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McNair v. City of Brecksville

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 31, 2017

EBEN O. MCNAIR, IV PLAINTIFF-APPELLANT
v.
CITY OF BRECKSVILLE, ET AL. DEFENDANTS-APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-850799

          ATTORNEYS FOR APPELLANT Anand N. Misra The Misra Law Firm, L.L.C. Robert S. Belovich.

          ATTORNEYS FOR APPELLEES Shana Samson Mark B. Marong David J. Matty Matty Henrikson & Greve L.L.C.

          For Virginia Price Mark B. Marong David J. Matty Matty Henrikson & Greve L.L.C.

          For Regional Income Tax Agency Amy L. Arrighi Amber E. Greenleaf Duber Regional Income Tax Agency.

          BEFORE: Laster Mays, J., Boyle, P.J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, J.

         {¶1} Plaintiff-appellant, Eben O. McNair, IV ("McNair"), appeals the trial court's grant of motions for judgment on the pleadings in favor of defendants-appellees Virginia Price ("Price"), Regional Income Tax Agency ("RITA") and the city of Brecksville ("Brecksville"), rejecting McNair's challenge that a city tax ordinance is unlawful. We affirm the trial court's decision.

         I. Background and Facts

         {¶2} Brecksville is a home rule municipality organized under a city charter ("Charter") pursuant to Ohio Constitution, Article XVIII, Section 3, known as the Home Rule Amendment ("Amendment"). The Amendment vests municipalities with the authority to "exercise all powers of local self government and to adopt and enforce within their limits such local police, sanitary, and other similar regulations, as are not in conflict with general laws." Id.

         {¶3} At the October 21, 2014 meeting of the Brecksville City Council, Ordinance 4890 was introduced, "amending Section 1519.02 of the Taxation Code to reduce the allowable Municipal Income Tax Credit for a limited period of time and declaring an emergency" ("Ordinance"). The Ordinance reduced the tax credit for Brecksville residents who were paying employment taxes on income earned in their city of employment from 100 percent to 87.50 percent, effective January 1, 2015. The stated purpose of the Ordinance is to "effectively fund the necessary functions of the city of Brecksville."

         {¶4} McNair is a Brecksville resident whose law offices are located in Cleveland. Prior to enactment of the Ordinance, McNair did not pay Brecksville income taxes due to the 100 percent credit.

         {¶5} The meeting minutes state that the Ordinance "was read in its entirety." The second reading was conducted November 4, 2014 and unanimously passed to third reading. The third reading was tabled at the November 18, 2014 meeting. On December 16, 2014, after considerable public comment, the Ordinance passed by a four-to-three vote.

         {¶6} On August 26, 2015, McNair directed a letter to Brecksville Law Director David Matty ("Matty") informing him that the Ordinance was not properly enacted as an emergency measure and requesting that enforcement efforts cease. On September 2, 2015, Matty declined to suspend enforcement, citing the last sentence of the Ordinance's emergency clause that states the "Ordinance shall be in full force and effect immediately upon its adoption by Council and approval by the Mayor, otherwise, from and after the earliest period allowed by law."

         {¶7} On September 8, 2015, McNair filed a taxpayer's action for declaratory judgment and class action relief against Brecksville, Price, and RITA. McNair sought Civ.R. 23 class certification based on commonality of law and fact as to whether the Ordinance was lawfully enacted, whether the underlying tax may be lawfully collected, and as to any affirmative defenses that may be asserted by appellees.

         {¶8} McNair proffered six claims: (1) declaratory judgment regarding construction or validity of a municipal ordinance and declaration of rights, status, or other legal relations (R.C. 2721.03); (2) declaratory judgment for return of money collected, pursuant to R.C. 733.59 and R.C. 2721.01 et seq.; (3) unlawful taking of property without compensation (Ohio Constitution, Article I, Section 19); (4) unjust enrichment; (5) enforcement injunctive relief; and (6) liability for public money received or collected (R.C. 9.39). Brecksville and Price admitted to the tax imposition and collection with the affirmative defenses lack of standing and statute of limitations. RITA admitted to the agency relationship with Brecksville.

         {¶9} On November 19, 2015, Brecksville and Price filed a Civ.R. 12(C) motion for judgment on the pleadings ("motion") that was opposed by McNair. Dispositive motions and class certification briefs were due by April 8, 2016. On that date, the court granted the motion without opinion. McNair's motion for reconsideration was denied May 11, 2016. RITA also filed a motion that was granted on ...


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