STATE OF OHIO ex rel. BRIAN M. AMES, Relator-Appellant, - vs - PORTAGE COUNTY BOARD OF COMMISSIONERS, Respondent-Appellee.
CASE NO. 2019-P-0015
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
2019-Ohio-3729
[Cite as State ex rel. Ames v. Portage Cty. Bd. of Commrs., 2019-Ohio-3729.]
MARY JANE TRAPP, J.
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2017 CV 00415. Judgment: Affirmed in part, reversed in part, and remanded.
ΟΡΙΝΙΟN
Brian M. Ames, pro se, 2632 Ranfield Road, Mogadore, OH 44260 (Relator-Appellant).
Victor V. Vigluicci, Portage County Prosecutor, and Timothy J. Piero, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent-Appellee).
{1} Appellant, Brian Ames (“Mr. Ames”), appeals the judgment of the Portage County Court of Common Pleas granting summary judgment in favor of appellees, the Portage County Board of Commissioners (the “Board”), and denying him summary judgment in his civil action against the Board alleging multiple violations of Ohio’s Open Meetings Act (the “OMA”). Mr. Ames also assigns as error the trial court’s granting of the Board’s motion for a protective order regarding his discovery requests.
{2} After a careful review of the record and pertinent law, we find: (1) the trial court properly granted summary judgment to the Board on Count LXXV of Mr. Ames’ complaint because it is barred by the doctrine of res judicata; (2) the trial court incorrectly interpreted
{3} More specifically, the trial court erred in holding that the Board necessarily stated an acceptable purpose under
{4} We understand that given the litigation history between Mr. Ames and the Board, the Board, in good faith, sought to insulate itself from more litigation by erring on the side of inclusiveness, but for future meetings the Board must be more precise.
{5} For example, if the purpose is to discuss a complaint about a public employee, the Board should state that it is going into executive session to consider investigation of charges or complaints against a public employee and to consider dismissal, discipline, or demotion of that public employee,
{6} Thus, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
Substantive History and Procedural Background
{7} On May 1, 2017, Mr. Ames, pro se, filed a verified complaint in the Portage County Court of Common Pleas (Case No. 2017 CV 00415) alleging the Board violated the OMA on multiple occasions.1
{8} Specifically, Mr. Ames alleged that on 75 separate occasions from July 19, 2016 through April 4, 2017 (Counts I through LXXIV) and on November 4, 2015 (Count LXXV), prior to entering executive sessions to consider personnel matters, the Board read from
{9} Mr. Ames sought: (1) a declaratory judgment that the Board violated the OMA, (2) an order to “permanently enjoin” the Board “to comply” with the OMA, (3) a $500 civil forfeiture for each violation, (4) an order that the Board annotate the meeting minutes to reflect the approved purposes for each executive session, and (5) court costs and reasonable attorney fees.
{10} The Board filed an answer generally denying Mr. Ames’ allegations and raised the affirmative defense of collateral estoppel, among others.
{11} Mr. Ames served discovery requests on the Board consisting of requests for admission, interrogatories, and requests for production of documents. In response, the Board filed a motion for a protective order and objection to discovery. Mr. Ames filed a brief in opposition to the Board’s motion and a motion for sanctions against the Board’s counsel for alleged frivolous conduct, which the Board opposed.
{12} Following a hearing regarding, among other things, the availability of videos of Board meetings, the trial court issued a judgment entry indicating that the Board would confirm its contention that it did not retain copies of such videos.
{13} Following an additional hearing, the trial court issued a journal entry directing the Board to make available to Mr. Ames a flash drive containing videos of the Board’s meetings for fiscal year 2016.
{14} The trial court also issued a judgment entry granting the Board’s motion for a protective order, staying Mr. Ames’ motion for sanctions, and granting the parties leave to file dispositive motions and responses.
{15} Following an additional hearing, the trial court issued a judgment entry purporting to reflect the parties’ agreement that the Board would file the minutes for the meetings referenced in Mr. Ames’ complaint.
{16} The Board subsequently filed a notice of submission of evidence that contained an affidavit from the Board’s clerk
{17} The parties filed cross-motions for summary judgment.
{18} Mr. Ames argued that the Board’s practice of “merely reiterat[ing] the laundry list of possible matters from
{19} The Board admitted in its briefing it held numerous public meetings as indicated in Mr. Ames’ complaint, it entered into executive session during those meetings pursuant to
{20} The Board also argued that Mr. Ames’ claim for relief involving its meeting on November 4, 2015 (Count LXXV) was barred by the doctrine of res judicata as a result of this court’s decision in State ex rel. Ames v. Portage Cty. Bd. of Commrs., 11th Dist. Portage No. 2016-P-0057, 2017-Ohio-4237 (“Ames I”).
{21} The trial court issued a judgment entry granting the Board’s motion for summary judgment and denying Mr. Ames’ motion for summary judgment. The trial court stated as follows:
{22} “
{23} “[Mr. Ames] admits at LXXVI of his Complaint that [the Board] as a matter of practice read the statutory language of
{24} The trial court concluded the Board committed no violations of the OMA and was entitled to judgment as a matter of law.
{25} Mr. Ames now appeals and presents the following assignments of error for our review:
{26} “[1.] The Trial Court erred in granting summary judgment in favor of the Board and in denying summary judgment to Ames on cases 2016CV00582 and 2017CV00415 by disregarding the opinion of the Supreme Court of Ohio and substituting its own reading of
{27} “[2.] The Trial Court erred in granting the Board’s protective order and in denying discovery to Ames on case 2017CV00415.”
Grant of Summary Judgment to the Board
{28} In his first assignment of error, Mr. Ames argues the trial court erred by granting summary judgment to the Board.
Standard of Review
{29} We review de novo a trial court’s order granting summary judgment. (Citation omitted.) Sabo v. Zimmerman, 11th Dist. Ashtabula No. 2012-A-0005, 2012-Ohio-4763, ¶ 9. “A reviewing court will apply the same standard a trial court is required to apply, which is to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law.” (Citations omitted.) Id.
{30} “Since summary judgment denies the party his or her ‘day in court’ it is not to be viewed lightly as docket control or as a ‘little trial’. The jurisprudence of summary judgment standards has placed burdens on both the moving and the nonmoving party. In Dresher v. Burt [75 Ohio St.3d 280 (1996)], the Supreme Court of Ohio held that the moving party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record before the trial court that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim. The evidence must be in the record or the motion cannot succeed. The moving party cannot discharge its initial burden under
{31} The “portions of the record * * * are those evidentiary materials listed in
{32} The trial court may consider a type of document not expressly mentioned in
{33} “If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in the last sentence of
The OMA
{34} The OMA is set forth in
{35}
{36} After following certain procedures, a public body may discuss certain subject matters privately in an executive session. The permissible subject matters are set forth in
{37} “(G) * * * [T]he members of a public body may hold an executive session only after a majority of a quorum of the public body determines, by a roll call vote, to hold an executive session and only at a regular or special meeting for the sole purpose of the consideration of any of the following matters:
{38} “(1) To consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official, or the investigation of charges or complaints against a public employee, official, licensee, or regulated individual, unless the public employee, official, licensee, or regulated individual requests a public hearing. Except as otherwise provided by law, no public body shall hold an executive session for the discipline of an elected official for conduct related to the performance of the elected official’s official duties or for the elected official’s removal from office. If a public body holds an executive session pursuant to division (G)(1) of this section, the motion and vote to hold that executive session shall state which one or more of the approved purposes listed in division (G)(1) of this section are the purposes for which the executive session is to be held, but need not include the name of any person to be considered at the meeting.” (Emphasis added.)
{39} Courts have held that the exceptions in
Count LXXV
{40} We first address whether Count LXXV of Mr. Ames’ complaint regarding the Board’s meeting of November 4, 2015 is barred by the doctrine of res judicata.
{41} In its motion for summary judgment, the Board argued that Count LXXV is barred by the doctrine of res judicata based on this court’s prior decision in Ames I, supra.
While the trial court did not grant summary judgment to the Board on Count LXXV of Mr. Ames’ complaint on the basis of res judicata, we are free to affirm such judgment if it is correct for other reasons. See Butche v. Ohio Cas. Ins. Co., 174 Ohio St. 144, 146-47 (1962).
{42} “[A]n existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit.” (Emphasis sic.) Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62 (1990), quoting Rogers v. Whitehall, 25 Ohio St.3d 67, 69 (1986). Additionally, “[t]he doctrine of res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it.” (Citations omitted.) Id.
{43} In Ames I, Mr. Ames filed suit against the Board alleging that it violated the OMA in relation to its meeting on November 4, 2015 by: (1) holding four separate meetings on that date, (2) calling one of those meetings as an “emergency meeting” where there was no emergency, (3) failing to give proper notice of one of those meetings, (4) discussing matters not disclosed in the notices that were given, and (5) failing to keep full and accurate minutes of each meeting. Id. at ¶ 2.
{44} The meeting minutes reflected that, among other acts, “the Board moved into executive session, pursuant to
{45} The trial court ultimately granted summary judgment in favor of the Board on all of Mr. Ames’ claims for relief, which we affirmed. Id. at ¶ 48. Mr. Ames appealed to the Supreme Court of Ohio, which declined review. See State ex rel. Ames v. Portage Cty. Bd. of Commrs., 151 Ohio St.3d 1455, 2017-Ohio-8842.
{46} Since Mr. Ames could have brought a claim for relief in his previous lawsuit alleging the Board violated
{47} Based on the foregoing, the trial court did not err by granting summary judgment to the Board on Count LXXV of Mr. Ames’ complaint.
Remaining Counts
{48} We next address the trial court’s grant of summary judgment to the Board on the remaining counts of Mr. Ames’ complaint.
{49} The Board argues that its practice of reading “the exact verbatim language in
{50} The certified minutes reflect that at each meeting, the Board stated as follows:
{51} “In accordance with the [sic]
{52} This language mirrors that set forth in the referenced statute. Therefore, our review of the trial court’s grant of summary judgment to the Board on Mr. Ames’ remaining counts involves the proper interpretation of
{53} Venerable principles of statutory construction require that in construing statutes, courts must give effect to every word and clause in the statute. State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio-1484, ¶ 18, citing Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, ¶ 21. Courts must read words and phrases in context and construe them in accordance with rules of grammar and common usage and may not restrict, constrict, qualify, narrow, enlarge, or abridge the General Assembly’s wording. (Citations omitted.) Id. A court should avoid a construction that renders a provision meaningless or inoperative. Id. at ¶ 19, citing State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 373 (1917). Furthermore, when a statute’s language is clear and unambiguous, courts apply the statute as written, giving effect to its plain meaning. (Citations omitted.) Id. at ¶ 20.
{54} A court’s “paramount concern” when construing a statute is the statute’s legislative intent, and courts should avoid adopting a construction of a statute that would result in circumventing the evident purpose of the enactment. (Citations omitted.) Cincinnati Post, supra, at 543.
Interpretation of R.C. 121.22(G)(1)
{55} The issue before us is whether the trial court correctly interpreted
{56} As previously indicated, “if a public body holds an executive session pursuant to division (G)(1) * * * the motion and vote to hold that executive session shall state which one or more of the approved purposes listed in division (G)(1) of this section are the purposes for which the executive session is to be held[.]”
{57} Although no court has interpreted
{58} In Long, supra, the Supreme Court of Ohio held that a public body violated
{59} The Long court relied on the Ohio Attorney General’s interpretation of
{60} The Long court also relied on our decision in Jones v. Brookfield Twp. Trustees, 11th Dist. Trumbull No. 92-T-4692, 1995 WL 411842 (June 30, 1995), where we held that a public body’s reference to “police personnel issues” did not comply with
{61} Similarly, in Weisbarth v. Geauga Park Dist., 11th Dist. Geauga No. 2007-G-2780, 2007-Ohio-6728, we stated
{62} Our sister districts have interpreted
{63} Based on the plain language of the statute, and considering the above authorities, the trial court erred in holding that the Board necessarily stated an acceptable purpose under
{64} Thus, the trial court erred by granting the Board’s motion for summary judgment with respect to the remaining counts of Mr. Ames’ complaint.
{65} Mr. Ames’ first assignment of error has merit in part.
Denial of Summary Judgment to Mr. Ames
{66} Within his first assignment of error, Mr. Ames also argues the trial court erred by denying his motion for summary judgment.
{67} We review a trial court’s order denying summary judgment de novo. (Citations omitted.) Meeker R&D, Inc. v. Evenflo Co., Inc., 11th Dist. Portage Nos. 2014-P-0060 & 2015-P-0017, 2016-Ohio-2688, ¶ 24.
{68} As previously indicated, a party moving for summary judgment “bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact.” Dresher, supra, at 293.
Burden Shifting in an OMA Case
{69} A party who files a complaint alleging a violation of the OMA has the ultimate burden to prove by a preponderance of the evidence that a public body violated (or threatened to violate) the OMA. (Citations omitted.) State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 12th Dist. Nos. CA2011-05-045 & CA2011-06-047, 2012-Ohio-2569, ¶ 24.
{70} In an action brought under
{71} If the plaintiff or relator cannot show that the exception is inapplicable or invalid, he has failed to prove the public body violated the OMA, i.e., he has failed to meet his burden of proof. Id. If, on the other hand, the plaintiff or relator can show that the exception is not applicable or not valid, he has met his burden of proof. Id.
Analysis
{72} As previously indicated, the relevant meeting minutes are part of the record.2 Since the meeting minutes reflect that the Board entered into executive session at each meeting, Mr. Ames met his initial burden of showing that a meeting of the majority of the members of a public body occurred and that the general public was excluded from that meeting.
{73} Since the meeting minutes also reflect that the Board recited
{75} Based on the record before us, however, the actual purpose or purposes that the Board intended to discuss during each executive session are unclear. There is no evidence in the record demonstrating that the Board did not reasonably intend to discuss all of the permissible purposes listed in the meeting minutes. Thus, Mr. Ames is not able to identify portions of the record before the trial court which demonstrate the absence of a genuine issue of material fact. Accordingly, Mr. Ames has failed to meet his burden under
{76} The remainder of Mr. Ames’ first assignment of error is without merit.
Grant of Protective Order
{77} In his second assignment of error, Mr. Ames argues the trial court erred by granting the Board’s motion for a protective order and denying him certain discovery.
{78} “The standard of review of a trial court’s decision in a discovery matter is whether the court abused its discretion.” (Citation omitted.) State ex rel. Denton v. Bedinghaus, 98 Ohio St.3d 298, 2003-Ohio-861, ¶ 31. An abuse of discretion is the trial court’s “failure to exercise sound, reasonable, and legal decision-making.” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.2004).
{79} Initially, we note that Mr. Ames did not properly appeal the trial court’s entry regarding the motion for a protective order. The only judgment entry designated in and attached to Mr. Ames’ notice of appeal is the trial court’s entry regarding summary judgment. See App.R. 3(D) (“The notice of appeal * * * shall designate the judgment, order or part thereof ap[p]ealed from”); Loc.R. 3(D)(2) (“The appellant shall attach to the Notice of Appeal, a copy of the judgment entry or entries being appealed”). In the interest of justice, we will review this assignment of error.
{80}
{81} “Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated
{82} Mr. Ames’ argument focuses on the Board’s alleged motivations and actions in seeking the order. For instance, Mr. Ames asserts that the Board moved for a protective order as a “ruse” to “delay” or “avoid” discovery, that the Board’s motion was deficient because the Board failed to recite its efforts to resolve the matter through discussion, that the Board’s stated legal basis was invalid, and that the Board engaged in frivolous conduct. Mr. Ames does not address how any of these issues are relevant to whether the trial court abused its discretion.
{83} Mr. Ames also asserts that the trial court denied the “discovery of evidence that would militate the gravity of the Board’s willful and continuing violations of the OMA” and that he was prejudiced by the Board’s “failure to preserve much of that evidence.”
{84} However, Mr. Ames does not identify the evidence to which he is referring and how he was prejudiced by its omission. The record demonstrates that the trial court held at least two hearings to discuss discovery issues and ultimately determined particular evidence was sufficient for the parties to prepare dispositive motions and responses: a flash drive containing videos of the Board’s meetings for fiscal year 2016 and the meeting minutes referenced in Mr. Ames’ complaint. When the Board moved for summary judgment, Mr. Ames did not move for a continuance to obtain additional discovery pursuant to
{85} An appellant “bears the burden of affirmatively demonstrating error on appeal.” (Citations omitted.) State v. Herron, 11th Dist. Lake No. 2009-L-119, et al., 2010-Ohio-2050, ¶ 16. “It is not the obligation of an appellate court to search for authority to support an appellant’s argument as to an alleged error.” (Citations omitted.) Id. Mr. Ames has not affirmatively demonstrated that the trial court abused its discretion in granting the protective order.
{86} Mr. Ames’ second assignment of error is without merit.
{87} Based on the foregoing, (1) we affirm the trial court’s grant of summary judgment to the Board on Count LXXV of Mr. Ames’ complaint; (2) we reverse the trial court’s grant of summary judgment to the Board on the remaining counts of Mr. Ames’ complaint; (3) we affirm the trial court’s denial of summary judgment to Mr. Ames; (4) we affirm the trial court’s grant of the Board’s motion for a protective order; and (5) we remand this matter to the trial court for further proceedings consistent with this opinion.
THOMAS R. WRIGHT, P.J.,
TIMOTHY P. CANNON, J.,
concur.