Jones v. Village of Chagrin Falls

James M. Porter, Judge. This case is before this court on remand pursuant to the judgment and mandate of the Supreme Court of Ohio, dated February 19, 1997, reversing the judgment of the court of appeals. See Jones v. Chagrin Falls (1997), 77 Ohio St.3d 456, 674 N.E.2d 1388. The remand requires this court to “decide the issue presented for review by the parties, i.e., the proper interpretation of the village zoning ordinance.” Id. at 463, 674 N.E.2d at 1393. Appellant’s assignments of error are contained in the Appendix hereto. Given the Supreme Court’s disposition finding that the trial court did not err in entertaining appellee’s declaratory judgment action, 1 the sole issue on remand is whether the trial court erred in granting summary judgment in favor of appellee Jones as a matter of law by finding that “a bank or savings and loan is a financial office and as such is a permitted use in the Office District of Chagrin Falls” as defined by Chagrin Falls Zoning Code 1135.02. We find no error and affirm the trial court’s judgment. *251 Under Civ.R. 56, summary judgment is proper when: “(1) [N]o 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 conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made.” State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 471-472, 364 N.E.2d 267, 274. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 2556, 91 L.Ed.2d 265, 278; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801-802. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138, 139-141. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095, 1099; Celotex, supra, at 322-323, 106 S.Ct. at 2552-2553, 91 L.Ed.2d 265, 273-274. In accordance with Civ.R. 56(E), “a nonmovant may not rest on the mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial.” Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424, 629 N.E.2d 513, 515. In Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas. Presently, under the new standard, “the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party’s claim.” Dresher at 296, 662 N.E.2d at 276. This court reviews the lower court’s granting of summary judgment de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1157 (“We review the judgment independently and without deference to the trial court’s determination.”). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). “The reviewing court evaluates the record * * * in a light most favorable to the nonmoving party. * * * [T]he motion must be overruled if reasonable minds could find for the party opposing the motion.” Saunders v. McFaul (1990), 71 *252 Ohio App.3d 46, 50, 593 N.E.2d 24, 26; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741, 607 N.E.2d 1140, 1144. The issue in this case is whether a bank can be built on appellee Jones’s property in an area that is zoned by Chagrin Falls as an office district based on the interpretation of “financial office.” The Chagrin Falls Planning and Zoning Code (“Village Code”) permits the following uses in the office district: “Office buildings accommodating administrative, business, executive, financial, governmental, insurance, investment, professional, public or quasi-public, real estate or service offices, except that no retail sales involving the physical exchange of merchandise on the premises shall be permitted as a main use.” (Emphasis added.) Section 1135.02(a)(1). The resolution of this issue turns on the meaning of “financial office” and whether a bank falls within the definition. Section 101.03(a) of the Village Code states the following rule of construction: • “All words and phrases shall be construed and understood according to the common and approved usage of the language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in the law shall be construed and understood according to such peculiar and appropriate meaning.” “Financial office” is not defined anywhere in the Village Code; therefore, pursuant to the code’s own rule of construction, it “shall be construed and understood according to the common and approved usage of the language.” The Ohio Supreme Court decision in State ex rel. Spiccia v. Abate (1965), 2 Ohio St.2d 129, 31 O.O.2d 228, 207 N.E.2d 234, syllabus, likewise gives emphasis to the rule in interpreting terms not defined in zoning ordinances: “What constitutes a ‘restaurant’ as opposed to a ‘drive-in restaurant’ for the purpose of determining the permitted use of property under a zoning classification in which those terms are not otherwise defined is determined by considering the common and ordinary meaning of those terms, liberally construing them in favor of the permitted use so as not to extend the restrictions of the ordinance to any limitation of use not therein clearly prescribed.” A “bank” is commonly understood to be a financial institution. Several sections of the Revised Code define “financial institution” to include a “bank.” See R.C. 9.02(3); R.C. 323.134; R.C. 1339.31(F); R.C. 1161.01(B). It is also common practice to resort to dictionaries as a source for determining the established, ordinary meaning of words. Rite Aid of Ohio v. Marc’s Variety Store (1994), 93 Ohio App.3d 407, 415, 638 N.E.2d 1056, 1061-1062, citing Andrews v. Tax Comm. (1939), 135 Ohio St. 374, 376, 14 O.O. 250, 251, 21 N.E.2d *253 106, 107. Webster’s Third New International Dictionary (Unabridged ed. 1993) defines “financial institution” as: “An enterprise specializing in the handling and investment of funds (as a bank, trust company, insurance company, savings and loan association, or investment company).” The term “bank” is defined in the same dictionary as: “2. An establishment for the custody, loan, exchange, or issue of money, for the extension of credit, and for facilitating the transmission of funds by drafts or bills of exchange also: an institution incorporated for performing one or more of such functions.” Id. Chagrin Falls nevertheless argues that Village Code 1137.02 regarding retail district uses applies to banks. However, that provision permits only banks with “drive-in services.” (Section 1137.02[a][3][C].) Plaintiff is not proposing the construction of a “drive-in” bank facility. Furthermore, “zoning resolutions are in derogation of the common law and deprive a property owner of certain uses of his land to which he would otherwise be lawfully entitled” and therefore “must be strictly construed * * * ” Saunders v. Clark Cty. Zoning Dept. (1981), 66 Ohio St.2d 259, 261, 20 O.O.3d 244, 245-246, 421 N.E.2d 152, 154; Cash v. Brookshire United Methodist Church (1988), 61 Ohio App.3d 576, 579, 573 N.E.2d 692, 694-695; Freedom Twp. Bd. of Zoning App. v. Portage Cty. Bd. of Mental Retardation and Developmental Disabilities (1984), 16 Ohio App.3d 387, 390, 16 OBR 456, 458-459, 476 N.E.2d 360, 363-364. Therefore, pursuant to the common usage and understanding of the word “financial office” and liberally construing the terms in favor of a permitted use, banks are included in the definition of “financial offices.” As a matter of law, summary judgment was properly entered in favor of the plaintiff. Assignments of Error I, II, and III are overruled. Judgment affirmed. James D. Sweeney, C.J., concurs. O’Donnell, J., dissents. Footnotes [1] The Supreme Court found that appellant Chagrin Falls had waived its affirmative defense of failure to exhaust administrative remedies by failing to raise same on appellee Jones's motion for summary judgment. On remand, therefore, we must follow the law of the case and give no effect to the administrative interpretation by the village below. In other words, as we understand the Supreme Court’s decision herein, the trial court was free, as we are, to decide the interpretation question raised in the declaratory judgment action de novo without any deference to the village’s construction or administrative process.