Opinion
No. 75-253
Decided October 1, 1975.
Mandamus — Writ not available, when — Issue previously litigated — Summary judgment.
IN MANDAMUS.
After the city council of Parma passed a rezoning ordinance, on July 15, 1974, as emergency legislation, referendum petitions seeking repeal of the ordinance were circulated and presented to Kay Rucinski, a deputy auditor acting in the absence of Joseph Lime, Auditor of Parma. The petitions were not processed, however, because the auditor contends that the ordinance was passed as an emergency measure and was not subject to referendum.
On August 23, 1974, Evelyn Kopchak and two other persons filed a mandamus action in the Court of Appeals for Cuyahoga County to compel Lime and Rucinski to verify the number of valid signatures on the petition filed by relators and, if the number of signatures was found to be sufficient, submit the text of the proposed ordinance to the voters of Parma.
The Court of Appeals, on respondents' motion, dismissed the complaint and denied the writ. Relators' subsequent appeal to this court was dismissed.
Relator, Kopchak, then instituted the present mandamus action in this court for an order that respondents, Lime, Rucinski and the city of Parma, "verify the number of valid signatures" on the petition filed by relator and, "if the number of signatures is found to" be sufficient, certify the text of the ordinance to the board of elections for submission to the voters.
Respondents move for summary judgment and dismissal of the mandamus complaint for the reason that the judgment of the Court of Appeals in the earlier mandamus action is res judicata as to the issues raised herein.
Messrs. Cain Lobo and Mr. Arthur L. Cain, for relator.
Mr. Andrew Boyko, city solicitor, Messrs. Thompson, Hine Flory, Mr. William D. Ginn and Mr. David J. Naftzinger, for respondents.
The complaint for writ of mandamus filed in this court is based on the same facts, seeks the same relief, is otherwise virtually identical to the earlier complaint filed in the Court of Appeals, and involves the same parties, except that only one of the three relators who brought the action in the Court of Appeals brings the present action. The issues were fully argued and briefed before the Court of Appeals. That court's dismissal of relators' complaint went to the substance of the controversy. Its dismissal of the complaint and denial of the writ, without any qualifying language in its order, constitutes an adjudication on the merits. See Civ. R. 41 (B) (2).
Accordingly, respondents' motion for summary judgment is sustained, and the cause is dismissed.
Cause dismissed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.