State ex rel. Ames v. Portage Cty. Solid Waste Mgt. Dist. Bd. of Commrs.

2022 Ohio 2740

• Court: Ohio Court of Appeals
• Decided: August 8, 2022
• Docket: 2022-P-0016
• Status: Published

Opinion

[Cite as State ex rel. Ames v. Portage Cty. Solid Waste Mgt. Dist. Bd. of Commrs., 2022-Ohio-2740.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO ex rel. CASE NO. 2022-P-0016 BRIAN M. AMES,

Relator-Appellant, Civil Appeal from the Court of Common Pleas -v-

PORTAGE COUNTY SOLID Trial Court No. 2021 CV 00537 WASTE MANAGEMENT DISTRICT BOARD OF COMMISSIONERS, et al.,

Respondents-Appellees.

OPINION

Decided: August 8, 2022 Judgment: Reversed and remanded

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 Respondents- Appellees).

MARY JANE TRAPP, J.

{¶1} Relator-appellant, Brian M. Ames (“Mr. Ames”), appeals from the judgment

entry of the Portage County Court of Common Pleas granting summary judgment to

respondents-appellees, Portage County Solid Waste Management District Board of

Commissioners (the “SWMD board”) and Portage County Board of Commissioners (“the

board”) (collectively, “respondents”), on his claims brought pursuant to R.C. 121.22, i.e.,

the Open Meetings Act (the “OMA”). {¶2} Mr. Ames asserts four assignments of error, contending that the trial court

erred (1) by granting judgment in favor of respondents because their counsel, i.e., the

county prosecutor, represented the visiting judge in an original action Mr. Ames filed in

this court; (2) by granting summary judgment to respondents without giving him 28 days

to respond to their motion; (3) by finding that “the record establishes the Respondent had

a rule for notice of meetings in compliance with division (F) of R.C. 121.22”; and (4) by

failing to grant his motion for partial summary judgment.

{¶3} After a careful review of the record and pertinent law, we find as follows:

{¶4} (1) This court lacks jurisdiction to reverse the trial court’s judgment based

on Mr. Ames’ claim of judicial bias. Since only the Chief Justice or her designee may

hear disqualification matters, a court of appeals is without authority to pass upon

disqualification or to void the judgment of the trial court on the basis of judicial bias.

{¶5} (2) The trial court erred by granting respondents’ motion for summary

judgment prior to the expiration of the 28-day response deadline in Civ.R. 6(C)(1).

{¶6} (3) Mr. Ames’ third assignment of error is moot in light of our disposition of

his second assignment of error.

{¶7} (4) Since reversible error in this case occurred when the trial court

prematurely granted respondents’ motion for summary judgment, we necessarily reverse

the trial court’s implicit denial of Mr. Ames’ motion for partial summary judgment.

{¶8} Thus, we reverse the judgment of the Portage County Court of Common

Pleas and remand for further proceedings. On remand, the trial court shall permit Mr.

Ames to file a response to respondents’ motion for summary judgment and shall consider

the merits of Mr. Ames’ motion for partial summary judgment.

Case No. 2022-P-0016 Substantive and Procedural History

{¶9} The board established the Portage County Solid Waste Management

District (“the SWMD”) by resolution on December 20, 1988. Pursuant to R.C. 3734.52(A),

the board serves as the SWMD’s board of directors. The board refers to itself as the

SWMD board when conducting SWMD business.

{¶10} Mr. Ames is a resident of Randolph Township in Portage County. In August

2021, Mr. Ames, pro se, filed a 46-count “verified complaint in declaratory judgment,

injunction, and mandamus for enforcement of R.C. 121.22” against the board and the

SWMD board in the Portage County Court of Common Pleas.

{¶11} In count 1, Mr. Ames alleged that the board violated the OMA by failing to

establish, by rule, a reasonable method “that actually reaches the public” whereby any

person may determine the time, place, and purpose of all special meetings. In 30 counts,1

Mr. Ames alleged that the SWMD board violated the OMA by taking formal action by

consent agenda at meetings held in September through December 2019. In 14 counts,2

Mr. Ames alleged that the SWMD board violated the OMA, R.C. 149.43 (i.e., the Public

Records Act), and R.C. 305.10 by preparing minutes for several of those meetings that

did not reflect the place where the meetings were held. In count 20, Mr. Ames alleged

that the SWMD board violated the OMA at one of those meetings by delegating its

decision-making authority to the SWMD director to rent trucks as needed.

{¶12} Mr. Ames requested a finding that respondents committed 46 violations of

the OMA; an injunction “enjoining” respondents to comply with all provisions of the OMA;

1. Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 21, 23, 25, 27, 29, and 31 through 46. 2. Counts 3, 5, 7, 9, 11, 13, 15, 17, 19, 22, 24, 26, 28, and 30. 3

Case No. 2022-P-0016 a civil forfeiture of $500 for each violation; court costs and reasonable attorney fees; a

declaration that all formal actions taken by consent agenda were invalid; and an order

requiring the board to establish a rule pursuant to R.C. 121.22(F).

{¶13} The trial court judge filed a recusal entry and requested the appointment of

a visiting judge.

{¶14} In October 2021, respondents filed an answer denying that it had violated

the OMA. Mr. Ames filed a motion for partial summary judgment on counts 2 through 19

and 21 through 46 of his complaint.3 In December, a visiting judge was assigned, and a

status conference was scheduled for March 11, 2022.

{¶15} In January 2022, Mr. Ames filed a petition for a writ of procedendo in this

court (case no. 2022-P-0007), alleging that the visiting judge had failed to timely rule on

pending motions in a separate civil case against the board. The county prosecutor

represented the visiting judge in the original action proceedings.

{¶16} On February 28, respondents filed a motion for summary judgment on all

counts of Mr. Ames’ complaint. On March 11, a status conference was held. On the

same date, the trial court filed a journal entry and order granting respondents’ motion for

summary judgment. Mr. Ames filed a notice of appeal.

{¶17} On March 31, this court granted Mr. Ames’ petition for a writ of procedendo.

See State ex rel. Ames v. Pokorny, 11th Dist. Portage No. 2022-P-0007, 2022-Ohio-1102.

{¶18} In May, while this appeal was pending, Mr. Ames filed an affidavit in the

Supreme Court of Ohio seeking to disqualify the visiting judge from 13 pending civil cases,

3. Mr. Ames did not move for summary judgment on counts 1 and 20 of his complaint. 4

Case No. 2022-P-0016 including the underlying case. The visiting judge filed a recusal entry, and the Chief

Justice denied Mr. Ames’ affidavit as moot. See case no. 22-AP-048.

{¶19} Mr. Ames presents the following four assignments of error on appeal:

{¶20} “[1.] The trial court erred by granting judgment in favor of a client

represented by his own attorney.

{¶21} “[2.] The trial court erred by granting the Board summary judgment before

the expiration of the 28 days to respond to the Board’s motion provided by Civ.R.6(C)(1).

{¶22} “[3.] The trial court erred by finding that ‘the record establishes the

Respondent had a rule for notice of meetings in compliance with division (F) of R.C.

121.22.’

{¶23} “[4.] The trial court erred by not granting Mr. Ames summary judgment on

Counts 2 through 19 and 21 through 46 of his Complaint.”

{¶24} In their appellate brief, respondents state that they do not oppose a remand

of this matter in its entirety.

Standard of Review

{¶25} We review a decision granting or denying a motion for summary judgment

de novo. Magby v. Sloan, 11th Dist. Ashtabula No. 2020-A-0045, 2021-Ohio-3171, ¶ 18.

Disqualification

{¶26} In his first assignment of error, Mr. Ames contends that the trial court erred

in granting judgment in favor of respondents because their counsel, the county

prosecutor, represented the visiting judge in State ex rel. Ames v. Pokorny, supra. Mr.

Ames argues that the visiting judge should have been disqualified pursuant to R.C.

2701.03(A), which provides:

Case No. 2022-P-0016 {¶27} “If a judge of the court of common pleas allegedly is interested in a

proceeding pending before the court, allegedly is related to or has a bias or prejudice for

or against a party to a proceeding pending before the court or a party’s counsel, or

allegedly otherwise is disqualified to preside in a proceeding pending before the court,

any party to the proceeding or the party’s counsel may file an affidavit of disqualification

with the clerk of the supreme court in accordance with division (B) of this section.”

{¶28} The authority to pass upon the disqualification of a judge of a court of

common pleas is vested in the Chief Justice or her designee pursuant to Article IV,

Section 5(C) of the Ohio Constitution. Beer v. Griffith, 54 Ohio St.2d 440, 377 N.E.2d 775

(1978). In Beer, the Supreme Court of Ohio held that a court of appeals is “without

authority to pass upon disqualification or to void the judgment of the trial court” on the

basis of judicial bias. Id. at 441-442. “Although a judge would be without power to hear

and determine a cause after disqualification, his judgment, however erroneous, before

disqualification is not void.” (Emphasis added.) Id. at 442. Accord Kondrat v. Ralph

Ingersoll Publishing Co., 56 Ohio App.3d 173, 174, 565 N.E.2d 882 (11th Dist.1989);

Holloway v. Holloway Sportswear, Inc., 3d Dist. Shelby Nos. 17-98-20, 17-2000-18, 2001

WL 633792, *4 (June 7, 2001); State v. Greer, 9th Dist. Summit No. 15217, 1992 WL

316350, *9 (Oct. 28, 1992).

{¶29} Mr. Ames did not file an affidavit of disqualification in the Supreme Court of

Ohio until after the trial court granted respondents’ motion for summary judgment.

Accordingly, this court lacks jurisdiction to reverse the trial court’s judgment based on Mr.

Ames’ claim of judicial bias.

{¶30} Mr. Ames’ first assignment of error is without merit.

Case No. 2022-P-0016 Due Process

{¶31} In his second assignment of error, Mr. Ames contends that the trial court

violated his due process rights by granting respondents’ motion for summary judgment

prior to the expiration of the 28-day response deadline in Civ.R. 6(C)(1).

{¶32} One of the overriding goals of Civ.R. 56 is fundamental fairness to all

litigants, given the high stakes involved when summary judgment is sought. Hooten v.

Safe Auto Ins. Co., 100 Ohio St.3d 8, 2003-Ohio-4829, 795 N.E.2d 648, ¶ 34. Thus, in

all cases, a trial court is under an obligation to allow time for a full and fair response before

ruling on a motion for summary judgment. Id. at ¶ 40. A trial court’s failure to do so

implicates procedural due process rights of the nonmoving party and constitutes

reversible error. Bank of New York v. Goldberg, 11th Dist. Geauga No. 2019-G-0204,

2019-Ohio-3998, ¶ 8.

{¶33} Here, the trial court granted respondents’ motion for summary judgment 11

days after it was filed and before Mr. Ames had filed a response, in contravention of Civ.R.

6(C)(1), which provides that “[r]esponses to motions for summary judgment may be

served within twenty-eight days after service of the motion.” Although Mr. Ames had an

opportunity to be heard by filing a motion for partial summary judgment, he obviously

could not have addressed the arguments in respondents’ subsequent motion.

Accordingly, the trial court erred by prematurely granting respondents’ motion for

summary judgment.

{¶34} Mr. Ames’ second assignment of error has merit. We reverse the trial

court’s grant of summary judgment to respondents. On remand, the trial court shall permit

Mr. Ames to file a response to respondents’ motion.

Case No. 2022-P-0016 Trial Court Finding

{¶35} In his third assignment of error, Mr. Ames contends that the trial court erred

by finding that “the record establishes the Respondent had a rule for notice of meetings

in compliance with division (F) of R.C. 121.22.” The trial court made this finding in

granting summary judgment to respondents on count 1 of Mr. Ames’ complaint. Based

on our disposition of his second assignment of error, Mr. Ames’ third assignment of error

is moot. See App.R. 12(A)(1)(c).

Partial Summary Judgment

{¶36} In his fourth assignment of error, Mr. Ames contends that the trial court

erred by failing to grant his motion for partial summary judgment on counts 2 through 19

and 21 through 46 of his complaint.

{¶37} The trial court’s judgment entry states that it considered Mr. Ames’ motion;

however, it did not expressly dispose of it, much less set forth its reasoning. In any event,

when a trial court does not rule on a motion, it is deemed to be denied. Vogias v. Ohio

Farmers Ins. Co., 177 Ohio App.3d 391, 2008-Ohio-3605, 894 N.E.2d 1265, ¶ 45 (11th

Dist.).

{¶38} However, it is not necessary for us to review the merits of Mr. Ames’ motion

at this time. “‘Upon remand from an appellate court, the lower court is required to proceed

from the point at which the error occurred.’” State ex rel. Douglas v. Burlew, 106 Ohio

St.3d 180, 2005-Ohio-4382, 833 N.E.2d 293, ¶ 11, quoting State ex rel. Stevenson v.

Murray, 69 Ohio St.2d 112, 113, 431 N.E.2d 324 (1982). Here, reversible error occurred

when the trial court prematurely granted respondents’ motion for summary judgment.

Case No. 2022-P-0016 Thus, we necessarily reverse the trial court’s implicit denial of Mr. Ames’ motion for partial

{¶39} Mr. Ames’ fourth assignment of error has merit in part. On remand, the trial

court shall consider the merits of Mr. Ames’ motion for partial summary judgment.

{¶40} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas is reversed, and this matter is remanded for further proceedings

consistent with this opinion.

CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.

Case No. 2022-P-0016