Mark McBee v. City of Toledo, et al.
Court of Appeals No. L-13-1101
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
April 11, 2014
[Cite as McBee v. Toledo, 2014-Ohio-1555.]
Trial Court No. CI0201103937
Decided: April 11, 2014
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Paul T. Belazis and R. Michael Frank, for appellant.
Adаm W. Loukz, Director of Law, and Michael A. Kyser, for appellees.
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SINGER, J.
{¶ 1} Appellant, Mark McBee, appeals from the May 9, 2013 judgment of the Lucas County Court of Common Pleas granting summary judgment to appellees, city of Toledo and the Toledo Civil Service Commission, and dismissing the taxpayer action filed by McBee. For the reasons which follow, we affirm.
{¶ 3} On January 11, 2011, city council passed an ordinance authorizing the mayor to execute a contract between the city and the village of Ottawa Hills for the provision of fire services by the city and the employment of ten Ottawa Hills firefighters as proposed on December 15, 2010.
{¶ 4} On May 4, 2011, McBee requested that the city law director seek an injunction, but he declined to do so. Therefore, pursuant to Section 116 of the Charter of the city of Toledo and
{¶ 5} Both parties filed motions for summary judgment. Without reaching the merits of the arguments raised, the trial court first determined that McBee lacked standing to bring the taxpayer action for declaratory relief. Second, the court determined that while McBee had standing to bring a taxpayer action, the issues he rаised were moot. Therefore, the trial court denied McBee‘s motion for summary judgment and granted appellees’ motion for summary judgment. McBee appealed this decision and asserts the following assignment of errors:
- The trial court erred by denying Appellant‘s motion for summary judgment and granting Appellees’ motion for summary judgment.
- The trial court erred by determining that Appellant lacked standing to seek declaratory relief and in refusing to issue declaratory relief.
- The trial court erred by determining that Appellant‘s claims for injunctive relief were moot and in failing to grant injunctive relief.
{¶ 7}
The City Attorney shall apply in the name of the City, to a court of competent jurisdiction for an order of injunction to restrain the misapplication of funds of the City, or the abuse of its corporate powers, or the execution or performance of any contract made in behalf of the City in contravention of law, or which was procured by fraud or corruption.
Section 114 and Section 115 mirror
{¶ 8} If the solicitor or law director fails to act as required by
{¶ 9} Neither the statutes nor the charter provisions authorize the solicitor, law director, city attorney, or taxpayer to seek declaratory relief. State ex rel. Longville v. Akron, 9th Dist. Summit No. 25354 and 25356, 2013-Ohio-1161, ¶ 10. Declaratory relief must be sought under
{¶ 10} Even if McBee had attempted to bring this action under
[A]ny person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contrаct, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.
{¶ 11} Because a declaratory judgment action is a statutory remedy, the court‘s subject matter jurisdiction must be evident from the allegations in the complaint. Mallory v. Cincinnati, 1st Dist. Hamilton No. C-110563, 2012-Ohio-2861, ¶ 11. Plaintiff must
{¶ 12} In this case, the trial court reasoned that McBee did not have an interest in the outcome of this case because his only interest in the matter is based on his taxpayer status and he was not individually impacted by the rule. We agree. McBee argues that he does not have to have a personal stake in the outcome of the case because he has standing pursuant to statute. While we agree that common law requirements for standing do not apply when standing is conferred by statute,
{¶ 13} McBee also relies upon Cincinnati ex rel. Smitherman v. Cincinnati, 188 Ohio App.3d 171, 2010-Ohio-2768, 934 N.E.2d 985 (1st Dist.), which held that a taxpayer had standing to bring an action seeking declaratory and injunctive relief against the city of Cincinnati with allegations of the abuse of corporate power pursuant to
{¶ 15} In Gallagher v. City of Cleveland, 10 Ohio App.3d 77, 460 N.E.2d 733 (8th Dist.1983), however, a declaratory judgment action was filed by eleven police officers and taxpayers to challenge the enactment of an ordinance creating a deputy chief position that allegedly cоnflicted with the city‘s charter and circumvented the city‘s civil service rules for appointment of officers. While this case proceeded as a declaratory judgment action, we find that it is distinguishable on the basis that it involved a joint suit by taxpayers and police officers, where the officers had a real interest in the outcome.
{¶ 16} Therefore, we conclude that McBee does not have standing to bring a declaratory judgment action under
{¶ 17} In his third assignment of error, McBee argued that the trial court erred by finding that his claim for injunctive relief was moot. The court reasoned that the issue of hiring the firefighters was moot because the firefighters had already been employed
{¶ 18} A court‘s jurisdiction is based upon the existence of a case or controversy. Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). No actual controversy exists once a case becomes moot. Tschantz v. Ferguson, 57 Ohio St.3d 131, 566 N.E.2d 655 (1991). Therefore, the court has a duty to dismiss an action when the court finds that the issues raised are moot and the court cannot grant the relief requested. Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21 (1910), syllabus.
{¶ 19} However, a court can consider a moot claim if the claim is “caрable of repetition, yet evading review.” State ex rel. Cincinnati Enquirer v. Ronan, 124 Ohio St.3d 17, 2009-Ohio-5947, 918 N.E.2d 515, ¶ 5, quoting State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231, 729 N.E.2d 1182 (2000). This exception is applicable if: “(1) the challenged action is too short in duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Id.
{¶ 20} A court may also consider an otherwise moot issue if it raises a debatable and substantial constitutional question or other matters of public or great general interest. Smith v. Leis, 111 Ohio St.3d 493, 2006-Ohio-6113, 857 N.E.2d 138, ¶ 14. The Tenth District Court of Appeals has held that appellate courts should exercise caution in finding a matter of public or great gеneral interest because the Ohio Supreme Court is the
{¶ 21} In this case, McBee sought an injunction to prevent the city from performing the contract and hiring the firefighters without adhering to the competitive selection process previously required by the charter and the civil services rules. Since the city had already performed under the contract and hired the firefighters, the trial court determined that it could not grant the injunction McBee sought. Therefore, the court found the suit was moot and neither of the two exceptions applied in this case.
{¶ 22} McBee first аrgues the case is not moot because the employment contracts continue to be performed, the city continues to wrongfully expend funds to employ these firefighters, and their presence on the force continues to impact the employment of future firefighters. McBee cites Local 330, Akron Firefighters Assn., AFL-CIO v. Romanoski, 68 Ohio St.3d 596, 597, 629 N.E.2d 1044 (1994) to support his argument. However, we
{¶ 23} We find appellant‘s argument lacks merit. The contract was fully performed once the city hired the firefighters and took over the firefighting operations for the village.
{¶ 24} Second, McBee argues the present case is cаpable of repetition, yet evading review because civil service rule 60.19 has not been repealed and was not limited to firefighters or the merger agreement with Ottawa Hills. The trial court held that there was no reasonable expectation or probability that the city would enter into a similar merger agreement with another government entity.
{¶ 25} Even if we agreed that the likelihood of another merger with another community under the same circumstances was reasonably possible, we disagree that a court would be unable to review the issue. If the city utilizes the rule again, a taxpayer can again seek an injunction to bloсk implementation of the merger contract and seek temporary injunctions to delay the merger until the legality of civil service rule 60.19 is determined.
{¶ 26} Third, McBee argues that the violation of the city charter by the adoption of civil service rule 60.19 has a constitutional dimension because the charter is a
{¶ 27} Finally, McBee also argues that the trial court erred when it held that this was not a matter of public interest. He contends that the trial court erred by requiring that there be a “great public interest” rather than “a рublic or great general interest.” While the trial court, and even the Ohio Supreme Court, do not use precisely the same language as
{¶ 28} Furthermore, he argues the impact of this case is widespread because: 1) every municipal government in Ohio operates under civil service rules and many have charter forms of government; 2) there are aspiring firefighters statewide listed on eligibility lists that could be impacted by the passing of a rule like rule 60.19; and 3) the rule is not limited to contracts about firefighting services.
{¶ 30} We conclude that the trial court did not err in finding that the issues raised in this case were moot. Appellant‘s third assignment of error is not well-taken.
{¶ 31} In his first assignment of error, appellant argues that the trial court erred in granting summary judgment to appellee and denying summary judgment to McBee. In light of our determination of appellant‘s second and third assignments of error, we also find appellant‘s first assignment of error not well-taken.
{¶ 32} Having found that the trial court did not commit error prejudicial to appellant, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the court costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J.
Thomas J. Osowik, J.
Stephen A. Yarbrough, J. CONCUR.
JUDGE
JUDGE
JUDGE