied by the Harrison County Board of Commissioners on September 15, 2021, prompting the village to pass the shutoff ordinance a week later. See also Scio v. North Twp. Bd. of Trustees, 2023-Ohio-2479 (7th Dist.) (upholding the board's decision with modifications to supply additional grounds for denial of annexation).

{¶8} Some of the current plaintiff-landowners were involved in the village's failed annexation petition. For instance, plaintiff Utica East Ohio Midstream LLC actively litigated against the village's attempt to annex its property by including parcels along the path to Utica East's 600 acres. One of those parcels was owned by plaintiff Scio Pottery, whose representative also objected to the annexation petition. The leading plaintiff in the caption of the case at bar, Ronald J. Myers, was the county sheriff who owned land near the attempted annexation and testified against the village at the board's annexation hearing. Like Utica East, plaintiff North Township Board of Trustees was involved in the prior annexation attempt and receives utilities from the village through the Harrison County Water and Sewer Board. (As a result of the latter fact, the Harrison County Board of Commissioners was named in the complaint as an interested party.)

{¶9} The complaint in the case at bar set forth four counts seeking a declaratory judgment and injunctive relief regarding the shutoff ordinance and the corresponding power of attorney annexation agreement. Count one of the complaint alleged the agreement required by the ordinance invalidly required the execution of a contract under duress, coercion, and undue influence. Count two alleged the village's provision of a mere 30 days before the termination of water and sewer services was not reasonable notice of termination for an implied contract. Count three set forth a due process claim under the Ohio Constitution, stating the ordinance and power of attorney agreement deprived the landowners of their property and liberty interests in an arbitrary, unconscionable, and unreasonable manner and did not bear a substantial relationship to public health, safety, morals, or general welfare. Count four claimed a violation of the free speech clause in the Ohio Constitution by compelling speech in favor of annexation. Count five asserted the village unconstitutionally retaliated against the landowners for exercising free speech rights in opposition to the village's prior annexation petition.

{¶10} The trial court granted the landowners a temporary restraining order and later a preliminary injunction against the village. (10/24/21 J.E.; 1/4/22 J.E.).

{¶11} The village's counterclaim sought a declaratory judgment stating an ordinance requiring customers to consent to annexation in order to receive utilities was within the village's home rule and legislative authority. The village filed a motion for partial summary judgment, relying on a Supreme Court case that answered the question of "whether a municipality that has historically provided water and sewer service for extraterritorial customers is permitted to require annexation of the extraterritorial property as a condition of continued service to those customers." Bakies v. Perrysburg, 2006-Ohio-1190, ¶ 17.

{¶12} In Bakies, the Court held the ordinance requiring extraterritorial customers to agree to annexation in exchange for continuation of services was an enforceable contract, "a valid exercise of the police power of a municipality, . . . not unreasonable, arbitrary, or capricious, and . . . bears a rational relationship to the health, safety, and welfare of the municipality's citizens." Id. at ¶ 22, 33 (noting the landowners "failed to advance any basis upon which we could conclude otherwise"). In the absence of a contract, the municipality may sell or continue to sell surplus water or sewer services to extraterritorial customers as its council determines is in the municipality's best interest. Id. at ¶ 18, 21, 27 (finding no contract where one landowner received water for years before an ordinance was adopted requiring consent to annexation for continued services). "[W]here there is a contract, but the contract provides no termination date, either party to the agreement may terminate it upon reasonable notice." Id. at ¶ 20 (a municipality's initial agreement to supply services to extraterritorial customers is not an agreement for perpetual services).

{¶13} Observing the village's partial summary judgment motion was filed six months before the dates set for the close of discovery and for dispositive motions, the trial court granted the landowner's Civ.R. 56(F) request for the completion of discovery prior to requiring a response to the village's motion. (11/28/22 J.E.). Thereafter, the village filed a full motion for summary judgment.

{¶14} A cross-motion for summary judgment was filed by the landowners minus North Township. The township filed a separate summary judgment motion, which incorporated the landowners' motion and added arguments against the village. In addition to addressing the claims in the complaint, the landowners raised violations of the Open Meetings Act (OMA). They alleged various concealed flaws with the village's council meeting were discovered during the depositions of various village officials. The landowners sought leave to amend the complaint to add claims under the OMA and alternatively argued leave was not required because the OMA was a defense to the village's counterclaim and summary judgment motion.

{¶15} Complaining about further delay, the village's July 19, 2023 objection to the request for leave said, "the Village has concluded that the best course of action . . . is to consider and enact a new ordinance altogether." The village claimed the public passage of a replacement ordinance would eventually moot the OMA claim and some other challenges. The trial court granted the landowners leave to amend the complaint to conform to the OMA allegation in the landowners' summary judgment motion and allowed further briefing of the issue by the village. (8/2/23 J.E.).

{¶16} The landowners' amended complaint, adding claims under the OMA, set forth the following allegations: neither the agenda nor any other advance notice for the September 22, 2021 village council meeting disclosed the consideration of a shutoff ordinance; after approving the minutes from the last meeting, the council immediately moved into executive session purportedly for the statutory purpose of discussing "pending litigation"; no attorney was present as required by the "pending litigation" statutory exception to an open meeting; the purpose of the session was actually to deliberate on the shutoff ordinance; upon returning to the public portion of the meeting, council voted to suspend its rule that requires proposed legislation to receive a public reading at three meetings; council members could not identify an emergency requiring immediate action; and the shutoff ordinance was adopted without public deliberation.

{¶17} For the village's violation of the OMA, the landowners' amended complaint sought a declaratory judgment and a permanent injunction. Pursuant to R.C. 121.22(I)(2)(a), they additionally requested attorney fees, court costs, and a civil forfeiture ($500 under the statute).

{¶18} After reasserting the counterclaim on its authority to condition utilities on annexation, the village (on September 13, 2023) filed an opposition to the landowners' OMA summary judgment argument. In part, the village argued OMA issues would become moot if council adopted a pending replacement ordinance that had been publicly deliberated. The village administrator's affidavit predicted adoption would occur later that day, but no further filings were made by the village before the landowners reply in support of their OMA argument or before the trial court ruled on the summary judgment motions.

{¶19} The trial court granted judgment in favor of the landowners. (10/4/23 J.E.) (granting summary judgment for the landowners); (10/4/23 J.E.) (denying the village's request for summary judgment). The court reviewed various undisputed facts related to the council meeting, cited statutory and case law on the OMA, and concluded the village violated the OMA when it passed Ordinance 2021-007 by deliberating in "executive session" without an attorney present as required by R.C. 121.22(G)(3) and then immediately enacting the ordinance with no public deliberation. The court rejected the village's argument that the OMA violation was mooted by the village's decision to pass a replacement ordinance, also observing any new legislation was not before the court.

{¶20} In granting summary judgment to the landowners, the court found they were entitled to a declaratory judgment on their illegal ordinance claims and issued a permanent injunction against enforcement of the ordinance and the power of attorney, concluding they were void and unenforceable. The court assessed costs to the village and declared all other issues moot, except for the landowners' claim for "damages" under R.C. 121.22(I)(2)(a) (which mandates courts costs, a $500 civil forfeiture, and attorney fees unless the court makes certain determinations). On that matter, the court set a non-oral hearing date with a schedule for filing any affidavits and arguments.

{¶21} Each October 4, 2023 entry was labeled a final appealable order and contained Civ.R. 54(B) language, "there is no just reason for delay." The village filed a timely notice of appeal on October 30, 2023. After the village's brief was filed, North Township sought a time extension along with the other landowners; however, North Township later provided notice that it would not be filing an appellee's brief.

A declaratory judgment on liability is made in a special proceeding and distinct from a liability decision in a standard civil action. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17-23 (1989) (where both sides sought declaratory judgment, the entry finding insurance coverage but not yet addressing damages was a final appealable order due to Civ.R. 54(B) "no just reason for delay" language), citing R.C. 2505.02(B)(2); R.C. 2721.02(A) ("courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed" and "[t]he declaration has the effect of a final judgment or decree"); see also R.C. 2721.03 (declaration of rights, status, or other legal relations under an ordinance). A party whose pleading requested attorney fees pursuant to a statute "may wait until after entry of a judgment on the other claims in the case to file its motion for attorney fees" and the judgment on those other claims is a final appealable order if it contains Civ.R. 54(B) language. Internatl. Bd. of Elec. Workers v. Vaughn Indus., L.L.C., 2007-Ohio-6439, ¶ 3, 9, 16-17, fn.1, citing Urso v. Compact Cars, Inc., 2005-Ohio-6292, ¶ 5 (11th Dist.) ("It is well-settled law that when attorney fees are requested in the complaint, there is no final appealable order until those fees have been addressed by the trial court unless the court utilizes Civ.R. 54(B) language.").

OPEN MEETINGS ACT

{¶22} The Open Meetings Act is contained in R.C. 121.22, which "shall be liberally construed to require public officials to take official action and to conduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law." R.C. 121.22(A). The village council is a public body. R.C. 121.22(B)(1). "All meetings of any public body are declared to be public meetings open to the public at all times." R.C. 121.22(C).

{¶23} An executive session may be held during a regular or special meeting for limited purposes, including in pertinent part, "Conferences with an attorney for the public body concerning disputes involving the public body that are the subject of pending or imminent court action . . ." R.C. 121.22(G)(3). "[T]he motion and vote to hold that executive session shall state which one or more of the approved matters listed in those divisions are to be considered at the executive session." R.C. 121.22(G).

A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body. A resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid unless the deliberations were for a purpose specifically authorized in division (G) or (J) of this section and conducted at an executive session held in compliance with this section. A resolution, rule, or formal action adopted in an open meeting is invalid if the public body that adopted the resolution, rule, or formal action violated division (F) of this section.
R.C. 121.22(H). The cited division (J) relates only to a veteran's commission. The cited division (F) ensures proper notice of meetings.

{¶24} "Any person may bring an action to enforce this section." R.C. 121.22(I)(1) The statute of limitations for said action is two years after the date of an alleged violation or a threatened violation. id. "Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions." Id.

{¶25} Upon such injunction, "the court shall order the public body that it enjoins to pay a civil forfeiture of five hundred dollars to the party that sought the injunction and shall award to that party all court costs and, subject to reduction as described in division (I)(2) of this section, reasonable attorney's fees." R.C. 121.22(I)(2)(a). Still, the court has discretion to reduce or eliminate an award of attorney fees if the court makes two determinations set forth in the statute. R.C. 121.22(I)(2)(a)(i)-(ii).

{¶26} "Irreparable harm and prejudice to the party that sought the injunction shall be conclusively and irrebuttably presumed upon proof of a violation or threatened violation of this section." R.C. 121.22(I)(3). "A member of a public body who knowingly violates an injunction issued pursuant to division (I)(1) of this section may be removed from office by an action brought in the court of common pleas for that purpose by the prosecuting attorney or the attorney general." R.C. 121.22(I)(4).

ASSIGNMENT OF ERROR ONE

{¶27} The village's first assignment of error contends:

"THE TRIAL COURT ERRED IN RENDERING JUDGMENT ON AN ALLEGED OPEN MEETINGS ACT VIOLATION, INASMUCH AS RESCISSION OF THE CONTESTED ORDINANCE RENDERED THE CLAIM MOOT."

{¶28} After the landowners' complaint was amended to add the OMA claim, which was revealed during discovery and set forth in their summary judgment filings, the village filed a supplemental memorandum in opposition to summary judgment as to the OMA claim on September 13, 2023. In pertinent part, the village argued the OMA claim was about to become moot, citing the village administrator's affidavit. He stated a replacement ordinance (Ordinance 2023-003) was discussed in a public session by the village council, was subjected to three readings, and was on the agenda for consideration of passage at a regular meeting scheduled for September 13, 2023, during which he expected the new ordinance to be approved. He noted the proposed ordinance expressly rescinded Ordinance 2021-007.

{¶29} The proposed ordinance was attached to the affidavit. It provided for a notice giving the extraterritorial customers 90 days to return the new agreements before services are terminated (instead of the prior 30 days). In doing so, the ordinance cited the report of the landowners' expert about the difficulty in establishing alternative service. The proposed ordinance also amended the village's utility regulations to add noncompliance with the ordinance as a reason for termination of services (addressing another argument raised by the landowners' filings). In addition, the proposed ordinance provided the consent to annexation could be in the form utilized by the prior ordinance (which included the contested power of attorney) or in any other form sufficient to petition for annexation of the landowner's property.

{¶30} The trial court rejected the village's argument that any OMA violations were mooted by the village's proposal to pass a replacement ordinance with proper OMA procedures. The court also observed any new legislation was not before the court. On appeal, the village contends an ordinance passed in violation of the OMA must remain in force at the time of judgment in order for a court to invalidate it under the OMA, claiming the passing of the new ordinance left the OMA claim moot.

{¶31} A case may be moot where a party seeks a judgment that will not have a practical effect because there is no longer a live or actual controversy. State ex rel. Crilley v. Lowellville Bd. of Edn., 2021-Ohio-3333, ¶ 22 (7th Dist.) (a board "action" during a special meeting held without specific notice of the purpose of the meeting in violation of the OMA was considered to lack legal significance because the superintendent had already instituted the action under his unilateral authority and the school year was over, but the case was remanded for a decision on attorney fees under the OMA for said violation, which was thus not considered moot). Nevertheless, a court may proceed to address a moot issue if it is capable of repetition yet evading review or it addresses a matter of great public or general interest. Id. at ¶ 22-23, citing In re Appeal of Huffer, 47 Ohio St.3d 12, 14 (1989).

{¶32} The village quotes a Supreme Court case concerning legislative amendments mooting prior legal challenges: "Although a case may present a live dispute at the time it is filed, subsequent events may transform it into one involving only a hypothetical dispute. One example is when a party alleges that a law is unconstitutional and the law at issue is repealed or materially amended while the case is underway." Highland Tavern, LLC. v. DeWine, 2023-Ohio-2577, ¶ 28 (finding a declaratory judgment action on the constitutionality of an emergency state liquor commission rule restricting sale hours during the pandemic became moot when the rule expired).

{¶33} Appellees initially point out, an adopted replacement ordinance was not before the trial court when its decision was rendered; only a proposed ordinance was provided to the court. Regardless, Appellees point out the existence of the OMA and its remedies for violations makes an OMA claim distinct from a claim set forth in an original action or standard civil action challenging a legislative action (when it comes to a mootness argument based on post-complaint repeal of the legislative act). They cite a case where the village council violated the OMA by casting secret ballots to vote for an officer and the village claimed the OMA violation was moot because the officer's term had since expired. State ex rel. More Bratenahl v. Village of Bratenahl, 2019-Ohio-3233, ¶ 20-22.

{¶34} The Supreme Court concluded the plain language of the OMA refuted the village's claim of mootness. Id. at ¶ 22-23. For instance, the statute provides the action to enforce the OMA violation may be brought by any person within two years from a violation or a threatened violation. Id. at ¶ 23, citing R.C. 121.22(I)(1)(a). "Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions." Id. Citing these provisions, the Court had "little difficulty concluding that the matter is not moot" as the mandated injunction for a violation or threatened violation anticipates the claim will proceed even in the face of an expired board action. Id.

{¶35} Other notable statutory provisions further support a conclusion that an OMA violation is not mooted by new meetings. "Irreparable harm and prejudice to the party that sought the injunction shall be conclusively and irrebuttably presumed upon proof of a violation or threatened violation of this section." R.C. 121.22(I)(3). The statute additionally directs a monetary remedy for the party bringing the action once a violation or threatened violation is proven, with a specific method for eliminating attorney fees that does not include a replacement meeting or ordinance (and that does not allow elimination of court costs or the civil forfeiture). R.C. 121.22(I)(2)(a). Moreover, a member of the public body who knowingly violates an injunction issued under (I)(1) may be removed from office by the common pleas court in an action by the prosecutor or attorney general. R.C. 121.22(I)(4).

{¶36} In accordance, OMA violations would not be mooted by a replacement ordinance. Even if a specific challenge to the enforceability of an ordinance based on its statutory invalidity could be considered technically moot due to a replacement ordinance, the OMA violation is not moot for purposes of imposing the remedy provided by the OMA for violations and threatened violations. In other words, the elimination of an ordinance may make that ordinance moot but does not retroactively cure the OMA violation and does not make an OMA action moot so as to avoid the monetary award called for by R.C. 121.22(I)(2)(a). See Bratenahl, 2019-Ohio-3233; Crilley, 2021-Ohio-3333 (7th Dist.) (even if a contested board resolution no longer applied after the end of the school year, a monetary award under the OMA was still available).

{¶37} As the Fifth District observed when finding OMA issues were not moot, "R.C. 121.22(I)(1) requires that the court issue an injunction where a violation of the statute has been proven. It is irrelevant whether the injunction is actually and currently necessary to prevent a future harm." Doran v. Northmont Bd. of Edn., 2003-Ohio-4084, ¶ 20 (5th Dist.); accord State ex rel. Patrick Bros. v. Putnam Cty. Bd. of Commrs., 2014-Ohio-2717, ¶ 38 (3d Dist.) ("argument that an injunction should be denied because they have passed new resolutions creating policies for notice and minutes is not well taken"), citing McVey v. Carthage Twp. Trustees, 2005-Ohio-2869, ¶ 9 (5th Dist.) ("Because the statute clearly provides that an injunction is to be issued upon finding a violation of the Sunshine Law, it is irrelevant that the [public body has] nullified their prior action.").

{¶38} Contrary to the village's first assignment of error, the trial court did not err in rendering judgment on the OMA violation instead of finding it moot.

{¶39} Lastly, we observe the village's reply brief incorporates arguments to support this assignment of error that were set forth in the village's initial brief under the second assignment of error about the type of injunction issued. We address this topic in the next assignment of error, where originally raised.

ASSIGNMENT OF ERROR TWO

{¶40} The village's second assignment of error alleges:

"THE TRIAL COURT ERRED IN RESERVING CONSIDERATION OF ANY CLAIM FOR FORFEITURE OR ATTORNEY'S FEES, SINCE THE TRIAL COURT DID NOT ENTER ANY INJUNCTION UNDER R.C. 121.22(I)."

{¶41} The village argues the trial court issued an injunction under division (H) of R.C. 121.22, rather than under (I)(1), and thus no monetary award would be justified because the award referred to in (I)(2) only applies to an injunction issued under (I)(1). The village notes the landowners did not file a cross-appeal seeking to change the trial court's judgment to include an injunction under division (I) (which permits a monetary award). Likewise, the village construes the landowners' pleadings and other filings as only requesting an injunction under division (H), claiming the landowners therefore waived any claim to a monetary award under division (I)(2).

{¶42} Division (H), quoted in full in a prior section above, includes the following statement: "A resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid unless the deliberations were for a purpose specifically authorized in division (G) or (J) of this section and conducted at an executive session held in compliance with this section." R.C. 121.22(H). The next division provides:

(I)(1) Any person may bring an action to enforce this section. An action under division (I)(1) of this section shall be brought within two years after the date of the alleged violation or threatened violation. Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions. (I)(2)(a) If the court of common pleas issues an injunction pursuant to division (I)(1) of this section, the court shall order the public body that it enjoins to pay a civil forfeiture of five hundred dollars to the party that sought the injunction and shall award to that party all court costs and, subject to reduction as described in division (I)(2) of this section, reasonable attorney's fees. * * *
R.C. 121.22(I) (then listing determinations for exercising discretion to reduce or refuse to award attorney fees).

{¶43} Contrary to the village's suggestion, this scheme does not specify two different kinds of injunctions for OMA violations, one subject to a monetary award and one not subject to a monetary award. Division (H) declares that the ordinance issued in violation of the OMA "is invalid" and does not refer to an injunction. The OMA injunction is specified in division (I), and the issuance of an injunction is mandatory upon finding proof of a violation or threatened violation. R.C. 121.22(I)(1) ("shall issue an injunction to compel the members of the public body to comply with its provisions"), (I)(2)(a) (the "basis of the injunction" is "the violation or threatened violation").

When the statute of limitations within R.C. 121.22(I)(1) states "[a]n action under division (I)(1) of this section" must be brought within two years of the violation or threatened violation, the action to which it is referring is the "action to enforce this section" (broadly set forth in the first sentence of the division). Consistent with the entire Ohio Revised Code, this statute plainly uses "section" to refer to the entire statute (R.C. 121.22), with (I) being a division of the section.

{¶44} In addressing the OMA violation, the landowners' amended complaint quoted R.C. 121.22(H) to show the ordinance was statutorily considered "invalid" due to the violation. See Amended Complaint, ¶ 117-118. They accordingly sought a declaration that Ordinance 2021-007 and the related power of attorney were invalid pursuant to division (H). Id. at ¶ 132. The amended complaint referred to the statutory presumption applicable to the injunction required by division (I), emphasizing that pursuant to division (I)(3), irreparable harm and prejudice are to be "conclusively and irrebuttably presumed" from the OMA violation. Id. at ¶ 127. The landowners asserted they were "entitled to an injunction prohibiting the Village of Scio from taking any action under the Shutoff Ordinance and prohibiting Village Council from deliberating on resolutions, rules, or formal action concerning the Services that are not open to the public unless such deliberation is authorized by O.R.C. 121.22(G) or (J)." Id. at ¶ 126. See also id. at ¶ 135 and ¶ 7-9 of prayer for relief section (asking for a permanent injunction against enforcement and any other injunctive relief deemed appropriate). Their complaint also expressly claimed entitlement to civil forfeiture, court costs, and attorney fees under division (I)(2)(a).

{¶45} Accordingly, the landowners did not waive injunctive relief under division (I)(1) of R.C. 121.22 or the corresponding entitlement to a monetary award under division (I)(2). Furthermore, the issuance of an injunction was mandatory upon finding proof of a violation or threatened violation of the OMA. R.C. 121.22(I)(1).

{¶46} As for the village's argument about the language used in the trial court's judgment, it is clear the trial court issued an injunction under R.C. 121.22(I)(1) due to an OMA violation, which in turn opened the door to the monetary award under R.C. 121.22(I)(2)(a). We begin by recognizing the village's argument is essentially based on the term "its" in the following portion of (I)(1): "Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions." The village interprets "its" as referring to the statute and "its provisions" as referring to the statute as a whole, rather than to the common pleas court's injunction, which is the immediately preceding subject of the sentence. See Apt.Br. at 9 (inserting "[R.C. 121.22]" after "its").

{¶47} Although the village does not analyze the meaning of the term, we acknowledge the Supreme Court has read "its" in this manner (as a reference to the statute). See Ames v. Rootstown Twp. Bd. of Trustees, 2022-Ohio-4605, ¶ 20. However, in doing so, the Supreme Court did not limit the available language for use by the court issuing the OMA injunction. "[W]hile R.C. 121.22(I)(1) requires the trial court to issue 'an injunction to compel the members of the public body to comply with [the] provisions' of the OMA, these well-established principles that we have articulated in our caselaw still afford the trial court discretion in crafting that relief." Id. Accordingly, the Court applied its general injunction precedent to OMA cases to find "trial courts have significant discretion when deciding on the terms to be included in an injunction." Id. (noting a court may "presume that the General Assembly knows of the state of the common law when it enacts legislation").

{¶48} Furthermore, our evaluation of the judgment granting an injunction is not limited to the one sentence cited by the village but is to be evaluated upon reading the judgment entry as a whole. See Local 4501, Communications Workers of America v. Ohio State Univ., No. 82AP-493 (10th Dist.) ("It is clear from the entry that the injunction was granted to enforce the rights stated in the preceding paragraphs of the judgment entry."), applying Civ.R. 65(D). Pursuant to R.C. 121.22(A), the statute "shall be liberally construed" to ensure open meetings when required. The trial court's entry granting summary judgment to the landowners emphasized the purpose of the OMA was to ensure elected officials are accountable by prohibiting secret deliberations on public issues. The court pointed to law specifying an ordinance is invalid if adopted in violation of the OMA, citing Bratenahl, 2019-Ohio-3233, quoting R.C. 121.22(H). The trial court explicitly found the village violated the OMA by calling an executive session while claiming it was to discuss "pending litigation" when no attorney was present as required by R.C. 121.22(G)(3) and by failing to engage in public deliberation on the ordinance as required by R.C. 121.22(H).

{¶49} Based on the village's violation of the OMA, the court granted summary judgment to the landowners and issued a declaratory judgment finding Ordinance 2021-007 was an "illegal Shutoff Ordinance." The entry proceeded to state, "This Court grants a permanent injunction against the enforcement of the Shutoff Ordinance and the Irrevocable Powers of Attorney, finding the same void and unenforceable." The court then specifically cited R.C. 121.22(I)(2)(a) in discussing the available monetary award. Lastly, there was no need to find "irreparable harm and prejudice" because the statute mandates these items "shall be conclusively and irrebuttably presumed upon proof of a violation or threatened violation of this section." R.C. 121.22(I)(3).

The contemporaneous entry denying the village's request for summary judgment, similarly stated: "The Plaintiffs are granted a permanent injunction against the enforcement of Ordinance 2021-007 and the Irrevocable Powers of Attorney are rendered void and unenforceable."

{¶50} Because the trial court found a violation of the OMA, the court was required to issue an injunction. R.C. 121.22(I)(1). After specifying the OMA violations and declaring the ordinance unenforceable due to the specified OMA violations, the court issued a permanent injunction enjoining the village council from enforcing the ordinance and any resulting power of attorney. The statute does not prescribe talismanic words to ensure the OMA injunction will qualify as one issued under (I)(1) and to thus invoke the corresponding monetary award in division (I)(2). Upon finding an OMA violation, the court complied with its statutory obligation, to "issue an injunction to compel the members of the public body to comply with its provisions." R.C. 121.22(I)(1). Read as a whole, the court's declaratory OMA findings and the issuance of an injunction based on those findings sufficiently opened the door to the monetary remedy part of the OMA.

{¶51} In addition, to the extent the village believes the trial court should have used broader language in the sentence imposing a permanent injunction so as to generally enjoin future violations of the OMA, this would not bar a monetary award for the specific OMA violations discussed in the entry in this OMA action. Even assuming the judgment's language was narrower than any statutorily-contemplated order on future compliance with the OMA, a more specific entry detailing specific OMA violations and enjoining enforcement of the invalidated ordinance (and any resulting power of attorney) would not prejudice the village in a case seeking a monetary award for acting in violation of the OMA (a finding that is not challenged on appeal). As set forth above, the crafting of the injunction was within the trial court's discretion. Ames, 2022-Ohio-4605, at ¶ 20. Therefore, the landowners need not cross-appeal to seek a broader injunction in order to ensure conduct at future council actions on all possible subjects is specifically covered in order to recover the monetary award available for the OMA violations at issue.

{¶52} In summary, the language of the judgment entry demonstrated an OMA violation entitling the landowners to an injunction under (I)(1) and a corresponding monetary award under R.C. 121.22(I)(2)(a) (which includes attorney fees). In accordance, this assignment of error is overruled.

ASSIGNMENT OF ERROR THREE

{¶53} The village's third assignment of error provides:

"THE TRIAL COURT ERRED WHEN IT INFERRED ENTERING A DECLARATORY JUDGMENT ON ALL MOOT CLAIMS FOR DECLARATORY RELIEF, WITHOUT EXPRESSLY DETERMINING ANY RIGHTS, DUTIES, OR OBLIGATIONS OF THE PARTIES AND WITHOUT ANY CONSTRUCTION OF THE LAW UNDER CONSIDERATION."

{¶54} In this assignment of error, the village expresses concern over the trial court's reference to "all claims" in the sentence of the entry granting declaratory judgment for the landowners. In case we find the trial court impliedly granted judgment on the landowners' constitutional claims challenging the ordinance, the village asserts the constitutional claims should have been considered moot because the ordinance was found to be invalid under the OMA.

{¶55} North Township agreed below that the OMA violations rendered the landowners' other claims and Scio's counterclaim moot. (6/22/23 North Twp. Reply at 2, 8, 10). Under their response to this assignment of error, the other landowners (those who filed an appellee's brief on appeal) do not expressly argue we should construe the trial court's "all claims" language as a declaratory judgment on their non-OMA claims. However, they somewhat imply this argument in responding to this assignment of error (and/or while responding to the village's fourth "conditional" assignment of error). For instance, they observe an appellate court may supply the declaration the trial court should have rendered

{¶56} As the village points out, a court issuing a declaratory judgment must expressly declare the parties' rights, obligations, and responsibilities, affirmatively or negatively. John Fithian Contracting Co. v. City of Salem, 2008-Ohio-5055, ¶ 12 (7th Dist.), citing R.C. 2721.02(A). "That is, the court's function is to declare the parties' rights and set forth its construction of the law under consideration." Id. (unlike a regular civil action, where a summary judgment can be generally stated, a judgment disposing of a declaratory action must be more detailed). Nevertheless, in the cited case, we upheld the sufficiency of the entry in a declaratory judgment action where it did "not require us to assume the trial court's intentions [because] the court's holding and even the reasons behind it [were] ascertainable." Id. at ¶ 16-17.

{¶57} In general, courts should refuse to address issues of constitutionality unless absolutely necessary. In re D.S., 2016-Ohio-7369, ¶ 13 (where the Supreme Court found a statutory violation and refused to address the constitutional question); State v. Talty, 2004-Ohio-4888, ¶ 9. We outlined above how a claim may become moot where a party seeks judgment that will not have a practical effect because there is no longer a live or actual controversy. See Crilley, 2021-Ohio-3333, at ¶ 22 (7th Dist.) (without mooting the OMA remedy). A court may address a moot issue if it is capable of repetition yet evading review or if it addresses a matter of great public or general interest. Id. at ¶ 22-23, citing Huffer, 47 Ohio St.3d at 14.

{¶58} The trial court's "all claims" statement at issue in this assignment of error must be read in context of the entire judgment. Earlier in the entry, the court cited OMA law and made factual findings relevant to said law, but the court did not cite constitutional (or contractual) principles related to the landowners' non-OMA claims. The court emphasized the village held an executive session purportedly for pending litigation but without an attorney present in violation of R.C. 121.22(G)(3) and the village adopted the ordinance without public deliberation in violation of R.C. 121.22(H). The court declared this conduct "violated the Open Meetings Act" (a conclusion that is not contested on appeal). We stop to point out the court did not say the village breached a contract or violated any constitutional principle raised by the landowners' complaint or summary judgment filings.

{¶59} The judgment entry then used the transitional term "Wherefore" to show the OMA was the reason why the "Court makes the following order" (at which point the court granted summary judgment, declaratory judgment, and a permanent injunction, all in favor of the landowners). Specifically, after granting summary judgment for the landowners based on the OMA violations, the court stated, "Having so found, Plaintiff Landowners and Plaintiff North Township Board of Trustees are entitled to declaratory judgment on all claims against the Village of Scio for its illegal Shutoff Ordinance being Ordinance 2021-007." Although the court used the phrase "all claims," this declaratory judgment was on the claims against the village "for its illegal" ordinance as specified in the entry. The language "Having so found" further demonstrated the court was referring to the claims related to the statutory invalidation of the ordinance due to the specifically discussed OMA violations. Just as the court did not cite contractual or constitutional principles when it cited OMA law, the court did not issue a declaration about an "unconstitutional" ordinance or mention violations of due process or free speech (nor did the court mention a breach of contract existed).

{¶60} Moreover, the very next sentence confirms the court did not rule on the landowners' constitutional (or contractual) claims: "This Court finds all other issues Moot aside from any claim by Plaintiffs for damages * * *." (Emphasis added.) (10/4/23 J.E.) (granting summary judgment to landowners). In subsequently referring to the claim for damages, the court cited R.C. 121.22(I)(2)(a), which is the subdivision containing the OMA monetary award. As the trial court specifically held, the landowners' other claims became moot as a result of the invalidation of the ordinance enacted in violation of the OMA.

{¶61} Accordingly, contrary to the concern of the village (and contrary to any suggestion in the landowners' brief), the trial court did not issue a declaratory judgment on every claim contained in the landowners' complaint. Rather, the court issued a declaratory judgment on the claims asserting entitlement to a declaratory judgment, an injunction, and an OMA monetary award due to the village's violation of the OMA. As a result of this holding, the village's assignment of error claiming the trial court erred if it entered judgment on the other claims is overruled (as it was conditioned upon a scenario of this court construing the trial court's judgment as having ruled on the merits of every claim). Our decision here also affects the village's "conditional" assignment of error reviewed next.

"CONDITIONAL" ASSIGNMENT OF ERROR FOUR

{¶62} The village's final assignment of error conditionally argues:

"THE TRIAL COURT ERRED IN GENERALLY GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT AND DENYING APPELLANT'S CROSS-MOTIONS FOR SUMMARY JUDGMENT, AND IN ITS INTERLOCUTORY RULINGS WHICH IGNORED SETTLED LAW, TO APPELLANT'S PREJUDICE."

{¶63} The village argues that if the trial court intended to render a declaratory judgment on the landowners' non-OMA claims, then this ignored the village's authority to use its discretion to set the terms for selling its surplus water and sewer. The village points out the Supreme Court held a municipality may condition an extraterritorial customer's continued water and sewer services on annexation. Bakies, 2006-Ohio-1190, at ¶ 17-27. The village states the landowners were not entitled to judgment on their contract claim because a municipality is not subject to implied contract and "[e]ven where there is a contract, but the contract provides no termination date, either party to the agreement may terminate it upon reasonable notice." Id. at ¶ 20.

{¶64} On the topic of due process, they claim the non-resident landowners had no property rights in the village's services, arguing the annexation requirement is a valid exercise of police power and bears a rational relationship to the welfare of the village's citizens. As to free speech, the village says the ordinance was facially content-neutral and was not retaliatory or compelling speech where the Supreme Court allows conditioning extraterritorial services on annexation. The landowners argue against each of the village's conditional arguments consistent with their complaint and summary judgment filings.

{¶65} Because the trial court's declaratory judgment was rendered in favor of the landowners only on the OMA issue, the merits of the constitutional issues were never reached by the trial court in a final order. The court did not alternatively declare the ordinance violated the landowners' contractual, due process, or free speech rights. Rather, the court expressly found these issues moot due to the declaration that the ordinance was invalid under the OMA as a result of the village's conduct in violation of OMA mandates. No mootness exception was found (and none is briefed on appeal on this issue).

{¶66} It is well-established that although the reviewing court applies a de novo review to a trial court's summary judgment ruling, we need not address the various alternative issues raised in summary judgment motions but not considered by the trial court. Hartline v. Atkinson, 2020-Ohio-5605, ¶ 19 (7th Dist.); Fullum v. Columbiana Cty. Coroner, 2014-Ohio-5512, ¶ 41-46 (7th Dist.); Conny Farms, Ltd. v. Ball Resources, Inc., 2011-Ohio-5472, ¶ 15 (7th Dist.), citing Mills-Jennings, Inc. v. Dept. of Liquor Control, 70 Ohio St.2d 95, 99 (1982). "In other words, if a party raises ten arguments in a summary judgment motion, the trial court adopts the first one, and the appellant assigns that position as error, the appellee cannot require this court to address the nine other arguments by arguing that the judgment can be affirmed on other grounds that the trial court never reached." Yoskey v. Eric Petroleum, 2014-Ohio-3790, ¶ 41 (7th Dist.), citing, e.g., Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360 (1992) (de novo review still entails a review of what the trial court decided, and the trial court's initial determination cannot be replaced by appellate court's de novo review).

{¶67} This principle is applied even in cases where the appellate court reverses the trial court's decision (remanding to address the other issues). Here, the trial court's decision granting declaratory judgment and an injunction due to the OMA violation is affirmed, and there is no need to address unaddressed challenges to an ordinance rendered invalid due to violation of the OMA. The other issues with the content of the ordinance were found to be moot at the trial court level and remain moot upon our decision affirming the trial court's OMA judgment. Any decision by this court on the village's "conditional" assignment of error would be advisory. The arguments in the village's "conditional" assignment of error need not be ruled upon by this court as they were set forth for our review only in case we decided the trial court rendered a declaratory judgment on all constitutional and contractual arguments as well as the OMA arguments.

{¶68} For the foregoing reasons, the trial court's judgment is affirmed.

Hanni, J, concurs

Dickey, J, concurs

For the reasons stated in the Opinion rendered herein, the assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Harrison County, Ohio, is affirmed. Costs to be taxed against the Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.


Summaries of

Myers v. The Vill. of SCIO

Court of Appeals of Ohio, Seventh District, Harrison
Jul 31, 2024
2024 Ohio 2982 (Ohio Ct. App. 2024)
Case details for

Myers v. The Vill. of SCIO

Case Details

Full title:RONALD J. MYERS, AS CO-TRUSTEE OF THE MYERS FAMILY DECLARATION OF TRUST et…

Court:Court of Appeals of Ohio, Seventh District, Harrison

Date published: Jul 31, 2024

Citations

2024 Ohio 2982 (Ohio Ct. App. 2024)