OHIOANS FOR CONCEALED CARRY, INC., et al. Appellants
CITY OF OBERLIN, OHIO Appellee
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.
CLARK, Law Director, for Appellee.
DECISION AND JOURNAL
TIMOTHY P. CANNON JUDGE
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.
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.
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.
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.
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.
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
OCC has appealed, raising three "[i]ssue[s]" for
our review, which will be addressed out of sequence to
facilitate our analysis.
ASSIGNMENT OF ERROR II
[OBERLIN'S] LAST REMAINING ORDINANCE CONCERNING FIREARMS
IN CITY PARKS IS PROHIBITED BY R.C. 9.68.
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.
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).
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.
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.
The question before this Court is whether Oberlin Codified
Ordinance 927.07 ...