COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69371 STATE OF OHIO, EX REL. : ROBERT C. KUDER, ET AL. : : Relators-Appellees : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF STRONGSVILLE, ET AL. : : Respondents-Appellants: : DATE OF ANNOUNCEMENT OF DECISION: MARCH 14, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-270956 JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Relators-Appellees: RODGER A. PELAGALLI (#0034530) 6400 Pearl Road Parma Heights, Ohio 44130 For Respondents-Appellants: JOHN D. RYAN (#0008093) 14650 Detroit Avenue - Suite 300 Cleveland, Ohio 44107 - 2 - SPELLACY, C.J.: Defendants-appellants City of Strongsville, Strongsville City Council, Walter Ehrnfelt, Mayor of Strongsville, and Strongsville city officials ("respondents") appeal the grant of summary judgment in favor of plaintiffs-appellees Robert and Nancy Smith ("rela- tors"). Respondents assign the following errors for review: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND ISSUING A WRIT OF MANDAMUS BASED UPON THE COURT'S DETERMINATION THAT THE ADOPTION OF LEGISLATION BY THE STRONGSVILLE CITY COUNCIL TOOK EFFECT ON THE DATE OF ITS PASSAGE. II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND ISSUING A WRIT OF MANDAMUS BASED UPON THE COURT'S DETERMINATION THAT THE ADOPTION OF THE LEGISLATION BY THE STRONGSVILLE CITY COUNCIL WAS EFFECTIVE LAW AND ESTABLISHED A CLEAR LEGAL DUTY WHEN THE MAYOR OF THE CITY HAD ISSUED HIS VETO OF THAT LEGISLATION PURSUANT TO LAW. III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND ISSUING A WRIT OF MANDAMUS BASED UPON THE COURT'S DETERMINATION THAT THE ADOPTION OF LEGISLATION BY THE STRONGSVILLE CITY COUNCIL WAS EFFECTIVE LAW AND ESTABLISHED A CLEAR LEGAL DUTY WHEN THE STRONGSVILLE CITY COUNCIL HAD RECONSIDERED ITS VOTE ON THAT LEGISLATION AND VOTED TO DEFEAT THAT LEGISLATION WHERE NO VESTED RIGHT OF OTHERS HAD INTERVENED. IV. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND ISSUING A WRIT OF MANDAMUS TO COMPEL THE EXPENDITURE OF PUBLIC FUNDS FOR OTHER THAN A MUNICIPAL PURPOSE. Finding the assignments of error to have merit, the judgment of the trial court is reversed. - 3 - I. On or about May 24, 1994, the relators filed a Verified Complaint in Mandamus in the Court of Common Pleas seeking performance by respondents to carry out certain public duties imposed by the City of Strongsville Resolution No. 1993-202 ("Resolution 1993-202"). The relators also sought injunctive relief against respondents precluding or otherwise prohibiting them from taking any further actions on Resolution 1993-202 until such time as the court has determined the rights of the parties. On May 17, 1995, the relators filed their motion for summary judgment; and on June 21, 1995, respondents filed a cross-motion for summary judgment and memorandum in opposition to the relators' motion for summary judgment. After having considered the relators' motion for summary, respondents' brief thereto, and respondents' cross-motion for summary judgment, the trial court, on May 30, 1995, issued its Judgment Entry, Order and Writ (Mandamus) granting the relators' motion for summary judgment and denying respondents' cross-motion for summary judgment. II. In 1974, the relators Robert and Nancy Kuder, purchased a residential premises located at 8041 Litto Drive in Strongsville, Ohio. The previous owners had obtained a permit from the city for the connection of a private residential sanitary sewer line to the municipal sanitary sewer system. Connection of the residential - 4 - sewer line to the municipal sanitary sewer system was performed by a private contractor. During 1979, 1985, and 1990, the relators experienced problems with wastewater overflows in their home. On May 8, 1993, after the sanitary sewer overflow recurred, the relators determined that a portion of the plumbing inside the residence had not been connected to the private sanitary sewer line serving the premises. Rather, the waste was flowing into an old septic tank. Subsequently, the relators sought the assistance of the City of Strongsville to take action on this matter. In particular, the relators sought the assistance of Councilman Michael Daymut who, on October 18, 1993, introduced legislation before the Strongsville City Council. The legislation was entitled: "A resolution authorizing the Director of Finance to pay a moral claim" and numbered 1993-202. On April 4, 1994, respondent Strongsville City Council passed Resolution 1993-202. On that same date, Resolution 1993-202 was presented to respondent Mayor of Strongsville, Walter Ehrnfelt who subsequently signed and approved the resolution. On April 13, 1994, however, respondent Mayor Ehrnfelt, within the ten (10) day period permitted for veto under the City of Strongsville's Charter, withdrew his approval and vetoed Resolution 1993-202. Subsequently, respondent Mayor Ehrnfelt, submitted, with his written objections, his veto of Resolution 1993-202 to the Strongsville City Council. - 5 - At their next regular meeting held on April 18, 1994, the city council adopted a motion to reconsider Resolution 1993-202 and voted again on the resolution. Resolution 1993-202 was defeated. III. In their first assignment of error, the respondents assert that the trial court erred in granting the relators' motion for summary judgment. Primarily, the respondents contend that Resolution 1993-202 did not become an effective law, and therefore no clear legal duty arose on the part of respondents to pay the relators their moral claim. Further, because Resolution 1993-202 never went into effect, the relators' right in their moral claim never vested. This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclu- sion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to - 6 - reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. Respondents assert that the trial court erred when it determined that the adoption of legislation by the Strongsville City Council took effect on April 4, 1994, when Resolution 1993- 202 was passed. In granting the relators' motion for summary judgment and denying respondents' cross-motion for summary judgment, the trial court stated in part that: 1. City of Strongsville Resolution 1993-202, passed on April 4, 1994 by Respondent, City of Strongsville City Council, and approved by Respondent, Mayor, on April 4, 1994, is hereby declared to have been effective law on that same date, thus, the Respondents had a clear legal duty to perform. (Judgment Entry, Order, and Writ (Mandamus), June 30, 1995). In the case sub judice, respondents contend that Resolution 1993-202 did not become effective on April 4, 1994. Rather, pursuant to Art. IV, Sec. 13 of the Strongsville Charter, Resolu- tion 1993-202 could not have gone into effect earlier than thirty (30) days after its final passage by the Council. Art. IV, Sec. 13 of the Strongsville Charter states in pertinent part: Each ordinance or resolution providing for the appropriation of money, or for an annual tax levy, or for improvements petitioned for by the owners of a majority of the foot frontage of the property to be benefited and specially assessed therefor, and any emergency ordinance or resolution necessary for the immediate preservation of the public peace, health, or safety shall take effect, unless a later time be specified therein, upon its approval by the - 7 - Mayor, or upon its passage after disapproval by the Mayor, as the case may be. No other ordinance or resolution shall go into effect earlier than thirty (30) days after its final passage by council. Respondents cite in support of their argument the decision set forth in The State, ex rel. King v. City of Portsmouth et al. (1986), 27 Ohio St.3d 1. The court in Portsmouth addressed the issue of whether an ordinance passed by city council, authorizing payment of attorney fees as a moral obligation and ordering that the funds be paid from a contingent fund, was an appropriation ordinance. The Portsmouth court held that "the relator has estab- lished that the ordinary practice of making a disbursement from the monies appropriated to the contingent fund are not considered an appropriation." Id. at 4. Resolution 1993-202, "A Resolution Authorizing the Director of Finance to pay a Moral Claim" provided that: Section 1. The Director of Finance be and is hereby authorized and directed to pay the claimant(s) the sum of Twelve Thousand Fifty- Five and 25/100 Dollars ($12,055.25) upon receipt of an executed Release of all claims in a form prepared by the Director of Law. Section 2. That the funds for the payment of the aforesaid claim be and are hereby authorized to be paid from the General Fund. As in Portsmouth, respondents' moral claim was to be paid from a fund which had previously been appropriated, i.e. the General Fund. Therefore, Resolution 1993-202 requiring payment from the General Fund was not a "resolution providing for the appropriation of money" and thus did not become effective immediately upon the - 8 - Mayor's signature and approval. Rather, the resolution requiring the moral claim to be paid from the General Fund was an expenditure and could not have become effective earlier than thirty (30) days after its final passage under Strongsville Charter Art. IV., Sec. 13. Accordingly, respondents' first assignment of error has merit. IV. In their second assignment of error, respondents claim that the trial court erred in finding that a clear legal duty to pay the moral claim existed when the mayor issued his veto. The Strongsville Charter establishes that the Mayor has the power to veto ordinances and resolutions passed by the city council. In particular, Strongsville Charter Art. II, Sec. (5)(c) states in pertinent part that: If the Mayor approves any ordinance or resolution, he shall approve it within ten (10) days after its passage or adoption by the Council. The Mayor may veto any ordinance or resolution passed by Council. * * * In case of a veto, the matter shall be returned to Council with a statement in writing by the Mayor of his objections, which shall be entered into the official journal * * *. On April 4, 1994, respondent Mayor Ehrnfelt signed Resolution 1993-202. However, on April 13, 1994 respondent Mayor Ehrnfelt vetoed the resolution and returned it to council stating, in writing, his objections to the resolution. Respondent Mayor Ehrnfelt's ability to veto the resolution is undeniably within the powers conferred upon him as Mayor. Furthermore, the respondent - 9 - Mayor's veto of Resolution 1993-202 was within the ten (10) day period provided in the city Charter. Because the resolution did not become effective immediately upon the Mayor's approval, and would not have been effective for at least thirty (30) days as stated supra, and because the respondent Mayor's veto was within the ten (10) day period, his veto was valid. Accordingly, the respondents' second assignment of error has merit. V. In their third assignment of error, respondents contend that the trial court erred when it determined that a clear legal duty existed even where the city council had reconsidered its vote on Resolution 1993-202 and failed to override the Mayor's veto. The respondents further assert that it was error for the trial court to determine that a clear legal duty existed where the relators' rights had not yet vested. As stated supra, Resolution 1993-202 was not a resolution for the appropriation of money. Rather, the resolution was an expenditure from an appropriated fund, and as such could not have become effective earlier than thirty (30) days after its final passage by council. Therefore, the rights of the relators could not have vested earlier than May 4, 1994. The relators' rights, however, did not vest in that the respondent Strongsville City Council failed to defeat the respondent Mayor's veto of the - 10 - resolution. Thus, no final passage of the resolution ever occurred. The Strongsville Charter provides that where the Mayor has vetoed an ordinance or resolution, Council may override the Mayor's veto. Art. II, Sec. (5)(c) of the Charter of the City of Strongsville reads in part: * * * Council shall reconsider such ordinance or resolution not later than at its next regular meeting. Council may override the Mayor's veto by a two-thirds (2/3) vote of all members and upon receiving such an affirmative vote, it shall then take effect as if it had received the signature of the Mayor * * *. On April 18, 1994, in accordance with Art. II, Sec. (5)(c), respondent Strongsville City Council, at its next regular meeting, adopted a motion to reconsider Resolution 1993-202. However, upon reconsideration of Resolution 1993-202, respondent Strongsville City Council failed to override the Mayor's veto by a two-thirds (2/3) vote. The resolution was defeated by a vote of 4 to 3. Where the respondent Mayor vetoed the ordinance authorizing payment of a moral claim to the relators, and the respondent Strongsville City Council failed to override the respondent Mayor's veto, this legislation was void of a legal effect. Respondents' assignment of error is, therefore, well taken. VI. Respondents assert in their fourth assignment of error that the trial court erred when it granted the relators' motion for - 11 - summary judgment and issued a writ of mandamus to compel the expenditure of public funds for other than a municipal purpose. Resolution 1993-202, if it had become effective, provided for the payment of a moral claim to the relators in the amount of Twelve Thousand Fifty-five and 25/100 Dollars ($12,055.25). The relators' moral claim included payments in the following amounts: Roto Rooter Co. $4,200.00 Sewer assessment, August, 1974 $1,088.25 Sewer bill, 1981-1992 $2,616,00 Plumbers Bemer, Derschau, Klink $ 450.00 Loss of 17-year old tree $1,500.00 Gutter/downspout damage from tree $ 148.00 Lost work time (1 day) $ 53.00 Landscape repair $2,000.00 The issue presented by respondents' fourth assignment of error for our consideration is whether the expenditure of funds for payment of the relators' moral claim is proper in the sense of its being for a public purpose. The Supreme Court set forth the following determinative law as to what may be considered to be an expenditure of funds for a public purpose as opposed to a private purpose: * * * It must be considered well settled that the funds of a municipality can be expended only for public purposes. The object to be achieved or promoted by the expenditure must be reasonably related to the operation of the municipal government. The rule is state in 38 American Jurisprudence, 86, Section 395, as follows: 'It is well settled that if the primary object of an expenditure of municipal funds is to []serve a public purpose, the expenditure is legal although it may also involve as an incident an expenditure which, standing alone, would not be lawful.' - 12 - In re Annexation of 118.7 Acres in Miami Twp. (1990), 52 Ohio St.3d 124, 130, citing State, ex rel. McClure v. Hagerman (1951), 155 Ohio St. 320. The courts, however, have not provided a definitive definition of the word "public purpose". Rather, the courts have "left each case to be determined by its own peculiar circumstances. General- ly, a public purpose has for its objective the promotion of the public health, safety, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents within the municipal corporation * * *." Id. In the case sub judice, payment of relators' moral claim does not serve a "public purpose". The peculiar circumstance of the relators' sewer system backing up into the their basement over the past twenty-two (22) years does not rise to the level of a "public purpose" for which payment of the relators' moral claim would be justified. Payment of such moral claims would not be for the promotion of the public health, safety, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents within the municipal corporation. Accordingly, respondents fourth assignment of error is well taken. Judgment of the trial court reversed. - 13 - This cause is reversed. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATRICIA BLACKMON, J. and JAMES M. PORTER, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .