Judge
Michael A. ()Ster. Jr.

Common Pleas Court
Butler County Ohio

IN THE COURT OF COMMON PLEAS

GENERAL DIVISION
BUTLER COUNTY, OHIO

DOREEN BARROW, et al. Case Number: CV2013 07 2047
Plaintiffs, JUDGE MICHAEL A. OSTER, JR
-V- DECISION AND ENTRY

 

AS TO SUMMARY JUDGMENT
VILLAGE OF NEW MIAMI, et aI

DefendantsFl- 

?It will be of little avail to the people, that the laws are made by men of their
own choice, if the laws be so voluminous that they cannot be read, or so
incoherent that they cannot be understood. .  James Madison, The Federalist
No. 62. In the case sub justice, the last issue to be decided by this Court appears
to be as simple as: If the government has created an Unconstitutional
law/ordinance that has taken people?s money without affording them the
necessary Due Process protections, should not justice demand and the law
require restitution of that money to the people?

But, the guiding law is not simple. Rather, it is complex and mandates a
thorough dissection of cases and legal principles to root out the answer.

However, once the complexities of the law are analyzed, the answer is

simple: Yes.

 

 

 

 

 

 

 

Judge
Michael A. Oster, Jr.
Common Pleas Court
Butler Count}; Ohio

POSTURE
This matter is before the Court upon Plaintiff?s Renewed Motion for
Summary Judgment, filed in this case on 8/3/2016, and Defendant?s Renewed
Cross Motion for Summary Judgment filed in this case on 10/14/2016. The
matters having been fully briefed, oral arguments were held on 12/29/2016, at
which Counsel for all parties was present. Upon a review ofthe record and all
evidence submitted, this Court hereby GRANTS Plaintiff?s Renewed Motion for
Summary Judgment and DENIES Defendant, Village of New Miami?s Cross

Motion for Summary Judgment, for the reasons more fully set forth below.

PROCEDURAL BACKGROUND

This case was filed in this Court on 7/19/2013, based upon a challenge by
Plaintiff?s as to The Village of New Miami?s Automated Speed Enforcement
Program (ASEP) in the Village of New Miami, Ohio.

This case arises out of the operation of the Automated Speed
Enforcement Program in the Village of New Miami. The Village of New Miami is
in St. Clair Township located just north of the city of Hamilton. New Miami is less
than one square mile in size (.95 square miles) and has a population of 2,249
people based on the 2010 United States Census Bureau. US. 127, a major
north-south highway, runs through the Village and is the primary location where

the speed cameras were located.

 

 

 

 

 

 

 

 

 

Judge
Michael A. Oster. r.
Common Pleas Court
Butler County. Ohio

After Motion practice and multiple appeals, the remaining issue
before the Court is Plaintiff?s claim in Court IV, for unjust enrichment. The Court
also has before it Defendant?s Renewed Cross Motion for Summary Judgment as

to Plaintiff?s Count IV claim.

LAW AND LEGAL ANALYSIS

I. Standard of review for a Motion for Summary Judgment under Ohio
law.

A motion for summary judgment shall only be granted when there are no
genuine issues of any material fact, and the moving party is entitled to judgment
as a matter of law. Summary judgment shall not be granted unless it appears
from the evidence that reasonable minds could come to but one conclusion and
that conclusion is adverse to the party against whom the motion is made. In
reviewing a motion for summary judgment, the inferences to be drawn from the
underlying facts must be viewed in the light most favorable to the party opposing
the motion. Civ. R. 56(0); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d
317. The only evidence to be considered when ruling upon a motion for summary
judgment are pleadings, depositions, affidavits, written discovery responses filed
with the court, transcripts of evidence, and written stipulations of fact. Civ.R.


Summary judgment is a procedural device to terminate litigation and to

avoid formal trial when there is nothing to try. it must be awarded with caution,

 

 

 

 

 

 

 

 

Judge
Michael A. Oster. Jr.
(?ommon P1005 Court

Butler Count}. Ohio

resolving doubts and construing evidence against the moving party, and granted
only when it appears from the evidentiary material that reasonable minds can
reach only an adverse conclusion as to the party opposing the motion. Norris v.
Ohio STD Oil Co. (1982), 70 Ohio St.2d 1. Doubts must be resolved in favor of
the non-moving party. Osborne v. Lyles (1992), 63 Ohio St. 3d 326.

For summary judgment to be granted there can be no genuine issue as to
any material fact and the moving party must be entitled to judgment as a matter
of law. Material facts are those facts that might affect the outcome of the lawsuit
under the law of the case. Turner v. Turner (1993), 67 Ohio St.3d 337, 340, 617
1123, 1126, citing Anderson v. Liberty Lobby, Inc. (1986), 477 US. 242,
248, 106 2505, 2510, 91 L.Ed.2d 202, 212?213. To determine if these facts
present a genuine issue, the court must decide whether the evidence presents a
sufficient conflict to require submission to a jury, or whether it is so one-sided that
one party must prevail as a matter of law. Id at 1126.

In the case at bar, the parties rely upon arguments provided in their

respective supporting memoranda, oral arguments, pleadings, and affidavits.

II. Legal vs. Equitable under Ohio law
The crux of the arguments between the parties as to Plaintiff?s Court IV is
truly whether the unjust enrichment claim would represent restitution claims
sounding in law or sounding in equity. ?At times, creative pleading may obscure

the conceptual line between damages for loss sustained and claims for a specific

 

 

 

 

 

 

 

 

 

Judge
Michael A. Oster. Jr.
Common Pleas Court

Butler County. Ohio

form of relief.? Morning View Care Ctr. -FuIton v. Ohio Dept. of Job Famin
Servs.,10th Dist. Franklin No. 2004-Ohio-6073, 1] 24, citing, Zelenak v.
Indus. Comm. of Ohio, 148 Ohio App.3d 589, 2002-Ohio-3887, 774 769,
at 11 15. As such, this Court must first determine whether the relief sought is legal
or equitable in nature.

Both the Supreme Court of the United States, and the Supreme Court of
Ohio have had an opportunity to address the very issue before this Court.
Specifically, in Santos v. Ohio Bur. of Workers' Comp, 101 Ohio St.3d 74, 2004-
Ohio-28, 801 441,111] 11-17, the following guidance was provided:

Historically, restitution has been available both in equity and in
law as the remedy for an unjust enrichment of one party at the
expense of another. Restatement of the Law, Restitution (1937) 9.
Several remedies are available to a litigant seeking restitution,
including a judgment for money. ?Although ordinarily such money
judgment is obtained by an action at law, a decree for money will
sometimes be rendered by a court of equity.? Id. at 21, Section 4.

The United States Supreme Court recently examined the term
?equitable relief" as used in Section 502(a)(3) of the Employee
Retirement Income Security Act Section 1132(a)(3), Title
29, U.S.Code. Great?West Life &Annuity Ins. Co. v. Knudson (2002),
534 US. 204, 122 708, 151 L.Ed.2d 635. The court considered
whether ?judicially decreed reimbursement for payments made to a
beneficiary of an insurance plan by a third party? was ?equitable relief?
and therefore authorized by The petitioners characterized their
claim as one of restitution. The court stated, ?Almost invariably 
suits seeking (whether by judgment, injunction, or declaration) to
compel the defendant to pay a sum of money to the plaintiff are suits
for ?money damages,? as that phrase has traditionally been applied,
since they seek no more than compensation for loss resulting from the
defendant's breach of legal duty.? Id. at 210, 122 708, 151
L.Ed.2d 635, quoting Bowen v. Massachusetts (1988), 487 US. 879,
918?919, 108 2722, 101 L.Ed.2d 749 (Scalia, J., dissenting).
The court ultimately found that the relief requested in Great?West was

 

 

 

 

 

 

 

Judge
Michael A. Oster, Jr.
Common Pleas Court
Butler County. Ohio

indeed at law because the basis for petitioners' claim was that they
were contractually entitled to funds for benefits that they had
conferred. Id. at 214, 122 708, 151 L.Ed.2d 635.

Justice Scalia, writing for the majority, noted that not all suits
seeking restitution can be characterized as seeking equitable relief.
Instead, whether restitution is ?legal or equitable depends on the basis
for the plaintiff's claim and the nature of the underlying remedies
sought.? (Internal quotations and brackets omitted.) Great?West at
213, 122 708, 151 L.Ed.2d 635. Justice Scalia provided the
following guidance: Restitution is available as a legal remedy when a
plaintiff cannot ?assert title or right to possession of particular
property, but in which nevertheless he might be able to show just
grounds for recovering money to pay for some benefit the defendant
had received from him.? Id., quoting Dobbs, Law of Remedies (2d
Ed.1993) 571, Section 42(1). Restitution is available as an equitable
remedy ?where money or property identified as belonging in good
conscience to the plaintiff could clearly be traced to particular funds or
property in the defendant's possession.? Id. ?Thus, for restitution to lie
in equity, the action qenerally must seek not to impose personal
liability on the defendant, but to restore to the plaintiff particular funds
or property in the defendant's possession.? Id. at 214, 122 708,
151 L.Ed.2d 635.

This court has employed similar reasoning to hold that equitable
restitution may include the recovery of funds wrongfully held by
another. In Ohio Hosp. Assn. v. Ohio Dept. ofHuman Serv. (1991), 62
Ohio St.3d 97, 579 695, this court invalidated administrative
rules improperly promulgated by the former Ohio Department of
Human Services In that case, the ODHS argued that the
Court of Claims had no jurisdiction over the matter because the state
did not waive its immunity from liability for money damages resulting
from an invalidated administrative rule. This court disagreed, finding
that sovereign immunity was not applicable to the case. This court
reasoned, ?The order to reimburse Medicaid providers forthe amounts
unlawfully withheld is not an award of money damages, but equitable
relief." Id. at 104, 579 695. This court cited another United
States Supreme Court case, Bowen v. Massachusetts, 487 US. 879,
895, 108 2722, 101 L.Ed.2d 749, for the proposition that
?[d]amages are given to the plaintiff to substitute for a suffered loss,
whereas specific remedies are not substitute remedies at all, but
attempt to give the plaintiff the very thing to which he was entitled.
Thus, while in many instances an award of money is an award of
damages, occasionally a money award is also a[n] [in] specie remedy.?

 

 

 

 

 

 

 

 

 

Judge
Michael A. Oster, Jr.
Pleas Court
Butler County. Ohio

(Emphasis sic; internal quotations and citations omitted.) Ohio Hosp.
at 105?106, 579 695. The court concluded that ?[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.? Id. at 105, 579
695.

Similarly, in Judy v. Ohio Bur. of Motor Vehicles, a class of
individuals sought injunctive relief and reimbursement from the Ohio
Bureau of Motor Vehicles in a court of common pleas. Judy v.
Ohio Bur. of Motor Vehicles (Dec. 31, 2001), Lucas App. No. 
1200, 2001 WL 1664295. The class sought return of driver's license
fees that it argued the BMV had unlawfully assessed. The BMV argued
that the Court of Claims had exclusive jurisdiction over the matter
because the class brought an action for money damages against the
state. The appellate court held that the common pleas court had
properly exercised its jurisdiction because the class ?sought injunctive
relief and simple reimbursement of the allegedly improperly assessed
fees," rather than money damages. ld.

This court recently considered the appeal in Judy v. Ohio Bur.
of Motor Vehicles, 100 Ohio St.3d 122, 2003-Ohio-5277, 797 
45, although the BMV did not appeal the issue of subject matter
jurisdiction to this court. We did not recognize anyjurisdictional defect
and held that the BMV had improperly interpreted two Revised Code
sections and as a result had improperly collected double license
reinstatement fees. The return of the improperly collected fees is
analogous to the return of moneys here. In both cases, the plaintiffs
sought the return of specific funds improperly collected by a state
agency.

This court held in Holeton, 92 Ohio St.3d 115, 748 1111,
that the workers' compensation subrogation statute was
unconstitutional. Accordingly, any collection or retention of moneys
collected under the statute by the BWC was wrongful. The action
seeking restitution by Santos and his fellow class members is not a
civil suit for money damages but rather an action to correct the unjust
enrichment of the BWC. A suit that seeks the return of specific funds
wrongfully collected or held by the state is brought in equity. Thus, a
court of common pleas may properly exercise jurisdiction over the
matter as provided in RC. 

(Emphasis added)

In the case at bar, this Court has already found Council Ordinance 1917,

 

 

 

 

 

 

 

 

 

Judge
Michael A. Oster, Jr.

Common Pleas Court
Butler County. Ohio

as adopted the Village of New Miami?s council to be Unconstitutional.
Accordingly, any collection or retention of the moneys collected under the
Ordinance was wrongful. Based upon the aforementioned established Ohio law,
this action sub justice is therefore not a civil suit for money damages; but rather,
an action to correct the unjust enrichment of the Village of New Miami.

A suit that seeks the specific funds wrongfully collected or held by the
village, is thus, a suit brought in equity. See, Santos, 2004-Ohio-28, 111] 11-17;
Bowen v. Massachusetts, 487 US. 879, 895; Ohio Hosp. Assn, 62 Ohio St.3d
97; Judy, 2003-Ohio-5277; Cin'no v. Ohio Bur. of Worker's Comp, 8th Dist. No.
104102, 2016 ~Ohio- 8323, 1154; LaBorde v. Gahanna, 10th Dist. Franklin Nos.
and 2015-Ohio?2047, 1] 43?44.

This statement of law has long been recognized in the State of Ohio.
Where money is collected by a state agency to which it is not entitled (or fails to
pay amounts it should have paid), an action that seeks the recovery of those
specific and identifiable funds is considered a claim for equitable restitution.
These exact sentiments were stated in the case of Cirino, 2016-Ohio-8323, 1154,
where the Court went on to list all of the following as examples:

Interim HealthCare, 2008?Ohio?2286, at 1] 17 (?Cases in which a

plaintiff claims a state agency has wrongfully collected certain funds

are characterized generally as claims for equitable restitution"), citing

Morning View Care Ctr. -Fulton, 2004-Ohio?6073, at 1] 19; Dunlop v.

Ohio Dept. of Job 8. Family Servs., 10th Dist. Franklin No. 

2012?Ohio?1378, 1] 13?16 (claim for reimbursement of child support

payments that child support agency allegedly wrongly collected in
excess of child support payments ordered by the common pleas court

 

 

 

 

 

 

 

 

 

Judge
Michael A. Oster. r.
Common Pleas Court
Butler County. Ohio

was a claim for equitable restitution even though agency thereafter
distributed most of the money collected to the child support obligee,
the state and the federal government); San Allen v. Buehner, 8th Dist.
Cuyahoga No. 99786, 2014?Ohio?2071 (employers' claim against the
BWC for the return of portions of workers' compensation premiums
that exceeded the premiums employers should have been charged
was a claim for equitable restitution); Keller v. Dailey, 124 Ohio App.3d
298, 303?304, 706 28 (10th Dist.1997) (plaintiff?s claim for
unpaid overtime compensation was an equitable claim because
plaintiff sought ?the very thing to which she is allegedly entitled? under
the Fair Labor Standards Act); Henley Health Care v. Ohio Bur. of
Workers? Comp, 10th Dist. Franklin No. 94 1995 Ohio
App. LEXIS 715 (Feb. 23, 1995) (healthcare company's claims, which
sought reimbursement of money withheld pursuant to allegedly invalid
rules, were equitable in nature and not a request for money damages).
Compare Measles, 128 Ohio St.3d 458, 2011?Ohio?1523, 946 
204 (injured workers' restitution claim to recover funds allegedly
wrongfully withheld after the workers applied for, and the BWC
approved, a lump sum advancement of permanent total disability
benefits they had been awarded was a claim for money due under a
contract, an action in law disputing the effect of the lump sum
advancement agreement the workers had entered into with the state,
that must be pursued in the court of claims); Zelenak, 148 Ohio
App.3d 589, 2002?Ohio?3887, 774 769, at 1) 24?25 (claim for
interest on total temporary disability compensation withheld or
recovered as overpayments but later reimbursed was a claim for
monetary damages over which the common pleas court lacked subject
matter jurisdiction).

Accordingly, the motorists in the case sub justice are seeking the specific
amount of fines that they were made to pay under an Unconstitutional Ordinance.
The motorists are not seeking to impose personal liability from the Village, but
rather, are seeking the restoration, return, or refund of the particular and specific
amount of money that they were made to pay, that was wrongfully collected by

the Village, and that is in the Village?s possession.

 

 

 

 

 

 

 

Judge
Michael A. Oster. Jr.
(?ummon Pleas Court
Butler County. Ohio

The action seeking restitution, return, or refund by the Class members is
not a civil suit for money damages, but rather an action to correct the unjust
enrichment of the Village of New Miami. As such, this Court finds this to be a suit

brought in equity.

Sovereign Immunity
The Village of New Miami argues that sovereign immunity applies to the
present case, and thus any refund or return of the money collected is barred.
See, RC. 2744. This Court disagrees.
As not to recreate the wheel, the First District Court of Appeals has
previously stated the law relevant to this court's determination as
follows:

R.C. Chapter 2744 provides a three?tiered scheme that grants
broad immunity to political subdivisions. See Colbert v. Cleveland, 99
Ohio St.3d 215, 2003?Ohio?3319, 790 781 1] 7. The firsttier of
the scheme provides a general grant of immunity: political
subdivision is not liable in damages in a civil action for injury, death, or
loss to person or property allegedly caused by any act or omission of
the political subdivision or an employee of the political subdivision in
connection with a governmental or proprietary function.? R.C.


Once immunity is established, the next tier of the analysis
carves out certain exceptions to immunity listed in RC. 
which re-establish the liability of a political subdivision where there is
negligence with respect to the exercise of proprietary functions.

Finally, if any exception applies to re?impose liability, the third
tier of the analysis focuses on whether any of the defenses contained
in RC. 2744.03 apply to reinstate immunity. See Munday v. Lincoln
Hts, 1st Dist. Hamilton No. 2013?Ohio?3095, 11 19; see
also RK. v. Little Miami 2013?Ohio?4939, 1 833,1] 8
(lst Dist).

10

 

 

 

 

 

 

 

 

 

Judge
Michael A. Oster, Jr.
('ommon Pious ('ouit
Butler ('Ount}. Ohio

Here, Harrison argues that since Cincinnati's claims sound in
intentional tort, it was entitled to immunity under RC. Chapter 2744.
Cincinnati claimed that Harrison had tortiously interfered with and
impaired its contract with the county to provide water to the disputed
areas. Cincinnati did not assert damages arising from Harrison?s
negligent establishment, expansion, or operation of its water system in
the disputed areas. Rather, Cincinnati argued that Harrison had taken
actions ?both as a governmental entity and through its elected officials,
deliberately intended to solicit the County to enter into an agreement
with Harrison giving it service rights in the Disputed Areas despite the
County Contract, and deliberately intended to impair Cincinnati's rights
and duties under the County Contract.? Harrison argues that these
claims are barred by RC. Chapter 2744, whether it had been engaged
in a governmental function, as it asserts, or in a proprietary function as
Cincinnati argues. See R.C. (classifying as a
proprietary function ?[t]he establishment, maintenance, and operation
of a utility, including but not limited to a municipal corporation
water supply system?).

Harrison is correct that R.C. includes no specific

exceptions for intentional torts which would re-establish any liability
granted under the first tier. subdivisions are immune under
RC. 2744.02 from intentional tort claims." Williams v. McFarland
Properties, LLC, 177 Ohio App.3d 490, 2008-?Ohio?3594, 895 
208, 1] 11 (12th Dist); see Hubbard v. Canton City School Bd. ofEdn.,
97 Ohio St.3d 451, 780 543 (2002); R.K. at 1] 49.
Harrison is not immune to claims for lnjunctive and Declaratory relief,
but the resolution of Harrison's immunity as to the first, or injunctive,
relief ordered by the trial court lies in the General Assembly's intent in
enacting R.C. Chapter 2744: limit the exposure of political
subdivisions to money damages.? Engleman v. Cincinnati Bd. of Edn.,
1st Dist. Hamilton No. 2001 Ohio App. LEXIS 2728, 
2001 WL 705575 (June 22, 2001); see Wilson v. Stark Cty. Dept. of
Human Serv., 70 Ohio St.3d 450, 453, 639 105 (1994). Where
a political subdivision is not being subjected to a claim for money
damages, the near absolute immunity of RC. ?rst
tier of the scheme?is not available.

R.C. extends immunity to political subdivisions
against claims for ?damages in a civil action for loss to person or
property? but not to those claims seeking equitable relief. ?By its
very language and title, Chapter 2744] applies to tort actions for
damages.? (Emphasis added.) Big Springs Golf Club v. Donofrio, 74
Ohio App.3d 1, 2, 598 14 (9th Dist.1991).

11

 

 

 

 

 

 

 

 

 

 

Judge
Michael A. ()ster. Jr.
(?ommon Pleas Court

Butler Count}; Ohio

Ohio courts have uniformly held that while sovereign immunity
bars tort claims for money damages, it has no application in actions
for equitable relief. See Portage Cty. Bd. of Commrs. v. Akron, 156
Ohio App.3d 657, 2004?Ohio?1665, 808 444, 1] 186 (11th
Dist.); see also Mega Outdoor, LLC v. Dayton, 173 Ohio App.3d 359,
2007?Ohiow5666, 878 683, 1] 54 (2d Dist); State ex rel.
Johnny Appleseed Metro. Park Dist. v. Delphos, 141 Ohio App.3d 255,
258, 750 1158 (3d Dist.2001); Rocky River v. Lakewood, 8th
Dist. Cuyahoga No. 90908, 2008?Ohio?6484, 11 13; Parker v. Upper
Arlington, 10th Dist. Franklin No. 2006?Ohio?1649, 1] 9
(sovereign immunity is only a defense to tort claims seeking monetary
damages, and not to claims seeking declaratory relief); State ex rel.
Fatur v. East/ake, 11th Dist. Lake 2010?Ohio?1448, 1]
41.

 

For example, RC. Chapter 2744 does not provide immunity to a
political subdivision against a claim of unconstitutional taking of
property damaged during a drug raid. That claim is ?constitutional in
nature," and statutory immunity is not a proper defense to claims that
not sound in tort.? See Brkic v. Cleveland, 124 Ohio App.3d 271,
282, 706 10 (8th Dist.1997).

Where a sign company had sued the city of Dayton for a
declaration that it was entitled to a sign permit outside the right-of?way,
for mandamus requiring the city to prove the sign was installed on
property zoned for billboards, for an injunction restraining the
enforcement of a stop?work order, and for compensatory damages, the
trial court granted the city summary judgment on each count of the
complaint because Dayton was ?entitled to immunity." Mega Outdoor,
LLC, 173 Ohio App.3d 359, 2007?Ohio?5666, 878 683, at 1]
54.

Because ?[slovereiqn immunity applies to money damaqes,
not to claims for equitable relief, such as injunctive relief,? the
Second District Court of Appeals held that the trial court had erred in
granting summary judgment on the sign company's claims for
declaratoryjudgment, mandamus, and injunctive relief. Id. But thetrial
court had properly granted summary judgment to the city on the
company's claim for compensatory damages. See Id. at 1] 53, 878
683.

The established rule that sovereign immunity is not a bar to
claims seeking injunctive relief is not limited to situations where the
plaintiff is a private citizen. Where one municipality had filed a
nuisance complaint against another municipality, seeking an injunction
against the operation of its dog park, the trial court's dismissal ofthe

12

 

 

 

 

 

 

claim on the basis of sovereign immunity was reversed because
sovereign immunity under R.C. Chapter 2744 ?applies only to an
action for damages.? Rocky River, 8th Dist. Cuyahoga No. 90908,
2008-?Ohio?6484, at 11 13.

In its July 2012 motion for cross?summaryjudgment, Cincinnati
moved for summary judgment against Harrison on the four remaining
counts of its amended complaint: count one (violation of state law),
count two (impairment of contract), count five (waiver, laches, and
equitable estoppel), and count seven (tortious interference). As to
each count, Cincinnati claimed that it was entitled to ?injunctive and
declaratory relief? to enjoin Harrison from further acts of interference
with its contract with the county to provide water to the disputed areas.
Cincinnati did not assert any claim in the motion for monetary
damages, though it had in its amended complaint.

In its March 2013 judgment granting summary judgment to
Cincinnati, the trial court expressly enjoined Harrison from further acts
intended to encroach on Cincinnati's water?service rights (count one),
to impair or interfere with Cincinnati's contract with the county (count
two), to violate its decision that Harrison's actions were barred by the
doctrines of waiver, laches, and equitable estoppel (count five), and to
interfere with Cincinnati's rights under the contract.

Sovereign immunity under R.C. Chapter 2744 is not a
defense to claims seeking injunctive relief. See Portage Cty. Bd. of
Commrs., 156 Ohio App.3d 657, 2004?Ohio?1665, 808 808, at
1] 186. Thus Cincinnati is entitled to judgment as a matter of law, and
the trial court did not err in overruling that portion of Harrison's motion
for summary judgment asserting that it was entitled to immunity from
the injunctions ordered by the trial court. See Civ.R. We
overrule that portion of Harrison's assignment of error.

Cincinnati v. Harrison, 1st Dist. Hamilton No. 2014-Ohio-2844, 2014
WL 2957946, 111] 24-36 (Emphasis added).

The present case was filed by the Plaintiff, seeking, in part, an injunction.

This Court granted the injunction, and subsequently found the Ordinance in

Judge question to be Unconstitutional. Based upon that, and as stated in the first part of
Michael A. ()ster. Jr.
(?Omm?m {1921*th this decision, the Court has found that the present suit is brought in equity. As

Butler ('ounl}; Ohio

such, Ohio law is clear that the reimbursement of monies collected pursuant to an

13

 

 

 

 

 

 

 

Judge
Michael A. ()ster. Jr.
Common Court

Butter County. Ohio

Unconstitutional enactment or invalid rule is equitable relief, not money damages,
and is consequently not barred by sovereign immunity. See, Ohio Hosp. Assn. v.
Ohio Dept. of Human Servs. (1991), 62 Ohio St.3d 97, 104-105, 579 695;
See, also LaBorde, 2015-Ohio-2047, 1120 (refunds from overpayments were
equitable and this City not entitled to immunity under RC. 2744); Cirino, 2016-
Ohio-8323, 1154; Cincinnati v. Harrison, 2014-Ohio-2844, 111] 24-36.

Accordingly, for all of the reasons as set for herein, this Court GRANTS
Plaintiff?s Motion for Summary Judgment as to its remaining Count IV claim, and

DENIES Defendant?s Cross Motion for Summary Judgment.

CONCLUSION

Pursuant to the record, and under Ohio law, this Court GRANTS Plaintiff?s
Motion for Summary Judgment and DENIES Defendant?s Cross Motion for
Summary Judgment. No later than thirty days (30) after the filing of this Order,
Plaintiff is to file with the Court, an Affidavit evincing monies paid under the
invalidated ordinance, along with an Excel spread sheet, so that the Court can set
the proper amount of restitution/refund as determined under the laws of equity.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
Plaintiff?s Motion for Summary Judgment is hereby GRANTED.
Defendant?s Cross Motion for Summary Judgment is hereby DENIED.

Plaintiff to file its Affidavit no later than thirty days after the filing of this

Order.

14

 

 

 

 

 

Vu_. 

 

 

 

Judge
Michael A. ()ster. .lr.

('nmmon Pleas Court
Butler County. Ohio

SO ORDERED.

Copies to:

Charles H. Rittgers
RITTGERS RITTGERS
12 East Warren Street
Lebanon, OH 45036
Attorney for Plaintiffs

Joshua A. Engel

ENGEL MARTIN, LLC
5181 Natorp Blvd., Suite 210
Mason, OH 45040

Attorney for Plaintiffs

Michael K. Allen

MICHAEL K. ALLEN ASSOCIATES
810 Sycamore St., 5th Floor
Cincinnati, OH 45202

Attorney for Plaintiffs

Paul M. DeMarco

MARKOVITS, STOCK DEMARCO, LLC.
119 East Court Street, Suite 530
Cincinnati, OH 45202

Attorney for Plaintiffs

Felix J. Gora

James J. Englert

Anthony G. Raluy (pro hac vice)

RENDIGS, FRY, KIELY DENNIS, LLP

600 Vine Street, Suite 2650

Cincinnati, OH 45202

Attorneys for Defendant, Village of New Miami

15