Court of Appeals of Ohio, Twelfth District, Butler
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No.
& Martin, LLC, Joshua A. Engel, for plaintiff-appellee,
Rittgers & Rittgers, Charles H. Rittgers, for
plaintiff-appellee, Michelle Johnson
Michael K. Allen & Associates, LLC, Michael K. Allen, for
plaintiff-appellee, Don Muirheid
Markovits, Stock & DeMarco, LLC, Paul M. DeMarco, for
plaintiff-appellee, Diane Woods
Rendigs, Fry, Kiely & Dennis, LLP, Felix J. Gora and
James J. Englert, for defendant-appellant, Village of New
Rendigs, Fry, Kiely & Dennis, LLP, Anthony G. Raluy, for
defendant-appellant, Village of New Miami
1} Defendant-appellant, the village of New Miami,
Ohio ("New Miami"), appeals a decision of the
Butler County Court of Common Pleas denying its motion for
summary judgment seeking governmental immunity pursuant to
R.C. Chapter 2744. This interlocutory appeal is limited to
the issue of whether the trial court erred in denying New
Miami sovereign immunity under R.C. Chapter 2744.
2} New Miami operates a civil enforcement program to
deter motorists from exceeding the speed limit at several
village street intersections. The Automated Speed Enforcement
Program was instituted in July 2012 with the adoption of
Ordinance 1917 (hereinafter "ASEP"). If a vehicle
exceeds the posted speed limit, a camera photographs the
license plate and the registered owner of the vehicle
receives a Notice of Liability in the mail. Pursuant to the
Notice of Liability, motorists may pay the penalty, thus
waiving the right to a hearing. Alternatively, motorists may
request a hearing within 30 days from the date of the
violation. A motorist may file an administrative appeal from
the result of the hearing to the Butler County Common Pleas
Court pursuant to R.C. 2506.01. Motorists who neglect to pay
the penalty are subject to a late fee and are referred to a
collection agency, and the judgment against them is reported
to credit reporting agencies.
3} New Miami entered into a contract with Maryland
Optotraffic, LLC, to operate the program. Pursuant to the
contract, the penalties are paid directly to Optotraffic
which retains 40 percent of the penalties as compensation for
its services in administering the program; the remaining 60
percent of the penalties is forwarded to New Miami. Since the
program's inception in 2012, over three million dollars
have been collected, with New Miami receiving $1, 839, 914.14
and Optotraffic retaining $1, 226, 609.41.
4} Doreen Barrow and other similarly situated
individuals ("Plaintiffs") are all motorists who
were sent Notices of Liability. Some of the Plaintiffs paid
the penalty and some did not. In 2013, Plaintiffs
collectively filed suit against New Miami challenging ASEP
and seeking class action certification. Count 1 sought a
declaration that ASEP improperly divested the municipal court
of jurisdiction over traffic violations in contravention of
the Ohio Constitution. Count 2 sought a declaration that ASEP
violated Plaintiffs' due process rights. Count 3 prayed
for injunctive relief prohibiting continued enforcement of
ASEP. Finally, Count 4 sought equitable restitution of any
penalties, fees, or charges ("penalties") paid by
Plaintiffs pursuant to ASEP, on the ground that retention of
the penalties would unjustly enrich New Miami.
5} In March 2014, the trial court granted partial
summary judgment to Plaintiffs on Counts 1, 2, and 3 and
denied New Miami's motion for summary judgment. The trial
court found that ASEP unlawfully divested the municipal court
of jurisdiction and violated the Ohio Constitution's
guarantee of "due course of law." The trial court
granted an injunction against continued enforcement of ASEP.
Subsequently, Plaintiffs moved for summary judgment regarding
their unjust enrichment/restitution claim. The trial court
certified a class comprised of all persons who had received
Notices of Liability under ASEP.
6} New Miami appealed the class action certification
decision. On December 30, 2014, we reversed and remanded for
the trial court to clarify its Civ.R. 23 findings in support
of certification. Barrow v. New Miami, 12th Dist.
Butler No. CA2014-04-092, 2014-Ohio-5743 ("Barrow
I"). On remand, the trial court articulated its
rationale, made the requisite findings, and certified the
class. New Miami once again appealed. On February 1, 2016, we
affirmed the trial court's class certification.
Barrow v. New Miami, 12th Dist. Butler No.
CA2015-03-043, 2016-Ohio-340 ("Barrow
7} Subsequently, the parties renewed their motions
for summary judgment regarding Plaintiffs' unjust
enrichment/restitution claim in Count 4. New Miami argued it
was immune from liability pursuant to the political
subdivision immunity of R.C. Chapter 2744. On February 8,
2017, the trial court granted Plaintiffs' motion for
summary judgment and denied New Miami's cross motion for
summary judgment, finding that New Miami was not entitled to
sovereign immunity under R.C. Chapter 2744 because
Plaintiffs' unjust enrichment/restitution claim was an
equitable claim, not a legal claim. Specifically, the trial
court found that Plaintiffs were neither seeking to impose
personal liability on New Miami nor money damages from the
village. Rather, Plaintiffs were seeking "the
restoration, refund, or return" of the penalties they
were forced to pay pursuant to the unconstitutional
ordinance, that were wrongfully collected by New Miami, and
that were in New Miami's possession. As such, the trial
court ruled, Plaintiffs' suit to correct the unjust
enrichment of New Miami was a suit brought in equity.
8} New Miami now appeals, raising one assignment of
9} THE TRIAL COURT ERRED IN DENYING
DEFENDANT-APPELLANT'S CLAIM FOR SOVEREIGN IMMUNITY,
GRANTING SUMMARY JUDGMENT TO PLAINTIFFS-APPELLEES AND DENYING
SUMMARY JUDGMENT TO DEFENDANT[-]APPELLANT ON PLAINTIFFS'
CLAIM FOR UNJUST ENRICHMENT.
10} This court reviews summary judgment decisions
denying governmental immunity de novo. Kirk Bros. Co. v.
Trucraft Constr, LLC, 12th Dist. Clinton No.
CA2016-12-021, 2017-Ohio-7281, ¶ 13. We review the trial
court's judgment independently and without deference to
its determination and use the same standard in our review
that the trial court should have employed. Id.
11} New Miami generally argues it is immune from
liability under R.C. Chapter 2744 because its operation of
ASEP is a governmental function and there is no unjust
enrichment exception to sovereign immunity. New Miami further
argues that Count 4 of Plaintiffs' complaint is in fact a
legal claim for money damages seeking to impose personal
liability on the village for deprivation of due process,
disguised as an equitable restitution claim in an effort to
avoid the immunity granted to political subdivisions in the
performance of governmental functions.
12} Count 2 alleged that ASEP violates the Ohio
Constitution's guarantee of "due course of law"
found in Article I, Section 16 of the Constitution. As stated
earlier, the trial court previously granted summary judgment
to Plaintiffs upon this due course of law claim. In Count 4,
Plaintiffs sought equitable restitution of any penalties they
paid pursuant to ASEP on the ground that to allow New Miami
to retain the funds wrongfully collected pursuant to an
unconstitutional ordinance would unjustly enrich the village.
13} Unjust enrichment occurs when "a person has
and retains money or benefits which in justice and in equity
belong to another." Johnson v. Microsoft Corp.,
106 Ohio St.3d 278, 2005-Ohio-4985, ¶ 20. The purpose of
an unjust enrichment claim is not to compensate the plaintiff
for loss or damage suffered by the plaintiff, but to enable
the plaintiff to recover the benefit he has conferred on the
defendant under circumstances in which it would be unjust to
allow the defendant to retain it. Id. at ¶ 21.
Restitution is the remedy for the unjust enrichment of one
party at the expense of another. Santos v. Ohio Bur. of
Workers' Comp., 101 Ohio St.3d 74, 2004-Ohio-28,
¶ 11. To prevail on a claim for unjust enrichment, a
plaintiff must demonstrate that: (1) he conferred a benefit
upon the defendant, (2) the defendant had knowledge of the
benefit, and (3) the defendant retained the benefit under
circumstances where it would be unjust to do so without
payment. RG Long & Assocs., Inc. v. Kiley, 12th
Dist. Warren No. CA2014-10-129, 2015-Ohio-2467, ¶ 14.
14} R.C. Chapter 2744 provides a three-tiered
analysis to determine whether a political subdivision enjoys
immunity. The first tier of the analysis provides a general
grant of immunity: "[A] political subdivision is not
liable in damages in a civil action for injury, death, or
loss to person or property allegedly caused by any act or
omission of the political subdivision * * * in connection
with a governmental or proprietary function." R.C.
2744.02(A)(1). Once immunity is established, the second tier
of the analysis carves out certain exceptions to immunity
which re-establish the liability of a political subdivision
in certain delineated situations. R.C. 2744.02(B). Finally,
if any exception applies to re-impose liability, the third