Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ohioans for Concealed Carry, Inc. v. City of Oberlin

Court of Appeals of Ohio, Ninth District, Lorain

January 9, 2017

OHIOANS FOR CONCEALED CARRY, INC., et al. Appellants
v.
CITY OF OBERLIN, OHIO Appellee

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 13CV181618

. DAVID S. KESSLER, Attorney at Law, for Appellants.

          ABRAHAM CANTOR, Attorney at Law, for Appellee.

          JON D. CLARK, Law Director, for Appellee.

          DECISION AND JOURNAL

          TIMOTHY P. CANNON JUDGE

         {¶1} Plaintiffs-Appellants Ohioans for Concealed Carry, Inc., Brian J. Kuzawa, and Janae R. Kuzawa (collectively "OCC") appeal the judgment of the Lorain County Court of Common Pleas. For the reasons set forth below, we affirm in part, and reverse in part.

         I.

         {¶2} Mr. and Mrs. Kuzawa were frequent visitors to Oberlin city parks. On August 2, 2013, Mr. Kuzawa noticed a sign in an Oberlin park indicating that firearms were not permitted in the park. Mr. Kuzawa believed that the ordinance conflicted with R.C. 9.68 and contacted the police about it. He additionally brought the issue to the attention of Oberlin City Council and Ohioans for Concealed Carry, Inc., the latter of which he was a member. Ohioans for Concealed Carry, Inc., is a not-for-profit corporation that advocates for and protects the right of the people to keep and bear arms.

         {¶3} On October 1, 2013, OCC filed a complaint against Oberlin seeking a declaratory judgment that Oberlin Codified Ordinances 927.07 (prohibiting the possession of firearms in city parks and recreation areas) and 375.03 were unlawful and in violation of R.C. 9.68. OCC additionally sought a permanent injunction against the enforcement of the ordinances and a declaration that it had prevailed in a challenge to the ordinances and, therefore, was entitled to recover costs, expenses, and attorney fees pursuant to R.C. 9.68(B).

         {¶4} Shortly thereafter, on October 3, 2013, OCC amended its complaint, pointing out that Oberlin had amended the language of Oberlin Codified Ordinance 927.07 to prohibit the unlawful possession of firearms in city parks and recreation areas. Additionally, OCC alleged that Oberlin Codified Ordinances 927.07, 549.02, 549.04, 549.10, 549.12, as well as other unspecified ordinances, were unlawful and in violation of R.C. 9.68, and that it was entitled to declaratory relief, a permanent injunction, and attorney fees. Oberlin filed an answer and counterclaim for declaratory judgment, essentially agreeing that a controversy existed over whether Oberlin Codified Ordinance 927.07, as amended, was in conflict with R.C. 9.68. Oberlin attached a copy of the amended ordinance to its pleading which indicated that the prior version conflicted with R.C. 9.68. The amendment was enacted on September 16, 2013, and became effective October 16, 2013.

         {¶5} On November 18, 2013, Oberlin adopted a resolution repealing Oberlin Codified Ordinances 549.02 through 549.07, 549.10, and 549.12. Thereafter, Oberlin filed a motion for partial summary judgment asserting that the declaratory judgment action was moot with respect to any alleged conflict between R.C. 9.68 and the repealed ordinances. OCC opposed the motion and also filed a motion for summary judgment. OCC maintained that, because Oberlin repealed Oberlin Codified Ordinances 549.02 through 549.07, 549.10, and 549.12 after the case was commenced, OCC prevailed in a challenge to those ordinances and was entitled to an award of attorney fees. It additionally argued that Oberlin Codified Ordinance 927.07, as amended, violated R.C. 9.68. Finally, OCC sought a declaration that Oberlin Codified Ordinance 927.07, as amended, was unconstitutionally vague. In support of its motion for summary judgment, OCC submitted two affidavits and also minutes from several Oberlin City Council meetings in an effort to demonstrate that Oberlin repealed the ordinances because of the lawsuit. Subsequently, Oberlin filed another motion for summary judgment arguing that Oberlin Codified Ordinance 927.07, as amended, did not conflict with R.C. 9.68.

         {¶6} In ruling on the pending motions, the trial court determined that there was no longer a controversy involving the repealed ordinances, that Oberlin Codified Ordinance 927.07 was lawful and constitutional, and that, with respect to the award of attorney fees under R.C. 9.68(B), OCC was not a prevailing party, and therefore was not entitled to an award of attorney fees.

         {¶7} OCC has appealed, raising three "[i]ssue[s]" for our review, which will be addressed out of sequence to facilitate our analysis.[1]

         II.

ASSIGNMENT OF ERROR II
[OBERLIN'S] LAST REMAINING ORDINANCE CONCERNING FIREARMS IN CITY PARKS IS PROHIBITED BY R.C. []9.68.

         {¶8} In its second assignment of error, OCC argues that the trial court erred in concluding that the amended version of Oberlin Codified Ordinance 927.07 did not conflict with R.C. 9.68.

         {¶9} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts of the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).

         {¶10} Pursuant to Civ.R. 56(C), summary judgment is proper only if:

No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996). "If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied." Id. at 293. If the moving party fulfills this burden, then the burden shifts to the nonmoving party to prove that a genuine issue of material fact exists. Id.

         {¶11} With respect to actions for declaratory judgment, "an appellate court * * * should apply an abuse-of-discretion standard in regard to the trial court's holding concerning the appropriateness of the case for declaratory judgment, i.e., the matter's justiciability, and should apply a de novo standard of review in regard to the trial court's determination of legal issues in the case." Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, ¶ 1; Salim v. Smith, 9th Dist. Lorain No. 15CA010790, 2016-Ohio-2764, ¶ 21.

         {¶12} The question before this Court is whether Oberlin Codified Ordinance 927.07 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.