Medina ex rel. Jocke v. Medina

[Cite as Medina ex rel. Jocke v. Medina, 2021-Ohio-4353.]

IN THE COURT OF APPEALS OF OHIO
NINTH APPELLATE DISTRICT
MEDINA COUNTY

CITY OF MEDINA ex rel. RALPH E. :
JOCKE, et al. :
: Appellate Case No. 20CA0044-M
Relators-Appellants :
: Trial Court Case No. 19CIV1032
v. :
: (Civil Appeal from
CITY OF MEDINA, OHIO : Common Pleas Court)
:
Respondent-Appellee :

...........

OPINION

Rendered on the __13th___ day of December, 2021.

...........

PATRICIA A. WALKER, Atty. Reg. No. 0001779 and RALPH E. JOCKE, Atty. Reg. No.
0011642, 231 South Broadway, Medina, Ohio 44256
Attorneys for Relators-Appellants

GREGORY A. HUBER, Atty. Reg. No. 0013857, 132 North Elmwood Avenue, P.O. Box
703, Medina, Ohio 44256
Attorney for Respondent-Appellee

.............

TUCKER, J.
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{¶ 1} Ralph E. Jocke, Patricia A. Walker, and Keith Rasey appeal from the trial

court’s entry of summary judgment against them on a complaint they filed on behalf of the

taxpayers of the City of Medina. The lawsuit challenges the Medina City Council’s

enactment of two ordinances. The first authorized the Mayor to contract with the Medina

County Board of Commissioners to share expenses related to design, planning, and

construction-management services for a proposed shared courthouse. The second

ordinance amended the first by increasing the amount authorized to be paid under the

cost-sharing agreement and by clarifying that the City’s payment was to be made to the

County.

{¶ 2} The appellants argued below that both ordinances were invalid for various

reasons, including that City Council improperly had passed the first ordinance as an

emergency measure. The trial court held that the appellants lost their ability to challenge

the emergency enactment by not bringing a successful referendum petition. It also

expressed its belief that the emergency enactment was proper. Finally, the trial court

quoted a page from the City’s summary-judgment brief in an apparent finding of no

irregularity in the enactment of either ordinance.

{¶ 3} We conclude that the appellants’ failure to bring a successful referendum

petition is not dispositive of their lawsuit. Regardless of whether it qualified as an

emergency measure, the first ordinance took effect no later than 30 days after its passage

by the Medina City Council. At that time, whether the ordinance properly had been

enacted on an emergency basis became immaterial. The appellants’ lawsuit also

challenges the legality of both ordinances on multiple other grounds. Although the trial
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court did not specifically address most of these arguments, it was not required to render

findings of fact or conclusions of law when entering summary judgment for the City. In

any event, our de novo review reveals that none of the appellants’ arguments are

persuasive. Finally, this appeal is not moot, as both ordinances remain in effect

notwithstanding events that have transpired since their enactment.

{¶ 4} For the reasons to follow, we affirm the trial court’s entry of summary

judgment in favor of the City of Medina.

I. Factual and Procedural Background

{¶ 5} The Medina City Council passed the first ordinance on June 24, 2019. The

legislation, Ordinance No. 98-19, was enacted as an emergency measure. It authorized

the Mayor to enter into a cost-sharing agreement with the County for the planning phase

of a joint courthouse project. The approved funding was not to exceed $133,000. The

Mayor promptly entered into the cost-sharing agreement. A citizen group responded with

an initiative petition to allow electors to vote on the courthouse project. The attempt failed,

however, because not enough valid signatures were obtained.

{¶ 6} On March 9, 2020, the Medina City Council passed Ordinance No. 49-20. It

amended Ordinance No. 98-19 in two ways. First, it increased the authorized funding for

the cost-sharing agreement to $171,000. Second, it made the funds payable to Medina

County rather than the chosen architectural firm.

{¶ 7} The appellants filed the present lawsuit on October 22, 2019 on behalf of the

taxpayers of the City of Medina. They alleged that Ordinance No. 98-19 was invalid for

several reasons, including its enactment as an emergency measure. The appellants filed

a supplemental complaint on March 23, 2020 after the City Council passed Ordinance
 -4-

No. 49-20. The supplemental complaint added challenges to the validity of Ordinance No.

49-20. It requested preliminary and permanent injunctive relief to enjoin the City from

taking any action authorized by either ordinance. The supplemental complaint also sought

a return to the City of money paid pursuant to either ordinance. Finally, the supplemental

complaint requested the assessment of costs (but not attorney fees) against the City. The

parties proceeded to file competing dispositive motions. In a brief June 24, 2020 written

decision, the trial court found the City entitled to judgment as a matter of law. This appeal

followed.

II. Summary Judgment Standard

{¶ 8} We review an award of summary judgment de novo. Village of Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civil Rule 56(C),

summary judgment is proper when “(1) [n]o genuine issue as to any material fact remains

to be litigated; (2) the moving party is 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 party against whom the motion for

summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean

United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). With these standards in

mind, we turn to the issues on appeal.

III. Analysis of Assignments of Error

{¶ 9} The appellants’ first two assignments of error state:

I. The trial court erred when it found that the Taxpayers’ lawsuit,

concerning Medina City Ordinance No. 98-19, was untimely

filed.
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II. The trial court erred when it found that Medina City Ordinance

No. 98-19 did not violate the City Charter and that Ordinance

was correctly passed as emergency legislation.

{¶ 10} In their first assignment of error, the appellants contend (1) an emergency

ordinance cannot be challenged via referendum, (2) their lawsuit was timely because R.C.

733.60 provides a one-year statute of limitation to enjoin the performance of a municipal

contract, and (3) equitable principles favor permitting them to challenge both ordinances.

{¶ 11} In their second assignment of error, the appellants challenge the trial court’s

finding that emergency enactment of the first ordinance was proper and, therefore, did

not violate the Medina City Charter. The appellants note that the Charter prohibits

passing, as an emergency measure, any ordinance authorizing the “surrender” or “joint

exercise” of any City power. They argue that Ordinance No. 98-19 violated this prohibition

by allowing the Mayor to contract with the County to share expenses related to design,

planning, and construction-management services for a proposed shared courthouse. The

appellants assert that Ordinance No. 98-19 is invalid for this reason and, further, that

Ordinance No. 49-20 is invalid because it amended an invalid ordinance.

{¶ 12} Upon review, we find both assignments of error to be without merit. With

regard to the first assignment of error, the trial court does not appear to have found the

appellants’ entire lawsuit untimely. Instead, it reasoned that the appellants “lost the ability

to challenge the emergency enactment [of the first ordinance] when they did not bring a

successful referendum petition as contemplated by R.C. 731.29.” The trial court opined

that “[t]he principal allegation” underlying the appellants’ request for injunctive relief

concerned the Medina City Council’s passing the first ordinance as an emergency
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measure. In the trial court’s view, the appellants were required to raise this issue through

a referendum petition under R.C. 731.29. In other words, the trial court opined that the

appellants were required to seek a different form of relief to challenge the emergency

nature of the enactment. The trial court did not dismiss the lawsuit itself on the basis of

untimeliness. Accordingly, the first assignment of error is overruled.

{¶ 13} With regard to the second assignment of error, any issues involving the

emergency enactment of Ordinance No. 98-19 are now moot. The general rule is that an

ordinance passed by a city council does not take effect for 30 days. During that period,

electors may file a referendum petition requiring the ordinance to be placed on the ballot

for approval or rejection. R.C. 731.29. However, emergency ordinances “necessary for

the immediate preservation of the public peace, health, or safety” are not subject to

referendum and “shall go into immediate effect.” R.C. 731.30.

{¶ 14} Here the appellants challenge whether Ordinance No. 98-19 qualified as an

emergency measure. If it did, then it went into effect immediately, and a referendum

petition was not available. On the other hand, if it did not meet the statutory requirements

for an emergency measure, then it did not take effect for 30 days and could have been

challenged through a timely referendum (if the appellants wished to pursue that remedy).

But because the appellants did not pursue a timely referendum, or initiate any other legal

challenge during the 30-day window, Ordinance No. 98-19 necessarily took effect no later

than 30 days after its passage, regardless of whether it qualified as an emergency

measure. City of Youngstown v. Aiello, 156 Ohio St. 32, 37-38, 100 N.E.2d 62 (1951);

McNair v. City of Brecksville, 2017-Ohio-7401, 96 N.E.3d 1078, ¶ 17-27 (8th Dist.)

(holding that an ordinance became effective in due time as a regular ordinance even if it
 -7-

improperly had been passed as emergency legislation). At this point, then, it matters not

whether Ordinance No. 98-19 qualified as an emergency measure. The ordinance took

effect in due time as a regular ordinance even if it lacked true emergency status.

{¶ 15} We note too that the referendum question is a non-issue. The appellants

sought declaratory and injunctive relief below on the basis that the two ordinances are

invalid for a variety of reasons (one of which was a claim that Ordinance No. 98-19 did

not qualify as an emergency measure). The object of a referendum generally is to have

a valid ordinance submitted to the electors for their approval or disapproval. State ex rel.

Hasselbach v. Sandusky Cty. Bd. of Elections, 157 Ohio St. 3d 433, 2019-Ohio-3751,

137 N.E.3d 1128, ¶ 9, 13. The present lawsuit does not seek to have either ordinance

submitted to the voters. Rather, the appellants argue that both ordinances are invalid

because the Medina City Council enacted them in violation of various provisions of state

and local law. Given that the appellants do not seek the relief that a referendum provides,

the trial court’s observation that they failed to file a timely referendum petition is immaterial

to their lawsuit. The second assignment of error is overruled as moot.

{¶ 16} In their third, fourth, and fifth assignments of error, the appellants contend

the trial court erred in entering summary judgment against them without addressing

certain issues. The assignments of error state:

III. The trial court erred when it did not address, and therefore did

not find, that Medina City Ordinances No. 98-19 and/or No. 49-

20 violated the joint governmental construction project statute,

R.C. 153.61.

IV. The trial court erred when it did not address, and therefore did
 -8-

not find, that Medina City Ordinances No. 98-19 and/or No. 49-

20 violated the statute that requires the reading of a municipal

ordinance three times before the ordinance’s passage, R.C.

731.17, or any of the Medina City Codified Ordinances that also

require transparency.

V. The trial court erred when it did not address, and therefore did

not find, that Ordinance No. 49-20 is invalid.

{¶ 17} In their third assignment of error, the appellants claim the two ordinances

violate R.C. 153.61, which governs agreements between a county and a municipality for

the joint construction, management, and use of public improvements. The statute

provides:

Any county or counties and any municipal corporation or municipal

corporations may enter into an agreement providing for the joint

construction, acquisition, or improvement of any * * * public building * * *

and providing for the joint management, occupancy, maintenance, and

repair thereof. Any such agreement shall be approved by resolution or

ordinance passed by the legislative authority of each of the parties to such

agreement, which resolution or ordinance shall set forth the agreement in

full and shall authorize the execution thereof by designated official or

officials of each of such parties, and such agreement, when so approved

and executed, shall be in full force and effect.

R.C. 153.61.

{¶ 18} An agreement entered into pursuant to R.C. 153.61 must contain provisions
 -9-

addressing various items, including (1) the method by which the building will be

constructed, (2) the manner in which title will be held, (3) the manner in which the building

will be managed, occupied, maintained, and repaired, and (4) apportionment of the cost

of jointly constructing, acquiring, or improving the building. R.C. 153.61(A)-(D). The

appellants maintain that the contract authorized by Ordinance No. 98-19 lacked the

provisions required by R.C. 153.61 despite being governed by that statute. For its part,

the City acknowledges that Ordinance No. 98-19 lacked the provisions mentioned in R.C.

153.61. It argues, however, that the statute has no applicability. We agree with the City.

{¶ 19} As noted above, R.C. 153.61 governs a county-municipal “agreement

providing for the joint construction, acquisition, or improvement of any * * * public building

* * * and providing for the joint management, occupancy, maintenance, and repair

thereof.” In the present case, neither Ordinance No. 98-19 nor the contract it authorized

provides for the construction, acquisition, or improvement of anything. Section 1 of the

ordinance authorizes the Mayor “to enter into an Agreement to Share Costs of

Professional Design, Planning, and Construction Management Services for the Joint

Construction and Management of a County-City Courthouse.” The contract

accompanying Ordinance No. 98-19 demonstrates that Medina County and the City of

Medina entered into an agreement to study the feasibility of a shared courthouse. In

particular, they agreed to share the costs “of professional design, planning and

construction management services to prepare detailed design specifications for the joint

construction of a new combined County/City Courthouse[.]” (Emphasis added.) The

contract authorizes an architect to “prepare detailed design and construction plans.” It

identifies the work as “preliminary planning.” The City’s obligations under the contract are
 -10-

to reimburse the County 25 percent of the architectural design fee and 25 percent of the

construction manager fee “for services rendered during the design phase.” Under the

terms of the contract, the County and City recognized that “if a joint project is advisable,

they will need to negotiate an agreement that conforms with the requirements of R.C.

Section 153.61 to allocate responsibilities for the joint construction, ownership,

maintenance and operation of a joint facility.”

{¶ 20} In short, Ordinance No. 98-19 authorizes a contract to share the cost of a

feasibility study that includes design and architectural plans. The ordinance and the

accompanying contract are not governed by R.C. 153.61, as the agreement between

Medina County and the City of Medina does not provide for the joint construction,

acquisition, or improvement of anything and does not provide for the joint management,

occupancy, maintenance, or repair of anything. The contract between Medina County and

the City of Medina does not contain provisions addressing the things referenced in R.C.

153.61 because the project has not progressed to that stage.

{¶ 21} In opposition to the foregoing reasoning, the appellants cite Beal v. City of

Elyria, 26 Ohio Misc. 282, 271 N.E.2d 571 (Lorain C.P. 1971) and Bazell v. City of

Cincinnati, 13 Ohio St.2d 63, 233 N.E.2d 864 (1968), and argue that “construction”

includes “planning.” But neither case stands for the proposition that preliminary planning

or design constitute “construction” under R.C. 153.61. Neither case even addresses that

issue.

{¶ 22} Finally, the appellants contend the trial court was obligated to address the

applicability of R.C. 153.61. Given that the trial court’s summary-judgment ruling fails to

mention the statute, the appellants argue that it necessarily erred. We note, however, that
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the trial court had no duty to explain its decision, and findings of fact and conclusions of

law are not required when ruling on summary judgment. Copeland v. Rosario, 9th Dist.

Summit No. 18452, 1998 WL 46768, *3 (Jan. 28, 1998).1 By entering summary judgment

in favor of the City, the trial court necessarily rejected the appellants’ argument about the

applicability of R.C. 153.61. The third assignment of error is overruled.

{¶ 23} In their fourth assignment of error, the appellants claim the trial court erred

in failing to find a violation of R.C. 731.17. Prior to passage, the statute requires a

proposed municipal ordinance to “be read on three different days, provided the legislative

authority may dispense with this rule by a vote of at least three-fourths of its members.”

Here the Medina City Council did not have either of the ordinances read three times on

different days. Nor did City Council members vote to dispense with the reading

requirement.

{¶ 24} The City of Medina asserts, however, that R.C. 731.17 did not apply. As a

charter city with home-rule authority, the City maintains that it exercised its authority to

enact its own procedure governing the reading of proposed ordinances. The City cites

Medina Codified Ordinance 113.02(a), which provides:

* * * Prior to the placement for consideration before Council of any bylaw,

ordinance or resolution of a general or permanent nature * * * or involving

the expenditure of money * * *, the presiding member of Council shall

1 In Mourton v. Finn, 9th Dist. Summit No. 26100, 2012-Ohio-3341, this court held that a
trial court was obligated to provide some basis for its summary-judgment ruling where the
case involved a particularly “complex web of facts and multiple legal issues.” Id. at ¶ 8.
Although the trial court’s ruling in the present case is less helpful than it could have been,
the appeal is not so factually and legally complex that we are unable to conduct a de novo
review of the assignments of error.
 -12-

verbally inquire of the members of Council if there is a motion to read the

pending bylaw, ordinance or resolution fully and distinctly on three different

days. In the absence of such motion, Council may proceed with the

consideration of the bylaw, ordinance or resolution through the reading of

the title only and a motion and second to adopt said bylaw, ordinance or

resolution. In the event there is a motion and a second to read any bylaw,

ordinance or resolution by title only on three different days, or to read any

bylaw, ordinance or resolution fully and distinctly, or to read any bylaw,

ordinance or resolution fully and distinctly on three different days, such

motion shall be approved upon the affirmative vote of one-third of all the

members of Council.

{¶ 25} Insofar as the foregoing procedure differs from R.C. 731.17, we agree with

the City that its ordinance prevailed. The City of Medina is a charter city with home-rule

authority. Section III-10 of the Medina City Charter authorized the City Council to pass an

ordinance governing the method of enacting ordinances. Medina Codified Ordinance

113.02(a) was enacted pursuant to this authority. See also R.C. 701.05 (“Municipal

corporations operating under a charter which provides for or authorizes a method of

procedure in the passage and publication of legislation * * * differing from the method

prescribed by general law, may pass and publish such legislation * * * under the general

law or in accordance with the procedure provided for or authorized by its charter.”); Singer

v. City of Troy, 67 Ohio App.3d 507, 512, 587 N.E.2d 864 (2d Dist.1990) (opining that

“R.C. 731.17 governs the passage of ordinances and resolutions by non-charter cities”).

{¶ 26} In opposition to our conclusion, the appellants cite Wesolowski v. City of
 -13-

Broadview Hts. Planning Comm., 158 Ohio St.3d 58, 2019-Ohio-3713, 140 N.E.3d 545.

But that case involved a municipality’s exercise of its police powers, namely the approval

of a subdivision application. Unlike Wesolowski, the Medina City Council’s preferred

procedure for reading or waiving the reading of a proposed ordinance involved a matter

of local self-government. City of Dayton v. Woodgeard, 116 Ohio App. 248, 252, 187

N.E.2d 921 (2d Dist. 1962) (recognizing that “the adoption of ordinances” is “a matter of

purely local concern”). The appellants also cite State ex rel. Committee for Charter

Amendment Petition v. City of Maple Hts., 140 Ohio St.3d 344, 2014-Ohio-4097, 18

N.E.3d 426. That case involved a city council’s failure to submit charter amendment

initiatives “forthwith.” In its defense, the city maintained that R.C. 731.17 obligated it to

read the proposed initiatives three times. The Ohio Supreme Court disposed of this

argument in one sentence, simply noting that R.C. 731 also permitted the three-reading

requirement to be waived. Id. at ¶ 21. Nothing in the case indicates that Maple Heights

even had its own procedure for reading proposed legislation.

{¶ 27} In our view, the relevant issue here is whether the Medina City Council

complied with Medina Codified Ordinance 113.02(a). The City maintains that “in the

absence of such motion” requesting a reading on three separate days, Ordinance

113.02(a) authorized the two ordinances at issue to be read just once by title before

voting. Although this is true, the appellants observe that prior to a vote, Ordinance

113.02(a) instructed the presiding member of Council to “verbally inquire” of the other

members if there was a motion to read the pending ordinances fully and distinctly on three

days. If there was a motion, then council members were required to vote on whether to

require multiple readings. The Medina City Council minutes reflect no inquiry into the
 -14-

existence of a motion to have either ordinance read on multiple days.

{¶ 28} The minutes of the June 24, 2019 Medina City Council meeting demonstrate

beyond any genuine dispute, however, that none of the council members desired

consideration of Ordinance No. 98-19 to be delayed for multi-day readings. The subject

of a cost-sharing agreement for a feasibility study that included design and architectural

plans already had been discussed by the City Council’s finance committee. The finance

committee also previously had reviewed the proposed contract between the City of

Medina and Medina County. During the June 24, 2019 meeting of the full City Council, its

members unanimously voted to add proposed Ordinance No. 98-19 to their agenda. After

some discussion, a motion was made to adopt Ordinance No. 98-19, and the motion was

seconded. A motion also was made and seconded to add the emergency clause. The

reason for the urgency was that the architect was “standing by waiting for [City Council]

to get this agreement executed.” Ordinance No. 98-19 then was passed by unanimous

agreement.

{¶ 29} Absent a motion for a reading of the ordinance on three days, the City

Council was not obligated to conduct such readings. Although the presiding member

should have inquired whether any of the members wanted to move for three readings, it

is apparent beyond reasonable dispute that none of the City Council members wanted

separate readings on three days. The members unanimously voted to add the Ordinance

to the evening’s agenda and unanimously voted to approve it without any objection to the

lack of three readings. Under these circumstances, we decline to find Ordinance No. 98-

19 invalid based on the presiding member’s failure to make a formal inquiry into the three-

reading issue prior to the vote.
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{¶ 30} In reaching this conclusion, we note that the City Council had authority to

suspend its own rules upon an affirmative vote of two-thirds of the members. See Medina

Codified Ordinance No. 111.07(a). Although the City Council’s rules required proposed

legislation to be placed on the agenda prior to a meeting and required the presiding

member to inquire about a motion for three readings of proposed legislation, the trial court

reasonably could have concluded that the Medina City Council at least implicitly voted to

suspend these requirements when it unanimously voted to add Ordinance No. 98-19 to

the agenda and unanimously voted to pass it on June 24, 2019 without objection.

Compare Woodgeard, 116 Ohio App. 248, 187 N.E.2d 921 (finding that failure to read

proposed ordinance aloud in full prior to adoption did not invalidate ordinance despite

existence of rule requiring ordinance to be read, and opining that a municipal body need

not note on its minutes the suspension of a rule in the absence of an objection by its

members).

{¶ 31} In a final argument under their fourth assignment of error, the appellants

raise public-notice issues. They contend Ordinance No. 98-19 did not exist in written form

when passed. They also claim Ordinance No. 49-20 was not available to the public until

four days before it was passed. Under these circumstances, the appellants contend both

ordinances violated Medina Ordinances 111.11(b), 111.12(c) and (d), and 113.02(a). In

their summary-judgment motion below, the appellants accurately characterized the first

three of these provisions as “Rules of Council.” (See Plaintiffs’ April 30, 2020 Response

in Opposition to Defendant’s Motion for Summary Judgment at 11-12.) Indeed, Chapter

111 of the Medina Codified Ordinances identifies them as such.

{¶ 32} Ordinance 111.11(b) provides that “[t]he final draft of proposed legislation,
 -16-

not previously considered in finalized or written form, shall be edited and reviewed by the

committee or by the committee chairman before its presentation to Council for dispositive

action.”

{¶ 33} Ordinance 111.12(c) states: “Prior to each meeting, the Clerk of Council

shall prepare an agenda, or written schedule of matters, to be brought before Council and

shall cause a copy of the same to be delivered to each member of Council together with

the full text of any proposed legislation at least seventy-two hours prior to each scheduled

meeting. Such agenda or written schedule shall constitute the formal schedule on

business to be considered by Council at its next meeting, and matters not included on

such agenda shall not receive consideration by Council, except upon suspension of these

rules.”

{¶ 34} Ordinance 111.12(d) states in relevant part: “Any proposed legislation or

other matter which is to be placed on the agenda for action by Council shall be presented

to the Clerk in a completed and final state not later than 12:00 noon on the Wednesday

preceding the meeting of Council.”

{¶ 35} Notably, the foregoing provisions appear to exist largely, if not primarily, for

the benefit of Council members. Ordinance 111.11(b) governs the editing and review of

proposed legislation prior to its presentation to Council. Ordinance 111.12(c) entitles

Council members to a copy of the agenda and the text of proposed legislation before a

meeting. Ordinance 111.12(d) governs the timing of the presentation of matters to the

Clerk before a Council meeting. These rules do not directly address public access to

proposed legislation. We note too that Ordinance 111.12(c) authorizes Council to add

items to its agenda during a meeting upon its suspension of the rules, and Ordinance
 -17-

111.07(a) allows Council to suspend its own rules.

{¶ 36} Regardless of any actual or perceived defect in the City Council’s

compliance with its own rules and procedures for consideration of Ordinance No. 98-19,2

we reiterate our belief that the Council members at least implicitly voted to suspend any

such requirements when they unanimously voted to add Ordinance No. 98-19 to the

agenda and unanimously voted to pass it on June 24, 2019 without objection. We reach

the same conclusion, again, with respect to Ordinance 113.02(a), the final provision cited

by the appellants, which imposes the three-reading requirement addressed above. As for

Ordinance No. 49-20, the appellants concede that it was made available to Council

members and to the public at least four days before the meeting at which it was enacted.

Therefore, we see no public-notice or “transparency” issues as far as Ordinance No. 49-

20 is concerned. The fourth assignment of error is overruled.

{¶ 37} In their fifth assignment of error, the appellants claim the trial court erred in

failing to find Ordinance No. 49-20 invalid. They cite five reasons why they believe the

ordinance is invalid as a matter of law.

{¶ 38} First, the appellants contend Ordinance No. 49-20 violates R.C. 153.61. We

2 Parenthetically, it appears to us that the proposed contract between City of Medina and
the Medina County Board of Commissioners did exist in written form prior to the June 24,
2019 City Council meeting. A physical copy of proposed Ordinance No. 98-19 also
appears to have been in existence prior to that meeting. (See City’s March 27, 2020
Motion for Summary Judgment at Exhibit A, Mary Kathleen Patton affidavit and
accompanying affidavit exhibits.). In particular, Exhibit A-9 to Patton’s affidavit appears to
be a complete copy of proposed Ordinance No. 98-19. The top of the document bears
the hand-written date “6-24-19” along with a notation that it is “to be added to agenda.”
Finally, with regard to the public-notice issue, the Medina City Council Clerk provided
detailed averments in the trial court describing how she provided the public at large with
notice of City Council agendas and notice of the ordinances and contract at issue. (See
City’s May 1, 2020 Brief in Opposition to Plaintiff’s Motion for Summary Judgment at
Patton affidavit.)
 -18-

disagree. Ordinance No. 49-20 did not authorize the joint construction, acquisition, or

improvement of anything. It simply increased the amount of money the City was

authorized to contribute to the shared costs under Ordinance No. 98-19, which as we

discussed above also did not implicate R.C. 153.61.

{¶ 39} Second, the appellants argue that Ordinance No. 49-20 was not read three

times as required by R.C. 731.17. As we explained above, however, R.C. 731.17 does

not apply to the City of Medina, which operates under home-rule authority.

{¶ 40} Third, the appellants assert that Ordinance No. 49-20 violated Medina

Codified Ordinance 113.02(a) because the presiding City Council member failed to

inquire whether any member wanted the proposed amendment to be read on three days.

Once again, we decline to invalidate the ordinance based on this oversight where City

Council members unanimously approved Ordinance No. 49-20, no member objected to

the vote or the failure to read the amendment on three days, and the record is devoid of

any indication that any member desired multiple readings.

{¶ 41} Fourth, the appellants claim Ordinance No. 49-20 is invalid under Medina

Codified Ordinance 113.02(b), which provides that no ordinance “shall be revised or

amended unless the new bylaw or ordinance contains the entire bylaw, ordinance or

section revised or amended, and the bylaw, ordinance or section so amended shall be

repealed.”

{¶ 42} The appellants note that Ordinance No. 49-20 explicitly amended

Ordinance No. 98-19 by (1) increasing the amount authorized to be paid under the joint

agreement with Medina County from $133,000 to $171,000 and (2) correcting a

misstatement in Ordinance 98-19 to make the money payable to the Medina County
 -19-

Board of Commissioners rather than directly to the architect. The appellants also correctly

observe that Ordinance No. 49-20 neither restated the entirety of Ordinance No. 98-19

with the amendments nor repealed Ordinance No. 98-19. In response, the City contends

the appellants waived the issue by failing to raise it below. The appellants dispute this

assertion, claiming they did raise non-compliance with Ordinance 113.02(b) in the trial

court.

{¶ 43} Upon review, we conclude that the appellants did not raise non-compliance

with Medina Codified Ordinance 113.02(b) as grounds for invaliding Ordinance 49-20. In

their March 23, 2020 supplemental complaint, the appellants presented numerous

arguments challenging the validity of Ordinance No. 98-19 and Ordinance No. 49-20.

Notably absent from the supplemental complaint is any reference to Medina Codified

Ordinance 113.02(b) or any argument that Ordinance No. 49-20 is invalid for failing to

fully restate and to repeal Ordinance No. 98-19.

{¶ 44} In their motion for summary judgment, the appellants likewise failed to

mention Medina Codified Ordinance 113.02(b) or to make any argument that Ordinance

No. 49-20 was invalid for failing to restate and repeal Ordinance No. 98-19. Given the

appellants’ failure to cite Medina Codified Ordinance 113.02(b) in their complaint or to

raise the issue in their summary-judgment motion, they cannot now complain that the trial

court erred in failing to invalidate Ordinance No. 49-20 based on non-compliance with

Medina Codified Ordinance 113.02(b).3

3 It appears that the appellants’ first reference to Ordinance 113.02(b) was in a footnote
in their memorandum opposing the City’s summary-judgment motion. (See Plaintiffs’ April
30, 2020 Response in Opposition to Defendant’s Motion for Summary Judgment at 13,
fn. 3.) But the appellants could not raise a new basis for invalidating Ordinance No. 49-
20 in response to the City’s motion for summary judgment on a supplemental complaint
 -20-

{¶ 45} Fifth, the appellants contend Ordinance No. 49-20 authorized the City to

spend $702.50 more than it was obligated to pay under its contract with Medina County.

The appellants maintain that this “misapplication” of City funds rendered Ordinance No.

49-20 invalid.

{¶ 46} We find the appellants’ argument to be unpersuasive. Ordinance No. 98-19

authorized the City to spend $133,000 to cover its share of expenses under the joint

agreement with Medina County. This amount failed to include the City’s share of the

$149,190 cost for a construction manager for the design phase. The City was obligated

to pay 25 percent of this cost, which amounted to $37,297.50. Instead of authorizing the

expenditure of an additional $37,297.50, Ordinance No. 49-20 authorized an additional

$38,000, making the new authorized total $171,000. The appellants insist that Ordinance

No. 49-20 is invalid and unenforceable because it should have authorized only

$170,297.50. In our view, the fact that Ordinance No. 49-20 rounded the authorized

expenditure up to the nearest thousand dollars does not constitute “misapplication” of City

finances. The City Council did not order the City to pay more than is required. The fact

that City Council authorized an additional $702.50 did not invalidate the ordinance. For

the foregoing reasons, we overrule the fifth assignment of error.

{¶ 47} In their sixth assignment of error, the appellants contend the trial court erred

in failing to grant them injunctive relief under R.C. 733.56 to restrain the misapplication of

that did not mention Ordinance 113.02(b). The appellants’ only other apparent reference
to R.C. 113.02(b) came in their reply brief in support of their own summary-judgment
motion. (See May 15, 2020 Reply Brief in Support of Plaintiffs’ Motion for Summary
Judgment at 3.) But the appellants were not entitled to raise a new basis for obtaining
summary judgment in their reply brief, particularly where their supplemental complaint
failed to raise the issue.
 -21-

municipal funds, the abuse of City powers, and the execution/performance of a municipal

contract made in contravention of law.

{¶ 48} We see no error in the trial court’s failure to grant the appellants injunctive

relief. In overruling the appellants’ other assignments of error, we have found no

misapplication of municipal funds, abuse of the City’s power, or the

execution/performance of an unlawful contract. Contrary to the appellants’ argument, we

also do not believe the traditional injunction considerations favor their request. In light of

our analysis above, the appellants did not demonstrate a likelihood of success on the

merits. We also see no risk of irreparable harm. We are unpersuaded by the appellants’

claim that allowing the two ordinances to stand will result in the destruction of an iconic

old courthouse. The two challenged ordinances authorized the City to spend money to

enter into a cost-sharing agreement for preliminary planning, including architectural

design services and fees payable to a construction manager for services rendered

through the design phase. Under these circumstances, the public interest would not be

served by granting injunctive relief, regardless of the purported lack of harm to third

parties if such relief were granted. The sixth assignment of error is overruled.

IV. Potential Mootness

{¶ 49} In a September 9, 2021 Decision and Entry, we directed the parties to file

supplemental briefs addressing whether the present appeal is moot in light of

developments that occurred following the enactment of Ordinance No. 98-19 and

Ordinance No. 49-20. In particular, the parties have addressed the impact, if any, of (1)

an initiative petition approved by City voters on November 3, 2020 and (2) an ordinance

approved by City voters on May 4, 2021. The parties also have addressed our prior
 -22-

decision to take judicial notice of the November 3, 2020 and May 4, 2021 election results

regarding the initiative petition and ordinance.

{¶ 50} After considering the parties’ filings, we adhere to our prior decision to take

judicial notice of the foregoing ballot measures and the election results. We agree with

the appellants, however, that the results of the elections on November 3, 2020 and May

4, 2021 do not render the present appeal moot.

{¶ 51} The initiative language approved by City voters on November 3, 2020

states:

REQUIRE VOTE ON COURTHOUSE

Without a majority vote of the qualified electors who are residents of

the City of Medina, Ohio, (“the City”), the City shall not:

1) authorize, appropriate or spend any funds for, or

2) use any city resources to carry out, or facilitate carrying out, any

demolition or construction activity (whether internal or external) at the

Medina County Courthouse or any structure located on the east side of the

Medina Public Square including, but not limited to, 72 through 99 Public

Square, Medina, Ohio.

This restriction shall have the effect of law and shall be effective for

a period of five (5) years.

{¶ 52} The ballot language approved by City voters on May 4, 2021 states:

A majority affirmative vote is necessary for passage.

Shall the City of Medina, Ohio, be authorized to appropriate

and expend funds and use city resources to locate the Medina
 -23-

Municipal Court inside of the Medina County 1969 courthouse

located at 93 Public Square so as to preserve the 1969 courthouse as

a court building on the east side of Medina Public Square?

O YES

O NO

{¶ 53} As noted above, City voters approved the initiative language and the

subsequent ballot language. The parties dispute the effect of the two voter-approved

measures and their interplay with Ordinance No. 98-19 and 49-20. Without resolving

these issues, which may be the subject of other litigation, we conclude that the two voter-

approved measures do not render the present appeal moot. In reaching this conclusion,

we note that Ordinance No. 98-19 and Ordinance No. 49-20 remain in full force and effect.

We note too that the present lawsuit seeks to enjoin further expenditures under Ordinance

No. 98-19 and Ordinance No. 49-20, to recoup money already spent under the two

ordinances, and to recover costs in this action. These issues are not moot, even if we

assume, arguendo, that the measures approved by voters on November 3, 2020 and May

4, 2021 have put a halt to any joint City-County courthouse project.

V. Conclusion

{¶ 54} Having overruled the appellants’ six assignments of error, we affirm the

judgment of the Medina County Common Pleas Court.

.............

HALL, J. and WELBAUM, J., concur.

Copies sent to:

Patricia A. Walker
Ralph E. Jocke
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Gregory A. Huber
Hon. Richard J. McMonagle, Sitting by Assignment