State ex rel. Ames v. Portage Cty. Bd. of Revision , 2022 Ohio 3003 ( 2022 )

[Cite as State ex rel. Ames v. Portage Cty. Bd. of Revision, 2022-Ohio-3003.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO ex rel. CASE NO. 2022-P-0015
BRIAN M. AMES,
Relator-Appellant, Civil Appeal from the
Court of Common Pleas
-v-
PORTAGE COUNTY Trial Court No. 2021 CV 00411
BOARD OF REVISION,
Respondent-Appellee.
OPINION
Decided: August 29, 2022
Judgment: Affirmed
Brian M. Ames, pro se, 2632 Ranfield Road, Mogadore, OH 44260 (Relator-Appellant).
Victor V. Vigluicci, Portage County Prosecutor, and Christopher J. Meduri, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent-
Appellee).
THOMAS R. WRIGHT, P.J.
{¶1} Relator, Brian M. Ames, appeals the entry granting summary judgment to
respondent, Portage County Board of Revision (“the board”). We affirm.
{¶2} In 2021, Ames filed a “verified complaint in mandamus, declaratory
judgment, and injunction for enforcement of R.C. 121.22” in the trial court. In his
complaint, Ames alleged that the board held a meeting on January 11, 2021. Present at
the meeting was Sabrina Christian-Bennett, who Ames maintains was not yet a member
of the board. However, Bennett participated in the meeting by making motions, seconds,
and voting. Based upon these allegations, Ames maintained that the meeting was
conducted in violation of R.C. 121.22 (“the Open Meetings Act”). The board answered
the complaint, denying that Bennett was not permitted to participate in the meeting and
that her participation violated the Open Meetings Act and maintaining that Ames failed to
state a claim upon which relief could be granted.
{¶3} Thereafter, the parties filed competing motions for summary judgment. The
trial court granted summary in favor of the board.
{¶4} Ames assigns three errors, the first two of which are consolidated for
discussion:
{¶5} “[1.] The trial court erred by denying summary judgment to Relator Mr. Ames
and granting summary judgment to Respondent Board of Revision.
{¶6} “[2.] The trial court erred by failing to rule on the actual controversy before
the court.”
{¶7} “We review decisions awarding summary judgment de novo, i.e.,
independently and without deference to the trial court’s decision.” Hedrick v. Szep, 11th
Dist. Geauga No. 2020-G-0272, 2021-Ohio-1851, ¶ 13, citing Grafton v. Ohio Edison Co.,
77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Civ.R. 56(C) specifically provides that before summary
judgment may be granted, it must be determined that: (1) No
genuine issue as to any material fact remains to be litigated;
(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, and viewing such evidence
most strongly in favor of the party against whom the motion
for summary judgment is made, that conclusion is adverse to
that party.
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Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977); Allen v.
5125 Peno, LLC, 2017-Ohio-8941, 101 N.E.3d 484, ¶ 6 (11th Dist.), citing Holliman v.
Allstate Ins. Co., 86 Ohio St.3d 414, 415, 715 N.E.2d 532 (1999). “The initial burden is
on the moving party to set forth specific facts demonstrating that no issue of material fact
exists, and the moving party is entitled to judgment as a matter of law.” Allen at ¶ 6, citing
Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). “If the movant
meets this burden, the burden shifts to the nonmoving party to establish that a genuine
issue of material fact exists for trial.” Allen at ¶ 6, citing Dresher at 293.
{¶8} Here, the trial court granted summary judgment in favor of the board, thus
effectively denying Ames’ motion for summary judgment. Ames’ claims turn on the
applicability of the Open Meetings Act.
{¶9} R.C. 121.22(C) provides:
All meetings of any public body are declared to be public
meetings open to the public at all times. A member of a public
body shall be present in person at a meeting open to the
public to be considered present or to vote at the meeting and
for purposes of determining whether a quorum is present at
the meeting.
The minutes of a regular or special meeting of any public body
shall be promptly prepared, filed, and maintained and shall be
open to public inspection. The minutes need only reflect the
general subject matter of discussions in executive sessions
authorized under division (G) or (J) of this section.
{¶10} There is no dispute that the board is a public body; a meeting was held on
January 11, 2021, which was open to the public; board members were present in person;
and minutes were prepared. However, Ames maintains that Bennett had not been
selected by the commissioners to serve as a board member pursuant to R.C. 5715.02
prior to Bennett making and seconding motions and voting.
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{¶11} R.C. 5715.02 provides:
The county treasurer, county auditor, and a member of the
board of county commissioners selected by the board of
county commissioners shall constitute the county board of
revision, or they may provide for one or more hearing boards
when they deem the creation of such to be necessary to the
expeditious hearing of valuation complaints. Each such
official may appoint one qualified employee from the official’s
office to serve in the official’s place and stead on each such
board for the purpose of hearing complaints as to the value of
real property only, each such hearing board has the same
authority to hear and decide complaints and sign the journal
as the board of revision, and shall proceed in the manner
provided for the board of revision by sections 5715.08 to
5715.20 of the Revised Code. Any decision by a hearing
board shall be the decision of the board of revision.
A majority of a county board of revision or hearing board shall
constitute a quorum to hear and determine any complaint, and
any vacancy shall not impair the right of the remaining
members of such board, whether elected officials or
appointees, to exercise all the powers thereof so long as a
majority remains.
Each member of a county board of revision or hearing board
may administer oaths.
{¶12} We need not reach, nor was the trial court required to reach, whether
Bennett was selected by the commissioners as the board representative prior to the
meeting at issue, as we are aware of no authority supporting the proposition that a
violation of R.C. 5715.02 necessarily results in a violation of the Open Meetings Act. As
set forth above, there is no dispute that the board is a public body; a meeting was held
on January 11, 2021, which was open to the public; board members were present in
person; and minutes were prepared. Although Ames maintained that Bennett’s purported
non-member status “constructively” closed the meeting, we cannot discern the basis for
this conclusory allegation.
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{¶13} Accordingly, no material fact was in dispute, and the board was entitled to
judgment as a matter of law; conversely, Ames’ motion for summary judgment was
appropriately denied. Therefore, Ames’ first and second assigned errors lack merit.
{¶14} In his third assigned error, Ames argues:
{¶15} “[3.] The trial court committed reversible error by ruling in favor of the [board]
while it was represented by Mr. Meduri.”
{¶16} Ames maintains that a visiting trial court judge, who sat on this case by
assignment of the Ohio Supreme Court and issued the appealed judgment, is represented
by the same attorney that represents the board. Ames argues that although the judge
voluntarily recused himself after issuing judgment, disqualification should have occurred
prior to judgment.
{¶17} However,
Authority to pass upon the disqualification of a judge of the
Court of Common Pleas is vested in the Chief Justice under
Section 5(C) of Article IV of the Ohio Constitution, which reads
as follows:
“The chief justice of the supreme court or any judge of that
court designated by [her] shall pass upon the disqualification
of any judge of the courts of appeals or courts of common
pleas or division thereof. Rules may be adopted to provide
for the hearing of disqualification matters involving judges of
courts established by law.”
Since only the Chief Justice or [her] designee may hear
disqualification matters, the Court of Appeals [is] without
authority to pass upon disqualification or to void the judgment
of the trial court upon that basis. Although a judge would be
without power to hear and determine a cause after
disqualification, his judgment, however erroneous, before
disqualification is not void.
(Footnotes omitted.) Beer v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775 (1978).
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{¶18} As the issue of disqualification is not properly before this court, we do not
reach the merits of Ames’ third assigned error.
{¶19} Based on the foregoing, the judgment of the trial court is affirmed.
MARY JANE TRAPP, J.,
JOHN J. EKLUND, J.,
concur.
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