Black v. Girard ( 2023 )

[Cite as Black v. Girard, 2023-Ohio-266.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
MILES BLACK, INDIVIDUALLY CASE NO. 2021-T-0061
AND ON BEHALF OF THOSE
SIMILARLY SITUATED, et al.,
Civil Appeal from the
Plaintiffs-Appellants, Court of Common Pleas
-v-
Trial Court No. 2018 CV 01256
CITY OF GIRARD, OHIO, et al.,
Defendant-Appellee.
OPINION
Decided: January 30, 2023
Judgment: Affirmed in part, reversed in part, and remanded
Marc E. Dann, Brian D. Flick, and Michael A. Smith, Dann Law, 1500 Madison Avenue,
Lakewood, OH 44107, and Thomas A. Zimmerman, Jr., Zimmerman Law Offices, PC,
77 West Washington Street, Suite 1220, Chicago, IL 60602 (For Plaintiffs-Appellants).
James M. Popson and Robert E. Cahill, Sutter O’Connell Co., 1301 East Ninth Street,
3600 Erieview Tower, Cleveland, OH 44114 (For Defendant-Appellee).
MATT LYNCH, J.
{¶1} Plaintiffs-appellants and class representatives, Miles Black, Melissa Black
aka Melissa Hyde, Lorraine Morris, John Perfette, Samuel Rotz, and John Beal, appeal
the decision of the Trumbull County Court of Common Pleas, granting summary judgment
in favor of defendant-appellee, the City of Girard. For the following reasons, we affirm in
part, reverse in part, and remand the decision of the trial court for further proceedings
consistent with this opinion.
{¶2} On July 16, 2018, the plaintiffs filed a Class Action Complaint for Violation
of the Ohio Constitution, Declaratory Judgment, Equitable Restitution, Violation of the
Ohio Consumer Sales Protection Act, Negligent Misrepresentation, and Civil Conspiracy
against defendants, the City of Girard, Ohio, and Blue Line Solutions, LLC. Girard was
identified as an Ohio municipality authorized to ticket persons who exceed the speed
limits along Interstate 80 within its boundaries. Blue Line operates an automatic traffic
enforcement system on behalf of Girard. The plaintiffs alleged that they were issued
citations for speeding in Girard between December 7, 2017, and January 7, 2018. During
this period, there was a posted speed limit of 55 mph on a portion of Interstate 80 where
construction was taking place. According to the plaintiffs, the actual speed limit was 65
mph since the Ohio Department of Transportation had completed its construction on
December 7, 2017. The citations were issued by Girard with a percentage of the collected
fines given to Blue Line.
{¶3} On November 21, 2018, the trial court dismissed plaintiffs’ claims for
violations of the Ohio Consumer Sales Practices Act and Negligent Misrepresentation.
{¶4} On July 12, 2019, the trial court certified the following class with the named
plaintiffs as class representatives: “All persons and entities who were issued a citation for
allegedly travelling in excess of 55 m.p.h. in violation of Girard City Ordinance 333.03
and/or Traffic Code Ordinance 8069-16, between December 7, 2017 and January 7,
2018, in the westbound lane of Interstate 80 within the municipal limits of the City of
Girard.” The class certification was affirmed by this court in Black v. Girard, 11th Dist.
Trumbull No. 2019-T-0050, 2020-Ohio-1562.
{¶5} On March 5, 2021, Girard filed a Motion for Summary Judgment. On April
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26, 2021, the plaintiffs filed a Response in Opposition. On May 17, 2021, Girard filed a
Reply in Support of its Motion for Summary Judgment. On May 21, 2021, the plaintiffs
filed a Motion to Supplement their Response in Opposition. On May 26, 2021, Girard
filed a Brief in Opposition to the Motion to Supplement.
{¶6} On November 24, 2021, the trial court granted final approval of the class
settlement entered into between plaintiffs and Blue Line Solutions.
{¶7} On December 9, 2021, the trial court granted Girard’s Motion for Summary
Judgment. The court found that res judicata applied “collectively” to bar all the plaintiffs’
claims, i.e., Violation of the Ohio Constitution, Declaratory Judgment, Equitable
Restitution, and Civil Conspiracy:
[T]he Ohio Revised Code provides certain due process opportunities
to contest the issued citations. R.C. 4511.098(A) provides: “A person
or entity who receives a ticket for a civil violation * * * shall elect to
do one of the following: (1) In accordance with instructions on the
ticket, pay the civil penalty, thereby admitting liability and waiving the
opportunity to contest the violation; * * * (5) Contest the ticket by filing
a written request for a court hearing1 to review the ticket in a form
established by the court. * * * The failure to request a hearing within
this time period constitutes a waiver of the right to contest the
violation and ticket, and is deemed to constitute an admission of
liability and waiver of the opportunity to contest the violation.”
Plaintiffs Miles Black, Melissa Black, Lorraine Morris and John
Perfette did not timely request an administrative hearing to contest
the speeding citations at issue. Accordingly, as a matter of law
based on the aforementioned statute, those Plaintiffs have waived
any right to contest the violations.
Plaintiffs Samuel Rotz and John Beal did timely request an
administrative hearing. Rotz and Beal each received a reduction in
the fine as a result of the administrative hearing. Either of these
1. Under the version of R.C. 4511.098(A)(5) in effect between December 7, 2017, and January 7, 2018,
the recipient of a ticket could request an “administrative hearing to review the ticket.” This administrative
hearing will be discussed further below.
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Plaintiffs could have appealed the decision of the administrative
hearing officer to the municipal court and ultimately, to the Eleventh
District Court of Appeals. However, none of the Plaintiffs chose to
avail themselves of this opportunity.
***
Although the Plaintiffs herein assert unique arguments not
discussed at the hearings (where applicable), that does not remove
them from the umbrella of res judicata. “That a number of different
legal theories casting liability on an actor may apply to a given
episode does not create multiple transactions and hence multiple
claims. This remains true although the several legal theories depend
on different shadings of fact, or would emphasize different elements
of the facts, or would call for different measures of liability or different
kinds of relief.” Grava [v. Parkman Twp., 73 Ohio St.3d 379, 653
N.E.2d 226 (1995),] at 382-383 (internal citations omitted).
Accordingly, the Court finds the Plaintiffs’ claims are barred
by res judicata. As a matter of law, Girard is entitled to summary
judgment in its favor on all claims based on res judicata.
{¶8} The trial court further held with respect to Violation of the Ohio Constitution:
“[T]he Plaintiffs were afforded these opportunities [i.e., the opportunity for an
administrative hearing and appeal] for due process and most chose not to avail
themselves of these benefits. This is not a violation of procedural due process. That is
a personal choice to disregard such opportunities.”
{¶9} The trial court additionally found with respect to Declaratory Judgment that
such an action “is not proper since there are statutory procedures by which to present
such a claim” and the Plaintiffs failed to do so.
{¶10} Finally, the trial court found with respect to Civil Conspiracy that “the
issuance of the speeding citations is a governmental function pursuant to R.C.
2744.01(C)(2)(a), (e), (i) and (j),” and, therefore, “Girard is entitled to immunity pursuant
to R.C. 2744.02(A)(1).”
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{¶11} On December 29, 2021, the plaintiffs filed a Notice of Appeal. On appeal,
they raise the following assignments of error:
[1.] The trial court erred when it granted summary judgment in favor
of Girard on the basis that Plaintiffs waived their rights to contest
invalid speeding citations because Plaintiffs had no reasonable
opportunity to discover the facts establishing the invalidity of the
citations until after the time expired to submit a written request to
contest the citations.
[2.] The trial court erred in granting summary judgment in favor of
Girard on the basis that Plaintiffs were barred by res judicata
because Plaintiffs had no reasonable opportunity to discover the
facts establishing the invalidity of the citations until after the time
expired to submit a written request to contest the citations.
[3.] The trial court erred when it granted summary judgment in favor
of Girard on Plaintiffs’ Due Course of Law Claim because Plaintiffs
had no reasonable opportunity to discover the facts establishing the
invalidity of the citations until after the time expired to submit a written
request to contest the citations.
[4.] The trial court erred when it granted summary judgment in favor
of Girard on Plaintiffs’ declaratory judgment count because Plaintiffs
had no reasonable opportunity to discover the facts supporting their
causes of action until after the time expired to contest the citations.
{¶12} The assignments of error will be addressed in a consolidated fashion. We
first consider whether the trial court erred by granting summary judgment to Girard on the
basis of res judicata.2
{¶13} “The application of the doctrine of res judicata is a question of law which a
reviewing court resolves without deference to the decision of the lower court,” i.e., de
2. The plaintiffs assert that res judicata is an affirmative defense that Girard waived by not raising it in its
Answer to the Complaint. However, since the plaintiffs failed to raise their argument in their Opposition to
Girard’s Motion for Summary Judgment, they have waived it. See Estes v. Robbins Lumber, L.L.C., 12th
Dist. Clermont No. CA2016-02-011, 2016-Ohio-8231, ¶ 20 (the failure to raise arguments in opposition to
summary judgment constitutes waiver of such arguments).
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novo. Rossow v. Ravenna, 11th Dist. Portage No. 2001-P-0036, 2002-Ohio-1476, ¶ 7.
As an affirmative defense, the party asserting the doctrine of res judicata bears the burden
of demonstrating its applicability in a given case. Jochum v. State ex rel. Mentor, 11th
Dist. Lake No. 2020-L-032, 2020-Ohio-4191, ¶ 56. “The application of the principles of
res judicata * * * is not mandatory in every case.” Smith v. Ohio Edison Co., 2015-Ohio-
4540, 46 N.E.3d 1103, ¶ 9 (11th Dist.). Rather, “the doctrine of res judicata is to be
applied in particular situations as fairness and justice require, and * * * it is not to be
applied so rigidly as to defeat the ends of justice or so as to work an injustice.” (Citations
omitted.) Davis v. Wal-Mart Stores, Inc., 93 Ohio St.3d 488, 491, 756 N.E.2d 657 (2001).
{¶14} The doctrine of res judicata provides that “[a] valid, final judgment rendered
upon the merits bars all subsequent actions based upon any claim arising out of the
transaction or occurrence that was the subject matter of the previous action.” Grava, 73
Ohio St.3d 379, 653 N.E.2d 226, at syllabus. The doctrine “applies to administrative
proceedings that are ‘“of a judicial nature and where the parties have had ample
opportunity to litigate the issues involved in the proceeding.”’” (Citations omitted.) Id. at
381. However, the doctrine “should not bar relitigating an issue if the litigant who would
be barred ‘lacked full and fair opportunity to litigate that issue in the first action, or * * *
other circumstances justify according him an opportunity to relitigate that issue.’” (Citation
omitted.) Julia Realty, Ltd. v. Cuyahoga Cty. Bd. of Revision, 153 Ohio St.3d 262, 2018-
Ohio-2415, 104 N.E.3d 755, ¶ 18; id. (“collateral estoppel cannot apply when the party
against whom the earlier decision is asserted did not have a ‘full and fair opportunity’ to
litigate that issue in the earlier case”) (citation omitted).
{¶15} In the present case, we find the plaintiffs did not have a full and fair
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opportunity to litigate the issue of whether the posted speed limit of 55 mph was valid
through the administrative hearing process afforded by former R.C. 4511.099. To begin
with, the precise issue raised by the plaintiffs, i.e., whether the speed limit on I-80 reverted
from the reduced limit set by the director of transportation to the statutorily fixed limit of
65 mph upon presumed completion of the construction, could not readily be raised in the
regular course of adjudicating the speeding tickets. The citations issued to the plaintiffs
advised them that their vehicles were “photographed violating public safety by exceeding
the posted speed,” in violation of Girard Codified Ordinance 333.03. Framed in these
terms, the plaintiffs did violate the Ordinance: they were exceeding the posted speed limit,
and this constitutes a “prima-facie” violation. G.C.O. 333.03(h). The Girard Ordinance
does provide that, where “the speed limitations as established [in the Codified
Ordinances] have been altered, either higher or lower,” such alteration must be “in
accordance with Ohio R.C. 4511.21.” But even a challenge based on the lowering of the
speed limit does not encompass the plaintiffs’ argument herein inasmuch they do not
dispute that posted speed limit of 55 mph was established in accordance with the
appropriate statutes. Rather, their argument is whether the 55-mph speed limit continued
to be legally enforceable and/or did such reduction cease to have legal effect after the
completion of construction.
{¶16} Moreover, the administrative hearing provided by former R.C. 4511.099 did
not constitute adequate process for raising the plaintiffs’ claims. This hearing was to be
held by “[a] hearing officer appointed by the local authority * * * not sooner than twenty-
one but not later than forty-five days after the filing of a written request for the hearing.”
The time for holding the hearing could be extended upon request. Former R.C.
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4511.099(A)(1). “The hearing officer may schedule multiple hearings for the same time
to allow for occurrences such as nonappearance or admissions of liability.” Former R.C.
4511.099(A)(2). The party requesting the hearing “may present evidence at the hearing.”
Former R.C. 4511.099(A)(3). In determining liability, the hearing officer may consider the
following as affirmative defenses: “the motor vehicle or license plates of the motor vehicle
were stolen prior to the occurrence of the violation”; “the traffic law photo-monitoring
device was not in proper position and the recorded image is not of sufficient legibility to
enable an accurate determination of the information necessary to impose liability”; and
“the registered owner or person * * * named in the ticket was not the person operating the
motor vehicle at the time of the violation.” Former R.C. 4511.099(C)(1)(b), (c), and (d).
“The hearing officer shall render a decision on the day a hearing takes place.” Former
R.C. 4511.099(B)(4).
{¶17} The hearing so provided could be described in some respects as having a
judicial nature, e.g., the parties could present evidence, but would not have provided the
plaintiffs ample opportunity to litigate the claims they are presently raising. The hearing
procedures have an expedited character and only provide for a limited number of
defenses to be raised. Most notably, former R.C. 4511.099 did not provide for discovery
or the compelling of witness testimony in the preparation of a defense. Without the ability
to conduct discovery, it is difficult to imagine how the plaintiffs could establish the invalidity
of the posted speed limit.
{¶18} As the party bearing the burden of demonstrating the applicability of res
judicata, Girard offers neither evidence nor argument as to why the plaintiffs should have
questioned the validity of the posted speed limit during the time when it was possible to
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contest their citations. Granted, the plaintiffs had the opportunity to contest their citations
before a “quasi-judicial authority” having “the power to hear and determine controversies
between the public and individuals that require a hearing resembling a judicial trial.”
Appellee’s Brief at 26, citing State ex rel. Wright v. Ohio Bur. of Motor Vehicles, 87 Ohio
St.3d 184, 186, 718 N.E.2d 908 (1999). But the simple ability to contest the citations is
not the same as a full and fair opportunity to litigate their particular challenge to the
citations. Their challenge is not, as suggested by the trial court, a matter of emphasizing
different shadings or elements of the facts, but requires the establishment of facts, the
development of which the quasi-judicial administrative hearing was wholly unsuited.
Compare Holzemer v. Urbanski, 86 Ohio St.3d 129, 133, 712 N.E.2d 713 (1999), fn. 2
(“[i]n order to avoid the possible misleading connotations in this context [res judicata] of
the phrase ‘claims which might have been litigated’ in the first lawsuit, some courts prefer
to refer instead to ‘claims which should have been litigated’ in the first lawsuit”) (emphasis
added.).
{¶19} We note that the Ohio Supreme Court recently decided, in a superficially
similar case, that res judicata did apply to bar plaintiffs who paid their citations issued by
automated traffic cameras from contesting the validity of those citations in a subsequent
lawsuit. In Lycan v. Cleveland, __ Ohio St.3d __, 2022-Ohio-4676, __ N.E.__, the court
identified four requirements for the application of res judicata/claim preclusion: “(1) a prior
final, valid decision on the merits by a court of competent jurisdiction; (2) a second action
involving the same parties, or their privies, as the first; (3) a second action raising claims
that were or could have been litigated in the first action; and (4) a second action arising
out of the transaction or occurrence that was the subject matter of the previous action.”
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Id. at ¶ 23, citing Hapgood v. Warren, 127 F.3d 490, 493 (6th Cir.1997).
{¶20} It is with respect to the third requirement, i.e., that the second action
involves claims that “were or could have been litigated in the first action,” that Lycan is
distinguishable from the present case. Unlike the present case, the claims raised by the
plaintiffs in Lycan not only could have been asserted in the administrative process, but
had been successfully asserted in the administrative process by other plaintiffs: “Based
on Dickson & Campbell, [v. Cleveland, 181 Ohio App.3d 238, 2009-Ohio-738, 908 N.E.2d
964 (8th Dist.),] we know that appellees could have been successful in raising that
defense at the administrative level.” Id. at ¶ 31. The court continued: “And if they had
raised issues outside those that the hearing officer was authorized to decide, such as
constitutional issues, they could have appealed and raised those issues to the common
pleas court and then to the court of appeals if necessary.” Id.
{¶21} As noted above, in the present case, neither evidence nor argument were
presented as to why the plaintiffs should have questioned the validity of the posted speed
limit during the time when it was possible to contest their citations. The plaintiffs’ claims
in Lycan were based on their status as lessees rather than owners of their vehicles and
the text of the relevant ordinance. The Lycan plaintiffs had both notice and the ability to
raise the defense that the ordinance did not apply to them at the time allotted for
contesting the citations. In the present case, there is no evidence that anyone knew or
should have known that there was an issue regarding the validity of the posted speed
limit on I-80 in December 2017 to January 2018. Even if the plaintiffs were on notice
regarding this possible defense, the administrative process did not provide for the
discovery necessary to develop and establish that defense. Accordingly, we find that the
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claims the plaintiffs raise in the present lawsuit were not and could not have been litigated
in the first action and, thus, res judicata is inapplicable.
{¶22} Our analysis will now consider whether there are grounds for affirming the
grant of summary judgment with respect to the plaintiffs’ particular claims. A trial court’s
error is harmless and may be affirmed if judgment is appropriate under other legal
grounds. See Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 284, 58 N.E.2d 658(1944) (“where the judgment is correct, a reviewing court is not authorized to reverse such
judgment merely because erroneous reasons were assigned as the basis thereof”).
{¶23} The trial court determined that Girard was entitled to immunity regarding the
plaintiffs’ claim for Civil Conspiracy. Since the plaintiffs do not challenge that aspect of
the trial court’s judgment on appeal, it remains intact. See App.R. 12(A)(1)(b) (“a court of
appeals shall * * * [d]etermine the appeal on its merits on the assignments of error set
forth in the briefs under App.R. 16”); In re Estate of Zeak, 10th Dist. Franklin No. 20AP-
310, 2022-Ohio-951, ¶ 17 (the scope of the appellate court’s review is limited “to the error
asserted by appellant”).
{¶24} Girard argues on appeal that it is also entitled to immunity regarding the
plaintiffs’ claims for Violation of the Ohio Constitution, Equitable Restitution, and
Declaratory Judgment. Appellee’s brief at 21 (“the general grant of immunity set forth in
R.C. 2744.02(A) applies and precludes all of Appellants’ claims against the City”). Since
Girard raised its immunity argument in its Motion for Summary Judgment, we consider it
pursuant to Appellate Rule 3(C)(2) (“[a] person who intends to defend an order appealed
by an appellant on a ground other than that relied on by the trial court but who does not
seek to change the order is not required to file a notice of cross-appeal or to raise a cross-
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assignment of error”).
{¶25} Generally, R.C. Chapter 2744 grants political subdivisions immunity from
tort actions, providing that “a political subdivision is not liable in damages in a civil action
for injury, death, or loss to person or property allegedly caused by an act or omission of
the political subdivision or an employee of the political subdivision in connection with a
governmental or proprietary function.” R.C. 2744.02(A)(1); State ex rel. Fatur v. Eastlake,
11th Dist. Lake No. 2009-L-037, 2010-Ohio-1448, ¶ 34. The definition of “governmental
function” includes “[t]he provision or nonprovision of police, fire, emergency medical,
ambulance, and rescue services or protection”; “[t]he regulation of the use of, and the
maintenance and repair of, roads, highways, streets, avenues, alleys, sidewalks, bridges,
aqueducts, viaducts, and public grounds”; “[t]he enforcement or nonperformance of any
law”; and “[t]he regulation of traffic, and the erection or nonerection of traffic signs, signals,
or control devices[.]” R.C. 2744.01(C)(2)(a), (e), (i), and (j).
{¶26} With respect to their constitutional claim, the plaintiffs allege that the issuing
of the citations “violates the Ohio Constitution’s guarantee of ‘due course of law’ [Section
16, Article I] because it imposes penalties, fines, and other fees upon Plaintiffs and Class
members in excess of what is statutorily enforceable.” R.C. 2744.09(E) provides that a
political subdivision is not immune from “[c]ivil claims based upon alleged violations of the
constitution * * * of the United States.” Since the plaintiffs’ constitutional claim is based
on the state constitution, it remains barred. Rayland v. Jenkins, 2018-Ohio-3487, 118
N.E.3d 1121, ¶ 20 (7th Dist.) (“[t]he General Assembly specifically exempted civil claims
based upon * * * the federal constitution from the purview of Chapter 2744” but made “no
similar provision for civil claims based upon * * * the state constitution”).
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{¶27} With respect to their Equitable Restitution claim, the plaintiffs allege that
Girard “received thousands of dollars in revenue from issuing the Citations to Plaintiffs
and Classmembers” based on “invalid tickets” and, as a result, has “been unjustly
enriched.” As Girard “should not be permitted to unjustly retain the penalties, fees, and
other charges that have been paid,” the plaintiffs ask that Girard “be ordered to disgorge
all such payments made to [it].”
{¶28} “[S]overeign immunity does not bar claims for equitable relief, only for legal
relief.” Cleveland v. Ohio Bur. of Workers’ Comp., 159 Ohio St.3d 459, 2020-Ohio-337,
152 N.E.3d 172, ¶ 10. “[T]here are many Ohio cases where claims for reimbursement of
monies collected by a political subdivision were found to be equitable claims even though
the collection of monies was within the political subdivision’s authority.” Barrow v. New
Miami, 2018-Ohio-217, 104 N.E.3d 814, ¶ 40 (12th Dist.) (cases cited); Santos v. Ohio
Bur. of Workers’ Comp., 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, ¶ 17 (“[a] suit
that seeks the return of specific funds wrongfully collected or held by the state is brought
in equity”); Ohio Hosp. Assn. v. Ohio Dept. of Human Servs., 62 Ohio St.3d 97, 105, 579
N.E.2d 695 (1991) (“[t]he reimbursement of monies withheld pursuant to an invalid
administrative rule is equitable relief, not money damages, and is consequently not barred
by sovereign immunity”).
{¶29} However, the Supreme Court of Ohio’s decision in Cleveland v. Bur. of
Workers’ Comp. undermines the continued validity of those prior rulings. In that case, the
city as an employer brought suit against the Bureau of Workers’ Compensation for
allegedly excessive premiums. The issue was whether the claim was legal or equitable,
not for the purposes of applying immunity, but to determine “whether the case was
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properly filed in the court of common pleas or whether it should have been filed in the
Court of Claims, which has exclusive jurisdiction over certain claims against state
entities.” Id. at ¶ 2.
{¶30} The court’s analysis, however, began with the premise that “the doctrine of
sovereign immunity never barred equitable claims, which have always been cognizable
against the state,” and that “courts of common pleas continue to have original jurisdiction
over them pursuant to Article I, Section 16, and Article IV, Section 4(B) of the Ohio
Constitution and R.C. 2305.01.” Id. at ¶ 10. The court recognized its precedents in
Santos and Ohio Hosp. but did not find them determinative of the outcome:
Since we decided Santos and Ohio Hosp. Assn., the United
States Supreme Court has provided clear guidance regarding what
constitutes equitable relief, and that guidance further supports our
determination that the claim here is a legal claim. In 2016, the court
explained that a claim sounded in law if it sought to recover from a
defendant’s general assets rather than “specifically identified funds
that remain in the defendant’s possession.” Montanile v. Natl.
Elevator Industry Health Benefit Plan Bd. of Trustees, 577 U.S. 136,
144-145, 136 S.Ct. 651, 193 L.Ed.2d 556 (2016). The court further
explained that “[e]quitable remedies ‘are, as a general rule, directed
against some specific thing; they give or enforce a right to or over
some particular thing * * * rather than a right to recover a sum of
money generally out of the defendant’s assets.’ 4 S. Symons,
Pomeroy’s Equity Jurisprudence § 1234, p. 694 (5th ed. 1941)
(Pomeroy).” (Ellipsis sic.) Id. at 145. The court stated that if there
is not a specifically identifiable fund–or traceable items on which the
money from the fund was spent–to seize, “the plaintiff could not
attach the defendant’s general assets instead.” Id. In such a case,
“[t]he plaintiff had ‘merely a personal claim against the wrongdoer’–
a quintessential action at law.” Id. at 146, quoting Restatement of
the Law, Restitution, Section 215(1), at 866 (1936).
Id. at ¶ 16.
{¶31} The court concluded that the premiums paid by the city to the bureau could
no longer be identified or traced to particular funds in the bureau’s possession: “Although
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the BWC kept track of the amount of Cleveland’s premium payments, R.C. 4123.34(A),
Cleveland’s premiums went into a general insurance fund, R.C. 4123.30, i.e., they were
not kept separate from payments made by other public employers. Once Cleveland’s
premium payment was deposited into the fund, it became commingled with the premium
payments from other employers. And even if we considered the state insurance fund
itself to be a specific fund, Cleveland paid the last funds it seeks to recover in 2009.” Id.
at ¶ 17. In such circumstances, the court deemed it impossible that the money paid by
the city was traceable to any specific funds in the bureau’s possession.
{¶32} Girard argues that monies received from the plaintiffs in the present action
are similarly unidentifiable and untraceable, specifically, that they have been deposited
into various municipal funds where they were commingled with other monies, spent for
municipal purposes in the years since 2018, and are no longer in the city’s possession.
Additionally, Girard argues that it only received about 51% of the revenue generated by
the citations, the balance being retained by Blue Line Solutions. Appellee’s Brief at 23.
{¶33} In support of its claims, Girard cites Municipal Ordinance 307.11(a) which
provides:
The civil penalties collected [through the use of traffic law monitoring
devices] shall be allocated to the following funds:
Fifty-eight percent (58%) to the General Fund - Fund 100
Eighteen percent (18%) to the Street Construction Fund - Fund
201
Fourteen percent (14.0%) to the Recreation Fund - Fund 214
Five percent (5%) to the Capital Improvement Safety Fund - Fund
925
Five percent (5%) to the Capital Improvement Fund - Fund 900
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{¶34} Additionally, Girard cites the Affidavit of Julie Coleman, Auditor for the City
of Girard, attesting to the commingling and disbursement of the funds received from the
issuing of citations as well as the percentage of those funds retained by Blue Line
Solutions.3
{¶35} Under the Supreme Court of Ohio’s analysis in Cleveland v. Bur. of
Workers’ Comp., it must be concluded that plaintiffs’ restitution claim is a legal claim for
damages and thus barred by Girard’s immunity. The evidence before this court is that
the allegedly improper revenues from the issuance of the citations was assigned to
various municipal funds where it was commingled with other monies and distributed. In
all material respects, this is what happened with the premiums at issue in Cleveland. The
plaintiffs are correct in pointing out that commingling does not necessarily render funds
untraceable and that workers’ compensation is a “revenue-neutral fund” and that it is
possible to assume that funds remain traceable in an account as long as the account
balance does not fall below the funds at issue. Such considerations do not alter the
outcome. In Cleveland, the amount of premiums paid by the city was known and the
premiums were deposited into an identifiable fund. Nevertheless, the premiums “were
not kept separate from payments made by other public employers” and “became
commingled with the premium payments from other employers.” Given these
circumstances and the passage of time, the court found it “inconceivable how money
3. As the plaintiffs correctly note, Girard raised this argument for the first time in its Reply Brief in support
of summary judgment. However, the plaintiffs neither moved the trial court to strike the new argument nor
sought leave to file a surreply. It has been held that “[a] party who fails to move the trial court to strike a
reply brief on the ground that a new argument was raised waives the argument on appeal.” Charlesgate
Commons Condominium Assn. v. W. Reserve Group, 6th Dist. Lucas No. L-14-1039, 2014-Ohio-4342, ¶
13.
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belonging to Cleveland could ‘clearly be traced to particular funds or property’ in the
BWC’s possession.” (Citation omitted.) Cleveland at ¶ 17. As in Cleveland, so in the
present case. The monies generated by the citations were placed into funds where they
were commingled and dispersed. If there are any circumstances that would distinguish
the present case from Cleveland, those circumstances are not in evidence.
{¶36} Other cases involving similar claims against political subdivisions based on
the unjust retention of funds have similarly held, in light of the Cleveland decision, that
the commingling and disbursement of the funds destroys traceability and renders the
claims legal in nature. See Barton v. Cty. of Cuyahoga, 2020-Ohio-6994, 166 N.E.3d 129(8th Dist.) (involving claims for replevin and conversion based on the “unlawful retention
of forfeited funds”); Musial Offices, Ltd. v. Cty. of Cuyahoga, 2020-Ohio-5426, 163 N.E.3d
84 (8th Dist.) (involving claims for unjust enrichment “to recover the overpayment of real
property taxes”). Accordingly, the trial court did not err in granting summary judgment to
Girard on the plaintiffs’ claims for Civil Conspiracy, Violation of the Ohio Constitution, and
Equitable Restitution.
{¶37} With respect to their claim for Declaratory Judgment, the plaintiffs sought “a
declaration that the Citations issued in the I-80 Non-Construction Zone for alleged
violations of GCO 333.03 and/or Traffic Code Ordinance 8069-16 for traveling in excess
of 55 m.p.h. between December 7, 2017, and January 7, 2018, are invalid and
unenforceable.” By its very language and title, R.C. Chapter 2744 applies only to tort
actions for damages. Barton at ¶ 36. Therefore, Girard is not entitled to political
subdivision immunity regarding the plaintiffs’ claim for Declaratory Judgment.
{¶38} The trial court found that four of the plaintiffs waived their right to contest
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their citations pursuant to R.C. 4511.098(A)(5) with provides: “The failure to request a
hearing within [thirty days of the receipt of the ticket] constitutes a waiver of the right to
contest the violation and ticket, and is deemed to constitute an admission of liability and
waiver of the opportunity to contest the violation.” However, the law in effect at the time
the plaintiffs received their citations provided: “No decision under this section [R.C.
4511.099], and no admission of liability under this section or section 4511.098 of the
Revised Code, is admissible in any other judicial proceeding in this state.” Former R.C.
4511.099(H). Construing these provisions together, the failure to request a hearing
constituted a waiver of the right to contest the violation in the context of the administrative
process. Therefore, the statutory waiver in R.C. 4511.098(A)(5) is not applicable to these
plaintiffs’ claim for Declaratory Judgment.
{¶39} The trial court also found that the plaintiffs failed to avail themselves of the
statutory procedures to present their claims. “A general rule regarding declaratory
judgments is that where a special statutory method for the determination of a particular
type of case has been provided, it is not proper to by-pass this statutory procedure by
means of a declaratory judgment action.” State ex rel. Iris Sales Co. v. Voinovich, 43
Ohio App.2d 18, 19, 332 N.E.2d 79 (8th Dist.1975). However, the rule only applies where
“if a remedy exists which is effectual to afford the relief sought.” Kaufman v. Village of
Newburgh Heights, 26 Ohio St.2d 217, 219, 271 N.E.2d 280 (1971). For the reasons
discussed above, the administrative hearing afforded by former R.C. 4511.099 was not
an adequate remedy of which the plaintiffs were required to avail themselves.
{¶40} Finally, Girard argues that, inasmuch as the plaintiffs’ Violation of the Ohio
Constitution claim lacks merit, their claim for Declaratory Judgment “is likewise doomed
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by the failure of that claim.” Appellee’s Brief at 34, citing Jenkins v. Eberhart, 71 Ohio
App.3d 351, 358, 594 N.E.2d 29 (4th Dist.1991) (when an underlying cause of action fails
so too must a claim for declaratory judgment). Girard presumes that the plaintiffs’
constitutional claim forms the underlying legal basis for their Declaratory Judgment claim.
However, Count Two of the plaintiffs’ Complaint makes no express reference to the Ohio
Constitution. Further, the rule stated in Jenkins applies when an underlying claim fails for
lack of subject matter jurisdiction, see id. at 357, which is not the case here. Specifically,
the Supreme Court of Ohio has held that “declaratory judgment statutes provide an
additional remedy which may be granted by a court but they do not extend the jurisdiction
as to the subject matter upon which a court may act.” Ryan v. Tracy, 6 Ohio St.3d 363,
367, 453 N.E.2d 661 (1983), quoting State ex rel. Foreman v. Bellefontaine Municipal
Court, 12 Ohio St.2d 26, 28, 231 N.E.2d 70 (1967). Accordingly, the trial court erred by
granting summary judgment to Girard on the plaintiffs’ claim for Declaratory Judgment.
{¶41} The plaintiffs’ assignments of error have merit to the extent indicated above.
{¶42} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas is affirmed in part and reversed in part. Summary judgment in favor of
Girard is affirmed as to the plaintiffs’ claims for Violation of the Ohio Constitution,
Equitable Restitution, and Civil Conspiracy, and reversed as to the plaintiffs’ claim for
Declaratory Judgment. This matter is remanded for further proceedings consistent with
this opinion. Costs to be taxed between the parties equally.
THOMAS R. WRIGHT, J.,
MARY JANE TRAPP, J.,
concur.
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