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Case No.

C-13-00196

Court of Appeals First Appellate District Hamilton County, Ohio
LISA McQUEEN, et al., Plaintiffs-Appellees, and CITY OF CINCINNATI ex rel. LISA McQUEEN, et al., Relators-Appellees, v. MILTON R. DOHONEY, JR., et al., Respondents-Appellees.

BRIEF OF PLAINTIFFS-RELATORS-APPELLANTS

Curt C. Hartman (0064242) The Law Firm of Curt C. Hartman 3749 Fox Point Court Amelia, OH 45102 (513) 752-8800 hartmanlawfirm@fuse.net Christopher P. Finney Finney, Stagnaro, Saba & Patterson 2323 Erie Avenue Cincinnati, OH 45208 (513) 533-2980 cpf@fssp-law.com Counsel for Plaintiffs-Relators-Appellees

John Curp Solicitor, City of Cincinnati Terrance A. Nestor (0065840) Aaron M. Herzig (0079371) Assistant City Solicitor 801 Plum Street, Room 214 Cincinnati, OH 45202 (513) 352-3327 Counsel for Respondents-Appellants Milton R. Dohoney, Jr., and City of Cincinnati

TABLE OF CONTENTS Page Table of Contents ...................................................................................................................... I I. STATEMENT OF THE CASE .......................................................................................... 1 A. Procedural Posture / Statement of Jurisdiction ....................................................... 1 B. Statement of the Facts ............................................................................................... 1 II. ARGUMENT ......................................................................................................................... 3 Authorities: Rorick v. Ohio Department of Job & Family Serv., 2010-Ohio-5571 (1st Dist. 2010) ........................................................................................................... 3 FIRST ASSIGNMENT OF ERROR ASSERTED BY APPELLANTS The trial court erred by finding Plaintiffs have standing to bring their claims ......

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Issue Presented to Review and Argument The requirement to tender a written request to a village solicitor or city director of law before bringing a municipal taxpayer action is excused when doing so would be a vain, useless, or futile act ..................................................... 0 4 Issue Presented to Review and Argument An appellate court must accept a trial court’s finding that the tendering of a written request to a village solicitor or city director of law would have be a vain, useless, or futile act so long as such finding is supported by competent and credible evidence ............................................................................................... 0 4 Authorities: Cincinnati ex rel. Ritter v. Cincinnati Reds, L.L.C., 150 Ohio App.3d 728, 782 N.E.2d 1225, 2002-Ohio-7078 (1st Dist. 2002) .......................................... 4 Moore v. Given, 39 Ohio St. 661 (1884) ............................................................ 4 Johnson v. Albers, 2012-Ohio-1367 (1st Dist. 2012) ......................................... 5 Issue Presented to Review and Argument When a taxpayer files a motion to establish security for the costs of proceeding in a taxpayer action and the government fails to oppose such motion and fails to lodge or challenge the posting vel non of any security, the government has waived any challenge to the adequacy or posting of such security ............................................................................................................... 5 Issue Presented to Review and Argument When a trial court establishes a dollar amount sufficient to be security for costs pursuant to R.C. 733.59 and such amount is posted, any challenge to the posting vel non of any security is moot .............................................................. 5

Issue Presented to Review and Argument When a trial court establishes a dollar amount sufficient to be security for costs pursuant to R.C. 733.59, upon the posting of such amount, any orders of the trial court are effective .................................................................................... 5 Authorities: Nat’l Elec. Cont’rs Ass’n, Inc. v. Mentor, 108 Ohio App.3d 373, 670 N.E.2d 1042 (11th Dist. 1995) .....................................................................6 State ex rel. Fisher v. Cleveland, 109 Ohio St.3d 33, 845 N.E.2d 500, 2006-Ohio-1827 (2006) .......................................................................................6 B.W. v. D.B.-B., 193 Ohio App.3d 637, 953 N.E.2d 369, 2011-Ohio-2813 (6 Dist. 2011) ...........................................................................6 Issue Presented to Review and Argument An appellate court will not consider legal arguments raised on appeal for the first time ................................................................................................................ 7 Issue Presented to Review and Argument Protection and vindication of the fundamental right of referendum which is expressly reserved to the people instantiates a sufficient public benefit to afford standing in a taxpayer lawsuit ....................................................................... 7 Authorities: Thacker v. Day, 2013-Ohio-187 (2d Dist. 2013) ................................................ 7 Cope v. Miami Valley Hosp., 195 Ohio App.3d 513, 960 N.E.2d 1034, 2011-Ohio-4869 (2d Dist. 2011) ........................................................................ 7 Article II, Section 3, Cincinnati City Charter ..................................................... 7 State Emp. Relations Bd. v. Queen City Lodge No. 69, Fraternal Order of Police, 174 Ohio App.3d 570, 883 N.E.2d 1083, 2007-Ohio-5741 (1 Dist. 2007) .......................................................................... 7 Article II, Section 1f, Ohio Constitution ............................................................ 7 State ex rel. Corrigan v. Perk, 19 Ohio St.2d 1, 249 N.E.2d 525 (1969) ........... 8 Issue Presented to Review and Argument A trial court's determination regarding the justiciability of a declaratory judgment action is reviewed for an abuse of discretion ......................................... 8 Authorities: Arnott v. Arnott, 132 Ohio St.3d 401, 972 N.E.2d 586, 2012-Ohio-3208 (2012) ....................................................................................... 8 Stichtenoth v. Motz, 2013-Ohio-382 (1st Dist. 2013) .......................................... 8 Middletown v. Ferguson, 25 Ohio St. 3d 71, 495 N.E.2d 280 (1986) ................. 8

SECOND ASSIGNMENT OF ERROR ASSERTED BY APPELLANTS The trial court erred by declaring that all Cincinnati ordinances are subject to referendum .....................................................................................................................

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Issue Presented to Review and Argument Because an appellate court reviews a judgment, not the underlying reasons or rationale, when an appellant fails to raise as an error the underlying judgment, the judgment must be affirmed .............................................................. 9 Authorities: State v. Myers, 2005-Ohio-5998 (10th Dist. 2005) ............................................ 9 Mizer v. Smith, 2009-Ohio-6820 (5th Dist. 2005) .............................................. 9 Local Rule 16.1(A)(3)(a) .................................................................................... 9 Marcus v. Rusk Heating & Cooling Inc., 2013-Ohio-528 (12th Dist. 2013) ................................................................................................. 9 Issue Presented to Review and Argument As a permanent injunction is an equitable remedy, an appellate court subjects the granting of an injunction to review under the abuse of discretion standard .................................................................................................... 10 Authorities: Columbus Steel Castings Co. v. King Tool Co., 2011-Ohio-6826 ...................... 10 Great Plains Exploration, LLC v. City of Willoughby, 2006-Ohio-7009 (11th Dist. 2006) ...................................................................... 10 Ohio Licensed Beverage Assn. v. Ohio Dept. of Health, 2007-Ohio-7147 (10th Dist. 2007) ...................................................................... 10 State ex rel. White v. Billings, 2007-Ohio-4356 (12th Dist. 2007)...................... 10 Stichtenoth v. Motz, 2013-Ohio-382 (1st Dist. 2013) .......................................... 10 Ghindia v. Buckeye Land Dev., LLC, 2007-Ohio-779 (11th Dist. 2007) ............ 10 Issue Presented to Review and Argument An appellant has the burden of affirmatively demonstrating the alleged error on appeal ........................................................................................................... 10 Authorities: Childrens Hosp. Med. Ctr. v. South Lorain Merchants Ass’n, 2006-Ohio-2407 (9th Dist. 2006) ........................................................................ 11

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Issue Presented to Review and Argument Where the language of a charter is plain, clear, and unambiguous, it must be given its usual and ordinary meaning, and if such construction is not in accord with the intent and purpose of the electors the remedy is by amendment of the charter ......................................................................................... 11 Issue Presented to Review and Argument It is the duty of the courts to liberally construe municipal referendum provisions in favor of the power reserved to the people to permit rather than to preclude the exercise of the power and to promote rather than to prevent or obstruct the object sought to be attained .............................................. 11 Issue Presented to Review and Argument ‘All’ means all ............................................................................................................. 11 Authorities: Buckeye Community Hope Foundation v. City of Cuyahoga Falls, 81 Ohio St.3d 559, 692 N.E.2d 997, 1998-Ohio-189 (1998) .............................. 11 State ex rel. Julnes v. S. Euclid City Council, 130 Ohio St.3d 6, 955 N.E.2d 363, 2011-Ohio-4485 (2011)............................................................ 12 Article II, Section 3, Cincinnati City Charter ..................................................... 12 Ohio R. App. P. 16(A)(7) .................................................................................... 13 Awuah v. Coverall North America, Inc., 703 F.3d 36 (1st Cir. 2012) ................. 13 Wells v. American Elec. Power Co., 48 Ohio App.3d 95, 548 N.E.2d 995 (4th Dist. 1988) ......................................................................... 13 National Steel & Shipbuilding Co. v. United States, 419 F.2d 863 (Fed. Cir. 1969) ................................................................................................... 13 State ex rel. Bramblette v. Yordy, 24 Ohio St.2d 147, 265 N.E.2d 273 (1970) ........................................................................................ 14 Issue Presented to Review and Argument An appellate court’s function is to review the case presented to the trial court, rather than a different case fashioned after a trial court’s unfavorable order ...................................................................................................... 14 Issue Presented to Review and Argument While Article II, Section 1f of the Ohio Constitution does not preclude the exclusion of certain categories of municipal ordinances from being subject to referendum, any such exclusion must be specifically stated in the legislation effectuating Section 1f and, if the effectuating legislation (such as a city charter) does not specifically exclude certain categories of municipal ordinances from being subject to referendum, then an exclusion is not to be inferred or created by judicial fiat ........................................................................... 14

Authorities: Shryock v. Zanesville, 92 Ohio St. 375, 110 N.E. 937 (1915) ............................ 14 DaimlerChrysler Corp. Healthcare Benefits Plan v. Durden, 448 F.3d 918 (6th Cir. 2006) .............................................................................. 15 Maiorana v. Maiorana, 2004-Ohio-3925 (11th Dist. 2004) ............................... 15 Jung v. Davies, 2011-Ohio-1134 (2d Dist. 2011)................................................ 15 Armstrong v. City of Melvindale, 432 F.3d 695, 699-700 (6th Cir. 2006) .......... 15 State ex rel. Bramblette v. Yordy, 24 Ohio St.2d 147, 265 N.E.2d 273 (1970) ........................................................................................ 15 Article II, Section 1d, Ohio Constitution ............................................................ 16 Buckeye Community Hope Foundation v. City of Cuyahoga Falls, 81 Ohio St.3d 559, 692 N.E.2d 997, 1998-Ohio-189 (1998) .............................. 16 Issue Presented to Review and Argument An appellant who fails to raise an argument in the court below waives his or her right to raise it on appeal .................................................................................... 17 Issue Presented to Review and Argument The reason certain emergency ordinances are not subject to referendum is not because of a “default definition” but because the legislation effectuating the right of referendum specifically and explicitly declares such ordinances are not subject to referendum ................................................................................... 17 Authorities: Thacker v. Day, 2013-Ohio-187 (2d Dist. 2013) ................................................ 18 State ex rel. Julnes v. S. Euclid City Council, 130 Ohio St.3d 6, 955 N.E.2d 363, 2011-Ohio-4485 (2011)............................................................ 18 R.C. 731.30 ......................................................................................................... 18 R.C. 731.29 ......................................................................................................... 18 Black’s Law Dict. (6th ed. 1990) ....................................................................... 19 20 III. CONCLUSION .................................................................................................................... 20 Certificate of Service.....................................................................................................................

I.

STATEMENT OF THE CASE A. Procedural Posture / Statement of Jurisdiction

On the same day that the Cincinnati City Council adopted Ordinance No. 56-2013 (the “Ordinance”), i.e., on March 6, 2013, Plaintiffs-Appellants commenced this lawsuit challenging the effort of the city council to deny the voters of the City the right to subject the Ordinance to referendum. (T.d. 1, Complaint.) Plaintiffs sought the issuance of injunctive relief and a declaratory judgment (T.d. 19), to which the City Defendants filed a memorandum in opposition (T.d. 25). Subsequently and pursuant to Ohio R. Civ. P. 65(B)(2), the trial of the action on the merits were advanced and consolidated with the hearing of the application for injunctive relief. In advance thereof, the parties tendered written stipulations (T.d. 26) which were supplemented with an additional oral stipulation (T.p., 3/15 Hearing Transcript, at 4-6) in advance of the oral argument held before the trial court on March 15, 2013. Ultimately, on March 28, 2013, the trial court granted the Plaintiffs’ motion in a decision and entry (T.d. 36), which specifically enjoined the City Defendants from taking “further action to implement Ordinance 56-2013” or from “execut[ing] or perform[ing] under the Long-Term Lease and Modernization Agreement for the City of Cincinnati Parking System.” (T.d. 36-16.) The following day, the City Defendants filed a notice of appeal. (T.d. 37.) B. Statement of the Facts

In October 2012, the City of Cincinnati put out a Request for Proposal (RFP) relative to the management of the City’s parking services and facilities. (T.d. 26, Stipulations ¶6.) The purpose of the RFP was to advance the City administrations interest “in transitioning the management of [the City’s] parking services function” and “exploring the possibility of entering

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into a partnership for the operations of the City’s parking system.” (T.d. 26, Stipulations ¶7 & Exh. F.) Currently, the City of Cincinnati manages its parking assets through the Parking Facilities Division of the Department of Enterprise Services. But this proposed transition would result in the entity selected from the RFP “operat[ing] and maintain[ing] the City’s garages, surface lots, and on-street meters.” (T.d. 26, Stipulations Exh. F.) And such operations would include taking over “enforcement and adjudication related to on-street parking meters.” (T.d. 26, Stipulations Exh. E., at B-2.) And such a transition would affect current employees of the City, but the entity selected to take over the parking operations would be required to “interview the current [Ci ty] employees of the parking system for positions in their company.” (T.d. 26, Stipulations Exh. F & Exh. E., at B-2 (“Concessionaire to consider but will not be required to hire existing City parking staff”). As the foregoing demonstrates, as well as the City Manager acknowledged, the effort being undertaken will result in “a significant change in the way the City has historically operated and maintained parking.” (T.d. 26, Stipulations Exh. F.) Ultimately, on March 6, 2013, the Cincinnati City Council adopted Ordinance No. 562013 whereby it authorized the City Manager to execute a Long-Term Lease and Modernization Agreement for the City of Cincinnati Parking System. (T.d. 26, Stipulations ¶43 & Exh. W.) This Lease would be with the Port of Greater Cincinnati Development Authority which, in turn, would contract with private entities to operate and maintain the City’s parking system generally consistent with the RFP. (T.d. 26, Stipulations Exh. S.) Included in the ordinance presented to the city council was a section declaring it was “an emergency measure necessary for the preservation of the public peace, health, safety and general welfare . . . . The reasons for the emergency is the immediate need to implement the budgetary measure contemplated during the

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December 2012 City of Cincinnati budget determinations in order to avoid significant personnel layoffs and budget cuts and resulting reductions in City services to Cincinnati residents related to the City’s General Fund, which administrative actions would be needed to balance the City’s FY 2013 and 2014 budgets in the absence of revenue generated by implementation of the modernizations of the City of Cincinnati parking system as described herein. ” Stipulations Exh. W.) Ordinance No. 56-2013 was adopted by the city council on March 6, 2013, on a vote of 5-to-4. (T.d. 26, Stipulations ¶54.) Even though the ordinance had already been adopted, the mayor, as the presiding officer of council, subsequently posited the question to council of whether the emergency clause should be retained; on this question, the vote of council was 6-to3. (T.d. 26, Stipulations ¶44.) (T.d. 26,

II.

ARGUMENT With respect to the issues raised and arguments posited in the Appellants’ Brief, several

of those issues and arguments were not raised before the trial court and, thus, have been waived by the Appellants. But this notwithstanding, while the Appellants may disagree with certain reasons or rationale of the trial court, the Appellants have not directly challenged the judgment itself nor have they affirmatively demonstrated reversible error by the trial court. Additionally, notwithstanding the well-established principle that “[an appellate court’s] review of a trial court’s proceedings is limited to the record before the trial court, and materials submitted directly to the appellate court cannot be added to the record on appeal,” Rorick v. Ohio Department of Job & Family Serv., 2010-Ohio-5571 ¶9 (1st Dist. 2010), Appellants have improperly sought to expand the record through submissions attached to their brief.

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FIRST ASSIGNMENT OF ERROR ASSERTED BY APPELLANTS The trial court erred by finding Plaintiffs have standing to bring their claims. Issue Presented to Review and Argument The requirement to tender a written request to a village solicitor or city director of law before bringing a municipal taxpayer action is excused when doing so would be a vain, useless, or futile act. Issue Presented to Review and Argument An appellate court must accept a trial court’s finding that the tendering of a written request to a village solicitor or city director of law would have be a vain, useless, or futile act so long as such finding is supported by competent and credible evidence. “[T]he Ohio Supreme Court has held in cases involving the municipal-taxpayer statutes that where circumstances show that a written request would be a vain, useless, or futile act, the written request is excused.” Cincinnati ex rel. Ritter v. Cincinnati Reds, L.L.C., 150 Ohio App.3d 728, 740, 782 N.E.2d 1225, 2002-Ohio-7078 (1st Dist. 2002). For “the law does not require vain, absurd, or impossible things of men is one of its favorite maxims; and it is the plain duty of the courts, in the interpretation of a statute, unless restrained by the rigid and inflexible letter of it, to lean most strongly to that view which will avoid absurd consequences, injustice, and even great inconvenience, for none of these can be presumed to have been within the legislative intent.” Moore v. Given, 39 Ohio St. 661, 663 (1884). In this case, with respect to the futility of the demand letter being tendered upon the City Solicitor, the trial court specifically made the following specific finding: Under R.C. 733.59, [the City Solicitor] would be placed in the untenable position of having advised the City Council on how to make the Ordinance referendumproof, and then, at the request of a taxpayer, applying to a court for na injunction or declaration as to the taxpayers’ right to a referendum on that same Ordinance. . . . In this instance, given [the City Solicitor’s] advice to City Council and his close involvement with the process which ultimately led to the passage of Ordinance 56-2013 as emergency legislation, the statutory demand letter would have been in vain and to no avail.

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(T.d. 36, Order and Entry of 3/28/13, at 11.) And the evidence which supported this conclusion was the oral stipulation that the inclusion of the emergency clause in Ordinance 56-2013 was done not by council or a committee thereof, but by the city administration which included the city solicitor’s office. (T.p., 3/15 Hearing Transcript, at 4-6.) In challenging the trial court’s finding with respect to the lack of a demand letter, the City offers nothing more than a conclusory assertion of disagreement. (Appellants’ Brief, at 4-6.) But as is well-established with respect to factual determinations, “an appellate court should not disturb a trial court’s findings of fact if the record contains competent, credible evidence to support those findings.” Johnson v. Albers, 2012-Ohio-1367 ¶17 (1st Dist. 2012). Not only does the City fail to even argue the lack of any evidentiary support for the trial court’s finding but, as noted above, the solicitor’s involvement in ensuring the inclusion of the emergen cy clause in Ordinance 56-2013 adequately supported this finding by the trial court. Issue Presented to Review and Argument When a taxpayer files a motion to establish security for the costs of proceeding in a taxpayer action and the government fails to oppose such motion and fails to lodge or challenge the posting vel non of any security, the government has waived any challenge to the adequacy or posting of such security. Issue Presented to Review and Argument When a trial court establishes a dollar amount sufficient to be security for costs pursuant to R.C. 733.59 and such amount is posted, any challenge to the posting vel non of any security is moot. Issue Presented to Review and Argument When a trial court establishes a dollar amount sufficient to be security for costs pursuant to R.C. 733.59, upon the posting of such amount, any orders of the trial court are effective. “R.C. 733.59 provides that a taxpayer’s lawsuit cannot be maintained unless the taxpayer ‘gives security for the costs of the proceeding.’ In interpreting this statute, the Supreme Court of Ohio has held that the security requirement is jurisdictional in nature as to a statutory taxpayer

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action, and that an award of attorney fees cannot be given when there is a failure by the taxpayer. However, under such circumstances, the suit can still go forward, but only as a common-law taxpayer suit for which security is not required and attorney fees are unavailable.” Nat’l Elec. Cont’rs Ass’n, Inc. v. Mentor, 108 Ohio App.3d 373, 395, 670 N.E.2d 1042 (11th Dist. 1995)(citing State ex rel. Citizens for a Better Portsmouth v. Sydnor, 61 Ohio St.3d 49, 572 N.E.2d 649 (1991)). Thus, even without the posting of such security, a common law taxpayer action can still be maintained. But in State ex rel. Fisher v. Cleveland, 109 Ohio St.3d 33, 845 N.E.2d 500, 2006-Ohio1827 (2006), the Ohio Supreme Court rejected the argument “that a failure to post the security at the initial filing of the complaint constitutes a full waiver of the statutory taxpayer acti on.” And in this case, upon the filing of the complaint with a statutory taxpayer claim, Relators-Appellees immediately moved to establish the amount of such security. (T.d. 10.) And the trial court subsequently found that the posting of the initial filing fee, which has been deposited with the trial court, was sufficient security. (T.d. 34.) Furthermore, throughout the proceedings before the trial court and notwithstanding Relators’ motion, the Appellants did not oppose such motion and failed to lodge or challenge the posting vel non of any security. Accordingly, by raising the issue for the first time on appeal and denying the trial court the first opportunity to address the issue, the Appellants have waived any challenge to the adequacy or posting of such security. B.W. v. D.B.-B., 193 Ohio App.3d 637, 953 N.E.2d 369, 2011-Ohio-2813 ¶70 (6th Dist. 2011)(“Ohio courts recognize that it is the responsibility of a litigant to raise error in the first instance in the trial court to permit an opportunity to avoid or correct error and deem such objections waived if raised for the first time on appeal”).

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Issue Presented to Review and Argument An appellate court will not consider legal arguments raised on appeal for the first time. Issue Presented to Review and Argument Protection and vindication of the fundamental right of referendum which is expressly reserved to the people instantiates a sufficient public benefit to afford standing in a taxpayer lawsuit. Continuing its effort to raise issues for the first time on appeal, the Appellants next assert that Appellees failed to demonstrate that presence of a public benefit that would allow the bringing of this taxpayer action, under either the statute or common law. (Appellants’ Brief, at 7-8.) But “[i]t is axiomatic that an appellate court will not consider legal arguments raised on appeal for the first time.” Thacker v. Day, 2013-Ohio-187 ¶30 (2d Dist. 2013). For “[a] party who fails to raise an argument in the court below waives his or her right to raise it [on appeal].” Cope v. Miami Valley Hosp., 195 Ohio App.3d 513, 960 N.E.2d 1034, 2011-Ohio-4869 ¶36 (2d Dist. 2011)(quoting State ex rel. Zollner v. Indus. Comm’n, 66 Ohio St.3d 276, 278, 611 N.E.2d 83 (1993)). Thus, the City has waived any argument concerning the existence vel non of a public benefit. Notwithstanding the Appellants’ waiver of the issue, this case was clearly brought to vindicate the specific power which is expressly “reserved to the people of the city” pursuant to Article II, Section 3 of the Cincinnati City Charter. In this capacity, the electorate of the City are a “higher-level legislative authority” above that of the city council. State Emp. Relations Bd. v. Queen City Lodge No. 69, Fraternal Order of Police, 174 Ohio App.3d 570, 883 N.E.2d 1083, 2007-Ohio-5741 ¶37 (1 Dist. 2007). Furthermore, Section 1f, Article II of the Ohio Constitution provides that “initiative and referendum powers are hereby reserved to the people of each municipality.” For “[t]he power to petition, for referendum, which is reserved to the people under our Constitution, is a basic and fundamental right, and is a basic part of the elective

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franchise.” State ex rel. Corrigan v. Perk, 19 Ohio St.2d 1, 10, 249 N.E.2d 525 (1969)(Duncan, J., dissenting). It should be beyond cavil that bringing an injunctive action to protect such a fundamental right instantiates a public benefit sufficient to bring a taxpayer lawsuit. Issue Presented to Review and Argument A trial court's determination regarding the justiciability of a declaratory judgment action is reviewed for an abuse of discretion. The Appellants also challenge whether a sufficient controversy exists between the parties so as to afford Appellees standing to bring a declaratory judgment. (Appellants’ Brief, at 8.) In making this argument, Appellants ignore one key matter: “the abuse-of-discretion standard applies to the review of a trial court’s holding regarding justiciability.” Arnott v. Arnott, 132 Ohio St.3d 401, 972 N.E.2d 586, 2012-Ohio-3208 ¶13 (2012). And as is well-established, an abuse of discretion ‘connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’” Stichtenoth v. Motz, 2013-Ohio-382 ¶6 (1st Dist. 2013)(quoting State v. Dorsey, 2012-Ohio-4043 ¶14 (1st Dist. 2012)(quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980))). In their brief, the Appellants do not even discuss or even reference the lengthy analysis and assessment undertaken by the trial court on the justiciability of the case. (See T.d. 36, Order and Entry of 3/28/13, at 7-10.) The trial court correctly concluded that a sufficient controversy existed between the parties, less the City proceed to implement the Ordinance and deprive the Appellees of any meaningful relief. (Id. at 10.) The trial court’s thorough analysis and

assessment of the Supreme Court’s decision in Middletown v. Ferguson, 25 Ohio St. 3d 71, 495 N.E.2d 280 (1986), demonstrates the presence of a sufficient controversy; and, for purposes of appeal, that analysis confirms that the trial court did not abuse its discretion in its conclusion regarding justiciability.

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SECOND ASSIGNMENT OF ERROR ASSERTED BY APPELLANTS The trial court erred by declaring that all Cincinnati ordinances are subject to referendum. Issue Presented to Review and Argument Because an appellate court reviews a judgment, not the underlying reasons or rationale, when an appellant fails to raise as an error the underlying judgment, the judgment must be affirmed. “It is a fundamental rule that appellate courts review judgments, not reasons for judgments.” State v. Myers, 2005-Ohio-5998 ¶24 (10th Dist. 2005); accord Mizer v. Smith, 2009-Ohio-6820 ¶20 (5th Dist. 2009). Yet, through the Second Assignment of Error, the

Appellants do not seek or call upon this Court to review the judgment of the trial court but, rather, seek an advisory opinion from this Court. See Local Rule 16.1(A)(3)(a)( “[a]n

assignment of error shall state how the trial court is alleged to have erred, e.g., ‘The trial court erred in overruling the motion to suppress’”). For, notwithstanding the claimed error posited by the Appellants, the trial court did not issue a judgment which declared that all of Cincinnati ordinances are subject to referendum; it simply issued an injunction concerning efforts to implement Ordinance 56-2013. The judgment which issued from the trial court was clearly injunctive, not declaratory: it is hereby ORDERED that, pending the outcome of the referendum process on Ordinance 56-2013, Defendants Milton Dohoney and the City of Cincinnati shall take no further action to implement Ordinance 56-2013, nor shall they execute or perform under the Long-Term Lease and Modernization Agreement for the City of Cincinnati Parking System. (T.d. 36, Order and Entry of 3/28/13, at 16.) The Appellants have not challenged and have not assigned as an error the issuance of this injunction by the trial court. With the Appellants not

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even challenging the injunction itself, i.e., the judgment, this Court must affirm the judgment of the trial court.1 Issue Presented to Review and Argument As a permanent injunction is an equitable remedy, an appellate court subjects the granting of an injunction to review under the abuse of discretion standard. “A permanent injunction is an equitable remedy.” Columbus Steel Castings Co. v. King Tool Co., 2011-Ohio-6826 ¶60. Thus, “[t]he issuance of an injunction is a matter solely within the discretion of the trial court and a reviewing court will not disturb the trial court’s judgment absent a clear abuse of discretion.” Great Plains Exploration, LLC v. City of Willoughby, 2006Ohio-7009 ¶10 (11th Dist.); accord Ohio Licensed Beverage Assn. v. Ohio Dept. of Health, 2007-Ohio-7147 ¶12 (10th Dist. 2007)(“[a]n appellate court’s standard of review involving an appeal from a trial court’s granting of an injunction ‘is whether the trial court abused its discretion in granting equitable relief’” (quoting Ohio Water Dev. Authority v. Western Reserve Water Dist., 2006-Ohio-2681 ¶9); State ex rel. White v. Billings, 2007-Ohio-4356 ¶38 (12th Dist. 2007)(“trial court did not abuse its discretion in granting the permanent injunction against appellant”). And as noted above “[a]n abuse of discretion ‘connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’” Stichtenoth, 2013-Ohio-382 ¶6. “Absent a clear showing that the trial court abused its discretion in granting the injunction, an appellate court cannot reverse the judgment of the trial court.” Ghindia v. Buckeye Land Dev., LLC, 2007-Ohio-779 ¶20 (11th Dist. 2007).

For even if this Court should agree with the resulting advisory opinion that the City seeks through its Second Assignment of Error, i.e., that not all Cincinnati ordinances are subject to referendum, the City has not addressed or briefed any alleged error on the part of the trial court in granting the injunctive relief and, thus, has waived the issue. Marcus v. Rusk Heating & Cooling Inc., 2013-Ohio-528 ¶54 (12th Dist. 2013)(“Appellant’s failure to raise an argument in her brief constitutes a waiver of the argument on appeal”). 10

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Issue Presented to Review and Argument An appellant has the burden of affirmatively demonstrating the alleged error on appeal. Notwithstanding the Appellants’ failure to recognize that the judgment from which they have appealed is a permanent injunction relating only to Ordinance 56-2013, a review of the Cincinnati City Charter confirms that the trial court did not abuse its discretion in issuing the injunction and limiting it to Ordinance 56-2013. Though, to be more precise in terms of appellate jurisprudence, the Appellants have not met their “burden of affirmatively demonstrating the alleged error on appeal and substantiating any ar guments in support.” Childrens Hosp. Med. Ctr. v. South Lorain Merchants Ass’n, 2006-Ohio-2407 ¶6 (9th Dist. 2006). For “[i]t is not the duty of [an appellate court] to develop an argument in support of an assignment of error.” Id. And the Appellants have not argued, let alone demonstrated, that, in issuing the injunction the trial court was unreasonable, arbitrary or unconscionable. Issue Presented to Review and Argument Where the language of a charter is plain, clear, and unambiguous, it must be given its usual and ordinary meaning, and if such construction is not in accord with the intent and purpose of the electors the remedy is by amendment of the charter. Issue Presented to Review and Argument It is the duty of the courts to liberally construe municipal referendum provisions in favor of the power reserved to the people to permit rather than to preclude the exercise of the power and to promote rather than to prevent or obstruct the object sought to be attained. Issue Presented to Review and Argument ‘All’ means all. Throughout its brief, the Appellants have failed to recognize, let alone appreciate, certain basic and fundamental principles that should serve as the polestar to refute any suggestion or claim that the trial court abused its discretion in issuing the preliminary injunction. Firstly: [w]here the language of a charter is plain, clear, and unambiguous, it must be given its usual and ordinary meaning, and if such construction is not in accord 11

with the intent and purpose of the electors the remedy is by amendment of the charter. Buckeye Community Hope Foundation v. City of Cuyahoga Falls, 81 Ohio St.3d 559, 569, 692 N.E.2d 997, 1998-Ohio-189 (1998)(quoting State ex rel. Doerfler v. Otis, 98 Ohio St. 83, 94, 120 N.E. 313, 316 (1918)). And just as important is the principle relating to the duty of courts as it relates to ruling on the right of referendum: [it is the duty of the courts] to liberally construe municipal referendum provisions in favor of the power reserved to the people to permit rather than to preclude the exercise of the power and to promote rather than to prevent or obstruct the object sought to be attained. State ex rel. Julnes v. S. Euclid City Council, 130 Ohio St.3d 6, 11, 955 N.E.2d 363, 2011-Ohio4485 (2011). But instead seeking to have this Court simply respect and comply with the foregoing principles, the Appellants call upon this Court to improperly amend the Cincinnati City Charter through judicial fiat. The starting point relative to the right of the people to referendum ordinances in the City of Cincinnati is Article II, Section 3 of the Charter which simply provides that: The initiative and referendum powers are reserved to the people of the city on all questions which the council is authorized to control by legislative action; such powers shall be exercised in the manner provided by the laws of the state of Ohio. Nothing else within the City Charter references or provides for the referendum of any ordinance. And the City Charter does not limit the power of referendum on all questions “with the exception of those questions adopted as emergency ordinances”. For despite recognizing that courts “have a duty to give effect to all of the words used” in a statute or charter and to “not ignore the existence of any word or phrase” (Appellants’ Brief, at 10-11), the Appellants specifically call

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upon this Court do the opposite – to ignore the that Cincinnati City Charter reserves the right and power of referendum to the people on “all questions”, period.2 “‘All’ means ‘all,’ or if that is not clear, all, when used before a plural noun . . . means ‘[t]he entire or unabated amount or quantity of, the whole extent, substance, or compass of, the whole.’” Awuah v. Coverall North America, Inc., 703 F.3d 36, 43 (1st Cir. 2012)(quoting Instrument Indus. Trust ex rel. Roach v. Danaher Corp., 2005 WL 3670416, at *6 (Mass. Super. Nov. 28, 2005) (quoting Hollinger, Inc. v. Hollinger Int'l, Inc., 858 A.2d 342, 377 (Del. Ch. 2004))); accord Wells v. American Elec. Power Co., 48 Ohio App.3d 95, 548 N.E.2d 995 (4th Dist. 1988)(syllabus ¶3)(“‘All’ means all”). “‘All’ is often used in writing intended to have legal effect . . . Its purpose is to underscore that intended breadth is not to be narrowed. ‘All’ means the whole of that which it defines – not less than the entirety ‘All’ means all and not substantially all.” National Steel & Shipbuilding Co. v. United States, 419 F.2d 863, 875 (Fed. Cir. 1969). Yet, the Appellants essentially argue that the trial court should have or that this Court should, through judicial legislation, add a provision to the City Charter that restricts and takes the right and power of referendum away from the people in certain instances, notwithstanding the explicit charter language that reserves that power on “all” ordinances without exception or reservation. For it is only through ignoring the explicit charter language that reserves the power of referendum on “all” ordinances and then ascribing some special status to “emergency ordinances” (though without citing to any specific language in the Charter) do the Appellants contend that whenever the City Council adopts an emergency ordinance that, in and of itself, In a footnote, the Appellants posit that “this Court could conclude that [Ordinance 562013] is an administrative act not subject to referendum.” (Appellants’ Brief, at 6 n.2.) As with several arguments posited by the Appellants in their brief, this contention was not raised before the trial court and, thus, has been waived. Furthermore, other than this singular conclusory sentence, the Appellants have not developed any argument or analysis on this contention as required by Ohio R. App. P. 16(A)(7), further precluding appellate consideration. 13
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takes the right of referendum away from the people. But the City Charter does not so provide. For “a municipal charter is not restricted to the adoption of the same provisions enacted by the General Assembly. It may be less restrictive as to use of the referendum, as [is] the Charter of the city of Toledo which authorized referendum on all ordinances.” State ex rel. Bramblette v. Yordy, 24 Ohio St.2d 147, 150, 265 N.E.2d 273 (1970). So in the first instance, it does not matter whether Ordinance No. 56-2013 was properly passed as an emergency ordinance; for regardless of whether the ordinance is or is not a properly adopted emergency ordinance, the Cincinnati City Charter expressly reserves the right of referendum to the people of “all” ordinances without exception. At a minimum, though, it cannot be said that the trial court abused its discretion in its issuance of the injunction relating to Ordinance 56-2013. Issue Presented to Review and Argument An appellate court’s function is to review the case presented to the trial court, rather than a different case fashioned after a trial court’s unfavorable order. Issue Presented to Review and Argument While Article II, Section 1f of the Ohio Constitution does not preclude the exclusion of certain categories of municipal ordinances from being subject to referendum, any such exclusion must be specifically stated in the legislation effectuating Section 1f and, if the effectuating legislation (such as a city charter) does not specifically exclude certain categories of municipal ordinances from being subject to referendum, then an exclusion is not to be inferred or created by judicial fiat. In an effort to establish that all emergency ordinances in the City of Cincinnati are not subject to referendum (notwithstanding the explicit language of the City Charter reserving, without exception, the referendum power to the people on “all” ordinances), the Appellants now attempt to equate Article II, Section 3 of the Cincinnati City Charter to Article II, Section 1f of the Ohio Constitution and to find support for its present argument in the Ohio Supreme Court’s decision in Shryock v. Zanesville, 92 Ohio St. 375, 110 N.E. 937 (1915). (Appellants’ Brief, at 12-14.) However, before the trial court, the Appellants did not even raise or posit such an

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argument; instead, they sought to equate emergency ordinances adopted by the city council to emergency legislation passed by the General Assembly and the state constitutional provisions addressing only the latter, i.e., Sections 1c and 1d of Article II of the Ohio Constitution. (T.d. 25, City’s Memo. in Opposition to Plaintiffs’ Motion, at 10-11.) But “[an appellate court’s] function is to review the case presented to the [trial court], rather than a better case fashioned after a [trial court’s] unfavorable order.” DaimlerChrysler Corp. Healthcare Benefits Plan v. Durden, 448 F.3d 918, 922 (6th Cir. 2006); accord Maiorana v. Maiorana, 2004-Ohio-3925 ¶25 (“[a] party cannot assert new legal theories for the first time on appeal”); Jung v. Davies, 2011Ohio-1134 ¶24} (“Jung cannot advocate one position in the trial court and adopt a contrary position on appeal. . . . Jung forfeited such an argument by taking a contrary position below”). Thus, “the failure to present an issue to the [trial court] forfeits the right to have the argument addressed on appeal.” Armstrong v. City of Melvindale, 432 F.3d 695, 699-700 (6th Cir. 2006). Notwithstanding the City’s forfeiture of its latest argument concerning the effect of emergency ordinances in the City of Cincinnati, its reliance upon Article II, Section 1f of the Ohio Constitution and Shryock is, nonetheless, misplaced. In Bramblette, the Ohio Supreme Court recognized that it has: held that Section 1f of Article II (as contrasted to Section 1d of Article II) is not “self-executing”; that either the General Assembly, by the enactment of statutory “law,” or the people of the municipality, by the adoption of charter “law’ under the “homerule” provisions of the Constitution, may exempt certain classes of laws from the operation of the referendum. 24 Ohio St.2d at 149.3 And the Court then affirmed that: It is noteworthy that Section 1d of Article II of the Ohio Constitution (which addresses state laws passed by the General Assembly) specifically addresses, inter alia, “emergency laws necessary for the immediate preservation of the public peace, health or safety” and then declares unequivocally and explicitly that “[t]he laws mentioned in this section shall not be subject to the referendum.” And as Section 1d is self-executing, its provisions are substantive law. But when it comes to the substantive law addressing referendum of ordinances in the City of Cincinnati, 15
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In providing for referendum . . ., a municipal charter is not restricted to the adoption of the same provisions enacted by the General Assembly. It may be less restrictive as to use of the referendum, as was the Charter of the city of Toledo which authorized referendum on all ordinances, including one levying a tax passed as an emergency measure. It may be more restrictive, [such as] where a referendum would have been required under state law, but was not required under the provisions of the Charter of the city of Cleveland. Id. at 150 (internal citations omitted). Thus, Shryock must be read with an appreciation that Section 1f of the Ohio Constitution is not self-executing; in contrast, Section 3 of Article II of the Cincinnati City Charter is self-executing; for the City Charter is the substantive enactment concerning referendum authorized by Article II, Section 1f of the Ohio Constitution. In Shryock, the issue was whether the General Assembly, in adopting statutory provisions concerning referendum for non-chartered municipalities, could, consistent with Article 1f, explicitly exempt emergency ordinances from referendum; the Court in Shryock concluded that the General Assembly could so do. And thus, consistent with Shryock, municipalities with charters can also exempt emergency ordinances and any other ordinances from being subjected to referendum – but the enacting legislation, i.e., the city charter, must specifically state those matters which are

i.e., the Cincinnati City Charter, there is no explicit declaration that limits or constrains the clear and unambiguous declaration in Article II, Section 3 of the City Charter that “[t]he initiative and referendum powers are reserved to the people of the city on all questions which the council is authorized to control by legislative action.” The City points out that “[w]hen Cincinnatians drafted the initiative and referendum provisions of the Charter in 1926, they had the benefit of the Ohio Constitution and statutes, and Shryock interpreting those laws.” (Appellants’ Brief, at 14.) What the City conveniently ignores is that such drafters also had the benefit of Section 1d which clearly and explicitly sets forth what matters of state law are not subject to referendum, as well as Section 4227-1 et seq. of the General Code (now codified at R.C. 731.28 et seq.), the state law which also specifically exempted certain matters from referendum in those municipalities without charter provisions on referendum. But instead of including within the Cincinnati City Charter any exemption from the power of the people to subject ordinances to referendum, the drafters simply included within the Charter the unequivocal and unconditional declaration that “all” ordinances were subject to referendum. 16

exempt from the referendum. For in Buckeye Community Hope, the Court expressly agreed with the proposition that: the people of a chartered city can create any form of government they want. . . . [The people of a city] may reserve to themselves the power to have a direct democracy on all legislative and administrative functions of the city. The power of local self-government means nothing less. Id. 81 Ohio St.3d. at 566. For the Supreme Court in Buckeye Community Hope reinforced its earlier pronouncement in Bramblette: The constitution does not dictate how municipalities may incorporate a referendum provision into their governing mechanism; nor does it place restrictions upon the nature of the referendum provisions municipalities may employ. The constitution simply reserves to municipalities the power to incorporate a referendum procedure in order to ensure that decisions made by a municipality’s governing body are in keeping with the views of its citizens. Id. at 564. For as the Court recognized in Bramblette, city charter provisions concerning

referendum may be less restrictive or more restrictive as to what matters may be subject to referendum. Bramblette, 24 Ohio St.2d at 149. In this case, the clear and unambiguous language of the Cincinnati City Charter reserves to the people the right of referendum on “all” ordinances; no exceptions are specifically stated or identified. Issue Presented to Review and Argument An appellant who fails to raise an argument in the court below waives his or her right to raise it on appeal. Issue Presented to Review and Argument The reason certain emergency ordinances are not subject to referendum is not because of a “default definition” but because the legislation effectuating the right of referendum specifically and explicitly declares such ordinances are not subject to referendum. Continuing the complete abandonment of the case which they presented to the trial court, the Appellants now seek to find refuge in state law, specifically R.C. 731.30. (Appellants’ Brief, at 14-16.) Yet, before the trial court, the Appellants completely disavowed application of state law, specifically declaring that the City Charter was dispositive: 17

Article II, Section 3 of the Charter is Cincinnati’s provision for initiative and referendum of its ordinances. Under Section 731.41, the Charter supersedes Section 731.30. The citizens of Cincinnati exercised their constitutional and statutory rights to modify the state’s standard initiative and referendum laws. (T.d. 8, City’s Motion to Dissolve Temporary Restraining Order, at 6-7 (emphasis added).) As noted above, “an appellate court will not consider legal arguments raised on appeal for the first time.” Thacker, 2013-Ohio-187 ¶30. Thus, the Appellants’ new-found effort to find solace in R.C. 731.30 to frustrate the referendum power expressly reserved to the people of the City of Cincinnati on “all” ordinances is not properly before this Court. See also Julnes, 130 Ohio St.3d ¶42 (based on R.C. 731.41, R.C. 731.30 does not apply to a municipality that adopts its own charter containing a referendum provision for its own ordinances). But even to the extent R.C. 731.30 may be applicable (and trump the clear and unambiguous provision of the City Charter that provides that “all” ordinances are subject to referendum), the Appellants fail to appreciate that R.C. 731.30 simply defines and limits the exceptions to those ordinances which are subject to referendum pursuant to R.C. 731.29. Instead, the Appellants limit their new-found arguments to R.C. 731.30 while ignoring R.C. 731.29; but to do so is putting the proverbial cart before the horse. For R.C. 731.30 only comes into play so as to set forth which ordinances which are not subject to referendum pursuant to R.C. 731.29 (presuming a city charter does not address referendum). And in this case, even if the City Charter was not applicable to Ordinance No. 56-2013, the Ordinance did not meet the requirements of R.C. 731.30 by which it might not be subject to referendum (if state law and not the City Charter governs). For R.C. 731.30 sets forth what is required in order to constitute an “emergency ordinance or measure” pursuant to that section (so that it is excluded from those ordinances subject to referendum pursuant to R.C. 731.29):

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emergency ordinances or measures necessary for the immediate preservation of the public peace, health, or safety in such municipal corporation, shall go into immediate effect. Such emergency ordinances or measures must, upon a yea and nay vote, receive a two-thirds vote of all the members elected to the legislative authority, and the reasons for such necessity shall be set forth in one section of the ordinance or other measure. Thus, by the express terms of R.C. 731.30, it is “such ordinance” (not the “clause within the ordinance”) which must receive the two-thirds vote in order to constitute an “emergency ordinance” under R.C. 731.30 in order for it to be excluded from referendum under R.C. 731.29. But the City relies exclusively upon the 6-to-3 vote to maintain the emergency clause within the Ordinance after the ordinance had already been adopted by a vote of 5-to-4. But a clause is simply a subdivision or part of the ordinance, it is not the ordinance itself.. See Black’s Law Dict. (6th ed. 1990), at 249 (“clause” defined as “[a] single paragraph or subdivision of a pleading or legal document”). And, per the express terms of R.C. 731.30, it is the ordinance (not the clause) which must receive a two-thirds vote.4 Thus, if state law (and not the charter) governs, the Ordinance does not fall within the ambit of the ordinances listed in R.C. 731.30 by which it would not be subject to referendum (in the event that the City Charter declaration that the people’s right of referendum is reserved to the people “on all questions,” i.e., on all ordinances, passed by city council does not somehow apply to all ordinances, including those declared to be emergency ordinances).

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The Appellants’ reference to the “default definition” of emergency ordinances (Appellants’ Brief, at 16) fails to appreciate that in Article II, Section 1d of the Ohio Constitution and in R.C. 731.29/R.C. 731.30 the concept of “emergency” legislation is explained and then it is explicitly declared that such legislation is not subject to referendum. If the “default definition” means it is not subject to referendum, then the inclusion in those two provisions the additional declaration that such legislation is not subject to referendum would be redundant. Such legislation is not subject to referendum not because of some default definition, but because the effectuating legislation specifically so states. But with respect to the City of Cincinnati, the effectuating legislation, i.e., the City Charter, does not contain such a provision and it is not the role of the courts to insert one. 19

III.

CONCLUSION Beyond the failure of the Appellants to preserve numerous issues for appellate review, as

well as their challenge of a phantom judgment, the Appellants have not met their appellate burden of affirmatively demonstrating on appeal any reversible error by the trial court. Instead, the trial court’s issuance of injunctive relief did not constitute an abuse of discretion, especially in light of two key legal principles applicable herein: [w]here the language of a charter is plain, clear, and unambiguous, it must be given its usual and ordinary meaning, and if such construction is not in accord with the intent and purpose of the electors the remedy is by amendment of the charter. Buckeye Community Hope, 81 Ohio St.3d at 569, and: [it is the duty of the courts] to liberally construe municipal referendum provisions in favor of the power reserved to the people to permit rather than to preclude the exercise of the power and to promote rather than to prevent or obstruct the object sought to be attained. Julnes, 130 Ohio St.3d ¶28. Accordingly, the judgment of the trial court must be affirmed. Respectfully submitted,

Christopher P. Finney (0038998) FINNEY, STAGNARO, SABA & PATTERSON LLP 2623 Erie Avenue Cincinnati, Ohio 45208 (513) 533-2980 cfinney@fssp-law.com

/s/ Curt C. Hartman____________ Curt C. Hartman (0064242) The Law Firm of Curt C. Hartman 3749 Fox Point Ct. Amelia OH 45102 (513) 752-8800 hartmanlawfirm@fuse.net

CERTIFICATE OF SERVICE I certify that a copy of the foregoing will be served via e-mail on the following on the 29th day of April 2013: John Curp, Aaron Herzig and Terry Nestor of the City Solicitor’s Office /s/ Curt C. Hartman____________

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