Nolan v. Wetzel

[Cite as Nolan v. Wetzel, 2022-Ohio-4382.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
KATHRYN L. NOLAN, ET AL : Hon. Earle E. Wise, P.J.
: Hon. W. Scott Gwin, J.
Plaintiffs-Appellants : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 22AP0001
MAYOR R.D. WETZEL, ET AL :
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Morgan County Court
of Common Pleas, Case No. 20CV0189
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 8, 2022
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
ANN VOSBURG Pro Se PAUL-MICHAEL LAFAYETTE
KATHRYN L. NOLAN CARA M. WRIGHT
7640 Marion Street 65 East State Street, Ste. 2550
Chesterhill, OH 43728 Columbus, OH 43215
[Cite as Nolan v. Wetzel, 2022-Ohio-4382.]
Gwin, J.,
{¶1} Appellants Kathryn Nolan and Ann Vosburg appeal the December 23, 2021
judgment entry of the Morgan County Court of Common Pleas granting appellees’ motion
for summary judgment.
Facts & Procedural History
{¶2} Appellant Kathryn Nolan resides in the Village of Chesterhill in a home
owned by a friend, appellant Ann Vosburg. In 2007, a magistrate at the mayor’s court
found Nolan in violation of Village Ordinance 06-7-2 (nuisance code) concerning upkeep
of the property, and ordered her to pay $725.00 in fines and costs. When Nolan failed to
pay the fines and court costs, the magistrate found Nolan in contempt of court and
sentenced her to ten days in jail, but gave her thirty days to pay the fine and purge her
contempt. The magistrate also instructed Councilman Kenneth Peters to give Nolan a list
of the violations that needed to be corrected. Nolan met with Councilman Peters and
received the list of violations needing correction. Nolan failed to pay the fine or complete
the tasks within thirty days. Several weeks later, Nolan began paying the fine in $10.00
increments. The magistrate issued a bench warrant. Nolan was arrested and spent
several days in jail.
{¶3} On December 4, 2020, appellants filed a complaint against appellees the
Village of Chesterhill (“Village”), R.C. Wetzel (mayor), John Wells (Chesterhill Village
attorney), Gordon Armstrong (Village Administrator), and Jerica Simmons (Village Fiscal
Officer). The complaint alleges appellees have denied appellants records they requested
“over and over” under the Sunshine Laws. In the complaint, appellants state, “plaintiffs
request the records be at once delivered to them from defendants.”
Morgan County, Case No. 22AP0001 3
{¶4} Appellees filed an answer on January 25, 2021. Appellees filed a motion
for summary judgment on November 2, 2021. Appellants filed a memorandum in
opposition on November 30, 2021.
{¶5} Appellees filed a reply brief on December 10, 2021. Attached to their reply
brief is the affidavit of Jerica Simmons, the Village Clerk and Fiscal Officer since 2017.
Simmons avers she is the designated records custodian for the Village. She further states
that on September 24, 2020, she compiled all of the records responsive to a request from
Nolan and gave the records to Nolan.
{¶6} The trial court issued a judgment entry on December 23, 2021, granting
appellees’ motion for summary judgment. The court construed appellants’ complaint as
a mandamus action seeking the production of records. The trial court found the complaint
is deficient on its face for failing to allege a clear legal right to the requested records or a
clear legal duty on the part of appellees to produce the records.
{¶7} Appellants appeal the December 23, 2021 judgment entry of the Morgan
County Court of Common Pleas and assign the following as error:
{¶8} “I. THE TRIAL COURT ERRED IN NOT DEMANDING THE
DEFENDANTS/APPELLEES COMPLETE THEIR DELIVERY OF RECORDS
REQUESTED.
{¶9} “II. THE COURT SEEMED TO DENY VALUES INVOLVED AND COSTS
OF MATERIALS AS WELL AS THE DIFFICULTY OF FINDING AGE-MATCHING TILES.
{¶10} “III. THE COURT ERRED IN CLAIMING THE PLAINTIFFS/APPELLANTS
HAVE NOT PROVED A LEGAL RIGHT TO THE RECORDS STILL TO COME.
Morgan County, Case No. 22AP0001 4
{¶11} “IV. THE COURT ERRED IN ALLOWING THE AFFIDAVIT OF THE FISCAL
OFFICER JERICA SIMMONS TO GO WHEN PLAINTIFFS/APPELLANTS BOTH
HEARD THE COMMENTS SHE DENIES HAVING MADE.”
Public Records & Summary Judgment Standards
{¶12} Ohio’s Public Records Act requires a public office to make copies of public
records available to any person on request and within a reasonable period of time. R.C.
149.43(B)(1); State ex rel. McDougald v. Greene, 161 Ohio St.3d 130, 2020-Ohio-3686,
161 N.E.3d 575. The Ohio Supreme Court construes the Public Records Act as “liberally
in favor of broad access” to public records. State ex rel. Cincinnati Enquirer v. Hamilton
Cty., 75 Ohio St.3d 374, 662 N.E.2d 334 (1996).
{¶13} Under R.C. 149.43(C)(1)(b), a mandamus action is the remedy for a person
denied access to a public record. “To prevail on a claim for mandamus relief in a public-
records case, a party must establish a clear legal right to the requested relief and a
corresponding clear legal duty on the part of the respondents to provide that relief.” State
ex rel. Penland v. Ohio Dept. of Rehabilitation and Correction, 158 Ohio St.3d 15, 2019-
Ohio-4130, 139 N.E.3d 862, citing State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v.
Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553.
{¶14} Civil Rule 56 states, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. No evidence or
Morgan County, Case No. 22AP0001 5
stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds
can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being
entitled to have the evidence or stipulation construed most strongly in the
party’s favor. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages.
{¶15} A trial court should not enter summary judgment if it appears a material fact
is genuinely disputed, nor if, construing the allegations most favorably towards the non-
moving party, reasonable minds could draw different conclusions from the undisputed
facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The
court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer
Co. v. Browning-Ferris Inds. Of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A
fact is material if it affects the outcome of the case under the applicable substantive law.
Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist.
1999).
{¶16} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter
de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
Morgan County, Case No. 22AP0001 6
I. & III.
{¶17} In their first and third assignments of error, appellants contend the trial court
committed error in granting appellees’ motion for summary judgment because they are
entitled to the records.
{¶18} “It is the responsibility of the person who wishes to inspect and/or copy
records to identify with reasonable clarity the records at issue.” State ex rel. Morgan v.
New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208.
{¶19} In their complaint, appellants do not identify what records they seek.
However, in their opposition to appellees’ motion for summary judgment, they state they
are seeking the following records: photographs cropped and enlarged from the mayor’s
court, including the judge’s notes on the back of each photograph; prison records from
Nolan’s ten-day incarceration; the “contract” the village had with dustman Dustin Parsons;
the letter asked for by Parsons defending him and his right to come on the property written
by a lawyer and paid for by the Village; anything written by Village Administrator
Armstrong who told Parsons he could take anything “not nailed down”; and any written
orders to Simmons ordering her to “give Kathryn Nolan * * * nothing.”
{¶20} With regards to the request for photographs with judge’s notes on the back,
the Ohio Supreme Court has ruled that a judge’s personal, handwritten notes made during
the course of trial are not public records. State ex rel. Steffen v. Kraft, 67 Ohio St.3d 439,
1993-Ohio-32, 619 N.E.2d 688; State ex rel. Summers v. Fox, 163 Ohio St.3d 217, 2020-
Ohio-5585, 169 N.E.3d 625. The notes are “simply personal papers kept for the judge’s
own convenience and not official records.” Id. Further, Simmons states in her affidavit
that there were no photographs in the mayor’s court file. Appellees have “no duty to
Morgan County, Case No. 22AP0001 7
create or provide access to nonexistent records.” State ex rel. Lanham v. Smith, 112
Ohio St.3d 527, 2007-Ohio-609, 861 N.E.2d 530. Appellants provide no Civil Rule 56
evidence to rebut Simmons’ averment. Accordingly, the trial court did not commit error in
granting appellees’ motion for summary judgment on this claim.
{¶21} As to appellants’ request for a “letter asked for by Dustin Parsons defending
him and his right to come on the property written by a lawyer paid for the Village,”
Simmons avers in her affidavit that no such record exists. Appellants provide no Rule 56
evidence to dispute this assertion. Appellees have “no duty to create or provide access
to nonexistent records.” Id. Further, Ohio courts have consistently recognized that
“[r]ecords of communications between attorneys and their state-government clients
pertaining to the attorneys’ legal advice are excepted from disclosure under R.C.
149.43(A)(1) since the release of these records is prohibited by state law” – i.e., they are
protected by this state’s attorney-client privilege. State ex rel. Thomas v. Ohio State
Univ., 71 Ohio St.3d 245, 643 N.E.2d 126 (1994); State ex rel. Leslie v. Ohio Hous. Fin.
Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990; State ex rel. Hicks v.
Fraley, 166 Ohio St.3d 141, 2021-Ohio-2724, 184 N.E.2d 13. Accordingly, the trial court
did not commit error in granting appellees’ summary judgment on this claim.
{¶22} As to appellants’ request for “prison records from Nolan’s ten-day
incarceration,” Simmons avers in her affidavit that the Village is not in possession of any
records with regards to Nolan’s incarceration. Appellants failed to produce any
evidentiary quality materials to rebut this assertion. Appellees have “no duty to create or
provide access to nonexistent records.” State ex rel. Lanham v. Smith, 112 Ohio St.3d
527, 2007-Ohio-609, 861 N.E.2d 530.
Morgan County, Case No. 22AP0001 8
{¶23} Further, the mayor’s court proceeding and subsequent incarceration of
Nolan were the subject of a case filed by Nolan in federal district court. Appellees
attached to their motion for summary judgment several judgment entries from the district
court in the Southern District of Ohio. Nolan filed a lawsuit against Mayor Wetzel, the
Village, the Chesterhill Council members, Magistrate John Wells, the Morgan County
Sheriff, and two police officers, in the District Court for the Southern District of Ohio.
Nolan filed the case pursuant to 11 U.S.C. § 1983 and alleged her constitutional rights
were violated by the defendants in connection with her false arrest and imprisonment.
Nolan v. Jenkins, S.D. Ohio No. 2:09-CV-942, 2011 WL 13130847 (Dec. 9, 2011).
{¶24} During the course of the litigation, Nolan filed a motion to compel, seeking
the “whole and complete file” of her case in mayor’s court and “all documents related to
her incarceration.” The district court denied her motions to compel, accepting the
defendants “repeated representations that all responsive documents in their possession
have been produced. The Court can compel nothing more.” The district court also
entered summary judgment in favor of defendants on Nolan’s § 1983 claim. Nolan v.
Jenkins, S.D. Ohio No. 2:09-cv-942, 2012 WL 12887884 (March 26, 2012). Nolan
appealed the district court’s dismissal of her 11 U.S.C. § 1983 claim to the Sixth Circuit
Court of Appeals, but did not appeal the court’s finding on the motions to compel. The
Sixth Circuit Court of Appeals affirmed the district court’s dismissal of the case. Nolan v.
Jenkins, 6th Cir. No. 12-3435, 2013 WL 69262 (Jan. 8, 2013).
{¶25} The Ohio Supreme Court has held, “a claim litigated to finality in the United
States District Court cannot be relitigated in a state court when the state claim involves
Morgan County, Case No. 22AP0001 9
the identical subject matter previously litigated in federal court, and there is * * * no issue
of party or privity.” Rogers v. City of Whitehall, 25 Ohio St.3d 67, 494 N.E.2d 1387 (1986).
{¶26} Res judicata can be divided into two different subparts: claim preclusion
and issue preclusion. Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995).
Claim preclusion holds that a valid, final judgment on the merits bars all subsequent
actions based upon any claim arising out of the transaction or occurrence that was the
subject matter of the previous action. Id. Issue preclusion precludes relitigation of “any
issue that has been actually and necessarily litigated and determined in a prior action.”
Fort Frye Teachers Assn. v. State Emp. Rels. Bd., 81 Ohio St.3d 392, 692 N.E.2d 140(1998). An issue “that was actually and directly at issue in a previous action, that was
passed upon and determined by a court of competent jurisdiction, may not be drawn into
question in a subsequent action between the same parties or their privities, whether the
cause of action in the two actions be identical or different.” Id. In applying the doctrine
of issue preclusion, the causes of action do not have to be identical, so long as the issue
has been actually and directly litigated. Id.{¶27} We find the doctrine of issue preclusion applies in this case. The issue of
whether appellees produced the mayor’s court file and any records they had with respect
to Nolan’s incarceration was actually and directly litigated by the district court, a court of
competent jurisdiction, in a previous action. This action (the subsequent action) is
between the same parties or their privities.
{¶28} Further, Simmons avers in her affidavit that she personally provided
appellants with a complete copy of the mayor’s file, including the ledger sheets of
payments made by Nolan on the fines levied, and copies of the Village Ordinance
Morgan County, Case No. 22AP0001 10
regarding the maintenance requirements for properties in the village, in September of
2020. Appellees attached a copy of these documents to their motion for summary
judgment. “A respondent meets its burden of proving that a public records claim is moot
by providing an affidavit that the requested public records in her possession have been
provided.” State ex rel. Conley v. Park, 5th Dist. Stark No. 2014CA00169, 2016-Ohio-
5199. Appellants did not provide any Civil Rule 56 evidence to dispute Simmons’
averment. Since the records have been provided, the claim is moot. Accordingly, the
trial court did not commit error in granting summary judgment to appellees on this claim.
{¶29} As to the “contract” between the Village and Parsons, Simmons avers in her
affidavit that she provided appellants with a copy of the resolution passed by Village
Council retaining Parsons and a copy of the Village meeting minutes approving payment
of Parsons’ legal fees related to appellants’ prior lawsuit against the Village and Parsons.
“A respondent meets its burden of proving that a public records claim is moot by providing
an affidavit that the requested public records in her possession have been provided.”
State ex rel. Conley v. Park, 5th Dist. Stark No. 2014CA00169, 2016-Ohio-5199.
Appellants did not provide any Civil Rule 56 evidence to dispute Simmons’ averment.
Since the records have been provided, the claim is moot. Accordingly, the trial court did
not commit error in granting summary judgment to appellees on this claim.
{¶30} Finally, with regards to anything written from Armstrong to Parsons, and any
written orders to Simmons ordering her to “give Kathryn Nolan * * * nothing,” Simmons
stated in her affidavit that the Village is not in possession of anything written by Armstrong
telling Parsons he could take anything “not nailed down” or any written orders from
anyone telling Simmons to “give Kathryn Nolan nothing.” Appellants provide no Rule 56
Morgan County, Case No. 22AP0001 11
evidence to dispute these averments. Appellees have “no duty to create or provide
access to nonexistent records.” State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-
Ohio-609, 861 N.E.2d 530. Accordingly, the trial court did not commit error in granting
appellees’ summary judgment on these claims.
{¶31} Based on the foregoing, appellants’ first and third assignments of error are
overruled.
II.
{¶32} In appellants’ second assignment of error, they state, “the court seemed to
deny values involved and costs of materials as well as the difficulty of finding age-
matching tiles.” Appellants make no argument in this section, other than to state that “we
have been stripped of our materials obtained to redo and repair our home by the
Defendants/Appellees at the behest principally of the Mayor, R.D. Wetzel.”
{¶33} Appellants failed to raise this issue in the trial court in either their complaint
or their response to the motion for summary judgment. Their complaint only includes a
cause of action pursuant to the “Sunshine Act,” and asks the court to order the delivery
of the records from the defendants. There was nothing in the complaint or response to
the motion for summary judgment regarding the “stripping” of materials, the costs of
materials, or age-matching tiles. “Failure to raise an issue before the trial court operates
as a waiver of a party’s right to assert such for the first time on appeal.” Freeman v.
Freeman, 5th Dist. Delaware No. 22CAF020013, 2022-Ohio-3222; In re Adoption of
C.A.H., 5th Dist. Knox No. 19 CA 000037, 2020-Ohio-1260, citing Hadley v. Figley, 5th
Dist. Ashland No. 15-COA-001, 2015-Ohio-4600. Appellants have not argued plain error.
Civ.R. 53(D)(3)(b)(iv).
Morgan County, Case No. 22AP0001 12
{¶34} Appellants’ second assignment of error is overruled.
IV.
{¶35} In their fourth assignment of error, appellants state the trial court “erred in
allowing the affidavit of Simmons to go” because Simmons’ assertion that she never said
she had been told “we don’t have to give you anything” is untrue.
{¶36} However, appellants’ argument is unsupported by evidentiary quality
materials as required by Civil Rule 56. Wells Fargo Bank, N.A. v. Cogar, 5th Dist. Ashland
No. 12-COA-022, 2013-Ohio-311. Rule 56(C) states that “no evidence or stipulation may
be considered except as stated in this rule.”
{¶37} In their reply brief, appellants state they did not have a chance to respond
to Simmons’ affidavit because the affidavit was presented for the first time in appellees’
reply brief to their motion for summary judgment. However, appellants did not attempt to
strike the affidavit, nor did they seek leave to file a sur-reply. This Court has previously
held that when an appellant does not attempt to strike or seek leave to file a sur-reply,
appellant waives any error. Carrico v. Bower Home Inspection, LLC, 5th Dist. Knox No.
16CA21, 2017-Ohio-4057; Edwards v. Perry Twp. Board of Trustees, 5th Dist. Stark No.
2015CA00107, 2016-Ohio-5125; Campagna-McGuffin v. Diva Gymnastics Academy,
Inc., 5th Dist. Stark No. 2022 CA 00057, 2022-Ohio-3885. Accordingly, we find appellants
waived any error by failing to move to strike the affidavit or seeking leave to file a sur-
reply.
{¶38} Appellants fourth assignment of error is overruled.
{¶39} Based on the foregoing, appellants’ assignments of error are overruled.
Morgan County, Case No. 22AP0001 13
{¶40} The December 23, 2021 judgment entry of the Morgan County Court of
Common Pleas is affirmed.
By Gwin, J.,
Wise, Earle, P.J., and
Baldwin, J., concur