First District Court of Appeals Decision in the case relating to the Mayor's Car Allowance

7/28/2019 First District Court of Appeals Decision in the case relating to the Mayor's Car Allowance

1/5

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

CITY OF CINCINNATI EX REL. MARKMILLER,

and

CITY OF CINCINNATI EX REL.THOMAS E. BRINKMAN,

Relators-Appellants,

vs.

CITY OF CINCINNATI,

REGINALD ZENO, FINANCEDIRECTOR OF CITY OF CINCINNATI,

and

JOHN T. WALSH, TREASURER OFCITY OF CINCINNATI,

Respondents-Appellees.

:

:

:

:

:

:

:

:

:

:

:

:

APPEAL NO. C-120221TRIAL NO. A-1103680

JUDGMENT ENTRY.

We consider this appeal on the accelerated calendar, and this judgment entry

is not an opinion of the court. See S.Ct.R.Rep.Op. 3(A); App.R. 11.1(E); Loc.R. 11.1.1.

Relators-appellants Mark Miller and Thomas Brinkman (collectively, the

taxpayers) appeal the denial of their motion for summary judgment and the trial

courts grant of summary judgment in favor of respondents-appellees the city of

Cincinnati, Reginald Zeno, Cincinnati Finance Director, and John T. Walsh, Cincinnati


2/5

OHIO FIRST DISTRICT COURT OF APPEALS

2

Treasurer (collectively, the City). For the following reasons, we reverse the trial

courts judgment in part.

In May 2011, the taxpayers sued the City, alleging that the City was paying the

mayor of Cincinnati, Mark Mallory, more compensation than he was entitled to

under the Charter of the City of Cincinnati (Charter). Specifically, they alleged that

the Charter currentlycapped the mayors compensation at $121,291.50, but that the

City had been paying the mayor $6,000 above that cap in the form of a $500

monthly car allowance. In their complaint, they sought a declaratory judgment (1)

relating to the total annual compensation for the mayor of the City or in other

words, that the term compensation as set forth in the Charter included fringe

benefits as well as salary and (2) that the Citys council had not authorized the

expenditure of city funds for a mayoral car allowance. Further, the taxpayers sought

an injunction restraining the City from continuing to pay the car allowance to the

mayor.

After the City filed its answer, both parties moved for summary judgment.

The trial court summarily granted summary judgment in favor of the City and denied

the taxpayers motion for summary judgment. The taxpayers now appeal.

In their single assignment of error, the taxpayers assert that the trial court

erred by denying their motion for summary judgment and granting the Citys motion

for summary judgment in the taxpayers declaratory judgment action. We agree in

part.

We review the trial courts decision on the summary judgment motion de

novo. Koos v. Central Ohio Cellular, Inc, 94 Ohio App.3d 579, 588, 641 N.E.2d 265

(8th Dist.1994). Summary judgment is appropriate under Civ.R. 56(C) when (1) no

genuine issue as to any material fact remains to be litigated; (2) the moving party is


3/5


3

entitled to judgment as a matter of law; and (3) it appears from the evidence that

reasonable minds can come to but one conclusion, and viewing such evidence most

strongly in favor of the nonmoving party, that conclusion is adverse to the party

against whom the motion for summary judgment is made. State ex rel. Parsons v.

Fleming, 68 Ohio St.3d 509, 599, 628 N.E.2d 1377 (1994).

In the Citys motion for summary judgment, it argued that the issues

presented by the taxpayers had already been litigated in Mallory v. Cincinnati,

Hamilton C.P. No. A-1103447 (Aug. 10, 2011), and thus, the taxpayers action was

barred under the doctrine of res judicata. In Mallory, the mayor of Cincinnati sued

the City in a declaratory judgment action seeking a determination as to whether his

compensation, as that term is used in the Charter, included only his salary or his

salary and fringe benefits, such as an automobile allowance. The trial court in

Mallory decided that compensation, as that term was used in the city charter, only

encompassed the mayors annual salary and did not include fringe benefits. The City

appealed the trial courts decision.

WhileMallorywas pending on appeal, the trial court in this case ruled on the

parties motions for summary judgment. While the trial court did not issue a

detailed opinion as to why it had entered summary judgment in the Citys favor, it

can be presumed that the trial court considered and adopted the Citys reasoning that

the taxpayers lawsuit was barred by res judicata.

Subsequent to the trial courts decision here, this court decided the appeal in

Mallory, issuing an opinion that reversed the trial courts decision in that case. See

Mallory v. Cincinnati, 1st Dist. No. C-110563, 2012-Ohio-2861 (the Mallory

Appeal). We held in the Mallory Appealthat the trial court did not have subject-

matter jurisdiction to determine the issues presented because there was no


4/5


4

justiciable controversy between the parties. On remand, we instructed the trial court

to dismiss the case.

When a court lacks subject-matter jurisdiction to hear a case, any

proclamation by that court is void. SeePratts v. Hurley, 102 Ohio St.3d 81, 2004-

Ohio-1980, 806 N.E.2d 992, 11. Thus, because the trial court in Mallory lacked

subject-matter jurisdiction, its decision determining the issues in that case was void.

Because its decision was void, the issues in Mallory had not been litigated.

Therefore, the Citys argument that the doctrine of res judicata barred the taxpayers

lawsuit here is untenable. Accordingly, the trial court erred in granting summary

judgment in favor of the City. The assignment of error is sustained in part.

With respect to the trial courts denial of the taxpayers motion for summary

judgment under Civ.R. 56(A), we cannot say that the trial court erred. Because the

trial court erroneously granted summary judgment to the City on the basis of res

judicata, the factual record and arguments pertaining to what the term

compensation meant as set forth in the Charter was not fully developed below.

Thus, given the record that was certified for our review under App.R. 9(A), we are

unable to make any determination as to whether the mayors compensation, as set

forth in the Charter, includes salary and fringe benefits or just salary. Because the

taxpayers did not affirmatively demonstrate that there were no genuine issues of

material fact with respect to their claim, we overrule the portion of the assignment of

error that alleges the trial court erred in overruling their motion for summary

judgment. See Capital Fin. Credit, LLC v. Mays, 191 Ohio App.3d 56, 2010-Ohio-

4423, 944 N.E.2d 1184, 5 (1st Dist.).


5/5


5

Accordingly, we reverse the trial courts judgment in part, and affirm it in

part, and we remand this matter for further proceedings consistent with this

judgment entry and the law.

Further, a certified copy of this judgment entry shall be sent to the trial court

under App.R. 27. Costs shall be taxed under App.R. 24.

HILDEBRANDT,P.J.,DINKELACKERand FISCHER,JJ.

To the clerk:

Enter upon the journal of the court on April 19, 2013

per order of the court ____________________________.Presiding Judge

Documents

First District Court of Appeals Decision in the case relating to the Mayor's Car Allowance