[Cite as Ohioans for Concealed Carry, Inc. v. Oberlin, 2017-Ohio-36.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

OHIOANS FOR CONCEALED CARRY,                               C.A. No.     15CA010781
INC., et al.

        Appellants
                                                           APPEAL FROM JUDGMENT
        v.                                                 ENTERED IN THE
                                                           COURT OF COMMON PLEAS
CITY OF OBERLIN, OHIO                                      COUNTY OF LORAIN, OHIO
                                                           CASE No.   13CV181618
        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: January 9, 2017



        CANNON, Judge.

        {¶1}     Plaintiffs-Appellants Ohioans for Concealed Carry, Inc., Brian J. Kuzawa, and

Janae R. Kuzawa (collectively “OCC”) appeal the judgment of the Lorain County Court of

Common Pleas. For the reasons set forth below, we affirm in part, and reverse in part.

                                                      I.

        {¶2}     Mr. and Mrs. Kuzawa were frequent visitors to Oberlin city parks. On August 2,

2013, Mr. Kuzawa noticed a sign in an Oberlin park indicating that firearms were not permitted

in the park. Mr. Kuzawa believed that the ordinance conflicted with R.C. 9.68 and contacted the

police about it. He additionally brought the issue to the attention of Oberlin City Council and

Ohioans for Concealed Carry, Inc., the latter of which he was a member. Ohioans for Concealed

Carry, Inc., is a not-for-profit corporation that advocates for and protects the right of the people

to keep and bear arms.
                                                2


       {¶3}    On October 1, 2013, OCC filed a complaint against Oberlin seeking a declaratory

judgment that Oberlin Codified Ordinances 927.07 (prohibiting the possession of firearms in city

parks and recreation areas) and 375.03 were unlawful and in violation of R.C. 9.68. OCC

additionally sought a permanent injunction against the enforcement of the ordinances and a

declaration that it had prevailed in a challenge to the ordinances and, therefore, was entitled to

recover costs, expenses, and attorney fees pursuant to R.C. 9.68(B).

       {¶4}    Shortly thereafter, on October 3, 2013, OCC amended its complaint, pointing out

that Oberlin had amended the language of Oberlin Codified Ordinance 927.07 to prohibit the

unlawful possession of firearms in city parks and recreation areas. Additionally, OCC alleged

that Oberlin Codified Ordinances 927.07, 549.02, 549.04, 549.10, 549.12, as well as other

unspecified ordinances, were unlawful and in violation of R.C. 9.68, and that it was entitled to

declaratory relief, a permanent injunction, and attorney fees. Oberlin filed an answer and

counterclaim for declaratory judgment, essentially agreeing that a controversy existed over

whether Oberlin Codified Ordinance 927.07, as amended, was in conflict with R.C. 9.68.

Oberlin attached a copy of the amended ordinance to its pleading which indicated that the prior

version conflicted with R.C. 9.68. The amendment was enacted on September 16, 2013, and

became effective October 16, 2013.

       {¶5}    On November 18, 2013, Oberlin adopted a resolution repealing Oberlin Codified

Ordinances 549.02 through 549.07, 549.10, and 549.12. Thereafter, Oberlin filed a motion for

partial summary judgment asserting that the declaratory judgment action was moot with respect

to any alleged conflict between R.C. 9.68 and the repealed ordinances. OCC opposed the motion

and also filed a motion for summary judgment. OCC maintained that, because Oberlin repealed

Oberlin Codified Ordinances 549.02 through 549.07, 549.10, and 549.12 after the case was
                                                 3


commenced, OCC prevailed in a challenge to those ordinances and was entitled to an award of

attorney fees. It additionally argued that Oberlin Codified Ordinance 927.07, as amended,

violated R.C. 9.68. Finally, OCC sought a declaration that Oberlin Codified Ordinance 927.07,

as amended, was unconstitutionally vague. In support of its motion for summary judgment,

OCC submitted two affidavits and also minutes from several Oberlin City Council meetings in

an effort to demonstrate that Oberlin repealed the ordinances because of the lawsuit.

Subsequently, Oberlin filed another motion for summary judgment arguing that Oberlin Codified

Ordinance 927.07, as amended, did not conflict with R.C. 9.68.

        {¶6}   In ruling on the pending motions, the trial court determined that there was no

longer a controversy involving the repealed ordinances, that Oberlin Codified Ordinance 927.07

was lawful and constitutional, and that, with respect to the award of attorney fees under R.C.

9.68(B), OCC was not a prevailing party, and therefore was not entitled to an award of attorney

fees.

        {¶7}   OCC has appealed, raising three “[i]ssue[s]” for our review, which will be

addressed out of sequence to facilitate our analysis.1

                                                 II.

                                 ASSIGNMENT OF ERROR II

        [OBERLIN’S] LAST REMAINING ORDINANCE CONCERNING FIREARMS
        IN CITY PARKS IS PROHIBITED BY R.C. []9.68.




        1
        OCC lists seven assignments of error in its statement of assignments of error; however,
the argument of its brief only lists and discusses three topics framed as “Issue[s.]” See App.R.
16(A)(7). For purposes of this appeal, we will consider OCC’s three issues as its assignments of
error.
                                                 4


        {¶8}       In its second assignment of error, OCC argues that the trial court erred in

concluding that the amended version of Oberlin Codified Ordinance 927.07 did not conflict with

R.C. 9.68.

        {¶9}       We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts

of the case in the light most favorable to the non-moving party and resolving any doubt in favor

of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).

        {¶10} Pursuant to Civ.R. 56(C), summary judgment is proper only if:

        No 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 (1977). The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for the motion and

pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher

v. Burt, 75 Ohio St.3d 280, 292-93 (1996). “If the moving party fails to satisfy its initial burden,

the motion for summary judgment must be denied.” Id. at 293. If the moving party fulfills this

burden, then the burden shifts to the nonmoving party to prove that a genuine issue of material

fact exists. Id.

        {¶11} With respect to actions for declaratory judgment, “an appellate court * * * should

apply an abuse-of-discretion standard in regard to the trial court’s holding concerning the

appropriateness of the case for declaratory judgment, i.e., the matter’s justiciability, and should

apply a de novo standard of review in regard to the trial court’s determination of legal issues in
                                                 5


the case.” Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, ¶ 1; Salim v. Smith, 9th Dist.

Lorain No. 15CA010790, 2016-Ohio-2764, ¶ 21.

       {¶12} The question before this Court is whether Oberlin Codified Ordinance 927.07 as

amended conflicts with R.C. 9.68.

       {¶13} “Section 3, Article XVIII of the Ohio Constitution, commonly known as the

Home Rule Amendment, gives municipalities the ‘authority to exercise all powers of local self-

government and to adopt and enforce within their limits such local police, sanitary and other

similar regulations, as are not in conflict with general laws.’” Cleveland v. State, 128 Ohio St.3d

135, 2010-Ohio-6318, ¶ 7, quoting Article XVIII, Section 3, Ohio Constitution.

       {¶14} “A home-rule analysis presents a three-step process. The first step is to determine

whether the ordinance at issue involves an exercise of local self-government or an exercise of

local police power.” (Internal quotations and citations omitted.) Ohioans for Concealed Carry,

Inc. v. Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, ¶ 24. “If the ordinance is one relating solely

to matters of self-government, the analysis stops, because the Constitution authorizes a

municipality to exercise all powers of local self-government within its jurisdiction.” (Internal

quotations and citations omitted.) Clyde at ¶ 24.

       {¶15} The parties do not dispute that the ordinance is an exercise of police power. See

id. at ¶ 34. “The second step, which becomes necessary if the local ordinance is an exercise of

police power, requires a review of the statute to determine whether it is a general law[.]” Id. at ¶

25. The Supreme Court of Ohio has already determined that R.C. 9.68 “is a general law that

displaces municipal firearm ordinances and does not unconstitutionally infringe on municipal

home rule authority.” Cleveland at syllabus.
                                                  6


       {¶16} “The final step in the analysis, therefore, is to determine whether the ordinance

conflicts with the statute, i.e., whether the ordinance permits or licenses that which the statute

forbids * * *, and vice versa.” (Internal quotations and citations omitted.) Clyde at ¶ 26; see

also State ex rel. Morrison v. Beck Energy Corp., 143 Ohio St.3d 271, 2015-Ohio-485, ¶ 24.

       {¶17} R.C. 9.68(A) provides:

       The individual right to keep and bear arms, being a fundamental individual right
       that predates the United States Constitution and Ohio Constitution, and being a
       constitutionally protected right in every part of Ohio, the general assembly finds
       the need to provide uniform laws throughout the state regulating the ownership,
       possession, purchase, other acquisition, transport, storage, carrying, sale, or other
       transfer of firearms, their components, and their ammunition. Except as
       specifically provided by the United States Constitution, Ohio Constitution, state
       law, or federal law, a person, without further license, permission, restriction,
       delay, or process, may own, possess, purchase, sell, transfer, transport, store, or
       keep any firearm, part of a firearm, its components, and its ammunition.

(Emphasis added.)

       {¶18} Oberlin Codified Ordinance 927.07 as amended states in relevant part that, “[t]he

unlawful possession, use or discharge of any type of a firearm * * * within a City park or

recreation area is strictly forbidden. * * * The term ‘firearm’ as used in this section shall have the

same meaning as in Ohio R.C. 2923.11.”

       {¶19} The trial court concluded that Oberlin’s ordinance “complements rather than

conflicts with R.C. 9.68.” We agree with the trial court that the ordinance does not conflict with

the statute. The Ohio Supreme Court has concluded that, “the General Assembly, by enacting

R.C. 9.68(A), gave persons in Ohio the right to carry a handgun unless federal or state law

prohibits them from doing so.” Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, at ¶ 20. “A

municipal ordinance cannot infringe on that broad statutory right.” Id. The Supreme Court has

concluded that R.C. 9.68 and R.C. 2923.16 evidence the “General Assembly’s intent to occupy

the field of handgun possession in Ohio[.]” Id. at ¶ 29. Nonetheless, we are equally mindful that
                                                 7


“[a] statement by the General Assembly of its intent to preempt a field of legislation is a

statement of legislative intent that may be considered in a home-rule analysis but does not

dispose of the issue.” (Internal quotations and citations omitted.) Id. Thus, the General

Assembly’s intent to occupy the field of handgun possession in Ohio, “does not trump the

constitutional authority of municipalities to enact legislation pursuant to the Home Rule

Amendment, provided that the local legislation is not in conflict with general laws.” (Internal

quotations and citation omitted.) Id.

       {¶20} Here, we conclude that Oberlin Codified Ordinance 927.07 does not prohibit that

which R.C. 9.68(A) permits or vice versa. See Clyde at ¶ 26. Oberlin Codified Ordinance

927.07 prohibits only the “unlawful” possession, use, or discharge of firearms in a city park or

recreation area. Unlawful has been defined as “[n]ot authorized by law; illegal[.]” Black’s Law

Dictionary 1574 (8th Ed.2004). We see nothing in the language of Oberlin Codified Ordinance

927.07 that prohibits conduct authorized by R.C. 9.68(A), particularly given that R.C. 9.68(A)

authorizes the unrestricted possession, purchase, sale, transfer, transport, or storage of any

firearm except as provided by state or federal law.

       {¶21} Thus, we cannot say that that trial court erred in finding Oberlin Codified

Ordinance 927.07 valid and not in conflict with R.C. 9.68(A). Therefore, we overrule OCC’s

second assignment of error.

                                 ASSIGNMENT OF ERROR I

       [OBERLIN] REFUSED FOR SEVEN YEARS TO COMPLY WITH R.C. []9.68
       AND REPEALED ITS UNLAWFUL FIREARM ORDINANCES ONLY AFTER
       IT WAS SUED BY [OCC]. THE CASE IS NOT MOOT BECAUSE [OCC] [IS]
       ENTITLED TO DECLARATORY JUDGMENT, ATTORNEY FEES AND
       COSTS.
                                                 8


       {¶22} OCC argues in its first assignment of error that the trial court erred in concluding

its challenges to the repealed ordinances were moot. Additionally, OCC contends that, because

Oberlin repealed the ordinances after OCC initiated this action, OCC had prevailed in a

challenge and was, therefore, entitled to an award of attorney fees pursuant to R.C. 9.68(B).

There is no dispute that Oberlin Codified Ordinances 549.02-549.07, 549.10, and 549.12 were

repealed at the November 2013 city council meeting.

       {¶23} As we noted above, “the abuse-of-discretion standard applies to the review of a

trial court’s holding regarding justiciability; [and,] once a trial court determines that a matter is

appropriate for declaratory judgment, its holdings regarding questions of law are reviewed on a

de novo basis.” Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, ¶ 13. “To be justiciable, a

controversy must be grounded on a present dispute, not on a possible future dispute.” Kincaid v.

Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, ¶ 17.

       {¶24} OCC’s amended complaint sought declarations that the now-repealed ordinances

were unlawful and in violation of R.C. 9.68. Because the ordinances have been repealed, we

conclude that no justiciable controversy remains. OCC’s assertion that Oberlin might at some

time in the future enact or reenact ordinances that violate R.C. 9.68 is too speculative to

constitute a present dispute. See Smolak v. Columbus, 10th Dist. Franklin No. 07AP-373, 2007-

Ohio-4671, ¶ 12-14. Accordingly, the trial court did not abuse its discretion in concluding no

justiciable controversy remained with respect to whether the now-repealed ordinances violated

R.C. 9.68.

       {¶25} Nonetheless, OCC argues that it is still entitled to a declaration that it prevailed in

a challenge under R.C. 9.68(B) and thus is also entitled to an award of attorney fees and costs.
                                                  9


Because we conclude a genuine issue of material fact remains on this point, we agree that

Oberlin was not entitled to summary judgment on this issue.

       {¶26} R.C. 9.68(B) states that, “[i]n addition to any other relief provided, the court shall

award costs and reasonable attorney fees to any person, group, or entity that prevails in a

challenge to an ordinance, rule, or regulation as being in conflict with this section.”

       {¶27} OCC argues that it did prevail in a challenge because Oberlin only repealed the

ordinances after OCC initiated this suit.       Thus, OCC argues it caused the repeal of the

ordinances, and thus, prevailed in a challenge. OCC additionally points out that R.C. 9.68(B),

unlike many statutes related to attorney fees, does not refer to a prevailing party, an action, or a

judgment. See R.C. 9.68(B). In the trial court, OCC submitted two affidavits and minutes from

several city council meetings in support of its arguments. The affidavits and minutes together

detailed OCC’s efforts to have the ordinances repealed prior to filing suit and evidenced some of

the reactions of members of city council to OCC’s efforts.

       {¶28} Neither “prevail” nor “challenge” is defined in the statute, and thus, we look to

the ordinary meaning of the words. Anderson v. Barclay’s Capital Real Estate, Inc., 136 Ohio

St.3d 31, 2013-Ohio-1933, ¶ 16, 29. “[P]revail” has been defined as “[t]o obtain the relief

sought in an action; to win a lawsuit[.]”         Black’s Law Dictionary 1226 (8th Ed.2004).

“[C]hallenge” has been defined as “[a]n act or instance of formally questioning the legality or

legal qualifications of a person, action or thing[.]” Black’s Law Dictionary 244 (8th Ed.2004).

       {¶29} While these definitions could possibly lead to an interpretation that would not

extend recovery to OCC under the circumstances, it is important to keep in mind not only the

summary judgment standard, but also the opening language of R.C. 9.68(A) in evaluating R.C.

9.68(B). R.C. 9.68(A) makes a very strong statement about the individual right to keep and bear
                                                10


arms. It also recognizes the need for uniform laws with regard to all aspects of gun ownership,

possession, sale, etc.     It provides that only state and federal constitutional and statutory

provisions will control.

        The importance placed upon this provision is amplified by subsection (B), which makes

the award of attorney fees mandatory if any person or entity “prevails in a challenge to an

ordinance * * * as being in conflict” with the statute. R.C. 9.68(B). The intention here is also

quite clear. It is to deter municipalities from maintaining ordinances that conflict with, or

impose additional requirements on the aspects of gun ownership enumerated in subsection (A).

If municipalities could simply avoid any exposure for fees under the statute by repealing the

ordinance at issue after suit was filed but prior to judgment, a person or entity challenging the

ordinance would always lose. This is because the person or entity would have to incur both fees

and costs to enforce what the legislature clearly intended. Subsection (B) is clearly intended to

avoid that result.

        {¶30} In support of its request for summary judgment on the attorney fee issue, Oberlin

cited two unreported common pleas cases in support of its position. Both cases are clearly

distinguishable. The first is Buckeye Firearms Foundation, Inc., v. Cleveland, Cuyahoga C.P.

No. CV 09 685734. In that case, plaintiff filed suit in March of 2009 against the City of

Cleveland challenging its ordinance. However, Cleveland had filed a declaratory judgment suit

two years earlier in March of 2007 against the State of Ohio seeking to have R.C. 9.68 declared

unconstitutional.    When the Ohio Supreme Court ultimately ruled against Cleveland in

Cleveland, 128 Ohio St.3d 135, 2010-Ohio-6318, that decision resolved the claims of Buckeye.

The trial court essentially held that the State of Ohio prevailed in the suit against Cleveland, not
                                                11


Buckeye. If Buckeye had simply waited to see the outcome of the Cleveland litigation, no lawsuit

would have been necessary at all. That result is both logical and understandable.

       {¶31} In the second case, Ohioans for Concealed Carry, Inc. v. Campbell, Mahoning

C.P. No. 10 CV 1487, the plaintiff filed suit in April of 2010. The suit was served on the City of

Campbell on May 20, 2010.        Four weeks prior to being served with the complaint, the city

repealed its ordinance. In addition, the Ohio Supreme Court decision in the Cleveland case was

not issued until December 29, 2010.

       {¶32} We have a much different scenario here. In the amended complaint, OCC alleged

that Oberlin was aware that its ordinances were unlawful, and that “* * * despite [OCC’s] efforts

to have the ordinances repealed or properly amended, [Oberlin] * * * abjectly refused to take

appropriate action.” Because Oberlin did not repeal the ordinances, suit was filed.          OCC

submitted evidentiary materials that show it made clear communication to Oberlin prior to filing

suit about the ordinances in question. The minutes from the meetings of council and other

evidence OCC filed during its summary judgment motion practice suggest the ordinances were

repealed as direct result of the lawsuit filed by OCC herein.    In other words, there was some

evidence presented that, but for this lawsuit, the ordinances might well still be in effect.

Accordingly, a trier of fact could conclude that OCC accomplished by filing the lawsuit what it

could not accomplish without it. We thus disagree that “relief sought” has to be given in the

form of a court order. See Black’s at 1226. If it did, it would appear that one could never

“prevail” in a challenge such as this because a city could simply repeal an ordinance in conflict

with the state and federal laws after suit was filed. See id. The legislature could not have

intended that result given its clear statement of intention. See R.C. 9.68(A). Using the definition

of “prevail” set forth above, and based on the record before us, we determine a question of fact
                                                12


exists that must be resolved by a factfinder. See Black’s at 1226. The question is whether OCC

“obtain[ed] the relief sought” by virtue of filing the lawsuit. Accordingly, we sustain OCC’s

first assignment of error to the extent discussed above and remand the matter to the trial court.

                                ASSIGNMENT OF ERROR III

       [OBERLIN’S] PARK ORDINANCE IS UNCONSTITUTIONALLY VAGUE.

       {¶33} OCC asserts in its third assignment of error that Oberlin Codified Ordinance

927.07 is unconstitutionally vague and the trial court erred in failing to declare it

unconstitutional.

       {¶34} First, we note that it is not clear from the trial court’s entry that it addressed this

issue. While the trial court in its judgment entry did declare Oberlin Codified Ordinance 927.07

to be valid and constitutional, it appears that it was only concluding that Oberlin Codified

Ordinance 927.07 did not conflict with R.C. 9.68(A). Its reference to constitutionality appears to

be in direct response to Oberlin’s counterclaim seeking a determination that Oberlin Codified

Ordinance 927.07 was valid and constitutional because it did not conflict with R.C. 9.68(A). The

trial court never mentions OCC’s argument that Oberlin Codified Ordinance 927.07 was

unconstitutionally vague.

       {¶35} We conclude that the trial court did not err in failing to address OCC’s argument

because the trial court was without jurisdiction to do so. OCC did not in its complaint or

amended complaint seek a declaration that Oberlin Codified Ordinance was unconstitutionally

vague. In fact, it did not raise this issue until it moved for summary judgment.

       {¶36} There is no dispute that OCC’s action is one seeking declaratory judgment. R.C.

2721.12(A) states that:

       Subject to division (B) of this section, when declaratory relief is sought under this
       chapter in an action or proceeding, all persons who have or claim any interest that
                                                13


       would be affected by the declaration shall be made parties to the action or
       proceeding. Except as provided in division (B) of this section, a declaration shall
       not prejudice the rights of persons who are not made parties to the action or
       proceeding. In any action or proceeding that involves the validity of a municipal
       ordinance or franchise, the municipal corporation shall be made a party and shall
       be heard, and, if any statute or the ordinance or franchise is alleged to be
       unconstitutional, the attorney general also shall be served with a copy of the
       complaint in the action or proceeding and shall be heard. In any action or
       proceeding that involves the validity of a township resolution, the township shall
       be made a party and shall be heard.

(Emphasis added.)

       {¶37} In interpreting a prior version of the statute that was more ambiguous and only

required that the attorney general “be served with a copy of the proceeding[,]” the Supreme

Court nonetheless concluded that “party who is challenging the constitutionality of a statute must

assert the claim in the complaint (or other initial pleading) or an amendment thereto, and must

serve the pleading upon the Attorney General in accordance with methods set forth in Civ.R. 4.1

in order to vest a trial court with jurisdiction under R.C. 2721.12.” Cicco v. Stockmaster, 89

Ohio St.3d 95, 97 (2000). “The issue is not properly put before a court in a motion for summary

judgment.” Id. at 99. While Cicco only dealt with a challenge to the constitutionality of a

statute, given the language of R.C. 2721.12, which also refers to ordinances, it is reasonable to

apply the holding of Cicco to challenges to the constitutionality of ordinances.

       {¶38} Here, OCC did not assert in its complaint or amended complaint a claim that the

ordinance was unconstitutionally vague, and accordingly, OCC could not have served the

attorney general with a copy of a pleading that would have provided the attorney general with

notice of OCC’s claim that the ordinance was unconstitutionally vague.2 Therefore, the trial




       2
         We note that the record reflects that the attorney general did receive service of Oberlin’s
counterclaim with respect to the dispute over whether the ordinance conflicted with R.C.
9.68(A). The attorney general filed a notice indicating that it was declining to participate in the
                                                14


court lacked jurisdiction to consider this claim. See id. at 100; see also Czech v. Northwood, 6th

Dist. Wood No. WD-08-045, 2008-Ohio-6801, ¶ 6. Accordingly, this issue is likewise not

properly before us. See Cicco at 100-101. OCC’s third assignment of error is overruled on that

basis.

                                                III.

         {¶39} In light of the foregoing, OCC’s second and third assignments of error are

overruled. OCC’s first assignment of error is sustained to the extent discussed above. The

judgment of the Lorain County Court of Common Pleas is affirmed in part, reversed in part, and

this matter is remanded for proceedings consistent with this opinion..

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




         There were reasonable grounds for this appeal.

         We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

         Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.



proceedings because it involved a local ordinance. However, the attorney general reserved the
right to participate at a later time.
                                                 15


        Costs taxed equally to both parties.




                                                      TIMOTHY P. CANNON
                                                      FOR THE COURT



CARR, P. J.
CONCURRING IN JUDGMENT ONLY.

        {¶40} I concur with the lead opinion’s resolution of the second and third assignments of

error. I concur in judgment only as it relates to the first assignment of error because I would

analyze it differently.

        {¶41} I agree that the trial court’s judgment related to attorney fees must be reversed. In

its order, the trial court decided as a matter of law that OCC was not entitled to attorney fees.

The lead opinion applies the summary judgment standard and concludes that a genuine issue of

material fact remains on this point. I would instead reverse the trial court’s judgment and

remand for the trial court to consider this question in the first instance. State v. Bracy, 9th Dist.

Lorain Nos. 15CA010788 and 15CA010795, 2016-Ohio-7536, ¶ 21. “[W]hen the trial court fails

to address a claim in the first instance, we are left with no choice but to reverse the judgment and

remand the matter for the trial court to address it.” Wilmoth v. Akron Metro. Hous. Auth., 9th

Dist. Summit No. 27746, 2016-Ohio-3441, ¶ 25. Because I agree that the trial court erred when

it found OCC was not entitled to attorney fees as a matter of law, I would reverse that part of its

judgment and remand for the trial court to address it.
                                                 16


MOORE, J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶42} I concur with the most of the lead opinion’s analysis. However, I respectfully

dissent from the lead opinion’s determination that a genuine issue of material fact remains with

respect to whether OCC is entitled to an award of attorney fees pursuant to R.C. 9.68(B). I

would conclude that, as a matter of law, OCC is not entitled to an award of attorney fees.

       {¶43} I agree with the definitions used by the lead opinion. Nonetheless, I would

conclude that when those definitions are considered in light of the statutory language, the plain

language of the statute does not contemplate recovery under the circumstances of this case. R.C.

9.68(B) states that, “[i]n addition to any other relief provided, the court shall award costs and

reasonable attorney fees to any person, group, or entity that prevails in a challenge to an

ordinance, rule, or regulation as being in conflict with this section.”

       {¶44} Here, prior to the trial court determining whether Oberlin Codified Ordinances

549.02-549.07, 549.10, and 549.12 conflicted with R.C. 9.68(A), Oberlin repealed those

ordinances. Thus, the trial court never determined whether the repealed ordinances conflicted

with the statute. In its amended complaint, OCC sought declarations by the trial court that the

now-repealed ordinances were unlawful as being in conflict with R.C. 9.68(A) and an injunction

issued by the trial court barring enforcement of those ordinances. OCC did not “prevail[]” in a

“challenge” as it did not obtain the relief it sought in its amended complaint. See R.C. 9.68(B).

Moreover, Oberlin did not repeal the ordinances because of any judicial determination that a

conflict exists; instead, it repealed the ordinances prior to any ruling by the trial court on the

issue. Given the language of the statute, I cannot say that it is sufficient to submit evidence that

the filing of the lawsuit may have caused Oberlin to repeal its ordinance. Had the legislature

intended to provide OCC with relief under the circumstances of this case, it could have clearly
                                                17


indicated that intention in the plain language of R.C. 9.68(B). As it did not do so, I cannot

conclude that attorney fees are authorized. Therefore, I would affirm the trial court’s judgment

in its entirety.


(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)


APPEARANCES:

DAVID S. KESSLER, Attorney at Law, for Appellants.

ABRAHAM CANTOR, Attorney at Law, for Appellee.

JON D. CLARK, Law Director, for Appellee.
