Ames v. Rootstown Twp. Bd. of Trustees , 2021 Ohio 1369 ( 2021 )

[Cite as Ames v. Rootstown Twp. Bd. of Trustees, 2021-Ohio-1369.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
BRIAN M. AMES, : OPINION
Plaintiff-Appellant, :
CASE NO. 2020-P-0063
- vs - :
ROOTSTOWN TOWNSHIP BOARD OF :
TRUSTEES,
:
Defendant-Appellee.
:
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2017 CV
00410.
Judgment: Affirmed in part, reversed in part, and remanded.
Brian M. Ames, pro se, 2632 Ranfield Road, Mogadore, OH 44260 (Plaintiff-
Appellant).
James F. Mathews, Andrea K. Ziarko, and Jacob Ethan Reed, Baker, Dublikar, Beck,
Wiley & Mathews, 400 South Main Street, North Canton, OH 44720 (For Defendant-
Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Brian M. Ames, appeals the August 19, 2020 judgment of the
Portage County Court of Common Pleas entering, inter alia, summary judgment in Mr.
Ames’ favor. For the reasons discussed herein, the judgment is affirmed in part,
reversed in part, and remanded.
{¶2} In 2017, Mr. Ames filed a complaint against appellee, the Rootstown
Township Board of Trustees (“Board”), alleging 16 violations of the Ohio Open Meetings
Act, R.C. 121.22 (“OMA”). Each party moved for summary judgment. The trial court
granted the Board’s motion, and Mr. Ames appealed to this court. In Ames v.
Rootstown Twp. Bd. of Trustees, 11th Dist. Portage No. 2019-P-0019, 2019-Ohio-5412,
appeal not allowed, 158 Ohio St.3d 1522, 2020-Ohio-3018 (“Ames I”), this court
affirmed in part, reversed in part, and remanded for further proceedings.
{¶3} Specifically, this court found that the Board violated the OMA in two
separate ways: First, on six dates in 2015, the Board entered into executive session to
discuss matters with their attorney that they believed were covered by attorney-client
privilege. We held that R.C. 121.22(G)(5) was not a catch-all provision that applied
whenever a public body conferred with its counsel during executive session, reasoning
“‘“[i]f [this] were so, there would have been no need for the legislature to include R.C.
121.22(G)(3).’” Ames I, supra, at ¶41, quoting State ex rel. Hardin v. Clermont Cty. Bd.
of Elections, 12th Dist. Clermont Nos. CA2011-05-045, CA2011-06-047, 2012-Ohio-
2569, ¶78. Second, this court found that the Board violated the OMA on eight dates in
2016 by entering into executive session to discuss economic development but failed to
specify that the requirements of both subsections (a) and (b) of R.C. 121.22(G)(8) were
met.
{¶4} Ultimately, this court found that “as there were no outstanding issues of
material fact, the trial court should have denied the Board’s motion for summary
judgment, granted Mr. Ames’ motion and issued an injunction or injunctions against the
Board.” Ames I, supra, at ¶80. We remanded the matter to the trial court “to issue the
injunction or injunctions, consistent with this opinion, and for a determination of the
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attorney’s fees, court costs, and civil forfeitures, if any, to which Mr. Ames is entitled.”
Id. at ¶86.
{¶5} On remand, the trial court: entered summary judgment for Mr. Ames;
granted an injunction against the Board; and awarded Mr. Ames $500.00 as a civil
forfeiture and $1,000.00 in reduced attorney’s fees. In so ordering, the court found that
the Board violated the OMA on February 9, 2016, March 8, 2016, April 12, 2016, May
10, 2016, May 24, 2016, June 14, 2016, June 28, 2016, and September 13, 2016, but
found the violations “technical” in nature. It also found that the Board’s violations were
not substantial, egregious, or made in bad faith.
{¶6} Mr. Ames now appeals that judgment, assigning seven errors for our
review. “The appellate standard of review regarding the granting of an injunction by a
trial court is whether the trial court abused its discretion.” Ashtabula Cty. Bd. of Health
v. Soltis, 11th Dist. Ashtabula No. 2016-A-0032, 2016-Ohio-8423, ¶19, citing Franklin
Cty. Dist. Bd. of Health v. Paxson, 152 Ohio App.3d 193, 2003-Ohio-1331 (10th Dist.).
The term “abuse of discretion” is one of art, connoting judgment exercised by a court,
which does not comport with reason or the record. Gaul v. Gaul, 11th Dist. Ashtabula
No. 2009-A-0011, 2010-Ohio-2156, ¶24.
{¶7} For clarity and ease of disposition, we will address some assignments of
error together or out of chronological order. His seventh assignment of error states:
{¶8} The trial court erred by finding that the Defendant violated the Open
Meetings Act on only February 9, 2016, March 8, 2016, April 12,
2016, May 10, 2016, May 24, 2016, June 14, 2016, June 28, 2016,
and September 13, 2016 contrary to the opinion of this Court in
Ames v. Rootstown Twp. Bd. of Trustees, 2019-Ohio-5412.
{¶9} Under this assignment of error, Mr. Ames argues the trial court erred by
failing to find violations on May 4, 2015, August 11, 2015, September 22, 2015, October
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13, 2015, November 24, 2015, and December 8, 2015, pursuant to this court’s findings
in Ames I. The Board argues that this was a harmless scriveners’ error and that the
result, one injunction, a single civil forfeiture, and reduced attorney’s fees, would remain
the same. We disagree with the Board’s assertion.
{¶10} In Ames I, this court determined that the Board violated the OMA in two
ways: in 2015, it met in executive session with its counsel for reasons this court
subsequently determined were not exceptions within the OMA; and in 2016, the Board’s
minutes failed to properly reflect the full reason for entering into executive session
pursuant to subsections (a) and (b) of R.C. 121.22(G)(8). The trial court’s injunction
addresses only one of these errors. It reads in its entirety: “The Defendant, Rootstown
Township Board of Trustees, is enjoined from conducting business in violation of R.C.
121.22(G)(8)(a).”
{¶11} Contrary to the Board’s arguments, nothing in the Judgment Entry
indicates the court merely forgot to list certain 2015 dates; instead, in light of the limited
nature of the injunction, it appears more likely the trial court overlooked the 2015
violations altogether. As the trial court did not issue an injunction or injunctions
enjoining the Board from the errors it committed at the 2015 meetings, we cannot agree
the outcome would necessarily be the same.
{¶12} Thus, we find the trial court’s injunction is insufficient only insofar as it
does not address the 2015 violations, and remand the matter back to the trial court for
further consideration of the 2015 violations, and the appropriate related injunction or
injunctions and remedies.
{¶13} Accordingly, Mr. Ames’ seventh assignment of error has merit.
{¶14} His first assignment of error states:
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{¶15} The trial court erred by issuing an ineffective injunction that does
not meet the statutory mandate of R.C. 121.22(I)(1).
{¶16} Under this assignment of error, Mr. Ames argues the trial court’s injunction
is ineffective in compelling the Board to cease the violations that it committed in 2016,
and requests that this court remand the matter for the trial court to reword their
injunction.
{¶17} As stated above, the trial court’s injunction prohibits the Board from
“conducting business in violation of R.C. 121.22(G)(8)(a).” This is the provision this
court found the Board to be in violation of in 2016. Thus, if the Board continues the
same actions as they did in 2016 that this court determined violated the OMA, they will
be in violation of the injunction. We cannot agree that the trial court abused its
discretion in issuing this injunction.
{¶18} However, as discussed under his seventh assignment of error, this
language does not enjoin the Board from violating the OMA as it did in 2015 by entering
into executive sessions to conduct business with its counsel. Thus, insofar as the
injunction does not prohibit the type of violation that occurred in 2015, as discussed
under his seventh assignment of error, it is insufficient.
{¶19} Accordingly, Mr. Ames’ first assignment of error has partial merit.
{¶20} His fourth and fifth assignments of error state:
{¶21} [4.] The trial court erred by finding that violations are “technical” in
nature contrary to the opinion of this Court in Ames v. Rootstown
Twp. Bd. of Trustees, 2019-Ohio-5412.
{¶22} [5.] The trial court erred by finding that the Board’s violations were
not substantial or egregious and were not made in bad faith
contrary to the opinion of this Court in Ames v. Rootstown Twp. Bd.
of Trustees, 2019-Ohio-5412.
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{¶23} Under his fourth assignment of error, Mr. Ames argues the court erred in
finding the violations to be “technical” in nature, noting that this court in Ames I did not
deem the errors technical. Likewise, under his fifth assignment of error, Mr. Ames
argues that because this court did not deem the violations to be substantial or egregious
or in bad faith, the trial court erred by finding that they were not. We limit our answer to
the trial court’s findings in regard to the 2016 violations, as it did not address the 2015
violations.
{¶24} As this court stated in Ames I, “‘the general rule is that “[u]pon remand
from an appellate court, the lower court is required to proceed from the point at which
the error occurred.”’” Id. at ¶86, quoting State v. Roberts, 150 Ohio St.3d 47, 2017-
Ohio-2998, ¶45 quoting State ex rel. Stevenson v. Murray, 69 Ohio St.2d 112, 113
(1982). “The point at which the error occurred in the instant case is in the grant of the
Board’s motion for summary judgment and the denial of Mr. Ames’ motion on Counts I,
III, IV, V, VI, VII, VIII, IX, XI, XII, XIII, XIV, XV, and XVI.” Ames I, supra, at ¶86. The
determinations of whether the violation was technical, substantial, egregious, or made in
bad faith must necessarily occur after that point. Thus, the fact that this court did not
deem the violations technical, substantial, egregious, or in bad faith is entirely
inconsequential. This determination was properly left to the discretion of the trial court.
{¶25} Furthermore, we find no error in the trial court’s determination that the
violations were technical and not substantial, egregious, or made in bad faith. In
Wiesbarth v. Geauga Park Dist., 11th Dist. Geauga No. 2007-G-2780, 2007-Ohio-6728,
this court deemed a similar error, the failure to state precise statutory language for
entering into executive session, to be technical and not substantial, egregious, or made
in bad faith. Id. at ¶30. Moreover, there is no indication that the Board was trying to
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hide the reason for entering into executive session or took improper actions during the
executive session. The Board attested that it believed it was acting in compliance with
the OMA; the issues raised by Mr. Ames had not been previously addressed by this
court and thus, the Board had no prior precedent on which to make its decisions. It
appears to have made the decision in good faith, with the best information it had
available to it at the time. Thus, we cannot agree that the trial court erred by
determining the 2016 violations were technical, and not substantial, egregious, or made
in bad faith.
{¶26} Accordingly, Mr. Ames’ fourth and fifth assignments of error are without
merit.
{¶27} His second and third assignments of error are related and will be
addressed together. They state:
{¶28} [2.] The trial court erred by failing to issue an injunction for each
proven violation of R.C. 121.22.
{¶29} [3.] The trial court erred when it failed to order the Board to pay a
civil forfeiture of five hundred dollars to Mr. Ames for each proven
violation.
{¶30} As above, we limit our answer to the trial court’s findings in regard to the
2016 violations, as it did not address the 2015 violations.
{¶31} The OMA states, in pertinent part:
{¶32} Upon proof of a violation or threatened violation of this section in an
action brought by any person, the court of common pleas shall
issue an injunction to compel the members of the public body to
comply with its provisions. R.C. 121.22(I)(1).
{¶33} Under these assignments of error, Mr. Ames argues the OMA mandates
an injunction for each violation, and that he is entitled to a corresponding $500 civil
forfeiture for each violation. Specifically, Mr. Ames argues that the lawmakers provided
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no exception for multiple violations, asserting that by failing to issue an injunction on
each violation, the trial court effectively added the words, “‘unless another violation is
proven in the same action.’” We disagree with Mr. Ames’ position.
{¶34} “On its face, R.C. 121.22(I) requires a trial court to issue an injunction and
a $500 forfeiture for a violation of the OMA. The statute makes these remedies
mandatory, not permissive.” Maddox v. Greene Cty. Children Servs. Bd. of Dirs., 2d
Dist. Greene No. 2013-CA-38, 2014-Ohio-2312, ¶41, citing Vermilion Teachers’ Assn. v.
Vermilion Local School Dist. Bd. of Edn., 98 Ohio App.3d 524, 532 (6th Dist.1994)
(“Once a violation of the Sunshine Law is found, the remedy provisions of R.C. 121.22(I)
are mandatory[.]”). “The question is whether a trial court may, or even must, impose
multiple $500 forfeitures for repeated violations.” Maddox, supra.{¶35} This court addressed this question in Weisbarth, supra, and found that the
trial court in that case did not err in issuing a single injunction when the violations were
technical in nature and did not involve an intent to conceal the overall purpose of the
meeting or create distinct formal actions. Id. at ¶27. Accord Maddox, supra, at ¶46-47.
We here reiterate our holding that when multiple technical violations are of the same
nature, the remedy is one injunction and one $500 civil forfeiture, not $500 per violation.
In other words, the violations do not “stack.” Weisbarth, supra; Maddox, supra. This
holding is in line with the overarching purpose of the issuance of an injunction: “‘to
prevent a future injury, not to redress past wrongs.’” Byers DiPaola Castle, L.L.C. v.
Portage Cty. Commrs., 11th Dist. Portage No. 2014-P-0047, 2015-Ohio-3089, ¶67,
quoting Lemley v. Stevenson, 104 Ohio App.3d 126, 136 (6th Dist.1995). See also
Miller v. Miller, 11th Dist. Trumbull No. 2004-T-0150, 2005-Ohio-5120, ¶16.
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{¶36} Accordingly, we cannot agree that the trial court erred by only issuing one
injunction and civil remedy for the 2016, as the violations were all of the same technical
nature. Mr. Ames’ second and third assignments of error are without merit.
{¶37} His sixth assignment of error states:
{¶38} The trial court erred by reducing the award of attorney fees to Mr.
Ames without making the determination required by R.C.
121.22(I)(2)(a).
{¶39} Under this assignment of error, Mr. Ames argues, without citing authority,
that the Board has the obligation to prove each and every element of both R.C.
121.22(I)(2)(a)(i) and (ii). He also faults the court for failing to expressly make the
determination set forth in R.C. 121.22(I)(2)(a). Thus, he argues, the trial court could not
reduce his attorney’s fees.
{¶40} R.C. 121.22(I)(2)(a) states:
{¶41} If the court of common pleas issues an injunction pursuant to
division (I)(1) of this section, the court shall order the public body
that it enjoins to pay a civil forfeiture of five hundred dollars to the
party that sought the injunction and shall award to that party all
court costs and, subject to reduction as described in division (I)(2)
of this section, reasonable attorney’s fees. The court, in its
discretion, may reduce an award of attorney’s fees to the party that
sought the injunction or not award attorney’s fees to that party if the
court determines both of the following:
{¶42} (i) That, based on the ordinary application of statutory law and case
law as it existed at the time of violation or threatened violation that
was the basis of the injunction, a well-informed public body
reasonably would believe that the public body was not violating or
threatening to violate this section;
{¶43} (ii) That a well-informed public body reasonably would believe that
the conduct or threatened conduct that was the basis of the
injunction would serve the public policy that underlies the authority
that is asserted as permitting that conduct or threatened conduct.
(Emphasis added.)
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{¶44} Contrary to Mr. Ames’ argument, the statute expressly leaves the
determination to award or reduce attorney’s fees to the trial court’s discretion and
makes it clear that it is for the court to determine the requirements are met. Thus, the
burden is not on the Board to prove the elements. Nor does the statute require the
court to expressly state its rationale.
{¶45} Under the circumstances, we discern no abuse of discretion in the trial
court’s decision to reduce Mr. Ames’ attorney’s fees. This decision is supported by the
trial court findings that the errors were technical in nature, and were not substantial,
egregious, or made in bad faith, as discussed above. Furthermore, the record supports
the court’s implicit finding that the Board’s belief was reasonable based on the ordinary
application of statutory and case law as it existed at the time of the violation, and that
the Board reasonably believed that the conduct would serve the public policy of the
OMA.
{¶46} Accordingly, Mr. Ames’ sixth assignment of error is without merit.
{¶47} For the reasons stated herein, the judgment of the Portage County Court
of Common Pleas is reversed in part and remanded for the trial court to issue an
injunction or injunctions, consistent with this opinion and Ames I, related to the
violations that occurred May 4, 2015, August 11, 2015, September 22, 2015, October
13, 2015, November 24, 2015, and December 8, 2015, and for a determination of the
attorney’s fees, court costs, and civil forfeitures, if any, to which Mr. Ames is entitled.
The judgment is affirmed in all other respects.
MARY JANE TRAPP, P.J.,
THOMAS R. WRIGHT, J.,
concur.
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