Hubbard ex rel. Creed v. Sauline

• Decision Date: 31 January 1996
• Docket Number: No. 94-1962,94-1962
• Citation: 659 N.E.2d 781,74 Ohio St.3d 402
• Parties: CITY OF HUBBARD ex rel. CREED, Admr., Appellant, v. SAULINE, Mayor, et al., Appellees.
• Court: Ohio Supreme Court

Page 402

74 Ohio St.3d 402

659 N.E.2d 781

CITY OF HUBBARD ex rel. CREED, Admr., Appellant, v. SAULINE, Mayor, et al., Appellees.

No. 94-1962.

Supreme Court of Ohio.

Submitted Dec. 5, 1995.

Decided Jan. 31, 1996.

SYLLABUS BY THE COURT

A public official who accepts compensation contrary to statute is under no legal duty to repay the compensation where it is subsequently determined that the official received the compensation in good faith and under color of law. (State ex rel. Parsons v. Ferguson [1976], 46 Ohio St.2d 389, 75 O.O.2d 457, 348 N.E.2d 692; State ex rel. Gillie v. Warren [1973], 36 Ohio St.2d 89, 65 O.O.2d 241, 304 N.E.2d 242, affirmed and followed.)

Defendant-appellee, Albert J. Sauline, Jr., assumed the office of mayor of the city of Hubbard, a non-chartered city, on January 1, 1988. The mayor's salary at that time was $20,900 annually. On July 17, 1989, the Hubbard City Council adopted Ordinance No. 29-89 which, effective September 1989, increased the mayor's salary to $25,900 for calendar year 1989, and to $26,900 for calendar year 1990 and thereafter.

On May 16, 1990, Thomas Creed ¹ initiated a declaratory judgment action in which he sought to invalidate the "in-term" salary increase granted to Mayor Sauline, and named as defendants Sauline, the city of Hubbard, and the city auditor and its treasurer. Creed claimed that the salary increase violated R.C. 731.07, which provides, in part, that "[t]he salary of any officer of a city shall not be increased or diminished during the term for which he was elected or appointed." He also alleged that the mayor had accepted increased compensation under the ordinance while believing that it was illegal for mayors of non-charter cities like himself to accept in-term salary increases.

Creed sought an injunction precluding Hubbard's fiscal officers from paying the mayor increased amounts resulting from passage of Ordinance No. 29-89, and ordering Sauline to repay the city of Hubbard an amount equaling the total of the increases he had received. Creed further alleged that he had first requested the Law Director of the city of Hubbard to file a similar action pursuant to R.C. 733.59, which provides:

"If the village solicitor or city director of law fails, upon the written request of any taxpayer of the municipal corporation, to make any application provided for in sections 733.56 to 733.58 of the Revised Code, the taxpayer may institute suit in his own name, on behalf of the municipal corporation. Any taxpayer of any municipal corporation in which there is no village solicitor or city director of law may bring such suit on behalf of the municipal corporation. No such suit or proceeding shall be entertained by any court until the taxpayer gives security for the cost of the proceeding."

Creed alleged that the law director had failed to bring suit as requested. Creed also sought an award of reasonable attorney fees and costs.

The parties filed cross-motions for summary judgment. On December 26, 1990, the court granted the motion of the city and its officials for summary judgment, and dismissed the case. The court found that, pursuant to Sections 2 and 3, Article XVIII of the Ohio Constitution, the city of Hubbard could legally grant an in-term salary increase to its mayor, even though that action might be deemed to conflict with R.C. 731.07.

The court of appeals reversed and remanded, holding that R.C. 731.07 prevailed over Ordinance No. 29-89. The court stated, "[w]hen a city determines that its officers' compensation should be increased, that is a matter of local concern. However, the time for payment of that increase is a procedural matter and is governed by general laws, namely R.C. 731.07. This section prohibits in-term pay increases for a city official, as took place in this case." Creed v. Hubbard (1992), 78 Ohio App.3d 461, 605 N.E.2d 415 ("Creed I").

The court also found that the action, although identifying Creed as the plaintiff, had been brought as a taxpayer action on behalf of the municipality of Hubbard, and advised that, upon remand, Creed should be allowed to amend the caption of his complaint consistent with the provisions of R.C. Chapter 733.

This court overruled defendant's jurisdictional motion seeking an order to certify the record on August 12, 1992. Creed v. Hubbard (1992), 64 Ohio St.3d 1443, 596 N.E.2d 472.

On remand, Creed amended the caption of his complaint to "City of Hubbard ex rel. Creed v. Sauline, et al." Defendants filed an amended answer with leave of court asserting the affirmative defense that "[p]ayments have been made to and received by defendant Sauline in good faith and under color of law." The trial court denied cross-motions for summary judgment filed by both parties.

Upon a trial to the court, judgment was entered in accordance with Creed I declaring the in-term pay raise to be illegal. The court found, however, that the mayor was under no legal obligation to refund the increased amounts he had received prior to the court of appeals' decision in Creed I, in that he had received them in good faith and under color of state law. The court did not grant an award of attorney fees to Creed's administrator. The costs of the action were assessed against the city of Hubbard. The court of appeals affirmed.

The cause is before this court pursuant to the allowance of a discretionary appeal.

Stuart J. Banks, Youngstown, and James A. Denney, Girard, for appellant.

Richards & Meola and Charles L. Richards, Warren, for appellee Sauline, Mayor.

H. Kenneth Inskeep, Hubbard City Law Director, for appellees Joshua, City Auditor, and Madeline, City Treasurer.

MOYER, Chief Justice.

We affirm the judgment of the court of appeals.

Law of the Case

In Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3-4, 11 OBR 1, 2-3, 462 N.E.2d 410, 412-413, we summarized the doctrine of the law of the case:

" * * * [T]he decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels. * * *

"The doctrine is considered to be a rule of practice rather than a binding rule of substantive law and will not be applied so as to achieve unjust results. Gohman [v. St. Bernard (1924) ], supra, 111 Ohio St. at 730-731 . However, the rule is necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution. See State, ex rel. Potain, v. Mathews (1979), 59 Ohio St.2d 29, 32 [13 O.O.3d 17, 18-19, 391 N.E.2d 343, 345].

"In pursuit of these goals, the doctrine functions to compel trial courts to follow the mandates of reviewing courts. * * * [Citations omitted.] Thus, where at a rehearing following remand a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal, the court is bound to adhere to the appellate court's determination of the applicable law. * * * [Citations omitted.] Moreover, the trial court is without authority to extend or vary the mandate given. * * * [Citations omitted.]" (Emphasis added.)

We have further held that the doctrine of law of the case precludes a litigant from attempting to rely on arguments at a retrial which were fully pursued, or available to be pursued, in a first appeal. New arguments are subject to issue preclusion, and are barred. Beifuss v. Westerville Bd. of Edn. (1988), 37 Ohio St.3d 187, 191, 525 N.E.2d 20, 24. See, also, Hawley v. Ritley (1988), 35 Ohio St.3d 157, 519 N.E.2d 390. Where this court refuses jurisdiction following the issuance of an opinion by a court of appeals, the court of appeals opinion becomes the law of the case. See Transamerica Ins. Co. v. Nolan (1995), 72 Ohio St.3d 320, 649 N.E.2d 1229.

On remand from the first decision of the court of appeals in Creed I, the appellees filed a cross-motion for summary judgment in their favor. The city officials did not contest appellant's claim that she was entitled to judgment on the issue of the invalidity of Ordinance No. 29-89. They claimed that they were nevertheless entitled to judgment on the issues of damages and attorney fees, stating, "[t]he only issues remaining to be litigated are whether Mayor Sauline must repay the monies spent under Ordinance 29-89 and whether the plaintiff may recover attorney fees from either the City of Hubbard or the officers and councilmen who took part in the passing of the ordinance." We find this acknowledgment to be in full accord with the doctrine of the law of the case.

In her first proposition of law, Creed's administrator contends that Mayor Sauline's state of mind as to the legality of the in-term pay raise ordinance at the time he accepted its benefits is irrelevant, thereby challenging the precedent of this court established in State ex rel. Parsons v. Ferguson (1976), 46 Ohio St.2d 389, 75 O.O.2d 457, 348 N.E.2d 692, and State ex rel. Gillie v. Warren (1973), 36 Ohio St.2d 89, 65 O.O.2d 241, 304 N.E.2d 242.

In opposition to this proposition the appellee city officials first argue that application of R.C. 731.07 to invalidate the pay-raise ordinance violates Section 3, Article XVIII of the Ohio Constitution, the Home Rule Amendment. We are precluded, however, from considering this argument, as to do so would violate the law-of-the-case doctrine. The finding of the court of appeals that R.C. 731.07 invalidated Ordinance No. 29-89 became the law of this case when this court refused to accept jurisdiction of the first appeal in 1992. We conclude that only two issues are properly before us: (1) whether Mayor Sauline should be required to reimburse amounts he had received as a result of Ordinance No. 29-89 through the end of his first term, and (2) whether relator Creed should have been awarded judgment in his favor on the issues of damages and attorney fees.

Reimbursement

In Parsons, supra, and Gillie...