Court of Appeals of Ohio, Eighth District, Cuyahoga
EBEN O. MCNAIR, IV PLAINTIFF-APPELLANT
CITY OF BRECKSVILLE, ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
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.
Virginia Price Mark B. Marong David J. Matty Matty Henrikson
& Greve L.L.C.
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
LASTER MAYS, J.
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
Background and Facts
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
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."
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
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.
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."
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.
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
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