Viola v. N. Royalton

[Cite as Viola v. N. Royalton, 2021-Ohio-3239.]
ANTHONY VIOLA Case No. 2020-00477PQ
Requester Judge Patrick E. Sheeran
v. DECISION
CITY OF NORTH ROYALTON
Respondent
{¶1} Pursuant to Civ.R. 60(B), Requester Anthony Viola moves for relief from this
Court’s judgment of March 11, 2021. Viola’s Civ.R. 60(B) motion is not well taken.
I. Background
{¶2} On August 6, 2020, pursuant to R.C. 2743.75(D), Viola filed a complaint
against Respondent City of North Royalton (City) wherein he alleged, “I filed a public
records request with the City of North Royalton asking them to produce e mails between
city councilman Dan Kasaris and several individuals, but the city refused to search a
personal Yahoo email account utilized by Kasaris and that affixed his official title as a
city councilman as a signature.” The case was referred to mediation. After mediation
failed to successfully resolve all disputed issues between the parties, a Special Master
issued a Report and Recommendation wherein he recommended that the Court find
that Viola had not shown that the City violated R.C. 149.43(B). Viola objected to the
Report and Recommendation. The Court overruled Viola’s objections and adopted the
Report and Recommendation on March 11, 2021. The Court’s docket shows that Viola
appealed from this Court’s final judgment and that he later voluntarily dismissed the
appeal.
{¶3} On August 6, 2021, Viola moved for relief under Civ.R. 60(B) and he asked
for a hearing on his motion. Viola maintains in the Civ.R. 60(B) motion that his motion,
along with accompanying exhibits, demonstrates that he is entitled to relief from this
Court’s final judgment. Viola served his Civ.R. 60(B) motion “via email and regular U.S.
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mail, postage prepaid” on July 29, 2021, according to a certificate of service
accompanying Viola’s motion. Thus, pursuant to Civ.R. 6(C)(1), Civ.R. 6(D), and
L.C.C.R. 4(C), the City was permitted to serve a response to Viola’s Civ.R. 60(B) motion
by August 16, 2021, at the latest. Thus far, the City has not filed a response to Viola’s
motion.
{¶4} Twelve days after Viola filed his Civ.R. 60(B) motion, without leave, Viola
filed additional documents, which are voluminous, that, according to Viola, “confirm
Senior Assistant Ohio Attorney General Daniel Kasaris utilized his private Yahoo email
account to conduct official business and make materially false statements to this Court
in prior proceedings.” The additional documents include email correspondence from a
person who appears to be Kasaris’ personal financial planner. Such correspondence
lacks a sufficient nexus with Karsaris’ duties as a councilperson for the City of North
Royalton. Other documents refer to matters forwarded by Kasaris to his own public
email account, and to complaints of various types (e.g. a fallen tree branch) that were
not responded to by Kasaris on his private email account. In essence, Viola has failed
to show a sufficient nexus between Kasaris’ private email account and actions taken by
him as a member of the North Royalton City Council.
II. Law and Analysis
A. The General Assembly has established a special proceeding in R.C.
2743.75 that does not expressly permit the filing of post-judgment
motions.
{¶5} A special proceeding may be defined as a proceeding “involving statutory or
civil remedies or rules rather than the rules or remedies ordinarily available under rules
of procedure; a proceeding providing extraordinary relief.” Black’s Law Dictionary 1458
(11th Ed.2019). Accord R.C. 2505.02(A)(2) (final order) (“special proceeding” “means
an action or proceeding that is specially created by statute and that prior to 1853 was
not denoted as an action at law or a suit in equity”). The enactment of R.C. 2743.75
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has created a special proceeding in this Court to resolve public-records disputes. See
Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-
5371, 170 N.E.3d 768, ¶ 11 (“[u]ntil the 2016 enactment of R.C. 2743.75, an action in
mandamus under R.C. 149.43(C) was the remedy to compel compliance with R.C.
149.43, Ohio’s Public Records Act. * * * The enactment of R.C. 2743.75 created an
alternative means to resolve public-records dispute”).
{¶6} The General Assembly plainly and unambiguously has failed to include a
provision in R.C. 2743.75 that permits the filing of post-judgment motions. See R.C.
2743.75. The Ohio Supreme Court has held, “Where the language of a statute is plain
and unambiguous and conveys a clear and definite meaning there is no occasion for
resorting to rules of statutory interpretation. An unambiguous statute is to be applied,
not interpreted.” Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph
five of the syllabus. R.C. 2743.75 therefore should be applied, as written. Accord
Buddenberg v. Weisdack, 161 Ohio St.3d 160, 2020-Ohio-3832, 161 N.E.3d 603, ¶ 10,
quoting Lancaster v. Fairfield Cty. Budget Comm., 83 Ohio St.3d 242, 244, 699 N.E.2d
473 (1998), quoting Slingluff v. Weaver, 66 Ohio St. 621, 627, 64 N.E. 574 (1902),
quoting McCluskey v. Cromwell, 11 N.Y. 593, 601 (1854) (“a court must give effect ‘“‘to
the natural and most obvious import of [a statute’s] language, without resorting to subtle
and forced constructions’”’”); State v. Smith, 34 Ohio App.3d 180, 187, 517 N.E.2d 933(5th Dist.1986) (“when the legislature has a deliberate and conscious purpose to
accomplish a desired result, it is not ‘tongue-tied’”).
{¶7} Even if Viola’s Civ.R. 60(B) motion presented the Court with an occasion to
resort to rules of statutory interpretation, a review of R.C. 2743.75 shows that the
General Assembly explicitly limited motion practice under the framework established in
the statute. See R.C. 2743.75(E)(2) (providing that “[n]o further motions or pleadings
shall be accepted by the clerk of the court of claims or by the special master assigned
by the clerk under [R.C. 2743.75(D)(2)] unless the special master directs in writing that
Case No. 2020-00477PQ -4- DECISION
a further motion or pleading be filed”). A conclusion that post-judgment motions are not
permitted under R.C. 2743.75 thus squares with the overall context of the statute. See
Gabbard v. Madison Local School Dist. Bd. of Edn., 2021-Ohio-2067, ¶ 22 (Ohio
Supreme Court precedent “requires courts to read a statute as a whole and to not
dissociate words and phrases from that context”).
{¶8} The Ohio Supreme Court held more than 100 years ago, “The question is
not what did the general assembly intend to enact, but what is the meaning of that
which it did enact. That body should be held to mean what it has plainly expressed, and
hence no room is left for construction.” Slingluff v. Weaver, 66 Ohio St. 621, 621, 64
N.E. 574 (1902), paragraph two of the syllabus. Accord Cyan, Inc. v. Beaver Cty.
Employees. Retirement Fund, ___U.S.___, 138 S.Ct. 1061, 1069, 200 L.Ed.2d 332(2018) (“[t]he statute says what it says—or perhaps better put here, does not say what it
does not say”). Here, the General Assembly has plainly and unambiguously expressed
that post-judgment motions are not permitted under R.C. 2743.75. The General
Assembly therefore should be held to mean what it has plainly and unambiguously
expressed without resorting to statutory interpretation.
B. The Ohio Rules of Civil Procedure govern practice and procedure
under R.C. 2743.75, except as inconsistent with R.C. 2743.75.
{¶9} The General Assembly has established that certain practices and
procedures in R.C. Chapter 2743 shall be governed by the Ohio Rules of Civil
Procedure. See R.C. 2743.03(D). Pursuant to R.C. 2743.03(D), the “Rules of Civil
Procedure shall govern practice and procedure in all actions in the court of claims,
except insofar as inconsistent with this chapter.” The special proceeding set forth in
R.C. 2743.75 is contained within R.C. Chapter 2743. In accordance with R.C.
2743.03(D), post-judgment motions (as allowed by the Ohio Rules of Civil Procedure)
therefore are permitted under R.C. 2743.75, to the extent that such motions are
consistent with practices and procedures established in R.C. 2743.75.
Case No. 2020-00477PQ -5- DECISION
{¶10} The special proceeding established in R.C. 2743.75 provides a dissatisfied
party with a mechanism to relieve such a party from this Court’s final judgment without
seeking redress under the Ohio Rules of Civil Procedure. See R.C. 2743.75(G)(1)
(permitting a party under certain circumstances to challenge a judgment of this Court by
means of an appeal to an Ohio court of appeals). Thus, a Civ.R. 60(B) motion that
seeks relief from this Court’s final judgment arguably may be inconsistent with the
practices and procedures of R.C. 2743.75.
{¶11} The General Assembly created the special proceeding in R.C. 2743.75 to
“provide for an expeditious and economical procedure.” (Emphasis added.) R.C.
2743.75(A). If this Court were to entertain a post-judgment motion that—(1) is not
expressly permitted under R.C. 2743.75, (2) is inconsistent with practices and
procedures established in R.C. 2743.75, and (3) hinders the “expeditious and
economical procedure” envisioned by the General Assembly in R.C. 2743.75—such a
judicial decision would impermissibly allow a judicial policy choice to override a valid law
enacted by the General Assembly. See State ex rel. Tritt v. State Emp. Rels. Bd., 97
Ohio St.3d 280, 2002-Ohio-6437, 779 N.E.2d 226, ¶ 17 (“[b]ecause the General
Assembly is the final arbiter of public policy, judicial policy preferences may not be used
to override valid legislative enactments”); see also State ex rel. Cincinnati Enquirer v.
Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 44, quoting Kish
v. Akron, 109 Ohio St.3d 162, 2006 Ohio 1244, 846 N.E.2d 811, ¶ 44, quoting State ex
rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 172, 637 N.E.2d 911 (1994) (“‘the
General Assembly is the ultimate arbiter of policy considerations relevant to public-
records laws * * * and it is for the legislature to “weigh[] and balance[] the competing
public policy considerations between the public’s right to know how its state agencies
make decisions and the potential harm, inconvenience or burden imposed on the
agency by disclosure”’”).
Case No. 2020-00477PQ -6- DECISION
Viola conspicuously has not identified legal authority that establishes that
a party may seek Civ.R. 60(B) relief from a judgment issued under R.C. 2743.75.
Neither has Viola offered any analysis to show that a Civ.R. 60(B) motion is
consistent with the practices and procedures set forth in R.C. 2743.75. At the
outset, Viola’s contention that, pursuant to Civ.R. 60(B), this Court should vacate
its lawful judgment is suspect.
C. Viola’s motion and additional material do not warrant relief under Civ.R.
60(B).
{¶12} Under Civ.R. 60(B) a court is permitted to relieve a party or his legal
representative from a final judgment in certain circumstances. See Civ.R. 60(B). But,
as Supreme Court of Ohio has explained, “It is well established that a Civ.R. 60(B)
motion cannot be used as a substitute for an appeal and that the doctrine of res judicata
applies to such a motion.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-
4275, 21 N.E.3d 1040, ¶ 16, citing Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-
1934, 846 N.E.2d 43, ¶ 8-9. And, as further explained by the Ohio Supreme Court,
“Civ.R. 60(B) exists to resolve injustices that are so great that they demand a departure
from the strict constraints of res judicata. * * * [T]he rule does not exist to allow a party
to obtain relief from his or her own choice to forgo an appeal from an adverse decision.”
Kuchta at ¶ 15.
{¶13} Since Viola voluntarily dismissed his appeal from this Court’s final
judgment, Viola may not use his Civ.R. 60(B) motion to obtain relief from Viola’s own
choice to voluntarily forgo an appeal. The Court disapproves any attempt by Viola to
use his Civ.R. 60(B) motion as a substitute for an appeal.
Viola states in his Civ.R. 60(B) motion:
Taken together, the evidence presented herein confirms that Kasaris:
■ Integrated his Yahoo email account with his official email account;
■ Made materially false statements to this Court; and
Case No. 2020-00477PQ -7- DECISION
■ Possesses public records on his Yahoo email account. The foregoing
facts and newly discovered evidence triggers an obligation of the part of
the Respondent to - at the very least - search the Yahoo account for public
records, and requires the Court to vacate its final judgment in this matter.
(Viola’s Civ.R. 60(B) motion.)
{¶14} The Ohio Supreme Court has established elements that a movant is
required to establish to prevail under Civ.R. 60(B). The Ohio Supreme Court has
instructed,
[T]o prevail on a Civ.R. 60(B) motion for relief from judgment, the
movant must establish that “(1) the party has a meritorious defense or
claim to present if relief is granted; (2) the party is entitled to relief under
one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the
motion is made within a reasonable time, and, where the grounds of relief
are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment,
order or proceeding was entered or taken.” GTE Automatic Elec., Inc. v.
ARC Industries, Inc. (1976), 47 Ohio St. 2d 146, 1 Ohio Op. 3d 86, 351
N.E.2d 113, paragraph two of the syllabus. Civ.R. 60(B) relief is improper
if any one of the foregoing requirements is not satisfied. Strack v.
Pelton (1994), 70 Ohio St. 3d 172, 174, 637 N.E.2d 914, 915.
State ex rel. Richard v. Seidner, 76 Ohio St.3d 149, 151, 666 N.E.2d 1134 (1996).
{¶15} An evidentiary hearing “is not required where the motion and attached
evidentiary material do not contain allegations of operative facts which would warrant
relief under Civ.R. 60(B).” Seidner at 151, citing S. Ohio Coal Co. v. Kidney, 100 Ohio
App. 3d 661, 667, 654 N.E.2d 1017 (1995). Under Ohio law, “‘[t]he allegation of
operative facts required must be of such evidentiary quality as affidavits, depositions,
answers to interrogatories, written admissions, or other sworn testimony.’” Whittle v.
Davis, 12th Dist. Butler No. CA2013-08-153, 2014-Ohio-445, ¶ 21, quoting Producers
Case No. 2020-00477PQ -8- DECISION
Credit Corp. v. Voge, 12th Dist. Preble No. CA2002-06-009, 2003-Ohio-1067, ¶ 31.
Accord Cleveland Excavating v. Elyria Savs. & Trust, 8th Dist. Cuyahoga No. 77910,
2000 Ohio App. LEXIS 5689, at *6 (Dec. 7, 2000) (a “Civ.R. 60(B) motion may not be
granted, however, absent admissible evidence establishing a meritorious Civ.R. 60(B)
motion”). The Twelfth District Court of Appeals has explained,
“If a party who seeks relief from judgment does not present operative facts
or presents facts of limited or meager quality, then a trial court is justified
in denying relief because that party has failed to meet its burden of
asserting facts entitling the party to relief.” Bank of New York Mellon v.
Stefanidis, 10th Dist. Franklin No. 11AP-157, 2011-Ohio-6455, ¶ 12. See
also Adomeit v. Baltimore, 39 Ohio App.2d 97, 105, 316 N.E.2d 469 (8th
Dist.1974) (“If the material submitted by the movant in support of its
motion contains no operative facts or meager and limited facts and
conclusions of law, it will not be an abuse of discretion for the trial court to
refuse to grant a hearing and overrule the motion”). “Mere general
allegations and mere conclusions of law are not sufficient to justify relief
from judgment.” Tri-County Pavings, Inc. v. Everman, 12th Fayette Dist.
No. CA91-11-024, 1992 Ohio App. LEXIS 2928, 1992 WL 126260, *1
(June 8, 1992).
Whittle v. Davis, 12th Dist. Butler No. CA2013-08-153, 2014-Ohio-445, at ¶ 22.
{¶16} As to the issue of fraud, the Ohio Supreme Court has stated, “It is generally
agreed that‘* * * [a]ny fraud connected with the presentation of a case to a court is a
fraud upon the court, in a broad sense.’ 11 Wright & Miller, Federal Practice and
Procedure (1973) 253, Section 2870. Thus, in the usual case, a party must resort to a
motion under Civ. R. 60(B)(3). Where an officer of the court, e.g., an attorney, however,
actively participates in defrauding the court, then the court may entertain a Civ. R.
60(B)(5) motion for relief from judgment. See [Toscano v. Commr. of Internal Revenue,
Case No. 2020-00477PQ -9- DECISION
441 F. 2d 930, 933 (9th Cir.1971)].” Coulson v. Coulson, 5 Ohio St.3d 12, 15, 448
N.E.2d 809 (1983). See also Kuchta, supra, at ¶ 13.
{¶17} This Court previously considered—and rejected—Viola’s claim that former
Council Member Kasaris submitted contradictory affidavits, which, in turn, allegedly
rendered Kasaris’ denials of keeping emails relating to his work as a member of North
Royalton City Council suspect, thereby necessitating the City to search Kasaris’ private
email. (Decision and Entry, (March 11, 2021)). And the Court previously concluded
that a claim that a private email account may contain public records is insufficient to
authorize a search of that email account. (Decision and Entry (March 11, 2021)).
{¶18} Viola’s complaint against the City placed at issue whether the City violated
R.C. 149.43(B) by denying Viola access to public records. See R.C. 2743.75(A)
(establishing that, except for a court that hears a mandamus action pursuant to R.C.
149.43(B), the Ohio Court of Claims is the sole and exclusive authority in Ohio that
adjudicates or resolves complaints based on alleged violations of R.C. 149.43(B)). In
the Civ.R. 60(B) motion, Viola conflates the issue of the City’s alleged violation of R.C.
149.43(B) with a contention that Daniel Kasaris engaged in misconduct in his service as
a councilmember and an assistant attorney general. This Court lacks jurisdiction to
determine whether Daniel Kasaris did or, did not, engage in misconduct when he served
as a councilmember or as an assistant attorney general. See R.C. 2743.03(A) and
2743.75(A).
{¶19} Upon review of Viola’s Civ.R. 60(B) motion and additional material, the
Court finds that Viola has not established a meritorious claim to present if the requested
relief were granted. The Court further finds that neither Viola’s Civ.R. 60(B) motion nor
additional material alters the Court view that a claim that a private email account may
contain public records is insufficient to authorize a search of that email account. The
Court respectfully disagrees with Viola’s claim that the “facts” and “newly discovered
evidence” “triggers an obligation of the part of the Respondent to - at the very least -
Case No. 2020-00477PQ -10- DECISION
search the Yahoo account for public, and requires the Court to vacate its final judgment
in this matter.”
{¶20} The Ohio Supreme Court has explained, “A claim under Civ.R. 60(B)
requires the court to carefully consider the two conflicting principles of finality and
perfection.” Strack v. Pelton, 70 Ohio St.3d 172, 175, 637 N.E.2d 914 (1994). The
Ohio Supreme Court has declared that “‘[f]inality requires that there be some end to
every lawsuit, thus producing certainty in the law and public confidence in the system’s
ability to resolve disputes. Perfection requires that every case be litigated until a perfect
result is achieved. For obvious reasons, courts have typically placed finality above
perfection in the hierarchy of values.’” Strack at 175, quoting Knapp v. Knapp, 24 Ohio
St.3d 141, 144-145, 493 N.E.2d 1353 (1986). Viola has failed to sustain his burden of
asserting facts entitling him to relief and Viola’s Civ.R. 60(B) motion fails to set forth an
injustice so great that demands a departure from the constraints of res judicata.
III. Conclusion
{¶21} The Court holds that neither Viola’s motion nor additional material
establishes that Viola has a meritorious claim to present if the Court were to grant the
relief that Viola seeks. The Court further holds that Viola’s motion and additional
material do not contain allegations of operative facts that warrant relief under Civ.R.
60(B). The Court denies Viola’s Civ.R. 60(B) motion, including Viola’s request for a
hearing.
PATRICK E. SHEERAN
Judge
[Cite as Viola v. N. Royalton, 2021-Ohio-3239.]
ANTHONY VIOLA Case No. 2020-00477PQ
Requester Judge Patrick E. Sheeran
v. ENTRY
CITY OF NORTH ROYALTON
Respondent
{¶22} For reasons set forth in the Decision filed concurrently herewith, the Court
DENIES Requester’s motion for relief from judgment pursuant to Civ.R. 60(B). Court
costs associated with Requester’s Civ.R. 60(B) motion are assessed to Requester.
PATRICK E. SHEERAN
Judge
Filed August 31, 2021
Sent to S.C. Reporter 9/17/21