In re Contested Election of November 2, 1993 - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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In re Contested Election of November 2, 1993 Concerning Issue
No. 9, Referendum of Ordinance No. 137-92, City of Avon.
Cite as In re Contested Election of November 2, 1993
(1995), Ohio St.3d .]
Elections -- Contest of election -- Court lacks jurisdiction to
proceed when R.C. 3515.10 not complied with.
(No. 94-1662 -- Submitted May 9, 1995 -- Decided July 5,
1995.)
Appeal from the Court of Common Pleas of Lorain County,
No. 93 CV 111527.
On January 25, 1993, appellee, Avon City Council, the
legislative authority for appellee, city of Avon, passed
Ordinance No. 137-92, which reduced the resident income-tax
credit for income taxes paid to another municipality from one
hundred percent to fifty percent, effective April 1, 1993.
Following the receipt of a referendum petition which proposed
repealing Ordinance No. 137-92, council passed Ordinance No.
58-93 on June 14, 1993, submitting the referendum issue to the
Lorain County Board of Elections for placement on the November
2, 1993 ballot. The referendum issue, known as Issue 9 on the
ballot, was posted in five locations throughout Avon and was
publicized in local newspapers.
Issue 9, taken from Ordinance No. 58-93, provided:
"Shall Ordinance No. 137-92, which amends Ordinance 53-82,
as codified in Section 880.9(A) of the Avon Codified
Ordinances, which provides for an amendment of the municipal
income tax credit of a resident of the City having income
taxable in another municipality from 100% to 50% of the amount
obtained by multiplying the lower of the tax rate of such other
municipality or of the City by the taxable income earned or
attributable to the municipality or of the City by the taxable
income earned or attributable to the municipality of employment
or business activity be repealed?"
On November 17, 1993, the board of elections certified
that Issue 9 had failed by a margin of 1,449 to 1,288. From
the date the ordinance enabling Issue 9 to be placed on the
November 2, 1993 ballot was passed until after the election,
appellees received no comment or complaint regarding the ballot

language.
On December 2, 1993, appellants, several electors who had
voted on Issue 9 at the November 2, 1993 election, filed a
complaint in the Lorain County Court of Common Pleas contesting
the Issue 9 election result. Appellants claimed that (1) the
ballot language of Issue 9 had misled and confused electors,
(2) the full text of Issue 9 was not posted at each polling
place, (3) absentee ballots were not properly counted, (4)
ballots were wrongfully excluded from being counted, and (5)
other unspecified irregularities in the conduct of the election
occurred. Appellants further claimed that the defective ballot
language, improper posting, and other election irregularities
resulted in the rejection of Issue 9. Appellants requested
that the election as to Issue 9 be set aside and that Issue 9
be declared to have passed.
On December 15, 1993, appellees filed an answer, which
raised the affirmative defenses of laches and estoppel. On the
same date, appellees filed a motion to dismiss, or
alternatively, a motion for summary judgment based on their
contention that appellants were estopped from bringing an
election contest. On January 20, 1994, appellants filed a
motion for summary judgment on their claim that the ballot
language of Issue 9 was defective.
A hearing on the motions was continued from February 17,
1994 to March 11, 1994, on agreement of the parties. On March
8 and 9, 1994, appellants filed motions for summary judgment on
the defective posting and ballot language issues, and further
moved to continue the scheduled hearing to allow appellees time
to respond to their new motions. The court rescheduled the
case for hearing on all the motions for sometime after May 3,
1994.
On March 31, 1994, appellees filed a motion to dismiss the
matter on the basis that the procedure specified in R.C.
3515.10 had not been followed. On May 6, 1994, appellants
requested that the court set a final hearing date once all
outstanding motions had been ruled upon. On July 14, 1994, the
court determined that there was no genuine issue of material
fact and granted appellees' December 15, 1993 motion to
dismiss, or alternatively, motion for summary judgment, thereby
dismissing the case with prejudice.
Appellants filed a notice of appeal from the common pleas
court to this court pursuant to R.C. 3515.15, which provides:
"The person against whom judgment is rendered in a contest
of election may appeal on questions of law, within twenty days,
to the supreme court ***. *** The laws and rules of the court
governing appeals apply in the appeal of contested election
cases. ***"
This court previously held that R.C. 3515.15 does not
authorize election contest appeals as a matter of right to this
court. Moradelli v. Carney (1978), 56 Ohio St.2d 67, 10 O.O.3d
142, 381 N.E.2d 1128; Foraker v. Perry Twp. Rural School Dist.
Bd. of Edn. (1935), 130 Ohio St. 243, 4 O.O. 264, 199 N.E.2d
1128. These cases were premised on G.C. 12251 and, later, R.C.
2505.29, which provided appeals to this court by leave. R.C.
2505.29 was repealed in 1987. In Portis v. Summit Cty. Bd. of
Elections (1993), 67 Ohio St.3d 590, 621 N.E.2d 1202, the court
treated an appeal of an election contest from a common pleas

court as an appeal as of right. The Supreme Court Rules of
Practice do not expressly address this type of appeal. On
November 23, 1994, this court ordered the transmission of the
common pleas court record and the filing of briefs, effectively
treating the instant appeal as one of right.

Phillips & Co., L.P.A., and Gerald W. Phillips, for
appellants.
Russell T. McLaughlin, for appellees.

Per Curiam. As a preliminary matter, appellants have moved to
strike appellees' brief because it contains matters in its
appendix which are not part of the record. Appellees concede
that their brief contains documents which are not in the
record. It is axiomatic that a reviewing court cannot add
matter to the record before it, which was not part of the trial
court's proceedings. State v. Ishmail (1978), 54 Ohio St.2d
402, 8 O.O.3d 405, 377 N.E.2d 500, paragraph one of the
syllabus; State v. Davis (1992), 63 Ohio St.3d 44, 46, 584
N.E.2d 1192, 1195, fn. 2. Therefore, appellants' motion is
granted in part, and those portions of the appendix in
appellees' brief which constitute new matter are stricken and
are not considered in the resolution of this appeal.
In considering the merits of this appeal, in Ohio a
contestor of an election must establish by clear and convincing
evidence (1) that one or more election irregularities occurred,
and (2) that the irregularity or irregularities affected enough
votes to change or make uncertain the result of the election.
McMillan v. Ashtabula Cty. Bd. of Elections (1993), 68 Ohio
St.3d 31, 34, 623 N.E.2d 43, 46. The common pleas court's
dismissal was premised on appellees' December 15, 1993 motion
to dismiss, or alternatively, motion for summary judgment.
Appellees' motion was based solely on their contention that
appellants were estopped from asserting an election contest
because they were or should have been fully aware of the
proposed Issue 9 ballot language when the enabling ordinance
was passed on June 14, 1993.
Extreme diligence and promptness are required in
election-related matters. State ex rel. White v. Franklin Cty.
Bd. of Elections (1992), 65 Ohio St.3d 45, 49, 600 N.E.2d 656,
659. Equitable estoppel precludes recovery when "one party
induces another to believe certain facts exist and the other
party changes his position in reasonable reliance on those
facts to his detriment." State ex rel. Chavis v. Sycamore City
School Dist. Bd. of Edn. (1994), 71 Ohio St.3d 26, 34, 641
N.E.2d 188, 196. Generally, actual or constructive fraud is
required. State ex rel. Richard v. Bd. of Trustees of Police &
Firemen's Disability & Pension Fund (1994), 69 Ohio St.3d 409,
414, 632 N.E.2d 1292, 1296.
In cases in which we have found equitable estoppel in an
election contest, irregularities were plain on the face of the
ballot, and the contestors were aware of the alleged defects
prior to the election. See In re Election of November 6, 1990
for the Office of Attorney General of Ohio (1991), 58 Ohio
St.3d 103, 113-114, 569 N.E.2d 447, 457. Appellants in this
case arguably were either aware of or should have been aware of
the ballot language prior to the November 2, 1993 election, yet

they failed to raise this issue prior to learning of the
adverse election results. Cf. Beck v. Cincinnati (1955), 162
Ohio St. 473, 476, 55 O.O. 373, 374, 124 N.E.2d 120, 122, where
we rejected an estoppel claim based on the failure to object to
ballot language because we found the defect to be so
substantial as to void the election results. However, assuming
arguendo that the common pleas court properly determined that
appellants were estopped from raising a
defective-ballot-language claim, estoppel would not preclude
their other claims, e.g., improper posting and inaccurate
ballot counting. Therefore, the common pleas court erroneously
relied on estoppel in order to dismiss all of appellants'
claims.
Nevertheless, a reviewing court cannot reverse a proper
judgment merely because erroneous reasons were assigned as a
basis thereof. State ex rel. Carter v. Schotten (1994), 70
Ohio St.3d 89, 92, 637 N.E.2d 306, 309. R.C. 3515.10 provides:
"The court with which a petition to contest an election is
filed shall fix a suitable time for hearing such contest, which
shall not be less than fifteen nor more than thirty days after
the filing of the petition. *** [T]he hearing shall proceed at
the time fixed, unless postponed by the judge hearing the case
for good cause shown by either party by affidavit or unless the
judge adjourns to another time, not more than thirty days
thereafter ***." (Emphasis added.)
The procedures prescribed for election contests are
specific and exclusive, and must be strictly construed. In re
Election of November 6, 1990 for the Office of Attorney General
of Ohio (1991), 62 Ohio St.3d 1, 5, 577 N.E.2d 343, 344, 346.
The courts have no jurisdiction to conduct an election contest
in the absence of statutory authority, and "where a contestor,
before expiration of the time within which an election contest
under a statute must be tried, obtains a postponement or
acquiesces in a postponement which carries the case beyond the
time limit, he thereby discontinues his contest." Jenkins v.
Hughes (1952), 157 Ohio St. 186, 190, 47 O.O. 127, 129, 105
N.E.2d 58, 60. Compliance with the R.C. 3515.10 hearing
scheduling requirement is jurisdictional, and where the trial
date of the election contest is not set within thirty days
after the filing of the petition and no request is made for the
scheduling of a hearing within that period, the court lacks
jurisdiction to proceed. McCall v. Eastern Local School Dist.
Bd. of Edn. (1959), 169 Ohio St 50, 52; 8 O.O.2d 11, 12-13, 157
N.E.2d 351, 352-353; cf. State ex rel. Daoust v. Smith (1977),
52 Ohio St.2d 199, 201, 6 O.O.3d 457, 458, 371 N.E.2d 536, 537,
and State ex rel. Byrd v. Summit Cty. Bd. of Elections (1981),
65 Ohio St.2d 40, 43, 19 O.O.3d 230, 232, 417 N.E.2d 1375,
1378, citing McCall and Jenkins for the proposition that in
election cases, compliance with statutory limitations is a
jurisdictional requirement; see, also, Sekas v. Wohl (Apr. 30,
1987), Cuyahoga App. No. 52927, unreported ("Jenkins, supra,
and McCall, supra, *** reveal a contest[o]r must demonstrate
some effort to have a hearing commenced or completed within the
thirty-day period set forth in R.C. 3515.10 in order to satisfy
such condition precedent.").
Here, appellants filed their election contest on December
2, 1993, and no hearing on the petition was scheduled or

requested within the thirty-day period following that date.
Instead, appellants filed motions for summary judgment,
acquiesced in continuing a consideration of the merits of the
petition, and did not request that the court schedule a final
hearing date until May 6, 1994, over six months after the
filing of the election-contest action and after appellees had
moved to dismiss the election contest based on lack of
jurisdiction because of the failure to comply with R.C.
3515.10. Based on Jenkins and McCall, the court lacked
jurisdiction to act. Consequently, the court's dismissal of
the entire action, while not supported by its stated basis of
estoppel, was proper. The issues raised by appellants are moot
and need not be considered in light of the foregoing
disposition. Accordingly, the judgment of the court of common
pleas dismissing the case is affirmed.
Judgment affirmed.
Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney,
Pfeifer and Cook, JJ., concur.