State ex rel. Ames v. Portage Cty. Bd. of Commrs.

2020 Ohio 3932

• Court: Ohio Court of Appeals
• Decided: August 3, 2020
• Docket: 2019-P-0102
• Status: Published

Opinion

[Cite as State ex rel. Ames v. Portage Cty. Bd. of Commrs., 2020-Ohio-3932.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO ex rel. BRIAN M. AMES, : OPINION

Relator-Appellant, : CASE NO. 2019-P-0102 - vs - :

PORTAGE COUNTY BOARD OF : COMMISSIONERS,

Respondent-Appellee. :

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2018 CV 00283.

Judgment: Affirmed.

Brian M. Ames, pro se, 2632 Ranfield Road, Mogadore, Ohio 44260 (Relator-Appellant).

Victor V. Vigluicci, Portage County Prosecutor, and Timothy J. Piero, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266 (For Defendant- Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Brian M. Ames, appeals the judgment dismissing his claims

against appellee, the Portage County Board of Commissioners (the Board). Ames argues

that dismissal was improper, that the court erred in granting the Board leave to answer,

and that summary judgment should been have granted in Ames’ favor. We affirm. {¶1} Ames filed his complaint against the Board for mandamus, injunction, and

declaratory judgment in April of 2018. That same month, the Board moved to stay the

proceedings due to identical claims allegedly filed against it by Ames in other lawsuits.

{¶2} The first assigned judge recused herself, and the motion for stay had not

been ruled on when Ames moved for default judgment in January 2019. In response, the

Board moved for leave to file its answer instanter, which the newly assigned judge

granted. Thereafter, the court denied Ames’ motion for default.

{¶3} The parties filed competing motions for summary judgment, and before

ruling on these motions, the court issued its September 30, 2019 consent entry of

dismissal dismissing the case with prejudice.

{¶4} Ames raises four assigned errors:

{¶5} “[1.] The trial court erred in granting leave without affording relator fourteen

days to respond to the Board’s motion for leave. (T.d. 15).

{¶6} “[2.] The trial court erred in granting an extension of time without the finding

of excusable neglect required by Civ.R. 6(B)(2). (T.d. 15).

{¶7} “[3.] The trial court erred by failing to grant summary judgment to Mr. Ames.

(T.d. 40).

{¶8} “[4.] The trial court erred as a matter of law by granting a consent dismissal

with the parties having executed neither it nor any settlement agreement. (T.d. 40).”

{¶9} We address Ames’ fourth assignment of error first because it is dispositive.

It contends that dismissal of his claims was improper because the parties did not reach a

settlement.

2 {¶10} Ames concedes that the parties discussed settlement during an August 30,

2019 hearing but claims that the parties did not actually enter into a settlement agreement.

Instead, Ames alleges the parties only exchanged settlement proposals. Ames claims

the lack of a settlement agreement is established by the fact that the parties did not sign

the consent entry of dismissal.

{¶11} The dismissal of civil actions is governed by Civ.R. 41, which states in

pertinent part:

{¶12} “(A) Voluntary Dismissal: Effect Thereof.

{¶13} “(1) By Plaintiff; By Stipulation. * * * a plaintiff, without order of court, may

dismiss all claims asserted by that plaintiff against a defendant by doing either of the

following:

{¶14} “(a) filing a notice of dismissal at any time before the commencement of trial

unless a counterclaim which cannot remain pending for independent adjudication by the

court has been served by that defendant;

{¶15} “(b) filing a stipulation of dismissal signed by all parties who have appeared

in the action.

{¶16} “* * *

{¶17} “(2) By Order of Court. Except as provided in division (A)(1) of this rule, a

claim shall not be dismissed at the plaintiff's instance except upon order of the court and

upon such terms and conditions as the court deems proper. * * * Unless otherwise

specified in the order, a dismissal under division (A)(2) of this rule is without prejudice.”

{¶18} The September 30, 2019 consent entry of dismissal states:

3 {¶19} “Whereas the parties have reached a settlement in this matter, and whereas

Relator hereby moves this Court to dismiss this case with prejudice, with both parties

agreeing to the same, this Court does so dismiss this case. Court costs shall be borne

equally by both parties.”

{¶20} The judge signed the consent entry of dismissal, but the lines for the parties

to sign are blank.

{¶21} The dismissal here was by order of the court under Civ.R. 41(A)(2) and has

no signature requirement. That the parties did not sign the consent entry is therefore

inconsequential, and this aspect of Ames’ argument lacks merit.

{¶22} As for Ames’ claim that a settlement agreement was never reached and that

the parties only exchanged settlement proposals, the record is silent.

{¶23} The parties agree that this August 2019 hearing was not recorded and thus

no transcript of the proceedings exists. If no recording of the trial proceedings was made,

then App.R. 9(C) and 9(D) provide alternative means for producing a record. Ames did

neither.

{¶24} Because there is no record supporting Ames’ arguments on appeal, we

presume the regularity of the trial court’s decision and affirm. Warren v. Clay, 11th Dist.

Trumbull No. 2003-T-0134, 2004-Ohio-4386, ¶ 7 (affirmance required because appellant

cannot demonstrate error); Mix v. Mix, 11th Dist. Portage No. 2003-P-0124, 2005-Ohio-

4207, ¶ 25 (“party challenging the trial court's decision must prove the alleged error

through references to the record”); Groveport Madison Local Schools Bd. of Education v.

Franklin Cty. Bd. of Revision, 10th Dist. Franklin No. 17AP-693, 2018-Ohio-4620, 124

N.E.3d 341, ¶ 24. Thus, his fourth assigned error lacks merit.

4 {¶25} As for Ames’ remaining three assigned errors, regarding the court’s decision

to grant the Board leave and denying Ames’ summary judgment motion set forth in his

first, second, and third assignments, these alleged errors are waived on appeal because

the case was dismissed pursuant to the parties’ settlement agreement. Mentor v.

Lagoons Point Land. Co., 11th Dist. Lake No. 98-L-190, 1999 WL 1313674, *5 (Dec. 17,

1999) (when parties reach a settlement agreement, they waive their right to

claim error and are barred from relitigating the issues); Perko v. Perko, 11th Dist. Geauga

No. 2001-G-2403, 2003-Ohio-1877, ¶ 32; Bromley v. Hinton and Keith Development, 9th

Dist. Summit No. 20730, 2002-Ohio-1249; Miklovic v. Shira, 5th Dist. Knox No. 04-CA-

27, 2005-Ohio-3252, ¶ 31-33.

{¶26} Accordingly, Ames’ assigned errors lack merit, and the trial court’s decision

is affirmed.

TIMOTHY P. CANNON, P.J.,

MARY JANE TRAPP, J.,

concur.