A & B. Refuse Disposers, Inc. v. Board of Ravenna Township Trustees

• Decision Date: 29 March 1991
• Docket Number: 91-LW-4043,90-P-2196
• Parties: A & B REFUSE DISPOSERS, INC., Plaintiff-Appellant, v. BOARD OF RAVENNA TOWNSHIP TRUSTEES, et al., Defendants-Appellees. CASE
• Court: Ohio Court of Appeals

A & B REFUSE DISPOSERS, INC. Plaintiff-Appellant, v. BOARD OF RAVENNA TOWNSHIP TRUSTEES, et al Defendants-Appellees.

No. 90-P-2196 Judgment affirmed, 64 Ohio St. 3d 385 (1992).

91-LW-4043 (11th)

Court of Appeals of Ohio, Eleventh District, Portage County

March 29, 1991

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court Case No 88CV0903

JUDGMENT Affirmed.

ATTY. THOMAS J. SICURO, 101 E. Main Street, P.0. Box 167, Ravenna, Ohio 44266, (For Plaintiff-Appellant)

DAVID W. NORRIS, PORTAGE COUNTY PROSECUTOR DOUGLAS M. KEHRES, ASSISTANT PROSECUTOR, 466 S. Chestnut Street Ravenna, Ohio 44255, (For Defendants-Appellees)

CHRISTLEY J.

Appellant, A & B Refuse Disposers, Inc., has operated a landfill in Ravenna Township for over twenty-five years. In 1988, appellant acquired a sixty-six acre parcel of property adjacent to the landfill. Appellant wishes to utilize the sixty-six acre parcel for offices and a truck terminal for the landfill. In addition, appellant wants to remove dirt from the new tract as cover material for the landfill.

The property in question is located in a R-3 residential district under the ordinances of appellees, Board of Ravenna Township's Trustees. Appellant's desired use requires a conditional zoning certificate from appellee.

On June 20, 1988, appellant filed a complaint for declaratory judgment seeking the trial court to determine whether the landfill operation which it owned and operated was a public utility exempt from the township's zoning ordinances. Appellees filed their answer on July 12, 1988.

Then appellant apparently filed a motion for summary judgment. However, that motion is not of record. On December 5, 1988, appellee filed its response which is of record. The court evidently overruled appellant's motion for summary judgment, but there is no judgment entry. The case was set for trial on May 15, 1989 which was later reset.

There was, also, at some point, a settlement agreement prepared by appellee that was never finalized.

Subsequently, appellant filed a motion for the court to enforce this settlement agreement on May 18, 1989. The matter was reset, and trial was had on July 17, 1989.

On September 12, 1989, appellant filed another motion for summary judgment attaching a factual affidavit and legal authority. The court entered its judgment entry on September 29, 1989 holding that appellant was not a public utility and was, therefore, subject to Ravenna Township's zoning ordinances.

Appellant, pursuant to Civ. R. 59(A)(7), filed a motion for new trial to which appellees responded. The trial court overruled appellant's motion for new trial on February IS, 1990.

Appellant filed its notice of appeal on May 18, 1990, which this court dismissed on August 10, 1990 as untimely. Upon appellant's motion for reconsideration, this court reinstated the appeal finding that appellant had not received proper notice of the trial court's February 15, 1990 judgment entry.

Appellant raised the following four assignments of error:

"1. The court erred in overruling appellant's motion for summary judgment, there being no dispute in the fact that appellant's business as a public landfill was a public utility.

"2. The trial court erred in overruling appellant's motion to enforce the settlement agreement reached by the parties on May 15, 1989.

"3. The trial court erred as a matter of law in ruling at trial that appellant 's business was not a public utility, and hence would be subject to the zoning regulations of appellee.

"4. The court erred as a matter of law in overruling plaintiff's motion for new trial after new and additional case law was presented to the court."

In appellant's first assignment of error, it alleges that the trial court erred in failing to grant its motion for summary judgment since there was no dispute to the fact that appellant's business was a public utility. Basically, appellant argues that there was neither a question of fact nor of law. Appellant attached to its motion for summary judgment the affidavit of the chief operating officer stating that the landfill was open to all residents of Ravenna Township.

In the township's response, it did not offer any rebutting fact, but rather argued that there was a genuine issue of law. On the other hand, appellant contends there was no question of law since there was an Attorney General's Opinion stating that a privately owned and operated landfill which makes its services available to residents of a township is a public utility for purposes of R.C. 519.21, and, therefore, is not subject to a township's zoning plan. 1982 Ohio Atty. Gen. Ops. No. 82-052.

Opinions of the Attorney General of Ohio are not binding upon courts. State, ex rel. Schweinhager, v. Underhill (1943), 141 Ohio St. 128, 132; State, ex rel. Endlich, v. Indus. Comm. (1984), 16 Ohio App. 3d 309, 312; North Olmsted Fire Fighters Assoc. v. North Olmsted (Sept. 10, 1990), Cuyahoga App. No. 58968, unreported. As a rule,when the attorney general passes upon the interpretation of a questioned statute, a court considers the opinions and accords it due respect, but the court is in no way obligated to follow the Attorney General's Opinion.

Moreover, there is case law in Ohio stating that the determination that an entity is a public utility is a mixed question of both fact and law. Montville Bd. of Twp. Trustees v. WDBC, Inc. (1983), 10 Ohio App. 3d 284, 185.

"* * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor." Civ. R. 56(C). (Emphasis added.)

Therefore, even though the evidential submissions may not have been controverted, they still may have been insufficient to provide the complete factual predicate necessary for a decision of the issue at hand. As will be discussed later, public availability is but one factor in such a determination, therefore, the trial court did not err in denying appellant's motion for summary judgment. Appellant's first assignment is without merit.

In appellant's second assignment it contends, with no supporting authority, that the trial court erred in overruling appellant's motion to enforce the settlement agreement.

The facts surrounding this particular assignment are less than clear from the record. There is an entry setting this matter for a bench trial on May 15, 1989, followed by appellant's May 18, 1989 motion to enforce the settlement agreement reached prior to trial on May 15, 1989. A hearing on appellant's motion was held on June 12, 1989, which resulted in resetting the case for a bench trial on July 17, 1989. There is no transcript of the June 12 hearing, and no specific entry regarding appellant's motion to enforce settlement. An appellate court will presume the validity, correctness, regularity and legality of proceedings below; error must be made to appear affirmatively on the record. Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197, 199.

In the present case, there is no indication from the record that there was any irregularity in the proceedings of June 12.

In this particular case, the settlement was never signed by all the parties; agreed to in open court, nor was it ever actually filed with the court. Cf. Swimmer v. Newton Falls (May 15, 1987), Trumbull App. No. 3684, unreported.

Thus appellant has failed to demonstrate...