Paula J. Wilkins, Plaintiff-Appellant,
The Village of Harrisburg et al., Defendants-Appellees.
from the Franklin County Court of Common Pleas C.P.C. No.
J. Wilkins, pro se.
Peterson, Conners, Swisher & Peer LLP and Istvan Gajary,
for all appellees except Larry Taylor.
Law Firm, LPA, and David Watkins, for appellee Larry Taylor.
1} Plaintiff-appellant, Paula J. Wilkins, appeals
pro se from the March 28, 2017 judgment of the Franklin
County Court of Common Pleas dismissing her complaint against
defendants-appellees, the Village of Harrisburg and various
executive and legislative officers ("Harrisburg
defendants"). She also appeals from the March 20, 2017
judgment of the court of common pleas dismissing
defendant-appellee, Larry Taylor. For the reasons that
follow, we affirm in part and reverse in part the judgment of
the trial court.
FACTUAL AND PROCEDURAL HISTORY
2} On November 9, 2012, Wilkins filed her complaint alleging
irregularities related to the rezoning of Larry Taylor's
property in Harrisburg, Ohio. Wilkins sought injunctive
relief, declaratory judgment, mandamus, sanctions, and civil
damages from the Harrisburg defendants including the mayor,
members of the village council, its appointed fiscal officer,
and the owner of the property, Larry Taylor. Wilkins'
complaint contained three claims. The first claim was that
the village unlawfully passed Ordinance 0-1-10 to rezone land
owned by Larry Taylor. The second claim was that the village
unlawfully adopted Ordinance 0-2-10 to create the Community
Service II Zoning District. The third claim was that the
village, through its officials, willfully, knowingly, and
maliciously violated Wilkins' constitutional rights.
(Compl. at ¶ 82-97.)
Both the Harrisburg defendants and Taylor filed motions to
dismiss that were converted to motions for summary judgment.
The trial court granted summary judgment based on lack of
standing, and Wilkins appealed to this court.
4} On December 29, 2015, this court affirmed in part, finding
that Wilkins had failed to establish that she was entitled to
a writ of mandamus to order the Harrisburg defendants
"to not adopt rezoning ordinances or zoning
regulations." Wilkins v. Village of Harrisburg,
10th Dist. No. 14AP-1028, 2015-Ohio-5472, ¶ 16. This
court also reversed the judgment of the trial court in part,
remanding the matter for the trial court "to consider,
pursuant to the Civ.R. 12(B)(6) standard, whether appellant
has established standing by sufficiently pleading the
elements of injury and causation." Id. at
5} After remand, the Harrisburg defendants and Taylor renewed
their motions to dismiss based on lack of standing, and the
trial court denied those motions on June 30, 2016.
6} After the trial court's decision to deny the motions,
and as the March 6, 2017 trial date approached, the
Harrisburg defendants decided to rescind the ordinances at
issue in the case. Larry Taylor filed a motion in limine on
February 1, 2017, seeking dismissal on the basis that the
ordinances had been or were being rescinded and that Wilkins
had not alleged any wrongdoing by Taylor. The Harrisburg
defendants filed a motion for summary judgment based on the
affirmative defense of sovereign immunity on February 27,
2017. On March 1, 2017, the trial court denied the motion for
summary judgment as it was filed well past the September 16,
2016 dispositive motion cut-off date and shortly before the
trial date of March 6, 2017. The motion in limine was not
7} The case was assigned to a visiting judge on the morning
of trial. (Mar. 6, 2017 Order of Assignment of Visiting
Judge.) On the day of trial, Taylor apparently renewed his
motion to dismiss, and the trial court heard arguments from
all the parties. "Counsel for Larry Taylor has filed a
motion to dismiss." (Mar. 6, 2017 Tr. at 2.) At oral
argument before this court, counsel for Larry Taylor
represented that he sought reconsideration of his prior
motion to dismiss.
8} Taylor argued before the trial court that no claims were
ever stated against him. Wilkins responded that she named
Taylor as a necessary party because he was the property owner
who was seeking the rezoning at issue in the case.
9} The court asked Wilkins whether the case was now moot
since the Village of Harrisburg had rescinded the zoning
ordinances. Wilkins agreed that her first two claims were
moot, but stated that her third claim survived. (Mar. 6, 2017
Tr. at 12.)
10} The trial court granted Taylor's motion to dismiss
and then turned to the pending claims against the Village of
Harrisburg. (Tr. at 19.) The trial court indicated there was
also a motion to dismiss from the village. "Now
let's move on to the issue of The Village. We also have a
motion to dismiss versus The Village." Id. Our
review of the record does not indicate there was a pending
motion to dismiss, but at oral argument before this court,
counsel for the Harrisburg defendants represented there was
an oral motion before the court.
11} Counsel for the Harrisburg defendants argued that the
Village of Harrisburg was immune from an action for damages
pursuant to R.C. Chapter 2744 based on admissions in the
complaint that the defendants were either elected officials
or employees of the Village of Harrisburg, and that they
passed the ordinances in their official capacities as elected
officials of the village. Counsel directed the trial
court's attention to Elston v. Howland Local
School, 113 Ohio St.3d 314, 2007-Ohio-2070, a case that
sets forth a three-tiered analysis in determining whether a
political subdivision is immune from liability.
12} Wilkins responded that:
I can prove with my evidence that I have here today that The
Village of Harrisburg has operated since 2001 in a pattern of
maliciousness. They have done things in an arbitrary and
capricious manner. And this latest enactment of those
ordinances was deliberately done in a way to violate my due
(Tr. at 27.)
13} The trial court then allowed Wilkins to give a history of
the rezoning controversy. The trial court inquired as to
whether there was any legal authority that would negate
sovereign immunity. The trial court also inquired as to
whether the action was moot given that the ordinances were