Gargasz v. Lorain Cty.

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-1218

Case Date: 03/29/2013

Plaintiff: Gargasz

Defendant: Lorain Cty.

Preview:[Cite as Gargasz v. Lorain Cty., 2013-Ohio-1218.]
STATE OF OHIO                                                                                   )                            IN THE COURT OF APPEALS
                                                                                                )ss:                         NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                                                                                )
WANDA L. GARGASZ                                                                                                             C.A. No.                  12CA010215
Appellant
v.                                                                                              APPEAL FROM JUDGMENT
ENTERED IN THE
LORAIN COUNTY, OHIO                                                                             COURT OF COMMON PLEAS
                                                                                                COUNTY OF LORAIN, OHIO
Appellee                                                                                        CASE No.                     05CV142979
                                                                                                DECISION AND JOURNAL ENTRY
Dated: March 29, 2013
BELFANCE, Judge.
{¶1}   Gargasz, Inc. and the estate of Edward Gargasz have appealed the decision of the
Lorain County Court of Common Pleas.   However, because the trial court did not declare the
rights and responsibilities of the parties, we dismiss for lack of a final, appealable order.
I.
{¶2}   Mr. Gargasz owned and operated Gargasz, Inc.   One of his projects was Byrd’s
Nest subdivision to be built in Amherst Township.   On May 13, 2005, the Amherst Township
Trustees voted, pursuant to Lorain County Subdivision Regulations  602.01 and  602.02, to
demand an amount of money equal to four percent of the purchase price of the land being used
for the Byrd’s Nest subdivision.   On May 25, 2005, David Urig, an Amherst Township Trustee,
sent Mr. Gargasz a letter informing him of the resolution and demanding $9,959 in payment as
required by the May 13, 2005 resolution.

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{¶3}   Mr. Gargasz responded to the letter, arguing that the May 13, 2005 resolution was
unconstitutional.   Mr. Gargasz and Gargasz, Inc. (“Plaintiffs”1) filed a complaint in the Lorain
County Court of Common Pleas on August 2, 2005, against Amherst Township, Lorain County,
and the Lorain County Planning Commission (collectively “Defendants”), seeking declarations
that  the  May  13,                                                                                     2005  resolution  and  sections                                             602.01  and  602.02  of  the  Lorain  County
Subdivision Regulations were unconstitutional taxes, unconstitutional takings, and illegal acts.
The  Plaintiffs  moved  for  summary judgment,  and  the  Defendants  filed  a  joint  motion  in
opposition.    The  Defendants’  joint  motion in opposition  was  also  a motion  for  summary
judgment.    Plaintiffs  filed  a  response  to  Defendants’  motion  for  summary  judgment,  the
Defendants replied, and Plaintiffs filed a response to the Defendants’ reply.   The trial court ruled
on the motions, denying the Plaintiffs’ motion and granting the Defendants’ motion for summary
judgment.   However, the trial court did not make any declarations as sought in the Plaintiffs’
complaint.
{¶4}   Plaintiffs  have  appealed,  raising  four  assignments  of  error  for  our  review.
However, we do not reach the Plaintiffs’ assignments of error because the trial court’s judgment
entry does not constitute a final, appealable order.
II.
{¶5}   This Court is obligated, sua sponte, to raise questions related to our jurisdiction.
Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 186 (1972).   This Court
has jurisdiction to hear appeals only from final judgments.  Ohio Constitution Article IV, Section
3(B)(2); R.C. 2501.02.                                                                                  “In the absence of a final, appealable order, this Court must dismiss the
1 Subsequent to the parties filing their motions for summary judgment, Mr. Gargasz
passed away and his estate was substituted as a party.   For ease of discussion, his estate is also
included in reference to “Plaintiffs[.]”

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appeal for lack of subject matter jurisdiction.”   Miller Lakes Community Servs. Assn., Inc. v.
Schmitt, 9th Dist. No. 09CA0076, 2011-Ohio-1295, ¶ 12 (“Miller I”).
{¶6}   As stated in the facts, this was a declaratory judgment action.   R.C. 2721.02(A)
addresses declaratory judgment actions and states, in relevant part:
[C]ourts of record may declare rights, status, and other legal relations whether or
not further relief is or could be claimed.                                                             * * * The declaration may be either
affirmative or negative in form and effect.   The declaration has the effect of a
final judgment or decree.
In declaratory judgment actions, “merely entering judgment in favor of one party, without further
elaboration, does not constitute a final judgment sufficient to give this Court jurisdiction over an
appeal.”   Peavy v. Thompson, 9th Dist. No. 25440, 2011-Ohio-1902, ¶ 10, citing No-Burn Inc. v.
Murati, 9th Dist. No. 24577, 2009-Ohio-6951, ¶ 11.   See also Michaels v. Michaels, 9th Dist.
No. 09CA009717, 2010-Ohio-6052, ¶ 7.   “If the trial court fails to expressly declare the parties’
respective rights and obligations, its judgment is not final and appealable.”   Peavy at ¶ 10.   See
also Miller Lakes Community Servs. Assn., Inc. v. Schmitt, 9th Dist. No. 11CA0053, 2012-Ohio-
5116, ¶ 7-12 (“Miller II”); Bowers v. Craven, 9th Dist. No. 25717, 2012-Ohio-332, ¶ 11; Miller I
at ¶ 15.
{¶7}   The complaint in this case requested that the trial court issue a declaratory
judgment on four issues:  (1) whether the May  13,  2005 Amherst Township Resolution and
Sections 602.01 and 602.02 of the Lorain County Subdivision Regulations were unconstitutional
takings as applied to Plaintiffs; (2) whether the resolution and regulations were an unlawful tax
on real property; (3) whether the resolution and regulations constituted a nonuniform tax applied
only to new construction and not to all members of the community; and (4) whether “the acts,
policies, customs, practices, applicable ordinances and procedures of [] Lorain County, Ohio,
The Lorain County Planning Commission, and Amherst Township, Ohio * * *” were illegal and

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unenforceable against the Plaintiffs.   However, the trial court’s judgment entry did not issue any
declarations,  instead  stating,                                                                         “Accordingly,   [P]laintiffs’  motion  for  summary  judgment  is
denied[, and] Defendants’ joint motion for summary judgment as to [P]laintiffs’ complaint is
granted.”   Thus, the entry fails to expressly declare the parties’ respective rights and obligations
as sought in the Plaintiffs’ declaratory judgment action and, therefore, is not final.   See Peavy at
¶ 10.
{¶8}     We  can  appreciate  that  an  argument  may  be  made  that,  by  granting  the
Defendants’ motion for summary judgment, the trial court was declaring the negative of all of
the Plaintiffs’ sought declarations (e.g. The resolution and regulations are not unconstitutional
takings as applied to Plaintiffs.) and, therefore, the trial court’s decision should be construed as a
final, appealable order.   However, R.C. 2721.02(A) expressly provides that a “declaration has
the effect of a final judgment or decree[]” and that a declaration is “either affirmative or negative
in form[.]”   (Emphasis added.).
{¶9}   Furthermore, not every declaratory action may be resolved simply by negating the
sought declaration.    Thus, where a trial court simply dismisses the declaratory judgment action
or broadly grants summary judgment based upon multiple declarations sought in a complaint, the
reviewing court must in effect speculate as to what the trial court’s declarations might have been
rather than knowing what they are.   See, e.g., Miller II, 2012-Ohio-5116, at ¶ 8-12.   Even in this
case, we cannot construe the trial court’s journal entry as resolving the Plaintiffs’ declaratory
judgment actions merely by presuming that, by granting summary judgment to the Defendants,
the trial court intended to declare the negative of each of the Plaintiffs’ sought declarations.  This
is for two reasons.  First, the Defendants’ motion for summary judgment asked that the trial court
dismiss the complaint instead of requesting that the trial court make declarations.   Therefore, by

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granting the Defendants’ motion, the trial court was specifically dismissing the Plaintiffs’
complaint  without  making  declarations,  which  is  generally  inappropriate  in  a  declaratory
judgment action.   See Miller I, 2011-Ohio-1295, at ¶ 16.   Compare with R.C. 2921.07 (allowing
a court to refuse to issue a declaratory judgment if the judgment  “would not terminate the
uncertainty or controversy giving rise to the action or proceeding in which the declaratory relief
is sought[]”); Howkins v. Walsh Jesuit High School, 9th Dist. No. 26493, 2013-Ohio-917, ¶ 34
(Trial court correctly dismissed declaratory judgment action as moot.).
{¶10}  The second reason is that the Plaintiffs requested that the trial court “[i]ssue a
declaratory judgment that [the resolution and regulations], as sought to be applied to Plaintiffs,
constitute[] a  ‘nonuniform tax on new construction only, not a tax uniformly applied to all
property owners in the Township/County.’”2   This is a compound request, and, thus, the trial
court’s judgment against the Plaintiffs could mean multiple things.   For example, it could mean
that the regulations and resolution were not a nonuniform tax or it could mean that it was a
nonuniform tax but that it was not applied to new construction only.   Thus, even if the trial court
could resolve a declaratory judgment action in the manner it did, it could not do so in this case
because its entry does not clearly declare the rights and responsibilities even if viewed as merely
declaring the negative of the sought declarations.
{¶11}  Fortunately, the task of entering a final judgment pursuant to a complaint for
declaratory judgment is not an onerous one; nor are there any specific, magic words required.
Instead, trial court is merely required to expressly state the rights and responsibilities of the
parties involved in the matters at issue.   R.C. 2721.02(A); Peavy, 2011-Ohio-1902, at ¶ 10.   In
this case, however, the trial court’s judgment entry does not do so, and, therefore, is not a final,
2 It is unclear what the internal quote is supposed to be quoting.

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appealable order.   Accordingly, we lack jurisdiction over this attempted appeal.   Peavy at ¶ 10.
See also Miller II, 2012-Ohio-5116, at ¶ 7-12; Bowers, 2012-Ohio-332, at ¶ 11; Miller I at ¶ 15.
III.
{¶12}  Because  there  is  no  final,  appealable  order  in  this  case,  this  Court  lacks
jurisdiction over this appeal.  Accordingly, the appeal is dismissed.
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run.   App.R. 22(C).   The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
ROBERT J. GARGASZ, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and GERALD A. INNES, Assistant Prosecuting
Attorney, for Appellee.
ABRAHAM CANTOR, Attorney at Law, for Appellee.

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