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IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

CITY OF CINCINNATI EX REL. MARK : MILLER, : and : CITY OF CINCINNATI EX REL. THOMAS E. BRINKMAN, : Relators-Appellants, vs. CITY OF CINCINNATI, : : :

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

REGINALD ZENO, FINANCE : DIRECTOR OF CITY OF CINCINNATI, : and : JOHN T. WALSH, TREASURER OF CITY OF CINCINNATI, : Respondents-Appellees. :

We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court. See S.Ct.R.Rep.Op. 3(A); App.R. 11.1(E); Loc.R. 11.1.1. Relators-appellants Mark Miller and Thomas Brinkman (collectively, “the taxpayers”) appeal the denial of their motion for summary judgment and the trial court’s grant of summary judgment in favor of respondents-appellees the city of Cincinnati, Reginald Zeno, Cincinnati Finance Director, and John T. Walsh, Cincinnati

OHIO FIRST DISTRICT COURT OF APPEALS

Treasurer (collectively, “the City”). For the following reasons, we reverse the trial court’s judgment in part. In May 2011, the taxpayers sued the City, alleging that the City was paying the mayor of Cincinnati, Mark Mallory, more compensation than he was entitled to under the Charter of the City of Cincinnati (“Charter”). Specifically, they alleged that the Charter currently capped the mayor’s compensation at $121,291.50, but that the City had been paying the mayor $6,000 above that cap in the form of a $500 monthly car allowance. In their complaint, they sought a declaratory judgment (1) “relating to the total annual compensation for the mayor of the City” or in other words, that the term “compensation” as set forth in the Charter included fringe benefits as well as salary and (2) that the City’s council had not authorized the expenditure of city funds for a mayoral car allowance. Further, the taxpayers sought an injunction restraining the City from continuing to pay the car allowance to the mayor. After the City filed its answer, both parties moved for summary judgment. The trial court summarily granted summary judgment in favor of the City and denied the taxpayer’s motion for summary judgment. The taxpayers now appeal. In their single assignment of error, the taxpayers assert that the trial court erred by denying their motion for summary judgment and granting the City’s motion for summary judgment in the taxpayers’ declaratory judgment action. We agree in part. We review the trial court’s decision on the summary judgment motion de novo. Koos v. Central Ohio Cellular, Inc, 94 Ohio App.3d 579, 588, 641 N.E.2d 265 (8th Dist.1994). Summary judgment is appropriate under Civ.R. 56(C) when “(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is 2

OHIO FIRST DISTRICT COURT OF APPEALS

entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made.” State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 599, 628 N.E.2d 1377 (1994). In the City’s motion for summary judgment, it argued that the issues presented by the taxpayers had already been litigated in Mallory v. Cincinnati, Hamilton C.P. No. A-1103447 (Aug. 10, 2011), and thus, the taxpayers’ action was barred under the doctrine of res judicata. In Mallory, the mayor of Cincinnati sued the City in a declaratory judgment action seeking a determination as to whether his compensation, as that term is used in the Charter, included only his salary or his salary and fringe benefits, such as an automobile allowance. The trial court in Mallory decided that compensation, as that term was used in the city charter, only encompassed the mayor’s annual salary and did not include fringe benefits. The City appealed the trial court’s decision. While Mallory was pending on appeal, the trial court in this case ruled on the parties’ motions for summary judgment. While the trial court did not issue a

detailed opinion as to why it had entered summary judgment in the City’s favor, it can be presumed that the trial court considered and adopted the City’s reasoning that the taxpayers’ lawsuit was barred by res judicata. Subsequent to the trial court’s decision here, this court decided the appeal in Mallory, issuing an opinion that reversed the trial court’s decision in that case. See Mallory v. Cincinnati, 1st Dist. No. C-110563, 2012-Ohio-2861 (“the Mallory Appeal”). We held in the Mallory Appeal that the trial court did not have subjectmatter jurisdiction to determine the issues presented because there was no 3

OHIO FIRST DISTRICT COURT OF APPEALS

justiciable controversy between the parties. On remand, we instructed the trial court to dismiss the case. When a court lacks subject-matter jurisdiction to hear a case, any proclamation by that court is void. See Pratts v. Hurley, 102 Ohio St.3d 81, 2004Ohio-1980, 806 N.E.2d 992, ¶ 11. Thus, because the trial court in Mallory lacked subject-matter jurisdiction, its decision determining the issues in that case was void. Because its decision was void, the issues in Mallory had not been “litigated.” Therefore, the City’s argument that the doctrine of res judicata barred the taxpayers’ lawsuit here is untenable. Accordingly, the trial court erred in granting summary judgment in favor of the City. The assignment of error is sustained in part. With respect to the trial court’s denial of the taxpayers’ motion for summary judgment under Civ.R. 56(A), we cannot say that the trial court erred. Because the trial court erroneously granted summary judgment to the City on the basis of res judicata, the factual record and arguments pertaining to what the term “compensation” meant as set forth in the Charter was not fully developed below. Thus, given the record that was certified for our review under App.R. 9(A), we are unable to make any determination as to whether the mayor’s compensation, as set forth in the Charter, includes salary and fringe benefits or just salary. Because the taxpayers did not affirmatively demonstrate that there were no genuine issues of material fact with respect to their claim, we overrule the portion of the assignment of error that alleges the trial court erred in overruling their motion for summary judgment. See Capital Fin. Credit, LLC v. Mays, 191 Ohio App.3d 56, 2010-Ohio4423, 944 N.E.2d 1184, ¶ 5 (1st Dist.).

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Accordingly, we reverse the trial court’s judgment in part, and affirm it in part, and we remand this matter for further proceedings consistent with this judgment entry and the law. Further, a certified copy of this judgment entry shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. HILDEBRANDT, P.J., DINKELACKER and FISCHER, JJ. To the clerk: Enter upon the journal of the court on April 19, 2013 per order of the court ____________________________. Presiding Judge

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