Opinion
No. 105963
04-12-2018
FRANCES MENTCH RELATOR-APPELLANT v. CUYAHOGA COUNTY PUBLIC LIBRARY BOARD RESPONDENT-APPELLEE
FOR APPELLANT Frances Mentch, pro se 3060 Chelsea Drive Cleveland Heights, Ohio 44118 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Brendan R. Doyle Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-16-866302 BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and McCormack, J.
FOR APPELLANT
Frances Mentch, pro se
3060 Chelsea Drive
Cleveland Heights, Ohio 44118
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
BY: Brendan R. Doyle
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:
{¶1} Relator-appellant, Frances Mentch ("appellant"), appeals the grant of summary judgment in favor of respondent-appellee, the Cuyahoga County Public Library Board ("CCPL"). Specifically, appellant argues that the trial court erred in its regulation of the exchange of discovery, erred by applying the doctrine of res judicata, erred by construing the allegations in the complaint as claims for mandamus relief rather than injunctive relief, and erred by failing to award statutory damages. After a thorough review of the record and law, this court affirms.
I. Factual and Procedural History
{¶2} CCPL is a county-wide library system with 27 branches throughout Cuyahoga County. The instant appeal pertains to CCPL's "Facilities Master Plan" or capital improvement program under which CCPL renovated, rebuilt, and relocated certain library branches. Pursuant to CCPL's plan, the South Euclid-Lyndhurst Library branch (hereinafter "Telling Mansion") was sold and a new library branch was built approximately one mile away from the Telling Mansion location.
{¶3} CCPL approved the sale of Telling Mansion during CCPL's September 24, 2013 meeting. On December 18, 2013, CCPL made arrangements to lease Telling Mansion and keep the branch open while the new branch was being built.
{¶4} Appellant challenged CCPL's plan, including the sale of Telling Mansion, alleging that the plan was developed and implemented out of the public's purview. On July 15, 2016, appellant filed a complaint alleging that CCPL violated various provisions of R.C. 121.22, Ohio's Open Meetings Act, also known as the Sunshine Law, and R.C. 149.43, Ohio's Public Records Act. Appellant alleged that she was entitled to mandamus relief and requested that the trial court (1) reverse the sale of Telling Mansion, and (2) issue an order directing CCPL to release a document containing the email addresses of its board members. Appellant additionally requested injunctive relief, seeking to prevent CCPL from building new library branches in Bay Village and Middleburg Heights, and requiring CCPL to begin complying with Ohio's Open Meetings and Public Records Acts.
Appellant originally filed her complaint on September 22, 2015, in Cuyahoga C.P. No. CV-15-851502. Appellant voluntarily dismissed this complaint on November 9, 2015.
See State ex rel. MORE Bratenahl v. Bratenahl, 8th Dist. Cuyahoga No. 105281, 2018-Ohio-497, ¶ 3.
{¶5} The trial court held a case management conference on October 6, 2016. The trial court issued a journal entry on October 11, 2016, in which it set the matter for trial on March 27, 2017, and set the following deadlines: "1. All discovery to be completed by 1/31/2017. 2. [Appellant] to propound her first requests for discovery by not later than 10/11/2016. 3. All dispositive motions are to be filed by not later than 2/24/2017."
{¶6} On October 14, 2016, CCPL filed a motion to dismiss appellant's complaint pursuant to Civ.R. 12(B)(6). Appellant opposed CCPL's motion to dismiss on October 24, 2016. CCPL filed a reply brief in support of its motion to dismiss on October 31, 2016.
{¶7} On November 7, 2016, appellant filed a motion for leave to file a surreply brief, a surreply brief, and several supporting exhibits. CCPL filed a motion to strike appellant's surreply brief and the exhibits she attached thereto. The trial court granted CCPL's motion to strike on December 21, 2016.
{¶8} Appellant propounded her first set of discovery requests on November 30, 2016. She filed a second request for production of documents on December 10, 2016.
{¶9} On December 21, 2016, CCPL filed a motion to strike appellant's request for production of documents and for a protective order, arguing that appellant's request was filed after the October 11, 2016 deadline. Appellant opposed CCPL's motion, arguing that her request was filed before the January 31, 2017 discovery deadline.
{¶10} The trial court granted CCPL's motion to strike and for a protective order on January 10, 2017, concluding that appellant failed to present a "factually honest argument" as to why she could not have propounded her discovery requests before the October 11, 2016 deadline. Furthermore, the trial court granted CCPL's motion to strike appellant's surreply brief and supporting exhibits, concluding that appellant's exhibits were not proper evidence for the purposes of ruling on a Civ.R. 12(B) motion. Finally, the trial court denied CCPL's motion to dismiss.
{¶11} Appellant filed motions for default judgment on February 9 and 22, 2017. On February 10, 2017, CCPL filed a motion for leave to file an answer, its answer, and its amended answer. On February 27, 2017, the trial court granted CCPL's motion for leave to file an answer and denied appellant's motions for default judgment.
{¶12} CCPL filed a motion for summary judgment on March 10, 2017. Appellant filed a memorandum in opposition on April 10, 2017. CCPL filed a reply brief in support of its motion for summary judgment on April 20, 2017.
{¶13} On May 31, 2017, the trial court granted CCPL's motion for summary judgment. It is from this judgment that appellant filed the instant appeal on June 30, 2017. She assigns 11 errors for review:
I. The Trial Court erred in granting [appellant] only five days of discovery.
II. The Trial Court erred in granting [CCPL] Summary Judgment based on Res Judicata.
III. The Trial Court erred in denying the affidavit of [appellant] submitted in response to [CCPL's] Motion for Summary Judgment.
IV. The Trial Court erred in overlooking the evidence that [appellant] provided that controverts the affidavits of Hallie Rich and Sari Feldman.
V. The Trial Court erred in failing to award statutory damages to [appellant] due to [CCPL's] taking three hundred and twenty-one days to respond to a public records request.
VI. The Trial Court erred in failing to award statutory damages to [appellant] due to [CCPL's] failure to provide fifty sets of committee meeting minutes.
VII. The Trial Court erred in considering every part of the Complaint as a request for a mandamus action. [Appellant] filed for an injunction, not a mandamus, compelling [CCPL] to comply with the Open Meetings Act.
VIII. The Trial Court erred in considering every part of the Complaint as a request for a mandamus action; Telling Mansion was sold outside of an
open meeting, thus the purchase agreement is invalid and the remedy is injunction.For ease of discussion, we will address appellant's assignments of error out of order. To the extent that appellant's assignments of error and the issues therein are interrelated, they will be addressed together.
IX. Trial Court erred in requiring that [appellant] submit an affidavit with the original complaint, in accordance with R.C. 2731.04.
X. The Trial Court erred in ruling on the Motion for Summary Judgment the day after the Trial Briefs were due.
XI. The Trial Court erred in granting [CCPL's] Motion for Summary Judgment.
II. Law and Analysis
A. Discovery
{¶14} In her first assignment of error, appellant argues that the trial court erred by "permitting [her] only five days of discovery."
It is well established that a trial court enjoys considerable discretion in the regulation of discovery proceedings. State ex rel. Daggett v. Gessaman, 34 Ohio St.2d 55, 295 N.E.2d 659 (1973); Clark Cty. Solid Waste Mgt. Dist. v. Danis Clark Co. Landfill Co., 109 Ohio App.3d 19, 38, 671 N.E.2d 1034 (2d Dist.1996). Furthermore, a judgment preventing the requesting party from pursuing discovery will not be reversed unless the ruling causes substantial prejudice. Shaver v. Std. Oil Co., 68 Ohio App.3d 783, 800, 589 N.E.2d 1348 (1990).WFG Natl. Title Ins. Co. v. Meehan, 8th Dist. Cuyahoga No. 105677, 2018-Ohio-491, ¶ 18.
Discovery disputes are generally reviewed under an abuse of discretion standard. Tracy v. Merrell Dow Pharmaceuticals, Inc., 58 Ohio St.3d 147, 151-152, 569 N.E.2d 875 (1991). But "[i]n determining whether to grant a
protective order, a trial court must balance the competing interests to be served by allowing discovery to proceed against the harm which may result." Arnold v. Am. Natl. Red Cross, 93 Ohio App.3d 564, 576, 639 N.E.2d 484 (8th Dist.1994).Esparza v. Klocker, 2015-Ohio-110, 27 N.E.3d 23, ¶ 15 (8th Dist.).
{¶15} As noted above, the trial court set October 11, 2016, as the deadline for appellant's first discovery request, and January 31, 2017, as the deadline for completing all discovery.
{¶16} Appellant filed requests for the production of documents on November 30 and December 10, 2016. CCPL filed a motion to strike appellant's requests and for a protective order, arguing that both of appellant's discovery requests should be stricken for failure to comply with the October 11 deadline. Appellant filed a memorandum in opposition to CCPL's motion to strike, arguing that her requests for production of documents were filed before the January 31, 2017 discovery deadline. However, in her memorandum, appellant conceded that she did not file her first discovery request before the October 11 deadline.
{¶17} In granting CCPL's motion to strike and for a protective order, the trial court concluded that "there can be no factually honest argument made that [appellant] could not have propounded the discovery requests by 10/11/2016 in compliance with this court's order."
{¶18} In the instant matter, we initially note that appellant's assertion that she only had five days to conduct discovery is entirely unsupported by the record. The trial court held a case management conference on October 6, 2016, during which the discovery deadlines were discussed. The trial court set October 11, 2016, as the deadline for appellant's first discovery request — not for the completion of all discovery. The record reflects that the deadline for completing all discovery was January 31, 2017. Thus, to the extent that appellant argues that she only had five days to conduct discovery — from October 6 to October 11 — we find no merit to this assertion.
{¶19} We further note that appellant appears to argue that the trial court granted CCPL's motion to strike and for a protective order because she failed to propound her first discovery request on, rather than before, October 11. The trial court did not require appellant to file her first discovery request on October 11. Rather, the trial court set October 11 as the deadline for appellant's first discovery request. In other words, appellant was not required to file her first discovery request on October 11 — she was required to file her first discovery request on or before October 11. The record reflects that appellant failed to do so.
{¶20} It is undisputed that during the October 6 case management conference, the trial court inquired as to when appellant would be able to file her first request for discovery. The parties dispute, however, appellant's response to the trial court's inquiry.
{¶21} CCPL asserts that during the October 6, 2016 case management conference, appellant advised the trial court that "she could have her first set of [discovery] requests to [CCPL] later that same day." Appellee's brief at 3. On the other hand, appellant appears to assert that she informed the trial court during the case management conference that she "could probably" file her first request for discovery on October 11, 2016. Appellant's reply brief at 1. Appellant argues that although the trial order that the parties signed during the October 6, 2016 case management conference states that all discovery must be completed by January 31, 2017, the order does not specify that appellant was required to file her first discovery request by October 11, 2016.
{¶22} After reviewing the record, we cannot say that the trial court abused its discretion in granting CCPL's motion to strike and for a protective order. Assuming, arguendo, that (1) appellant did not advise the trial court during the October 6 case management conference that she could file her first request for discovery that same day, and (2) that the trial court did not set the October 11 deadline for appellant's first discovery request during the October 6 case management conference, the trial court set the October 11, 2016 deadline for appellant's first discovery request in its October 11, 2016 journal entry. The trial court issued notice to the parties regarding its October 11, 2016 journal entry. Furthermore, the trial court's October 11 journal entry provides that the October 11 deadline for appellant's first discovery request applied "in addition to the dates set forth in the trial order," including the January 31, 2017 deadline for completing all discovery.
{¶23} It is undisputed that appellant did not serve her first set of discovery requests on CCPL before the October 11, 2016 deadline. Appellant filed her first request for the production of documents on November 30, 2016, and her second request for the production of documents on December 10, 2016.
{¶24} Assuming, arguendo, that appellant was not notified of the October 11 deadline for filing her first discovery request during the October 6 case management conference, she did not request additional time to complete her first discovery request after the trial court issued the October 11 journal entry. For all of these reasons, we find no basis to conclude that the trial court abused its discretion in setting the October 11 deadline.
{¶25} If appellant did, in fact, assert during the October 6 case management conference that she could file her first discovery request that same day, then she invited any error regarding the October 11 deadline. Pursuant to the invited error doctrine, a party may not take advantage of an error on appeal that the party invited or induced. See State v. Armstrong, 8th Dist. Cuyahoga No. 103088, 2016-Ohio-2627, ¶ 69. If appellant asserted that she was willing and able to serve her first discovery request on October 6, she invited any error regarding the October 11 deadline by making this assertion.
{¶26} Based on the foregoing analysis, appellant's first assignment of error is overruled.
B. Summary Judgment
{¶27} Appellant's second, third, fourth, tenth, and eleventh assignments of error pertain to the trial court's grant of summary judgment in CCPL's favor.
{¶28} As noted above, appellant alleged in her complaint that CCPL violated Ohio Sunshine Laws — R.C. 121.22 and 149.43 — and requested that the trial court issue a writ of mandamus reversing the sale of Telling Mansion and an injunction preventing CCPL from building new library branches in Bay Village and Middleburg Heights.
{¶29} To be entitled to a writ of mandamus, appellant was required to establish (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the trial court to provide it, and (3) the lack of an adequate remedy in the ordinary course of law. See State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6.
{¶30} In its motion for summary judgment, CCPL argued that appellant failed to state a claim in mandamus, failed to demonstrate a clear legal right to the relief she requested, and failed to demonstrate that CCPL had a clear legal duty to perform the acts she requested. CCPL further asserted that appellant failed to present any evidence supporting her claims for R.C. 121.22 and 149.43 violations. In support of its summary judgment motion, CCPL submitted affidavits of executive director Sari Feldman and CCPL's communications and external relations director Hallie Rich.
{¶31} Feldman averred that all official actions regarding the sale and lease of Telling Mansion were conducted in open meetings and in accordance with R.C. 121.22. All deliberations regarding the sale and lease were either made in an open meeting or in an executive session pursuant to the "purchase or sale of property" exception set forth in R.C. 121.22(G)(2).
{¶32} Rich averred, in relevant part,
4. On April 7, 2016, I received a public records request from [appellant] for a copy of a document that contains the email addresses for the members of the CCPL Board of Directors.
5. It was my belief at that time that no document existed that listed the email addresses for CCPL Board members, and I responded to the request accordingly.
6. My representation to [appellant] regarding the non-existence of a document was made in good faith and based on the genuine belief that the document did not exist.
7. On Friday, February 17, 2017, it was discovered that, due to an internal miscommunication at CCPL, a document did exist that was responsive to [appellant's] request of April 7, 2016. On Tuesday, February 21, 2017, I forwarded the document to [counsel] who immediately emailed the document to [appellant].
8. On May 20, 2014, [appellant] made a public records request for the Facilities Master Plan of the capital campaign in which CCPL was engaged to rebuild, renovate, and relocate certain branches of the county library system.
9. The Facilities Master Plan was informed by facility assessments conducted by Bostwick Design Partnership in 2009 for each of the CCPL branches. The Facilities Master Plan is not just one document. At the time of the assessments, there were twenty-eight (28) library branches, and there were assessments for each branch. The Facilities Master Plan also included a presentation and executive summary by Bostwick Design Partnership that included brief summaries of each library branch assessment as well as estimates for renovation and building replacement costs.
10. I directed [appellant] to the CCPL website to access the Facilities Master Plan information as each library branch assessment and the Bostwick Design Partnership presentation was posted there for the public to review and evaluate.
{¶33} In opposing CCPL's summary judgment motion, appellant filed various exhibits in support of her allegations that CCPL violated R.C. 121.22 and 149.43. These exhibits were unsworn and unauthenticated.
{¶34} CCPL filed a reply brief in support of its summary judgment motion. In the reply brief, CCPL emphasized that appellant failed to demonstrate that appellant had a clear legal right to reverse the sale of Telling Mansion and/or to block CCPL's plans for new library branches in Bay Village and Middleburg Heights. CCPL also filed a motion to strike the exhibits appellant submitted in support of her brief in opposition, which the trial court granted.
{¶35} The trial court granted CCPL's motion for summary judgment, concluding that appellant failed to demonstrate the existence of a genuine issue of material fact with respect to her claims for R.C. 121.22 and 149.43 violations, and that appellant's request for mandamus relief was barred by the doctrine of res judicata.
1. Standard of Review
{¶36} Summary judgment, governed by Civ.R. 56, provides for the expedited adjudication of matters where there is no material fact in dispute to be determined at trial. In order to obtain summary judgment, the moving party must show that "(1) there is no genuine issue of material fact; (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 when viewing evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party." Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).
{¶37} The moving party has the initial responsibility of establishing that it is entitled to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). "[I]f the moving party meets this burden, summary judgment is appropriate only if the nonmoving party fails to establish the existence of a genuine issue of material fact." Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 16, citing Dresher at 293.
{¶38} Once a moving party demonstrates no material issue of fact exists for trial and the party is entitled to judgment, the nonmoving party has a duty to come forth with argument and evidence demonstrating a material issue of fact does exist that would preclude judgment as a matter of law. Dresher at id. Summary judgment is appropriate if the nonmoving party fails to meet this burden. Id.
2. Timing
{¶39} In her tenth assignment of error, appellant argues that the trial court erred by ruling on CCPL's motion for summary judgment one day after the parties' deadline for filing their trial briefs. Appellant asserts that she complied with the deadline and that CCPL did not. She appears to argue that CCPL should be sanctioned for failing to submit its trial brief before the deadline and that CCPL will have a "substantial advantage" if we reverse the trial court's judgment and the matter proceeds to trial because CCPL has access to appellant's trial brief.
{¶40} Appellant fails to demonstrate how she was prejudiced by the timing of the trial court's summary judgment ruling. Nor does she support her arguments with citations to case law or statutory authority as required by App.R. 16(A)(7). Furthermore, because the trial court granted CCPL's summary judgment motion and the case did not proceed to trial, we need not consider appellant's broad assertion that CCPL gained an unfair advantage because appellant filed a trial brief and CCPL did not.
{¶41} For all of these reasons, appellant's tenth assignment of error is overruled.
3. Res Judicata
{¶42} In her second assignment of error, appellant argues that the trial court erred by granting CCPL's motion for summary judgment based on the doctrine of res judicata.
The doctrine of res judicata encompasses two related concepts (1) claim preclusion or estoppel by judgment — precluding parties from rearguing claims that were litigated in a prior suit — and issue preclusion or collateral estoppel — precluding parties from rearguing issues that were previously litigated. Under the doctrine of res judicata, "[a] valid, final judgment rendered upon 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." Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226, syllabus. In addition, a fact or issue that "'was actually and directly at issue in a previous action, and 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 privies'" regardless of whether the claims involved in the actions were the same or different. Powell v. Wal-Mart Stores Inc., 8th Dist. Cuyahoga No. 101662, 2015-Ohio-2035, ¶ 13, quoting Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395, 692 N.E.2d 140 (1998). "[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." Rogers v. Whitehall, 25 Ohio St.3d 67, 69, 494 N.E.2d 1387 (1986)Davie v. Nationwide Ins. Co. of Am., 8th Dist. Cuyahoga No. 105261, 2017-Ohio-7721, ¶ 46.
{¶43} Collateral estoppel "serves to prevent relitigation of any fact or point that was determined by a court of competent jurisdiction in a previous action between the same parties or their privies." O'Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803, ¶ 7, citing Fort Frye Teachers Assn. at 395. Collateral estoppel/issue preclusion applies even if the causes of action differ in the previous and subsequent actions. O'Nesti at id.
In order to raise collateral estoppel, the moving party must prove that the nonmoving party was a party, or in privity with a party, to the prior action; there was a final judgment on the merits in the prior action; the operative issue was necessary to the final judgment; and the operative issue in the prior action is identical to the issue in the subsequent action.Internatl. Union of Operating Engineers, Local 18 v. Laborers' Internatl. Union of N. Am., Local 310, 8th Dist. Cuyahoga No. 104774, 2017-Ohio-1055, ¶ 22, citing Lewis v. Cleveland, 8th Dist. Cuyahoga No. 95110, 2011-Ohio-347, ¶ 13.
{¶44} In the instant matter, the trial court concluded that the issues regarding the sale of Telling Mansion were fairly and fully litigated in Cuyahoga C.P. No. CV-13-806775, State ex rel. Mullally v. Cuyahoga Cty. Library Bd. There, the plaintiffs, State of Ohio ex rel. Diane Mullally and Save the South Euclid-Lyndhurst Mansion Library Committee, filed an action in mandamus against CCPL. Plaintiffs requested mandamus and injunctive relief. Specifically, plaintiffs requested the trial court to issue an order prohibiting CCPL from selling Telling Mansion. The trial court granted the defendant's motion to dismiss, concluding that plaintiffs failed to establish the first two elements in order to be entitled to a writ of mandamus. Specifically, the trial court concluded, in relevant part, that (1) plaintiffs were not entitled to mandamus relief because they do not have a right to prevent the sale of Telling Mansion, and (2) CCPL was statutorily authorized, pursuant to R.C. 3375.40, to sell Telling Mansion and did not have a clear legal duty to preserve Telling Mansion. Regarding plaintiffs' request for injunctive relief, the trial court, relying on State ex rel. Harley v. Onunwor, 8th Dist. Cuyahoga No. 80585, 2001 Ohio App. LEXIS 5575 (Dec. 5, 2001), concluded that plaintiffs failed to state a claim for injunctive relief and/or a declaratory injunction.
{¶45} Here, the trial court acknowledged that although appellant's exact involvement in CV-13-806775 was unclear, appellant's filings in the present case indicated that she was, in fact, involved with the South Euclid-Lyndhurst Mansion Library Committee. CCPL emphasizes that appellant did not dispute the trial court's finding that appellant was a member of the South Euclid-Lyndhurst Mansion Library Committee.
{¶46} Appellant argues that the trial court erred by applying the doctrine of res judicata because CV-13-806775 involved "a request for a temporary restraining order and an injunction to stop the sale of [Telling Mansion]" whereas the issue in the instant matter "is the method [CCPL] used to sell [Telling Mansion], not the sale itself." Appellant's brief at 10-11. In her brief in opposition to CCPL's motion for summary judgment, appellant argued that CV-13-806775 did not involve Ohio's Open Meetings Act or Public Records Act. Appellant's arguments are misplaced.
{¶47} As noted above, the doctrine of res judicata applies even if the claims in the prior action were different than the claims in the subsequent action. See Powell, 8th Dist. Cuyahoga No. 101662, 2015-Ohio-2035, at ¶ 13, citing Fort Frye Teachers Assn., 81 Ohio St.3d at 395, 692 N.E.2d 140. In the prior action, the plaintiffs sought to prohibit the sale of Telling Mansion. In the present action, appellant seeks to reverse the sale of Telling Mansion. In both cases, the plaintiffs' legal right to challenge — to either prevent or reverse — the sale of Telling Mansion was at issue. In the prior action, the issue was fully and fairly litigated, and the trial court concluded that plaintiffs did not have a clear legal right to prevent the sale of Telling Mansion. In the present action, the trial court concluded that appellant failed to demonstrate a clear legal right to the requested relief — reversing the sale of Telling Mansion.
{¶48} Based on the foregoing analysis, we find that the trial court properly concluded that appellant's claim for mandamus relief was barred by the doctrine of res judicata. Appellant's second assignment of error is overruled.
4. Exhibits
{¶49} Appellant's third and fourth assignments of error pertain to the evidence that she submitted in support of her memorandum in opposition to CCPL's summary judgment motion. In her third assignment of error, appellant argues that the trial court erred by failing to consider the exhibits she submitted in opposing CCPL's motion for summary judgment based on appellant's failure to satisfy the requirements of Civ.R. 56(E). In her fourth assignment of error, appellant argues that the trial court erred by disregarding these exhibits that controverted the testimony of Sari Feldman and Hallie Rich.
{¶50} The record reflects that in opposing CCPL's summary judgment motion, appellant submitted various documents including email correspondence, screen shots of internet pages, summaries of legal bills, flyers, newspaper articles, photographs, and proposed tax levies. These documents were not incorporated into a properly framed affidavit or authenticated.
{¶51} In its reply brief in support of its motion for summary judgment, CCPL argued that these documents should be stricken because they were unsworn and unauthenticated. Furthermore, CCPL filed a motion to strike these documents on May 2, 2017.
{¶52} In its judgment entry granting CCPL's motion for summary judgment, the trial court concluded, in relevant part,
in opposition to [CCPL's motion for summary judgment, appellant] submitted unauthenticated exhibits without a legally supportive affidavit. [Appellant's] affidavit(s) stating the exhibits are authentic and truthful do not satisfy the requirements of Civ.R. 56(E). As such, [CCPL's] motion to strike the exhibits, filed 5/2/2017, is sustained.
{¶53} Civ.R. 56(C) provides, in relevant 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 as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule." (Emphasis added.)
Civ.R. 56(E) provides, in relevant part: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits." (Emphasis added.)
This court has previously recognized that "[u]nder Civ.R. 56(E), the proper procedure for introducing evidentiary matters not specifically authorized by Civ.R. 56(C) is to incorporate them by reference in a properly framed affidavit. Biskupich v. Westbay Manor Nursing Home (1986), 33 Ohio App.3d 220, 515 N.E.2d 632. 'Documents submitted in opposition to a motion for summary judgment which are not sworn, certified, or authenticated by affidavit have no evidentiary value and may not be considered by the court in deciding whether a genuine issue of material fact remains for trial.' Green v. B.F. Goodrich Co. (1993), 85 Ohio App.3d 223, 228, 619 N.E.2d 497." Lotarski v. Szczepanski (Dec. 20, 1995), Cuyahoga App. No. 68088, 1995 Ohio App. LEXIS 5591. While a court, in its discretion, may consider other documents than those specified in Civ.R. 56(C) if there is no objection, there is no requirement that a court do so. Biskupich [at 222].Wolk v. Paino, 8th Dist. Cuyahoga No. 93095, 2010-Ohio-1755, ¶ 26-28.
{¶54} After reviewing the record in this case, we cannot say that the trial court abused its discretion in striking the documents that appellant submitted in support of her memorandum in opposition to CCPL's motion for summary judgment. These documents were not incorporated into a properly framed affidavit. Appellant attempted to correct this problem through a supplemental affidavit that she filed out of rule and without leave of court on April 22, 2017. Appellant's affidavit provided in its entirety, "I, Frances Mentch, affirm that all the exhibits I submitted and incorporated as part of [my] Memorandum in Response to [CCPL's] Motion for Summary Judgment are authentic and truthful." Although appellant's affidavit referenced the documents she "submitted and incorporated" in her memorandum, she failed to actually attach the documents that her affidavit purported to authenticate, as required by Civ.R. 56(E). See Wolk at ¶ 29.
{¶55} The record reflects that the documents that appellant submitted in support of her memorandum in opposition were not properly authenticated within the meaning of Civ.R. 56(E). Accordingly, we find no basis to conclude that the trial court abused its discretion in granting CCPL's motion to strike these documents. Appellant's third and fourth assignments of error are overruled.
{¶56} Finally, in her eleventh assignment of error, appellant argues that the trial court erred by granting CCPL's motion for summary judgment. Appellant does not present any new arguments or issues in support of this assigned error. She merely reiterates the arguments that have already been addressed in the analysis of appellant's first, third, and fourth assignments of error. Accordingly, appellant's eleventh assignment of error is overruled.
C. Injunctive Relief
{¶57} Appellant's seventh and eighth assignments of error pertain to appellant's purported requests for injunctive relief. In her seventh assignment of error, appellant argues that the trial court erred by considering every part of her complaint as claims for mandamus relief because she requested injunctive relief requiring CCPL to comply with Ohio's Open Meetings Act.
{¶58} Initially, we note that the record does not support appellant's assertion that the trial court construed her entire complaint as a mandamus action. In its judgment entry granting CCPL's motion for summary judgment, the trial court acknowledged that appellant sought both mandamus and injunctive relief in her complaint.
{¶59} R.C. 121.22(I) provides, in relevant part, that "[a]ny person may bring an action to enforce [R.C. 121.22]. 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."
{¶60} Appellant failed to come forward with evidence demonstrating that CCPL violated R.C. 121.22. As noted above, Feldman averred in her affidavit that
7. All official actions regarding the sale of the [Telling Mansion] branch, or the lease back of the [Telling Mansion] branch, were conducted in open meetings and in accordance with R.C. 121.22. All deliberations regarding the sale of the [Telling Mansion] branch, or the lease back of the [branch] made as part of the sale agreement, were either made in an open meeting or in executive session, pursuant to the "purchase or sale of property" exception in R.C. 121.22(G)(2).Appellant did not present any evidence to the contrary. Because appellant failed to establish a violation of R.C. 121.22, the trial court was not required to issue an injunction compelling CCPL to comply with R.C. 121.22. Accordingly, appellant's seventh assignment of error is overruled.
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15. All official actions regarding the proposals for new branch locations in the Cities of Bay Village and Middleburg Heights occurred in open public meetings. All deliberations by the CCPL Board were in accord with R.C. 121.22.
{¶61} In her eighth assignment of error, appellant argues that the trial court erred by considering every part of her complaint as claims for mandamus relief because she requested injunctive relief based on the sale of Telling Mansion outside of an open meeting.
{¶62} R.C. 121.22(H) provides,
A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body. A resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid unless the deliberations were for a purpose specifically authorized in division (G) or (J) of this section and conducted at an executive session held in compliance with this section. A resolution, rule, or formal action adopted in an open meeting is invalid if the public body that adopted the resolution, rule, or formal action violated division (F) of this section.Appellant failed to establish that CCPL violated R.C. 121.22 in selling Telling Mansion. Nor did she come forward with evidence contradicting Feldman's testimony that CCPL complied with the statute. Because she failed to establish a violation of R.C. 121.22, the trial court properly declined to issue an injunction. Accordingly, appellant's eighth assignment of error is overruled.
D. Statutory Damages
{¶63} Appellant's fifth and sixth assignments of error pertain to her requests for statutory damages.
1. CCPL Board Members' Email Addresses
{¶64} In her fifth assignment of error, appellant argues that the trial court erred by failing to award her statutory damages for CCPL's 321-day delay in responding to her public records request for the email addresses of the CCPL.
{¶65} Initially, we note that appellant's assertion that CCPL took 321 days to respond to her public records request is unsupported by the record. CCPL provided the document that appellant requested 321 days after appellant's request was filed. However, as explained below, CCPL's communications and external relations director, Hallie Rich, initially believed that the document appellant requested did not exist and she communicated this information to appellant.
{¶66} R.C. 149.43(C)(2) provides, in relevant part,
If a requester transmits a written request by hand delivery or certified mail to inspect or receive copies of any public record in a manner that fairly describes the public record or class of public records to the public office or person responsible for the requested public records, except as otherwise provided in this section, the requester shall be entitled to recover the amount of statutory damages set forth in this division if a court determines that the public office or the person responsible for public records failed to comply with an obligation in accordance with division (B) of this section.
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The court may reduce an award of statutory damages or not award statutory damages if the court determines both of the following:
(a) That, based on the ordinary application of statutory law and case law as it existed at the time of the conduct or threatened conduct of the public office or person responsible for the requested public records that allegedly constitutes a failure to comply with an obligation in accordance with division (B) of this section and that was the basis of the mandamus action, a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records did not constitute a failure to comply with an obligation in accordance with division (B) of this section;
(b) That a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or
threatened conduct of the public office or person responsible for the requested public records would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct.(Emphasis added.)
{¶67} In support of its motion for summary judgment, CCPL submitted an affidavit of Rich, in which she averred, in relevant part,
4. On April 7, 2016, I received a public records request from [appellant] for a copy of a document that contains the email addresses for the members of the CCPL Board of Directors.
5. It was my belief at that time that no document existed that listed the email addresses for CCPL Board members, and I responded to the request accordingly.
6. My representation to [appellant] regarding the non-existence of a document was made in good faith and based on the genuine belief that the document did not exist.
7. On Friday, February 17, 2017, it was discovered that, due to an internal miscommunication at CCPL, a document did exist that was responsive to [appellant's] request of April 7, 2016. On Tuesday, February 21, 2017, I forwarded the document to [counsel] who immediately emailed the document to [appellant].
{¶68} In denying appellant's request for statutory damages, the trial court, relying on R.C. 149.43(C)(2), concluded that CCPL
submitted the uncontroverted affidavit of Hallie Rich who explained her well-founded belief that the public record did not exist so as to require that the document be promptly prepared as stated in R.C. 149.43. [Appellant] provided no evidence to the contrary. As such, [appellant's] request for damages fails as well.
{¶69} In the appeal before this court, appellant argues that she provided the trial court with three documents that established that CCPL did, in fact, have a list of the email addresses of its board members but refused to provide this record to appellant. Appellant submitted these three documents in support of her memorandum in opposition to CCPL's motion to dismiss. However, as noted above, the trial court granted CCPL's motion to strike appellant's exhibits on January 10, 2017. Therefore, we find no merit to appellant's assertion that the trial court should have awarded statutory damages based on the information in these documents.
{¶70} After reviewing the record, we find that the trial court properly declined to award appellant statutory damages. The trial court, relying on Rich's affidavit testimony, concluded that Rich reasonably believed that her conduct did not constitute a violation of R.C. 149.43 because she reasonably believed that a responsive document did not exist, and when she discovered the existence of a responsive document, she promptly turned it over to counsel who provided it to appellant. Appellant failed to present any evidence contradicting Rich's testimony.
{¶71} Based on the foregoing analysis, appellant's fifth assignment of error is overruled.
2. Meeting Minutes
{¶72} In her sixth assignment of error, appellant argues that the trial court erred by failing to award her statutory damages pursuant to R.C. 149.351 based on CCPL's failure to provide her with 50 sets of committee meeting minutes. Appellant filed a public records request for minutes from the meetings CCPL held between January 2006 and December 2008. Appellant alleged that the "Facilities Master Plan" was developed and implemented during this time period. CCPL advised appellant that they were unable to locate the meeting minutes that appellant requested.
{¶73} Appellant appears to argue that CCPL violated R.C. 149.351(A) by failing to provide the meeting minutes to her. Appellant asserts that she was aggrieved by the loss of the meeting minutes because she was "denied the right, provided by the Ohio Sunshine Law, to be informed about CCPL's 'Facilities Master Plan.'" Appellant's reply brief at 6. She further alleges that without the information contained in the meeting minutes, she was precluded from inquiring about or challenging the decision to sell Telling Mansion. As such, appellant contends that she is entitled to injunctive relief and to recover a forfeiture pursuant to R.C. 149.351(A) based on CCPL's destruction of these public records.
{¶74} R.C. 149.351(A), governing the prohibition against destruction or damage of records, provides,
All records are the property of the public office concerned and shall not be removed, destroyed, mutilated, transferred, or otherwise damaged or disposed of, in whole or in part, except as provided by law or under the rules adopted by the records commissions provided for under sections 149.38 to 149.42 of the Revised Code or under the records programs established by the boards of trustees of state-supported institutions of higher
education under section 149.33 of the Revised Code. Those records shall be delivered by outgoing officials and employees to their successors and shall not be otherwise removed, destroyed, mutilated, or transferred unlawfully.R.C. 149.351(B) provides,
Any person who is aggrieved by the removal, destruction, mutilation, or transfer of, or by other damage to or disposition of a record in violation of division (A) of this section, or by threat of such removal, destruction, mutilation, transfer, or other damage to or disposition of such a record, may commence either or both of the following in the court of common pleas of the county in which division (A) of this section allegedly was violated or is threatened to be violated:
(1) A civil action for injunctive relief to compel compliance with division (A) of this section, and to obtain an award of the reasonable attorney's fees incurred by the person in the civil action;
(2) A civil action to recover a forfeiture in the amount of one thousand dollars for each violation, but not to exceed a cumulative total of ten thousand dollars, regardless of the number of violations, and to obtain an award of the reasonable attorney's fees incurred by the person in the civil action not to exceed the forfeiture amount recovered.
{¶75} In this case, we initially note that there is no evidence in the record that CCPL removed, destroyed, mutilated, transferred, or otherwise damaged or disposed of the meeting minutes that appellant requested. Nevertheless, the record reflects that appellant was not "aggrieved" for the purposes of her civil forfeiture claim pursuant to R.C. 149.351(B).
{¶76} Although "any person" can request public records under R.C. 149.43(B), the Ohio Supreme Court has rejected the notion that "any person" can recover forfeiture under R.C. 149.351. Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 20, 23. The court concluded that forfeiture is only available "to a person who has been 'aggrieved' by the public office's violation," and "to a person who had made a request with the goal of accessing the public records." (Emphasis added.) Id. at ¶ 23-24. The court went on to explain that, "[w]e cannot ignore the General Assembly's use of the term 'aggrieved,' and we conclude that the General Assembly did not intend to impose a forfeiture when it can be proved that the requester's legal rights were not infringed, because the requester's only intent was to prove the nonexistence of the records." Id. at ¶ 23. "Put another way, a person is aggrieved, and thus entitled to forfeiture if he [or she] 'made a request with the goal of accessing the public records.' [Rhodes] at ¶ 24. 'If the goal is to seek a forfeiture, then the requester is not aggrieved.' Id." State ex rel. Verhovec v. Marietta, 4th Dist. Washington No. 12CA32, 2013-Ohio-5415, ¶ 45.
{¶77} In the instant matter, appellant asserts that the records she requested "could have provided information about [CCPL's] decision to sell [Telling Mansion] — a decision citizens were not informed of until it was 'too late[.]'" Appellant's brief at 19. She further contends that the meeting minutes were the foundation based upon which CCPL spent approximately $160 million on the "Facilities Master Plan," and that she was aggrieved by not having access to the meeting minutes because was denied her right to be informed about the plan. Appellant's reply brief at 6.
{¶78} After reviewing the record, we find that the sole purpose of appellant's public records request was not to obtain the meeting minutes she requested. Rather, appellant requested the meeting minutes with the goal of challenging and/or reversing the sale of Telling Mansion or, in the alternative, to prove the nonexistence of the records. Accordingly, appellant was not "aggrieved" by CCPL's purported violation of R.C. 149.351, and thus, she was not entitled to injunctive relief or a civil forfeiture award. Based on the foregoing analysis, appellant's sixth assignment of error is overruled.
E. R.C. 2731.04
{¶79} Appellant's ninth assignment of error pertains to her claims for mandamus relief. Appellant argues that the trial court erred by requiring her to submit an affidavit with her complaint pursuant to R.C. 2731.04.
{¶80} R.C. 2731.04, governing applications for a writ of mandamus, provides that applications "must be by petition, in the name of the state on the relation of the person applying, and verified by affidavit." A petitioner's failure to comply with the requirements of the statute is an independent basis to dismiss a mandamus action. See Blue v. Ryan, 8th Dist. Cuyahoga Nos. 106166, 106180, 106181, and 106182, 2017-Ohio-8072, ¶ 7, citing Shoop v. State, 144 Ohio St.3d 374, 2015-Ohio-2068, 43 N.E.3d 432, ¶ 10
{¶81} In this case, the trial court recognized that appellant failed to comply with the affidavit requirement set forth in R.C. 2731.04. Although the trial court could have dismissed appellant's mandamus action based on this procedural deficiency alone, it did not do so, and considered the merits of the mandamus action.
{¶82} Based on the foregoing analysis, appellant's ninth assignment of error is overruled.
III. Conclusion
{¶83} After thoroughly reviewing the record, we affirm the trial court's judgment in its entirety. The trial court did not abuse its discretion in regulating discovery. The trial court properly granted CCPL's motion for summary judgment. The trial court properly declined to grant injunctive relief. Appellant was not entitled to statutory damages under R.C. 149.43 or 149.351.
{¶84} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANK D. CELEBREZZE, JR., JUDGE EILEEN A. GALLAGHER, A.J., and
TIM McCORMACK, J., CONCUR