State ex rel. Perkins v. Medina Cty. Bd. of Commrs.State ex rel. Perkins v. Medina Cty. Bd. of Commrs.
Dated: August 3, 2020
CALLAHAN, Presiding Judge.
{¶1} Appellant, State Ohio ex rel. Curtis Perkins (“Mr. Perkins“), appeals from the judgment of the Medina County Court of Common Pleas dismissing his taxpayer action. For the reasons set forth below, this Court affirms.
I.
{¶2} Mr. Perkins filed a taxpayer action on behalf of Medina County pursuant to
{¶3} Prior to the initial pretrial, the Board and Rumpke filed a joint motion for judgment on the pleadings, raising four different bases for the dismissal of Mr. Perkins’ taxpayer action. Mr. Perkins filed a brief in opposition and the Board and Rumpke filed a joint reply brief. The trial court granted the motion for judgment on the pleadings solely on the basis that the trial court did not have jurisdiction over this matter because Mr. Perkins did not secure the costs for a statutory taxpayer action as required by
{¶4} Mr. Perkins filed a motion for relief from judgment and a week later he timely filed an appeal of the judgment dismissing his taxpayer action. In conjunction with the notice of appeal, Mr. Perkins filed a motion for remand for the trial court to rule on his pending motion for relief from judgment. The Board and Rumpke opposed the motion for remand. This Court granted the motion for remand for a period of 60 days, during which time the trial court denied Mr. Perkins’ motion for relief from judgment. Following the expiration of the remand, Mr. Perkins did not amend his notice of appeal to include the trial court‘s denial of his motion for relief from judgment.
{¶5} Mr. Perkins has presented one assignment of error based upon the trial court‘s judgment granting the motion for judgment on the pleadings and dismissing his taxpayer action.
II.
ASSIGNMENT OF ERROR
APPELLANT STATE OF OHIO EX REL. CURTIS PERKINS HAVING DEPOSITED WITH THE CLERK OF THE TRIAL COURT FUNDS IN THE AMOUNT PRESCRIBED BY THAT COURT‘S LOCAL RULES “TO SECURE THE PAYMENT OF COSTS” WHEN HE COMMENCED THE UNDERLYING
{¶6} Mr. Perkins contends that the trial court erred when it dismissed his taxpayer action because his payment of the filing fee as required by the Medina County Local Rules was security for the costs of a statutory taxpayer action as required by
{¶7} A
{¶8} The Board and Rumpke‘s motion for judgment on the pleadings sought to dismiss Mr. Perkins’ statutory taxpayer action because he failed to satisfy the jurisdictional requirement of
{¶9} “The right to bring a taxpayer action is a right conferred by statute.” Cincinnati ex rel. Ritter v. Cincinnati Reds, L.L.C., 150 Ohio App.3d 728, 2002-Ohio-7078, ¶ 25 (1st Dist.). In Ohio, a statutory taxpayer action may be brought on behalf of a municipality or a county and requires the taxpayer to secure the costs of the proceedings. See id.;
{¶10} In the instant matter, Mr. Perkins filed a county taxpayer action pursuant
{¶12} Mr. Perkins’ reliance upon his filing fee to satisfy the jurisdictional requirement of security for the costs of the proceedings is misplaced because it ignores the Ohio Supreme Court‘s decision in Sydnor. With regard to statutory taxpayer suits, the Ohio Supreme Court has not deemed the filing fee for an action to be security for the costs of the taxpayer proceedings. See Sydnor, 61 Ohio St.3d at 54 (Douglas, J., concurring in part and dissenting in part) (The dissent concluded that the deposit of funds to cover the costs of the proceedings satisfied the securing of costs in a statutory taxpayer action.). See, e.g., Natl. Elec. Contrs. Assn., Inc. v. Mentor, 108 Ohio App.3d 373, 381 (11th Dist.1995) (“[T]he Sydnor court found the payment of the initial filing fee did not satisfy [the security] requirement[.]“); Bowshier v. N. Hampton, Ohio, 2d Dist. Clark No. 2001 CA 63, 2002 WL 940125, *5 (May 10, 2002) (”Sydnor implicitly held that the payment of the initial filing fee did not satisfy the security requirement” in a statutory taxpayer action.). See also Creed By and Through Creed v. Sauline, 11th Dist. Trumbull No. 93-T-4977, 1994 WL 587389, *3 (Aug. 12, 1994).
{¶13} The Ohio Supreme Court subsequently recognized that while security for costs is a jurisdictional requirement to bring a statutory taxpayer action, the security does not need to be given upon the filing of the action. State ex rel. Commt. for Charter Amendment Petition v. Maple Hts., 140 Ohio St.3d 334, 2014-Ohio-4097, ¶ 26. Because the statute is silent as to how to calculate the amount of security for the costs of the proceedings, the Supreme Court has deemed that a taxpayer‘s filing of a motion after the suit is filed is a proper course of action to address the jurisdictional requirement of securing the costs of the proceedings. Id. at ¶ 25-26. See, e.g., State ex rel. Harris v. Rubino, 155 Ohio St.3d 123, 2018-Ohio-3609, ¶ 33-34 (Contemporaneous with the filing of the complaint, the relator filed a motion to set the amount of the security for the costs and asked for consideration of the filing fees as security for the costs.). Generally, it is incumbent upon the taxpayer to request that the trial court determine the required security. See Bowshier at *5. Contra State ex rel. Fisher v. Cleveland, 109 Ohio St.3d 33, 2006-Ohio-1827, ¶ 42, 44-45 (A trial court may sua sponte waive the security for the costs in a statutory taxpayer action in order to remedy the jurisdictional defect where the matter has been pending for several months and two motions have been filed by the respondents.).
{¶14} Relying upon its docket in this matter, the trial court noted Mr. Perkins “ha[d] not secured the mandated costs nor sought the Court to set costs.” Rather than request that the trial court determine the amount of the security for the costs of the statutory taxpayer action, Mr. Perkins took the erroneous position that his payment of the filing fee satisfied the jurisdictional requirement under
{¶15} Since Mr. Perkins’ payment of the clerk of court‘s filing fee did not secure the costs of a taxpayer action and he failed to seek to have the trial court determine the amount of security
{¶16} Mr. Perkins presents additional arguments in support of his position that his payment of the clerk of court‘s filing fee satisfied the requirement of securing the costs in a taxpayer action. These arguments, however, were not contained in Mr. Perkins’ brief in opposition to the Board and Rumpke‘s motion for judgment on the pleadings. Rather, these arguments were contained in Mr. Perkins’ motion for relief from judgment. Because Mr. Perkins failed to make these arguments in his brief in opposition to the motion for judgment on the pleadings, he cannot raise such arguments for the first time on appeal. See Republic Steel Corp. v. Cuyahoga Cty. Bd. of Revision, 175 Ohio St. 179 (1963), syllabus. See also Consol. Church Fin. Co. v. Geauga Savs. Bank, 8th Dist. Cuyahoga No. 94715, 2011-Ohio-1360, ¶ 16 (declining to consider a new issue on appeal that was not raised in appellant‘s brief in opposition to the motion for judgment on the pleadings). Additionally, we decline to address these arguments because Mr. Perkins did not appeal the trial court‘s judgment denying his motion for relief from judgment.
{¶17} The assignment of error is overruled.
III.
{¶18} Mr. Perkins’ assignment of error is overruled. The judgment of the Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
BENJAMIN J. OCKNER and MAJEED G. MAKHLOUF, Attorneys at Law, for Appellant.
DAVID M. SMITH and FRANK H. SCIALDONE, Attorneys at Law, for Appellee.
JAMES M. POPSON and ROBERT E. CAHILL, Attorneys at Law, for Appellee.