2005 Ohio 2869 | Ohio Ct. App. | 2005
{¶ 2} In May 2004, McVey filed a "Motion for Injunction" under R.C.
{¶ 3} The trial court concluded that the facts of the case were not in dispute. The Trustees prohibited videotaping at the March meeting but later rescinded the prohibition. Relying on our decision in Kline v.Davis, Lawrence App. Nos. 00CA32 01CA13, 2001-Ohio-2625, the court held that a public body may not absolutely prohibit the video recording of its meetings, though it may adopt reasonable regulations. The court concluded that the Trustees violated R.C.
{¶ 4} The Trustees appeal the court's judgment, assigning the following errors:
Assignment of Error #1
The trial court erred in not granting the Trustees' Motion for Summary Judgment because the pleading filed by McVey did not comply with Civil Rules.
A) McVey did not file a complaint but rather a "Motion."
B) The "Motion" did not make a claim of monetary sanctions.
Assignment of Error #2
McVey lacked standing to raise the issue of the refusal of the township to allow videotaping.
Assignment of Error #3
The case was moot prior to McVey's filing the "Motion."
Assignment of Error #4
The trial court lacked jurisdiction to issue an injunction.
{¶ 5} In their first assignment of error, the Trustees argue that the court erred in denying their motion for summary judgment because McVey's initial filing did not comply with the Ohio Civil Rules as it was styled as a motion rather than a complaint and it did not make a claim for monetary sanctions.
{¶ 6} Our review of the record reveals that the Trustees failed to raise these arguments in either their motion to dismiss or their motion for summary judgment; therefore, they have waived them for purposes of appeal. See Lippy v. Soc. Natl. Bank (1993),
{¶ 7} In their second assignment of error, the Trustees argue that McVey lacked standing because he never actually attempted to videotape the meeting and was simply present when the Board President announced that videotaping was prohibited.
{¶ 8} R.C.
{¶ 9} In their third assignment of error, the Trustees argue that McVey's action was moot because they had already adopted a resolution allowing videotape recording of their meetings. In Fayette Volunteer FireDept. No. 2, Inc. v. Bd. of Twp. Trustees of Fayette Twp. (1993),
(1) * * * Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleasshall issue an injunction to compel the members of the public body to comply with its provisions.
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(3) Irreparable harm and prejudice to the party that sought the injunction shall be conclusively and irrebuttably presumed upon proof of a violation or threatened violation of this section. (Emphasis added.)
Because the statute clearly provides that an injunction is to be issued upon finding a violation of the Sunshine Law, it is irrelevant that the Trustees nullified their prior action. See id. at 54. See, also, Doran at ¶ 20 ("[i]t is irrelevant whether the injunction is actually and currently necessary to prevent a future harm"); Vermilion Teachers'Assn. v. Vermilion Local School Dist. Bd. of Edn. (1994),
{¶ 10} In their final assignment of error, the Trustees argue that the trial court lacked jurisdiction to issue an injunction because McVey failed to file a verified complaint or affidavit alleging he was entitled to such relief. The Trustees rely on R.C.
At the beginning of an action, or at any time before judgment, an injunction may be granted by the supreme court or a judge thereof, the court of appeals or a judge thereof in his district, the court of common pleas or a judge thereof in his county, or the probate court, in causes pending therein, when it appears to the court or judge by affidavit of the plaintiff, or his agent, that the plaintiff is entitled to an injunction.
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{¶ 11} The Trustees failed to raise this argument in the trial court. Generally, an issue is waived when a litigant does not argue it before the trial court. But, a court's lack of subject matter jurisdiction cannot be waived and may be raised for the first time on appeal. Jenkinsv. Keller (1966),
{¶ 12} Nonetheless, the Trustees have cited no support for their contention that the filing of an affidavit is a jurisdictional prerequisite to a request for an injunction. The only case the Trustees cite is State ex rel. Pressley v. Industrial Commission (1967),
{¶ 13} Further, in State v. Budd (1901),
{¶ 14} Here, the trial court did not rely on oral testimony in granting the injunction under R.C.
{¶ 15} We conclude that, although McVey did not submit an affidavit of his own, the court's decision to grant the injunction based on the Clerk's affidavit is permissible. Based on the Trustees' own evidence, the court concluded that they violated R.C.
{¶ 16} Having found no merit in any of the Trustees' assigned errors, we affirm the trial court's judgment.
JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, J. and McFarland, J.: Concur in Judgment and Opinion.