Court of Appeals of Ohio, First District, Hamilton
Appeals From: Hamilton County Court of Common Pleas TRIAL NO.
Britton Co., LPA, and Gary T. Stedronsky, for
Patton Boggs (US) LLP, Scott A. Kane and Joseph P. Ashbrook,
Plaintiffs-relators-appellants/cross-appellees Board of
Education of the Loveland City School District and State ex
rel. Board of Education of the Loveland City School District
(collectively "Loveland School Board") filed a
defendants-respondents-appellees/cross-appellants Board of
Trustees of Symmes Township and Symmes Township, Ohio,
(collectively "Symmes Township") in which they
sought a declaratory judgment, a writ of mandamus and
injunctive relief. The trial court granted summary judgment
in favor of Symmes Township on all of Loveland School
Board's claims because they were barred by the applicable
statute of limitations. We find no merit in Loveland School
Board's four assignments of error, and we affirm the
trial court's judgment. We also hold that Symmes
Township's cross-appeal was improper, and we, therefore,
In 1991, Symmes Township passed Resolution No. F-9101, which
authorized and approved the Symmes Station Development Tax
Increment Financing Project ("STIF") to make
infrastructure improvements in the vicinity of Fields Ertel
and Montgomery Roads. Resolution F-9101 declared these
improvements to be a public purpose and authorized a 100
percent real-property-tax exemption for more than 90 acres of
privately-owned property. The resolution also stated that the
exemption was to last for 30 years, subject to earlier
termination upon the retirement of the tax-increment debt.
In April 1993, Symmes Township passed resolution F-9303,
which authorized the issuance of notes for the purpose of
financing the public improvements. Symmes Township entered
into service agreements with the owners of the real property
in late 1993.
Under those agreements, owners of the real property made
service payments called PILOT payments in lieu of paying
real-estate taxes. Those payments were paid into a special
tax-increment-equivalent fund to pay for the construction of
the specified public improvements. The agreements stated that
they would expire on the earlier of December 31, 2010, or
"the day following the date on which the final payment
of principal * * * and interest on the Bonds or any refunding
issues thereof is made or deemed to be made to a trustee for
the benefit of the holder or holders thereof." Even
after the service agreements expired, Symmes Township
continued to collect PILOT payments from the property owners.
The tax-increment-equivalent fund was pledged as security for
the principal and interest on the notes authorized in
Resolution F-9303. The debt owed on the notes was guaranteed
solely by the tax-increment-equivalent fund.
The development of the property subject to the STIF was
successful. It was ultimately developed into a number of
retail establishments and a large apartment complex.
In 2003, Symmes Township passed Resolution F-0303 to amend
Resolution F-9101 to specify additional public infrastructure
improvements that could be funded by the STIF. It
subsequently adopted Resolutions F-0304, F-0305 and F-0306,
which related to the debt instruments used to fund the public
infrastructure improvements. At the time those resolutions
were adopted, approximately $400, 000 in notes used to
finance the original improvements set out in F-9101 were
still outstanding, unmatured and unpaid. The township claimed
that it sought to refinance the debt so that it could
continue to use the funds generated by the STIF for the
The original STIF notes were special revenue obligations that
limited Symmes Township's liability to tax-increment
revenue. Resolution F-0304 provided for the refunding of the
outstanding STIF debt with general-obligation bonds. Those
bonds were not secured with PILOT payments from the
tax-increment-equivalent fund. Instead they were secured by
"the full general obligation of the Township" and
"the faith, credit and revenue of said Township."
Resolution F-0305 authorized Symmes Township to issue bonds
for the purpose of park-land acquisition. Resolution F-0306
authorized it to combine the park-land acquisition debt and
the outstanding $400, 000 debt from the 1991 infrastructure
improvements into a single consolidated bond issue.
The STIF continued to be successful. It generated funds to
pay for the purchase of a park, the construction of a park
maintenance building, the construction of a safety center,
and the purchase of police and fire equipment.
Loveland School Board filed its complaint on March 11, 2016.
It alleged that the "refinancing" of the original
STIF debt instruments in 20o3 was actually the retirement of
that debt, and that the STIF should have terminated at that
time. It further alleged that the expansion of the scope of
the public improvements funded by the STIF in Resolution
F-0303 was improper, and that Symmes Township had improperly
spent PILOT payments from the tax-increment-equivalent fund
on expenditures that were not necessary for the development
of the subject property as originally specified in 1991.
Both Loveland School Board and Symmes Township filed motions
for summary judgment. In its motion, Symmes Township argued
that it was entitled to judgment as a matter of law because
Loveland School Board's complaint was filed outside of
the applicable statute of limitations.
The trial court found that the six-year statute of
limitations set forth in R.C. 2305.07 for actions "upon
a liability created by statute" applied. The court also
found that the cause of action accrued in 2003 when Symmes
Township amended the STIF and, as argued by Loveland School
Board, failed to terminate the STIF when it refunded the
original securities with general-obligation bonds. Thus, the
court determined that the Loveland School Board's claims
were time-barred. It entered judgment in favor of Symmes
Township on all counts of Loveland School Board's
complaint. Both parties have appealed the trial court's
Symmes Township has filed what it refers to as a
"cross-appeal, " although it was filed under a
separate appeal number. Even if it were a cross-appeal,
App.R. 3(C)(1) provides that "[a] person who intends to
defend a judgment or order against an appeal taken by an
appellant and who also seeks to change the judgment or order
* * * shall file a notice of cross-appeal within the time
allowed by App.R. 4." App.R. 3(C)(2) further provides
that "[a] person who intends to defend a judgment or
order appealed by an appellant on a ground other than that
relied on by the trial court but who does not seek to change
the judgment or order is not required to file a notice or
cross-appeal or raise a cross-assignment of error."
The trial court granted summary judgment in Symmes
Township's favor. The township does not seek to change
the judgment from which Loveland School Board has appealed.
Consequently, its use of a "cross-appeal" to assert
its arguments is improper, and we dismiss the appeal numbered
C-170419. See SP9 Ent. Trust v. Brauen, 3d Dist.
Allen No. 1-14-03, 2014-Ohio-4870, ¶ 60-64.
Nevertheless, we can still address the township's
arguments as we would any appellee's, and we do so where