Court of Appeals of Ohio, Eighth District, Cuyahoga
STATE OF OHIO, EX REL. LUCY McKERNAN RELATOR-APPELLANT
CITY OF SEVEN HILLS, OHIO CITY COUNCIL, ET AL. RESPONDENTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Danamarie Pannella
ATTORNEY FOR APPELLEES Patrick Dichiro Law Office of Patrick
BEFORE: E.A. Gallagher, A.J., McCormack, J., and S.
JOURNAL ENTRY AND OPINION
A. GALLAGHER, A.J.
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 Procedural History
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108-2016 on October 3, 2016, which repealed Section 505.11.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
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.
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Ordinances 115-2016 that repealed Ordinances 109-2016 and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).
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.
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 ...