Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State ex rel. McKernan v. City of Seven Hills

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 10, 2018

STATE OF OHIO, EX REL. LUCY McKERNAN RELATOR-APPELLANT
v.
CITY OF SEVEN HILLS, OHIO CITY COUNCIL, ET AL. RESPONDENTS-APPELLEES

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-870525

          ATTORNEY FOR APPELLANT Danamarie Pannella

          ATTORNEY FOR APPELLEES Patrick Dichiro Law Office of Patrick Dichiro

          BEFORE: E.A. Gallagher, A.J., McCormack, J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, A.J.

         {¶1} Relator-appellant Lucy McKernan appeals the judgment of the Cuyahoga County Court of Common Pleas in this declaratory judgment action concerning an ordinance dispute with respondent-appellee, the city of Seven Hills ("the city"). For the following reasons, we reverse in part and remand.

         Facts and Procedural History

         {¶2} On August 8, 2016, the Seven Hills City Council passed amended Seven Hills Codified Ordinances 66-2016, which amended Section 505.11 of the Seven Hills Codified Ordinances to allow deer hunting, by bow, within the borders of the city. Cognizant of a circulating petition for a referendum vote to challenge the ordinance, council passed Ordinances 108-2016 on October 3, 2016, which repealed Section 505.11. On the same date, the council passed Ordinances 109-2016, an emergency measure to amend Section 505.11 by rmplementing it and allowing bow hunting of deer within city limits. The parties agree that the purpose of adopting the emergency ordinance was to preempt a challenge to the ordinance via referendum.

         {¶3} On October 14, 2016, appellant filed a statutory taxpayer's action for injunctive relief pursuant to R.C. 733.59 and sought a declaratory judgment that Ordinances 109-2016 was unlawful. Appellant sought to enjoin enforcement of the ordinance, claiming that it violated R.C. 731.30 in that it failed to state any reasons for the stated emergency and its passage was an abuse of the city's power to enact emergency ordinances. Appellant also sought costs and reasonable attorney fees.

         {¶4} On December 2, 2016, appellant filed a motion for summary judgment. The city filed a brief in opposition on December 30, 2016, arguing that appellant's claims were moot because, on October 24, 2016, the city council passed Ordinances 115-2016 that repealed Ordinances 109-2016 and replaced it with a version that addressed the alleged emergency description defect at issue in this case. Appellant filed a reply brief and did not dispute that the city's passage of Ordinances 115-2016 had rendered her challenge of Ordinances 109-2016 moot but argued that she was still entitled to her costs and reasonable attorney fees pursuant to R.C. 733.61 and Hess v. Toledo, 133 Ohio App.3d 729, 729 N.E.2d 823 (6th Dist.1999).

         {¶5} On January 25, 2017, the trial court issued a journal entry denying appellant's motion for summary judgment as moot. The trial court stated that in light of the repeal of Ordinances 109-2016 and passage of Ordinances 115-2016, it would treat the city's brief in opposition as a motion for summary judgment. The court then granted summary judgment in favor of the city and dismissed the case.

         Law and Analysis

         I. Summary Judgment

         {¶6} In her sole assignment of error, appellant argues that the trial court erred in granting summary in favor of the city without holding a hearing to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.