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Wilkins v. The Village of Harrisburg

Court of Appeals of Ohio, Tenth District

November 2, 2017

Paula J. Wilkins, Plaintiff-Appellant,
v.
The Village of Harrisburg et al., Defendants-Appellees.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 12CV14070

         On brief:

          Paula J. Wilkins, pro se.

         Argued:

          Paula J. Wilkins.

         On brief:

          Peterson, Conners, Swisher & Peer LLP and Istvan Gajary, for all appellees except Larry Taylor.

         Argued:

          Istvan Gajary.

         On brief:

          Plank Law Firm, LPA, and David Watkins, for appellee Larry Taylor.

         Argued:

          David Watkins.

          TYACK, P.J.

         {¶ 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.

         I. 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.)

         {¶3} 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 ¶ 42.

         {¶ 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 ruled on.

         {¶ 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 process.

(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 ...


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