[Cite as Marietta v. Washington Cty. Bd. of Commrs., 2019-Ohio-3883.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                            WASHINGTON COUNTY

CITY OF MARIETTA, OHIO, et al., :
                                  :   Case No. 19CA1
     Plaintiffs-Appellants,       :
                                  :
     vs.                          :
                                  :   DECISION AND JUDGMENT
BOARD OF COMMISSIONERS            :   ENTRY
OF WASHINGTON COUNTY,             :
OHIO, et al.,                     :
                                  :
     Defendants-Appellees.        :   Released: 09/19/19
_____________________________________________________________
                            APPEARANCES:

Paul G. Bertram, III, Marietta City Law Director, Marietta, Ohio, and
Matthew A. Dooley, Ryan M. Gembala, and Stephen M. Bosak, Jr.,
O’Toole, McLaughlin, Dooley & Pecora Co., LPA, Sheffield Village, Ohio,
for Appellant.

Nicole Tipton Coil, Washington County Prosecuting Attorney, Marietta,
Ohio, for Appellees.
_____________________________________________________________

McFarland, J.

        {¶1} This is an appeal from a Washington County Common Pleas

Court grant of summary judgment in favor of Appellees Board of

Commissioners of Washington County, Ohio (“BOC”) and Washington

County Board of Health (“BOH”) and against Appellant City of Marietta,

Ohio (“Appellant”). Appellant brought this case against BOC for its alleged

breach of an agreement to construct a sanitary sewer collection system. In
Washington App. No. 19CA1                                                      2

the same case, Appellant also filed a petition for writ of mandamus against

BOH to compel compliance with its alleged duty to eliminate failing sewer

systems in Washington County. Both BOC and BOH filed motions to

dismiss and for summary judgment against Appellant based on the same

argument—that Appellant’s counsel did not have authority to bring this

lawsuit on Appellant’s behalf. The trial court granted the motions, which it

treated as motions for summary judgment, and this appeal followed.

      {¶2} On appeal, Appellant contends the trial court committed

prejudicial error by (1) granting BOC’s motion for summary judgment, (2)

granting BOH’s motion for summary judgment, and (3) applying a Civ.R. 56

summary judgment standard to Appellees’ motions instead of a Civ.R. 12

motion to dismiss standard. As discussed below, Appellant’s counsel had

authority under applicable state and municipal law to bring this action

against Appellees. We therefore sustain Appellant’s first and second

assignments of error, which renders Appellant’s third assignment of error

moot. Accordingly, we reverse the trial court’s judgment and remand this

matter for further proceedings consistent with this opinion.

                                   FACTS

      {¶3} Appellant alleges in its Complaint that Washington County has

had inadequate and failing sewer facilities for many years. Consequently,
Washington App. No. 19CA1                                                       3

Washington County residents resorted to septic systems and dry wells to

treat their wastewater and effluent. Washington County’s failing sewer

system allegedly causes inadequately treated effluent to be released directly

into the groundwater, which then flows downstream into water tables that

Appellant uses for its citizens’ drinking water. The Ohio Department of

Health notified BOH of these health issues, but BOH allegedly has not

eliminated the failing sewer systems or notified residents of the corrective

actions that must be taken.

      {¶4} To address the immediate need for sanitary sewer service in

Appellant’s region of the County, Appellant and Washington County entered

into an agreement, called the Intergovernmental Agreement for Sanitary

Sewer Services (the “Agreement”), in 2011. Under the Agreement,

Washington County agreed to construct a wastewater collection system for

the area and connect to Appellant’s sewer system for treatment. The

Agreement required Appellant’s wastewater treatment plant to have the

capacity to accept the additional wastewater flows from Washington County.

The Agreement also contemplated that the City would complete

improvements to its wastewater treatment plant in anticipation of the

increased flows from the County and other areas.
Washington App. No. 19CA1                                                      4

      {¶5} Appellant alleges it has made improvements to its wastewater

treatment plant, but Washington County has refused to construct the sewer

collection system or connect to Appellant’s system. Appellant claims that it

continues to incur operating costs in the expansion of its wastewater

treatment plant and improvements to its sanitary sewer system. Meanwhile,

Washington County residents remain on inadequate septic systems and dry

wells that release undertreated wastewater and effluent into Appellant’s

drinking water sources.

      {¶6} On October 20, 2016, Appellant passed Resolution 55 (16-17),

which authorized Paul G. Bertram, III, Appellant’s Law Director, “to engage

the law firm of O’Toole, McLaughlin, Dooley & Pecora, Co., LPA, as

special counsel to the City of Marietta, Ohio in keeping with the obligation

of the Ohio Rules of Professional Conduct for the purposes of enforcing the

Intergovernmental Agreement for Sanitary Sewer Services.” On December

21, 2017, Appellant filed its Complaint and Verified Petition for Writ of

Mandamus in this case. Appellant’s Law Director signed a verification of

the Complaint and the Verified Petition on Appellant’s behalf.

      {¶7} On January 23 and 25, 2018, Appellees BOC and BOH filed

their respective motions to dismiss and for summary judgment on the ground

that Appellant’s newly appointed special counsel did not have authority to
Washington App. No. 19CA1                                                     5

bring the action on Appellant’s behalf. In response, Appellant passed

Resolution 20 (18-19), which both ratified and authorized the Law

Director’s hiring of special counsel to bring an action against BOC and BOH

to enforce the Agreement and state and local laws governing sewage

treatment systems and dry wells in Washington County.

      {¶8} On December 3 and 10, 2018, the trial court granted Appellees’

respective motions, which it construed as motions for summary judgment

under Civ.R. 56. The trial court specifically held that Appellant’s special

counsel was not authorized to bring this action on Appellant’s behalf under

R.C. 733.53 and Marietta Codified Ordinance 135.01. The trial court did not

address the merits of Appellant’s underlying claims. This timely appeal

from the trial court’s order followed.

                        ASSIGNMENTS OF ERROR

“I.   THE TRIAL COURT ERRED IN GRANTING DEFENDANT
      WASHINGTON COUNTY BOARD OF COMMISSIONERS’
      MOTION FOR SUMMARY JUDGMENT AND HOLDING THAT
      PLAINTIFF CITY OF MARIETTA DID NOT PROPERLY
      INSTITUTE THE ACTION.

II.   THE TRIAL COURT ERRED IN GRANTING RESPONDENT
      WASHINGTON COUNTY BOARD OF HEALTH’S MOTION FOR
      SUMMARY JUDGMENT AND HOLDING THAT PLAINTIFF
      CITY OF MARIETTA DID NOT PROPERLY INSTITUTE THE
      MANDAMUS ACTION.
Washington App. No. 19CA1                                                      6

III.   THE TRIAL COURT ERRED IN APPLYING A CIV.R. 56
       STANDARD TO A CIV.R. 12 DISMISSAL ON PROCEDURAL
       GROUNDS.”

                   ASSIGNMENTS OF ERROR I AND II

       {¶9} In its first and second assignments of error, Appellant contends

that the trial court erred in granting BOC’s and BOH’s respective motions

for summary judgment. We consider these assignments of error together

because they are based on the same legal argument—that the trial court erred

in holding Appellant’s counsel did not have legal authority to bring this

action on Appellant’s behalf.

                         STANDARD OF REVIEW

       {¶10} We conduct a de novo review of a trial court’s summary

judgment decision pursuant to the standard set forth in Civ.R. 56. Comer v.

Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.

Summary judgment is appropriate when the movant has established (1) that

there is no genuine issue of material fact, (2) that reasonable minds can

come to but one conclusion, and that conclusion is adverse to the nonmoving

party, with the evidence against that party being construed most strongly in

its favor, and (3) that the moving party is entitled to judgment as a matter of

law. Bostic v. Connor, 37 Ohio St.3d 144, 146, 524 N.E.2d 881 (1988);
Washington App. No. 19CA1                                                        7

citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375

N.E.2d 46 (1978); see also Civ.R. 56(C).

      {¶11} The burden to show that no genuine issue of material fact exists

falls upon the party who requests summary judgment. Dresher v. Burt, 75

Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). To satisfy its burden, the

moving party must refer to “the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and

written stipulations of fact, if any, timely filed in the action,” that

affirmatively demonstrate that the nonmoving party has no evidence to

support the nonmoving party's claims. Civ.R. 56(C); see also Hansen v.

Wal–Mart Stores, Inc., 4th Dist. Ross No. 07CA2990, 2008-Ohio-2477,

2008 WL 2152000, ¶ 8. After the movant supports the motion with

appropriate evidentiary materials, the nonmoving party “may not rest upon

the mere allegations or denials of the party's pleadings, but the party's

response, by affidavit or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial.” Civ.R. 56(E).

“If the party does not so respond, summary judgment, if appropriate, shall be

entered against the party.” Id.
Washington App. No. 19CA1                                                          8

                                  ANALYSIS

      {¶12} Appellees rely upon R.C. 733.53 and Marietta Codified

Ordinance 135.01 to argue that Appellant was not permitted to bring this

action through special counsel. R.C. 733.53 provides:

      The city director of law, when required to do so by resolution of
      the legislative authority of the city, shall prosecute or defend on
      behalf of the city, all complaints, suits, and controversies in
      which the city is a party, and such other suits, matters, and
      controversies as he is, by resolution or ordinance, directed to
      prosecute. He shall not be required to prosecute any action
      before the mayor of the city for the violation of an ordinance
      without first advising such action.
R.C. 733.53. Codified Ordinance 135.01 provides that “[a]ny and all legal

matters, actions, duties and responsibilities, both civil and criminal, shall be

handled by the regularly elected or appointed Director of Law.”

      {¶13} Appellees argue R.C. 733.53 places an affirmative obligation

on Marietta’s Law Director to prosecute and defend all proceedings on

behalf of the city, without exception. Conversely, Appellant contends that,

in order for any such obligation to arise under R.C. 733.53, it must be

created by municipal legislation. Based on the statute’s plain language,

Appellant’s construction is correct.

      {¶14} Appellees emphasize the language in R.C. 733.53 stating the

“city director of law . . . shall prosecute or defend on behalf of the city, all

complaints, suits, and controversies in which the city is a party, and such
Washington App. No. 19CA1                                                       9

other suits, matters, and controversies as he is, by resolution or ordinance,

directed to prosecute.” The ellipsis in this quoted language, however, omits

the clause that makes the obligations conditional on the passage of municipal

legislation. Specifically, the obligation to prosecute or defend takes effect

only “when required to do so by resolution of the legislative authority of the

city.” Appellant passed legislation relevant to its Law Director’s obligations

under R.C. 733.53, namely Codified Ordinance 135.01.

      {¶15} As mentioned, Codified Ordinance 135.01 provides “[a]ny and

all legal matters, actions, duties and responsibilities, both civil and criminal,

shall be handled” by Appellant’s Law Director. The parties’ dispute thus

hangs on the proper interpretation of “shall be handled.” Appellees argue

“shall be handled” means that the Law Director must directly represent

Appellant in all matters. Appellant counters that, construed according to its

ordinary meaning, “shall be handled” connotes supervision and management

of all matters, not necessarily direct representation. Once again, Appellant’s

interpretation of the statutory language is correct.

      {¶16} Marietta Codified Ordinance 101.03 (Rules of Construction)

states that “[w]ords and phrases shall be read in context and construed

according to the rules of grammar and common usage.” Marietta Cod. Ord.

101.03(a). Appellant appropriately cites the online edition of Merriam-
Washington App. No. 19CA1                                                     10

Webster’s Dictionary for the definition of “handle” in common usage. See

Gamble v. Dobrosky, 89 Ohio St.3d 257, 259, 730 N.E.2d 969 (2000)

(finding Merriam-Webster’s Collegiate Dictionary to contain “the ordinarily

accepted meaning” of term in administrative code); see also Merriam-

Webster.com Dictionary, FAQ, https://www. merriam-webster.com/about-

us/faq (accessed June 27, 2019) (online edition of Merriam-Webster’s

Dictionary contains updated and expanded version of Merriam-Webster’s

Collegiate Dictionary, Eleventh Edition); Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts, Appendix A, A

Note on the Use of Dictionaries, at 419, 423 (2012) (identifying the up-to-

date version of Merriam-Webster’s Collegiate Dictionary as one of the

contemporaneous-usage dictionaries that are “the most useful and

authoritative for the English language generally and for law”). The most apt

definition in Merriam Webster’s online dictionary states that the verb

“handle” means “to have overall responsibility for supervising or directing:

MANAGE.” Merriam-Webster.com Dictionary, https://www.merriam-

webster.com/ dictionary/handle, def. 2 b (accessed June 24, 2019).

      {¶17} Merriam-Webster’s definition is consistent with the definition

in Black’s Law Dictionary from approximately the same period that the

ordinance was passed. Black’s Law Dictionary defines “handle” as follows:
Washington App. No. 19CA1                                                     11

      Handle. To control, direct, to deal with, to act upon, to perform
      some function with regard to or to have passed through one’s
      hands, to buy and sell, or to deal or trade in. State ex rel. Bell v.
      Phillips Petroleum Co., 349 Mo. 360, 160 S.W.2d 764, 769. To
      manage or operate.

Black’s Law Dictionary 644 (5th Ed. 1979); see also Marietta Cod. Ord

135.01, http://library2.amlegal.com/nxt/gateway.dll/Ohio/marietta_oh/

codifiedordinancesofthecityofmariettaohi?f=templates$fn=default.htm$3.0$

vid=amlegal:marietta_oh Marietta Cod. Ord. 135.01 (last accessed Aug. 6,

2019) (noting passage of Cod. Ord. 135.01 on 11-18-65). Just as Merriam-

Webster’s online dictionary, Black’s Law Dictionary defines “handle” in a

manner consistent with the executive management of a matter, not the direct

performance of all actions relevant to such matter.

      {¶18} Applying this definition of “handle,” Appellant’s Law Director

is not required to file every lawsuit brought on Appellant’s behalf. Rather,

the Law Director may retain outside counsel to bring a lawsuit so long as he

maintains overall responsibility for the supervision and management of

outside counsel’s prosecution of the action.

      {¶19} This straightforward interpretation of the ordinance’s plain

language comports with the “longstanding rule of construction that favors

the workable application of statutory provisions.” State ex rel. Tam

O’Shanter Co. v. Stark Cty. Bd. of Elections, 2017-Ohio-8167, 151 Ohio
Washington App. No. 19CA1                                                     12

St.3d 134, 141, 86 N.E.3d 332, 339; citing Prosen v. Duffy, 152 Ohio St.

139, 87 N.E.2d 342 (1949), paragraph one of the syllabus (“A statute should

be given that construction, unless such is prohibited by the letter of the

statute, which will accord with common sense and reason and not result in

absurdity or great inconvenience”); see also Hamilton, Alexander. “The

Federalist No. 83: THE SAME SUBJECT (THE JUDICIARY)

CONTINUED IN RELATION TO TRIAL BY JURY.” The Federalist

Papers, edited by Ian Shapiro, by ALEXANDER HAMILTON et al., Yale

University Press, 2009, pp. 418–430. JSTOR,

www.jstor.org/stable/j.ctt5vm398.86 (last accessed Aug. 6, 2019) (“The

rules of legal interpretation are rules of COMMONSENSE, adopted by the

courts in the construction of the laws.”). It stands to reason that the City of

Marietta, with a population of 13,604 as of the 2018 census, does not have

the resources within its legal department to provide direct representation in

every single legal matter. See United States Census Bureau, QuickFacts,

https://www.census.gov/quickfacts/fact/

table/mariettacityohio,US/PST045218 (last accessed August 6, 2019).

Indeed, a single lawsuit of sufficient complexity could easily commandeer

all of a small municipality’s in-house legal resources. It therefore makes

sense that Codified Ordinance 135.01 requires only the Law Director’s
Washington App. No. 19CA1                                                       13

management and supervision of all matters, thereby permitting the retention

of outside counsel when necessary.

      {¶20} Appellees cite City of Cuyahoga Falls v. Robart, 58 Ohio St.3d

1, 567 N.E.2d 987 (1991) for the proposition that “there are limited

circumstances which would provide city council with the authority to direct

the law director to hire special counsel when the city’s charter or statutes

otherwise require the law director for the city to handle such matters.” Even

if Robart stands for such a proposition, we have already held that Codified

Ordinance 135.01 does not require the Law Director to directly represent

Appellant in all litigation filed on its behalf. Robart is therefore

distinguishable on its facts.

      {¶21} Indeed, Robart involved a city charter that expressly obligated

Cuyahoga Falls’ counsel to directly represent the city in all matters.

Cuyahoga Falls’ charter stated, in pertinent part, that its law director “shall

be the legal advisor of and attorney and counsel for the city and for all

offices and departments of the city, in matters relating to their official * * *

duties. He shall prosecute or defend all suits for or in behalf of the City.”

Robart at 4 (emphasis added). Cuyahoga Falls had passed two ordinances

that expressly permitted its counsel to retain outside counsel to bring an

action, but the Supreme Court of Ohio held that those ordinances were not
Washington App. No. 19CA1                                                    14

valid because they conflicted with the charter’s provisions. Here, in contrast

to Robart, Appellees do not argue Appellant’s charter places any obligation

on its Law Director. And, as mentioned, the authorities that do apply permit

Appellant’s Law Director to retain outside counsel so long as he maintains

responsibility for and supervises that counsel.

      {¶22} The parties also discuss the effect of the resolutions passed by

Appellant’s city council. However, under the Court’s construction of R.C.

733.53 and Codified Ordinance 135.01, Appellant did not need to pass a

resolution to authorize its Law Director to retain special counsel in this case.

It might have been advisable to seek the resolutions to ensure the special

counsel would be paid for its work, but the resolutions were not required to

establish its authority to represent Appellant. The Court therefore does not

consider the parties’ arguments concerning the validity of Appellant’s

resolutions.

      {¶23} Appellees also claim the Law Director’s website shows that he

alone is authorized to file actions on Appellant’s behalf. The website states:

      The Law Director’s Office serves as legal counsel for the City
      of Marietta, Ohio, its elected officials and other officers, and its
      various boards and commissions. The Law Director’s Office
      also serves as the prosecuting attorney for the prosecution of
      misdemeanor criminal offenses in the Marietta Municipal
      Court.
Washington App. No. 19CA1                                                   15

City of Marietta website, http://www.mariettaoh.net/index.php/government-

and-services/legal-and-tax/law-director (accessed June 24, 2019). Appellees

note this description does not contain the words “supervise,” “direct” or

“manage.” Notwithstanding that fact, the description is still consistent with

permitting the Law Director to supervise outside counsel. A person

certainly may “serve” as legal counsel for a municipality without appearing

as counsel of record in all cases filed on its behalf. See Merriam-

Webster.com Dictionary, https://www.merriam-webster.com/

dictionary/serve, def. 3 d (accessed June 27, 2019) (defining the verb

“serve” as “to hold an office: discharge a duty or function”). Appellees also

fail to explain why the city’s website should be regarded as an authoritative

statement of the Law Director’s powers and duties. (Perhaps Appellees

intended for the website merely to be independent evidence corroborating

their interpretation of the statutory language. In any event, it does not

provide such evidence.)

      {¶24} Having found that Appellant’s Law Director was authorized

under R.C. 733.53 and Codified Ordinance 135.01 to retain special counsel

to bring this action against BOH and BOC on Appellant’s behalf,

Appellant’s first and second assignments of error are sustained.
Washington App. No. 19CA1                                                     16

                       ASSIGNMENT OF ERROR III

      {¶25} In its third assignment of error, Appellant contends that the trial

court erred by applying a summary judgment standard to Appellees’ motions

instead of a motion to dismiss standard. Having sustained Appellant’s first

and second assignments of error, Appellant is entitled to reversal of the trial

court’s decision on Appellees’ motions. This assignment of error is

therefore moot.

      {¶26} For the reasons above, Appellant’s Law Director was

authorized to retain special counsel to bring this action on Appellant’s behalf

against Appellees. Accordingly, Appellant’s first and second assignments of

error are sustained, the judgment of the trial court is reversed, and this matter

is remanded for further proceedings consistent with this opinion.

                                        JUDGMENT REVERSED AND
                                        CAUSE REMANDED FOR
                                        FURTHER PROCEEDINGS
                                        CONSISTENT WITH THIS
                                        OPINION.
Washington App. No. 19CA1                                                      17

                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION and that Appellants recover of Appellees any costs herein.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Hess, J.: Concur in Judgment and Opinion.


                                       For the Court,


                                 BY: _________________________
                                     Matthew W. McFarland, Judge




                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
