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Mollette v. Portsmouth City Council

November 19, 2008

TERESA MOLLETTE, ET AL. PLAINTIFFS- APPELLANTS/CROSS-APPELLEES,
v.
PORTSMOUTH CITY COUNCIL, ET AL., DEFENDANTS-APPELLEES/CROSS-APPELLANTS.



The opinion of the court was delivered by: Harsha, J.

DECISION AND JUDGMENT ENTRY

{¶1} Teresa and Robert Mollette brought this action alleging that the Portsmouth City Council violated the City Charter and the Open Meetings Act when it adopted an ordinance that authorized the Mayor to enter into negotiations to purchase a building. The Mollettes alleged that City Council reached its decision after deliberating in private sessions in violation of the Charter and the statute. In granting summary judgment in favor of the Mollettes, the trial court invalidated the ordinance and enjoined the City Council from deliberating in any executive sessions, i.e., closed to the public. Nonetheless, the Mollettes appeal and argue that the trial court erred in "discounting" its award of attorney fees by calculating them using a local fee structure, rather than using a statewide reasonable fee standard. However, we do not reach the merits of the Mollette's appeal because the cross-appeal is dispositive of this case.

{¶2} In their cross-appeal, the City argues that the Mollettes failed to file their complaint within the one-year time limitation of the statute dealing with certain tax payer actions. However, the Mollettes brought their action under the Open Meetings Act, which contains its own limitations period. Under rules of statutory construction, where two statutes of limitations could apply to a cause of action, the more specific prevails over the more general. Because the Open Meetings Act provision is the more specific statute, and because the right of action and the limitations period are found in the same subparagraph in the Open Meetings Act, we hold that the two-year statute of limitations found in that law applies to the Mollettes' action.

{¶3} Next, the City argues the Mollettes failed to properly commence their action before the statute of limitations expired because they named the City Council, an entity that lacked the capacity to be sued, as the sole defendant in their original complaint. The Ohio Rules of Civil Procedure provide that an action is commenced by the filing of a complaint if service is obtained upon the named defendant within one year after the filing of the complaint. When a defendant is improperly identified or unknown, the rules also allow a plaintiff to amend the complaint to name the proper party. But in order for this amendment to "relate back" to the initial filing date of the complaint, the plaintiff must have obtained service on a defendant with the capacity to be sued within the one-year period provided for commencing the action. Here, the Mollettes sued an entity without the capacity to be sued. And they failed to amend and serve their complaint on a party with the capacity to be sued within the one-year period. Thus, they failed to commence the suit as required by Civ.R. 3(A) and their amendment does not relate back. As a result, they failed to commence the action before the statute of limitations expired. Accordingly, the trial court should have dismissed their action.

I. Facts*fn1

{¶4} In early 2002, Portsmouth Mayor Greg Bauer informed members of the City Council that a local business would be closing its doors and that its downtown building was available to the City. The City Clerk set up two meetings with the Richard D. Marting Foundation representative, attorney Clay Johnson. The City Council members purposefully met with Johnson in groups of three so that there would not be a quorum for a council meeting. Various members of the City Council testified in depositions that they met in these groups of three because they did not want the meetings construed to be official council meetings. For instance, Councilman Howard E. Baughman III testified that the council "didn't want it even considered that we were making a decision at that time. * * * [Otherwise,] it would appear that we would deliberate on it, and we can't deliberate on it." Councilman Baughman testified that the council did not have discussions as a legislative body and that the meeting with Johnson and the tour of the building was "informational." Councilwoman Maddeline Carol Caudill explained that the council had met in two groups of three because "we cannot have a vote. And so if we had a full council meeting with them, it would have appeared that we were voting on something when we were not. We were only getting information." She explained that she did not remember any negotiations with Marting Foundation representatives at the meeting.

{¶5} Councilman James Kalb explained that the Open Meetings Act "was on everybody's mind. Any time there are more than three council members present * * *, that's one of the three criteria involved for the Sunshine Law.*fn2 " In his deposition testimony, Councilman Kalb explained that the City Council only received information about the building, including its condition, price, and availability. Councilwoman Ann S. Syndor clarified that "[i]t wasn't a meeting. It was a tour." Former councilwoman Barbara E. Halcomb testified that all that happened at the meeting is that the Marting Foundation representative gave a presentation regarding the organization and purpose of the foundation and that there was a question and answer session regarding the condition of the building.

{¶6} Later, the City Council did discuss the proposed purchase of the building in its formal sessions. However, the members of the City Council disagreed regarding how many times the City Council recessed into an "executive session." Councilman Baughman remembered the City Council conducting two executive sessions regarding the Marting's building. Councilwoman Caudill and Councilman Kalb remembered only one executive session. Councilwoman Syndor remembered there being several executive sessions, and Councilwoman Halcomb remembered more than one. The City Clerk, JoAnn Aeh, testified at the hearing on the parties' cross-motions for summary judgment that there had been only one executive session. She also testified that the council minutes only reflect one executive session taking place.

{¶7} On April 22, 2002, the City Council held a regular meeting. Even though the council's agenda did not disclose that it would discuss the purchase of the Marting's building, the City Council recessed into an executive session to discuss buying this property for use as city office space. After the City Council reconvened the public meeting, Councilman Pyles moved to add to the agenda an ordinance authorizing the mayor to negotiate a real estate purchase agreement for the Marting's building. The other council members agreed and provided a copy of the proposed ordinance to the members of the public. Subsequently, the City Clerk gave a first reading to the proposed ordinance. After voting to suspend the rule requiring three readings of the ordinance, the City Council adopted the ordinance.

{¶8} Three weeks later, on May 13, 2002, the City Council held another regular meeting. Like all of the City Council's regular meetings, this meeting consisted of a legislative session and a conference session. According to the minutes of the legislative session, the City Council did not discuss the purchase of the Marting's building. At the conclusion of the legislative session, the City Council held a conference session to discuss pending legislation. The agenda for the conference session included a letter from the mayor regarding the real estate purchase agreement for the Marting's building. Although conference sessions are open to the public, the City Council does not prepare minutes. Councilwoman Syndor testified that the City Council discussed the purchase of the building at length during the conference meeting.

{¶9} On May 29, 2002, the City Council held its next regular meeting. During the meeting, the City Council added an ordinance authorizing the mayor to enter into a real estate purchase agreement for the Marting's building "in an amount not to exceed $2,000,000 to be paid for from the proceeds of bond anticipation notes * * *" to the agenda for the legislative session. Subsequently, the City Clerk gave a first reading to this ordinance. The City Council voted to suspend the rule requiring three readings of the ordinance and adopted Ordinance 63-02. The City Clerk then gave a first reading to the ordinance authorizing the city to issue the $2,000,000 bond anticipation notes. After voting to suspend the three reading requirement, the council members also adopted this ordinance. The City Council passed both of these ordinances without public discussion at the May 29, 2002 meeting.

{¶10} On May 28, 2004, Teresa and Robert Mollette filed suit against "Portsmouth City Council" alleging that Ordinance 63-02 resulted from private deliberations in violation of the Portsmouth City Charter and R.C. 121.22. The City Council, represented by the city attorney, responded by filing an answer and a motion for judgment on the pleadings. In the motion, council argued that the one-year statute of limitations in R.C. 733.60 barred the Mollettes' claim. The Mollettes filed a response, arguing that the two-year statute of limitations in R.C. 121.22 governed their claim. In August 2004, the trial court scheduled the matter for an evidentiary hearing. The day before the hearing, the City Council filed a "hearing brief" requesting "summary judgment on the pleadings * * *." The trial court held a hearing at which the City Clerk and Mrs. Mollette testified. At the conclusion of the hearing, the court converted the City Council's motion for judgment on the pleadings into a motion for summary judgment. The Mollettes then filed a cross-motion for summary judgment. They supported their motion with the minutes from the council meetings in April and May, the testimony from the hearing, and the depositions of Mr. Baughman, Mrs. Caudill, Mr. Kalb, Mrs. Sydnor, and Mrs. Halcomb. One week after the Mollettes filed their cross-motion for summary judgment, the City Council filed a "formal" summary judgment motion supported by the same evidence relied upon by the Mollettes.

{¶11} In November 2004, the trial court denied the City Council's motion for summary judgment and granted summary judgment to the Mollettes. The court concluded that the cause of action arose under the Open Meetings Act and that the two-year statute of limitations in R.C. 121.22(I) applied. Additionally, the court concluded that Ordinance 63-02 resulted from private deliberations in violation of R.C. 121.22 and the Portsmouth City Charter. As a result, the court declared the ordinance and the resulting real estate purchase agreement invalid.

A. Mollette I

{¶12} The City Council appealed and the Mollettes cross-appealed. After receiving permission from the trial court to intervene as a defendant, the Marting Foundation also appealed. In this Court, the Foundation moved to reverse the trial court's judgment and to dismiss the complaint, arguing the City Council is not "sui juris" and lacked the capacity to be sued. Before we could rule on this motion, however, the Foundation dismissed its appeal. One week after the Foundation filed its motion, the City Council filed a similar motion. However, in July 2005, we dismissed the City Council's appeal and the Mollettes' cross-appeal for lack of a final appealable order.

{¶13} When the case returned to the trial court, the Mollettes sought leave to amend their complaint. In their motion, the Mollettes maintained that the City Council is sui juris, i.e., had the capacity to be sued. However, they argued in the alternative that they should be allowed to amend their complaint to name the City and the individual members of the City Council as defendants. The City Council opposed the motion and argued that the trial court should dismiss the case. In September 2005, the court denied the Mollettes' motion, finding that the amendment of the complaint was unnecessary. That same month, the court issued an injunction prohibiting the City Council from (1) going into executive session during its meetings and (2) holding private back-to-back meetings that, taken together, are attended by a majority of council members.

{¶14} In the meantime, the trial court granted the Mollettes' motion requesting attorney's fees. Furthermore, the court declined to reduce the award, finding that the City Council members knew that their actions violated R.C. 121.22 and the Charter. In the end, the court awarded the Mollettes a $500 civil forfeiture and $18,317.70 in attorney's fees. The trial court based the amount of attorney's fees on testimony establishing a reasonable hourly rate in Scioto County. The trial court's decision on attorney's fees disposed of the remaining issues in the case.

B. Mollette II

{¶15} The parties brought a second appeal, and we reversed the trial court's judgment. Concluding that a city council is not sui juris and cannot be sued in its own right absent statutory authority, we held that the judgment against the City Council in this case was void. Mollette v. Portsmouth City Council, 169 Ohio App.3d 557, 2006-Ohio-6289, 863 N.E.2d 1092, at ¶¶15, 24. We also held that the trial court abused its discretion in denying the Mollettes the opportunity to amend their complaint to name the city of Portsmouth and the individual members of the City Council as defendants. On the grounds that the City Council lacked standing to raise arguments on the behalf of the proper parties, i.e., the individual council members who had not yet been named to the case, we reserved judgment on the City Council's arguments that the Mollettes failed to timely commence this action.

{¶16} Upon remand, the Mollettes filed an amended complaint seeking to join the City and the individual members of the City Council. However, the amended complaint came more than one year after they initially filed suit. The Mollettes also amended their claim for relief in Count IV, dropping their request for mandamus relief and seeking an injunction ordering the City to comply with the Charter and to hold open meetings. The parties again filed cross-motions for summary judgment. The trial court decided that the Mollettes' amended complaint related back to the filing of the original complaint, and it incorporated and reaffirmed its prior entries concluding that the Charter prohibits executive sessions, enjoining the City from recessing into executive sessions, and awarding the Mollettes attorney's fees.

C. Mollette III

{¶17} The Mollettes now appeal the trial court's decision to award attorney's fees based upon a "local" reasonable hourly rate rather than a "statewide" reasonable hourly rate. The City filed a cross-appeal, challenging both the trial court's decision entering summary judgment in the Mollettes' favor, and the award of attorney's fees.

II. Assignments of Error

{¶18} The Mollettes' present one assignment of error: "The Trial Court committed plain error in reducing the amount of attorney fees granted to Plaintiff/Appellee/Cross-Appellants."

The City brings eight assignments of error:

1. "The trial court erred in finding as a matter of law that the Charter of the City of Portsmouth prohibited City Council from conducting executive sessions as its meetings."

2. "The trial court erred in finding as a matter of law that Portsmouth City Council violated the Sunshine Law ...


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