Northeast Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs.

• Decision Date: 09 June 1997
• Docket Number: No. 70370,70370
• Citation: 121 Ohio App.3d 188,699 N.E.2d 534
• Parties: NORTHEAST OHIO APARTMENT ASSOCIATION et al., Appellees, v. CUYAHOGA COUNTY BOARD OF COUNTY COMMISSIONERS et al., Appellants. *
• Court: Ohio Court of Appeals

Page 188

121 Ohio App.3d 188

699 N.E.2d 534

NORTHEAST OHIO APARTMENT ASSOCIATION et al., Appellees, v. CUYAHOGA COUNTY BOARD OF COUNTY COMMISSIONERS et al., Appellants. ^*

No. 70370.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided June 9, 1997.

Taft, Stettinius & Hollister, Timothy J. Grendell, Mark A. Ferguson and Kathleen M. Blood, Cleveland, for appellees.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Ronald K. Riley, Assistant Prosecuting Attorney, Cleveland, for appellants.

BLACKMON, Judge.

The Cuyahoga County Board of Commissioners ("Board") ¹ appeals the trial court's granting of summary judgment to owners ² of apartments and condominiums who claimed that their sewage rates had been increased to an unreasonable level. These sewage rates became effective January 1, 1994 after several resolutions ³ were voted on by the Board. The Board argues that these resolutions were voted on in a public forum and that they were signed by the Board's president. The Board assigns the following errors for our review:

"I. The court of common pleas erred when it granted plaintiffs-appellees summary judgment based on the alleged violation of the sunshine law, O.R.C. 121.22(A) and (H), by the Cuyahoga County Board of Commissioners.

"II. The court of common pleas erred in granting plaintiffs-appellees summary judgment based on the Cuyahoga County Board of Commissioners' alleged failure to comply with O.R.C. 305.10 and 305.11."

After reviewing the record and the arguments of the parties, we reverse the judgment of the trial court. The apposite facts follow.

The facts of this case center on the process used by the Board to enact these resolutions that called for the use of either the Equivalent Residential Unit ("ERU") ⁴ formula or the lineal front footage ⁵ method. The Board adopted these resolutions that everyone agrees increased the sewage rates of apartment and condominium owners. However, it is equally agreed that the Board has the power to set these rates under R.C. 6117.02 R.C. 121.22, 305.09 and 305.10 require that the resolutions be adopted at public meetings. R.C. 305.11 requires that the Board president sign the enacted resolutions.

The Board presented Clerk Marjorie Pettus's affidavit. Her affidavit stated that these resolutions were adopted in the usual manner. The usual manner was defined as follows: "When a matter is accepted by vote of the Commissioners, the information and vote is then reduced to a resolution. That resolution, along with the record of the previous meeting, is then read to the Board, and, if correct, will be approved and signed by the Board President and Clerk." (Emphasis added.)

The owners relied on Commissioner Mary O. Boyle's deposition:

"Q. Okay. So again, let me just ask you the question. On Exhibit 3 it reflects that you did not vote on this one. But again, is the normal procedure for all these resolutions that they vote on the title and don't have the actual document at the time?

"A. That's right. But they are presented, they are presented in a public forum. The director of the department of community services would come forward. The traditional way would be to come forward and say this is the--today you are going to act on the annual or the biannual or whatever.

"Q. But the actual physical document is not there. Does somebody have them with them at that point in time or is it drafted afterwards, if you know?

"A. I'm not sure that it doesn't happen in both ways. There may be--the actual resolution may, in fact, have been prepared in advance or it could be that other papers are before the clerk of the board of county commissioners in advance and it could be that the resolution is prepared after the board votes in response to the materials that were provided by the director."

Board President Hagan in his depositions agreed with Clerk Marjorie Pettus's affidavit that the text of these resolutions was voted on in a public forum.

The trial court held that the resolutions were adopted at public meetings. However, it concluded, after weighing the evidence, that the Board voted on the titles of these resolutions, that the text was not present or otherwise presented to the Board and that the Board president had failed to sign the resolutions. This appeal followed.

We will address both of the Board's assigned errors together because they raise the issue of whether as a matter of law the trial court was correct in granting summary judgment to the owners.

The standard of review in a summary judgment appeal is de novo. De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine if as a matter of law genuine issues exist for trial. Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St.2d 116, 18 O.O.3d 354, 413 N.E.2d 1187. De novo review requires that we review the trial court's decision independently and without deference to it. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153. De novo review in substance is a determination by us whether the trial court has chosen the correct law and applied it correctly, and since we both are presumed to know the correct law, we are not required to defer to the trial court.

In this case, the law is uncomplicated. It requires that the Board of Commissioners hold public hearings before it enacts a resolution, and that the Board president sign the resolution. See R.C. 122.22, 305.09, and 305.11. If the facts show that the resolutions in this case were adopted in secrecy and the Board president failed to sign them as well, then as a matter of law summary judgment was correctly granted. Otherwise, it is the duty of the trial court to "submit an essential issue to the jury when there is sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue." Bostic v. Connor (1988), 37 Ohio St.3d 144, 524 N.E.2d 881. Generally, where the evidence is not in conflict or the facts are admitted, the question is as a matter of law, one for the court, not a jury. Id. at 146, 524 N.E.2d at 883-884.

Thus, our inquiry begins and ends when we have resolved whether no genuine issue as to any material fact exists for trial and whether reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmovant, who is entitled to have the evidence construed most strongly in its favor. See Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267; Civ.R. 56. These two issues depend on each other in the summary judgment context.

"Summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211-212. This means that the factual dispute must be ascertainable and sufficient evidence must exist to support the factual dispute. Id. at 249, 106 S.Ct. at 2510-2511, 91 L.Ed.2d at 212.

Here, the Board argues that in Clerk Marjorie Pettus's affidavit she averred that these resolutions were adopted in the usual manner. "The usual manner" meant that a proposal was made, it was reduced to a resolution, and in a public meeting the resolution was read out loud to the Board. After enactment, it was signed by the Board president. Pettus averred that this procedure was followed on the day these resolutions were signed. This, the Board argues, is sufficient to establish a genuine issue for trial and establish that a factfinder could find for it.

However, the owners claim that these resolutions were voted on by titles only. The owners and the trial court inferred that this meant that the text was not present at the meeting, which they inferred was a secret meeting. This, the owners argue, is supported by Mary Boyle's deposition. We disagree.

Commissioner Mary Boyle's deposition is not in conflict with Pettus's affidavit and Hagan's deposition. In fact, she said that they vote on the titles but the resolutions were presented at their public meeting. This is consistent with Pettus, who said they were presented at the public meeting by reading them aloud.

However, after Boyle's above response, the owners' lawyer said, "But the actual physical document is not there." Boyle responded, "I'm not sure that it doesn't happen in both ways." She went on to elaborate that the resolutions could be prepared before the public meeting or after the public meeting. Before this elaboration, she had said that she was not sure of the procedure. To us, this is not an admission that resolves the factual dispute. If anything, it further complicates the issue and establishes for this court that indeed a factual dispute does exist. In any event, even if Boyle's deposition was not specific as to the procedure used in the adoption of these resolutions, Pettus's affidavit was.

Also, on the issue of the Board president's signature, Pettus said in her affidavit that the resolutions were signed by the president. The signed resolutions were attached to her affidavit but not submitted with the Board's brief in opposition to the owners' motion for summary judgment. However, the signed copy was attached to the Board's brief to this court. Regardless of this fact, it is our opinion that Pettus's affidavit alone was a basis for the factfinder to find for the Board on this issue as well as the public forum issue.

Finally it appears from the record that the trial court weighed the evidence and chose inferences in favor of the owners. This it cannot do. Dupler, 64 Ohio St.2d at 121, 18 O.O.3d at 357-358, 413 N.E.2d at 1191-1192. Instead, the court must examine the evidence and resolve all questions of credibility in favor of the nonmovant, which is our task as...