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

[Cite as State ex rel. Ames v. Portage Cty. Bd. of Commrs., 2019-Ohio-3237.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

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

Relator-Appellant, :
CASE NO. 2018-P-0036
- vs - :

PORTAGE COUNTY BOARD OF :
COMMISSIONERS,
:
Respondent-Appellee.
:

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2016 CV
00067.

Judgment: Affirmed in part, reversed in part, and remanded.

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

Victor V. Vigluicci, Portage County Prosecutor, and Timothy J. Piero, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent-
Appellee).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Brian M. Ames, appeals from the judgment of the Portage

County Court of Common Pleas granting summary judgment in favor of appellee, the

Portage County Board of Commissioners. At issue is (1) whether the trial court properly

found appellant’s causes of action frivolous; (2) whether the court properly granted

summary judgment on five of the 15 counts alleged in his complaint; and (3) whether
the court properly struck appellant’s amended complaint. We affirm in part, reverse in

part, and remand the matter for further proceedings.

{¶2} On January 28, 2016, appellant filed his initial complaint, which alleged 15

violations of Ohio’s Open Meetings Act, pursuant to R.C. 121.22. After appellee filed its

answer, appellant, on March 15, 2016, filed an amended complaint which alleged 40

violations. On the same date, appellant also filed a motion to disqualify the trial judge,

asserting she had personal knowledge of facts in dispute. Appellee subsequently filed a

motion to strike the amended complaint.

{¶3} On March 23, 2016, the trial judge recused herself and requested the

Supreme Court assign a judge to the matter. In the same order, the judge set a

deadline for responding to interrogatories as well as a date for appellee to respond to

appellant’s amended complaint. Prior to recusal, the judge did not specifically rule on

the motion to strike. On April 14, 2016, a different judge was assigned to the case and

a status conference was held on June 1, 2016. At the conference, the judge set aside

the deadlines set forth in the recusal order and stated he would read all pending

motions, including the motion to strike, and issue orders accordingly. The judge

subsequently granted appellee’s motion to strike the amended complaint and ordered

the case to proceed on the original complaint.

{¶4} Both parties filed motions for summary judgment on the original complaint.

And, on May 10, 2018, the trial court granted appellee’s motion on all counts and, in

turn, denied appellant’s motion. The trial court additionally found appellee committed

frivolous conduct in filing the complaint, pursuant to R.C. 121.22(I)(2)(b) and R.C.

2323.51(A). After a hearing on damages, the trial court determined appellee suffered

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no damages by appellant’s conduct. Appellant now appeals and assigns three errors

for our review. The first assignment of error provides:

{¶5} “The trial court erred in finding frivolous conduct without following the

process of law set forth in R.C. 2323.51(B) violating relator-appellant’s procedural and

substantive rights of the Due Process Clauses of the Fourteenth Amendment and

Article I, Section 16 of the Ohio Constitution.”

{¶6} In his complaint, appellant sought statutory damages for violations of

Ohio’s Open Meetings Act, R.C. Chapter 121, as well as injunctive relief ordering

appellee to amend its procedural rules in a manner that is consistent with the law. The

trial court found appellant’s complaint raised no genuine issues of material fact and that

appellee was entitled to judgment as a matter of law. The court further determined, in

light of the allegations, as well as appellant’s selective statement of relevant law, the

filing of the complaint constituted frivolous conduct.

{¶7} R.C. 121.22(I)(2)(b) provides:

{¶8} If the court of common pleas does not issue an injunction pursuant
to division (I)(1) of this section and the court determines at that time
that the bringing of the action was frivolous conduct, as defined
in division (A) of section 2323.51 of the Revised Code, the court
shall award to the public body all court costs and reasonable
attorney’s fees, as determined by the court.

{¶9} Here, the court did not issue injunctive relief and the court found

appellant’s conduct frivolous, as defined in R.C. 2323.51(A)(2)(a)(iii) and (iv), which

provide:

{¶10} “Frivolous conduct” means * * *:

{¶11} (a) Conduct of [a] * * * party to a civil action * * * that satisfies any
of the following:

{¶12} * * *

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 {¶13} (iii) The conduct consists of allegations or other factual contentions
that have no evidentiary support or, if specifically so identified, are
not likely to have evidentiary support after a reasonable opportunity
for further investigation or discovery.

{¶14} (iv) The conduct consists of denials or factual contentions that are
not warranted by the evidence or, if specifically so identified, are
not reasonably based on a lack of information or belief.

{¶15} Appellant contends the trial court violated his right to due process by

concluding his conduct was frivolous because, pursuant to R.C. 2323.51(B), either the

court on its own or appellee, through a motion for sanctions, was required to allege and

the matter would proceed to a hearing not more than 30 days after the entry of

judgment on liability. Because the court found his conduct frivolous without a hearing,

he claims the trial court violated the procedures set forth under R.C. 2323.51(B).

{¶16} We initially point out that the concurring/dissenting opinion, designates the

trial court’s frivolous-conduct finding (1) as moot and (2) as dicta. With respect to the

mootness issue, the dissent points out that appellee did not seek fees and no fees were

awarded. Because appellant suffered no damages from the finding, the dissent

maintains there is no need to engage in a due process analysis. Although appellant

suffered no direct deprivation of property, he could nevertheless suffer collateral

consequences from the frivolous-conduct finding. A determination that a litigant has

engaged in frivolous conduct may be used in a future proceeding where the litigant is an

alleged vexatious litigator, pursuant to R.C. 2323.52. The Supreme Court has

observed:

{¶17} “The purpose of the vexatious litigator statute is clear. It seeks to
prevent abuse of the system by those persons who persistently and
habitually file lawsuits without reasonable grounds and/or otherwise
engage in frivolous conduct in the trial courts of this state. Such
conduct clogs the court dockets, results in increased costs, and
oftentimes is a waste of judicial resources—resources that are

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 supported by the taxpayers of this state. The unreasonable burden
placed upon courts by such baseless litigation prevents the speedy
consideration of proper litigation.” (Emphasis added.) Mayor v.
Bristow, 91 Ohio St.3d 3, 13 (2000) quoting Cent. Ohio Transit
Auth. v. Timson, 132 Ohio App.3d 41, 50 (10th Dist.1998).

{¶18} The relevance of a frivolous-conduct finding to a potential vexatious

litigator allegation provides a sound basis for addressing the due-process problem

inhering R.C. 121.22(I)(2)(b).

{¶19} In support of the position that the finding in this case is dicta, the dissent

cites Davis v. Eachus, 4th Dist. Pike No. 04CA725, 2004-Ohio-5720. In Davis, the trial

court judge made a passing reference to a plaintiff’s civil causes of action as potentially

frivolous. Davis, however, involved neither R.C. 121.22(I)(2)(b) nor R.C. 2323.51 and

the trial court’s use of the term “frivolous” appears to be a colloquial, rather than a

technical, reference. In this case, the trial court’s conclusion that appellant’s conduct

was frivolous was a legal conclusion, premised upon the statutory definition of frivolous

conduct and represented a formal finding pursuant to R.C. 121.22(I)(2)(b) and R.C.

2323.51. Given the formal nature of the conclusion, we disagree with the manner in

which the dissent frames the trial court’s determination. With the foregoing in mind,

R.C. 2323.51(B)(1) provides:

{¶20} Subject to divisions (B)(2) and (3), (C), and (D) of this section and
except as otherwise provided in division (E)(2)(b) of section
101.15 or division (I)(2)(b) of section 121.22 of the Revised Code,
at any time not more than thirty days after the entry of final
judgment in a civil action or appeal, any party adversely affected by
frivolous conduct may file a motion for an award of court costs,
reasonable attorney’s fees, and other reasonable expenses
incurred in connection with the civil action or appeal. The court may
assess and make an award to any party to the civil action or appeal
who was adversely affected by frivolous conduct, as provided in
division (B)(4) of this section. (Emphasis added).

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 {¶21} R.C. 121.22(I)(2)(b) states that, to the extent the record supports a finding

under R.C. 2323.51(A), a claim under Ohio’s Open Meetings Act may be found frivolous

by the court. Further, as appellee points out, there is no provision requiring a hearing

on this issue and R.C. 2323.51(B)’s statutory due process provisions do not apply

because the court must make a frivolous conduct determination “at that time” it denies

injunctive relief. Appellee’s points are consistent with the language of the statutes at

issue; these points fail to appreciate, however, the overarching import of a litigant’s

constitutional right to due process.

{¶22} The Fourteenth Amendment of the United States Constitution provides:

“nor shall any state deprive any person of life, liberty, or property without due process of

law.” “‘Fundamental due process requires ‘notice’ sufficient to apprise the defendant of

the action’s pendency so that objections by the defendant may be presented.’” Crist v.

Battle Run Fire Dist., 115 Ohio App.3d 191, 197 (3d Dist.1996) quoting Sampson v.

Hooper Holmes, Inc., 91 Ohio App.3d 538, 540 (9th Dist.1993). Further, “[a]

fundamental requirement of due process is ‘the opportunity to be heard.’ Grannis v.

Ordean, 234 U.S. 385, 394. It is an opportunity which must be granted at a meaningful

time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965). In

order to preserve a plaintiff’s constitutional right to due process, we conclude, despite

the lack of any mandate in the statute, R.C. 121.22(I)(2)(b) requires the trial court to

notify a party of its intention to find his or her conduct frivolous, set a date for a hearing,

and conduct that hearing so the party can defend against the potential consequence of

being deprived of his or her property in the form of a fee award.

{¶23} We acknowledge that R.C. 2323.51(B)(1) states that its provisions apply

“except as otherwise provided” in R.C. 121.22(I)(2)(b). And R.C. 121.22(I)(2)(b) states

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that if the court does not issue an injunction and the court determines “at that time” the

plaintiff’s conduct in bringing the action was frivolous, it shall award costs and

reasonable fees. The statute plainly states that a court must make a frivolousness

finding and award costs and reasonable fees simultaneously with its decision to deny an

injunction. As such, the plain language of the statute would ostensibly require the trial

court to proceed to make a finding of frivolousness and a cost/reasonable-fee

determination without a hearing. Because plain language would negate a plaintiff’s

constitutional right to due process, however, such a result is unworkable and absurd.

{¶24} “The primary rule in statutory construction is to give effect to the

legislature’s intention” by looking to the language of the statute. Cline v. Bur. of Motor

Vehicles, 61 Ohio St.3d 93, 97 (1991); Stewart v. Trumbull Cty. Bd. of Elections, 34

Ohio St.2d 129, 130 (1973). When there is no ambiguity, a court must follow the

language employed by the legislature “making neither additions nor deletions from

words chosen by the General Assembly.” Hulsmeyer v. Hospice of Southwest Ohio,

Inc., 142 Ohio St.3d 236, 2014-Ohio-5511, ¶23. “We ‘do not have the authority’ to dig

deeper than the plain meaning of an unambiguous statute ‘under the guise of either

statutory interpretation or liberal construction.’” Jacobson v. Kaforey, 149 Ohio St.3d

398, 2016-Ohio-8434, ¶8, quoting Morgan v. Adult Parole Auth., 68 Ohio St.3d 344, 347

(1994).

{¶25} With this in mind, “[i]t is the duty of the courts, if the language of a statute

fairly permits or unless restrained by the clear language thereof, so to construe the

statute as to avoid [an unreasonable or absurd] result.” State ex rel. Cooper v. Savord,

153 Ohio St. 367, (1950), paragraph one of the syllabus. The absurd-result exception

to the plain-meaning rule provides “that ‘interpretations of a statute which would

7
produce absurd results are to be avoided if alternative interpretations consistent with the

legislative purpose are available.’” Lawson v. FMR, L.L.C., 571 U.S. 429, 471

(2014) (Sotomayor, J., dissenting), quoting Griffin v. Oceanic Contrs., Inc., 458 U.S.

564, 575 (1982). With respect to this exception, the United States Supreme Court has

observed:

{¶26} There is, of course, no more persuasive evidence of the purpose of
a statute than the words by which the legislature undertook to give
expression to its wishes. * * * When that meaning has led to absurd
or futile results, however, this Court has looked beyond the words
to the purpose of the act. Frequently, however, even when the plain
meaning did not produce absurd results but merely an
unreasonable one ‘‘plainly at variance with the policy of the
legislation as a whole’’ [Ozawa v. United States, 260 U.S. 178, 194,
(1922)] this Court has followed that purpose, rather than the literal
words. When aid to construction of the meaning of words, as used
in the statute, is available, there certainly can be no ‘‘rule of law’’
which forbids its use, [Boston Sand & Gravel Co. v. United States,
278 U.S. 41, 48, (1928)] however clear the words may appear on
‘‘superficial [inspection].’’ [Helvering v. New York Trust Co., 292
U.S. 455, (1934).] The interpretation of the meaning of statutes, as
applied to justiciable controversies, is exclusively a judicial function.
This duty requires one body of public servants, the judges, to
construe the meaning of what another body, the legislators, has
said. Obviously there is danger that the courts’ conclusion as to
legislative purpose will be unconsciously influenced by the judges’
own views or by factors not considered by the enacting body. A
lively appreciation of the danger is the best assurance of escape
from its threat but hardly justifies an acceptance of a literal
interpretation dogma which withholds from the courts available
information for reaching a correct conclusion. (Some citations
omitted.) United States v. Am. Trucking Assns., 310 U.S. 534, 543–
544 (1940).

{¶27} “The absurd-result exception to the plain-meaning rule of construction

‘entails the imputation of legislative intent based on the judge’s perception’ and ‘vastly

expands the [c]ourt’s authority.’” State ex rel. Clay v. Cuyahoga Co. Medical

Examiner’s Office, 152 Ohio St.3d 163, 2017-Ohio-8714, ¶26, quoting Manning, The

Absurdity Doctrine, 116 Harv.L.Rev. 2387, 2476 (2003). Accordingly, courts should

8
exercise restraint in applying the absurd-results doctrine, utilizing it in only those cases

where the plain language of a statute results in an obviously unintended outcome. Clay,

supra.

{¶28} Here, our research has failed to reveal any authority discussing the

legislature’s intention in enacting R.C. 121.22(I)(2)(b). Nevertheless, we can

reasonably infer that the purpose of R.C. 121.22(I)(2)(b) is to discourage frivolous

filings, recognizing that such conduct will result in the mandatory award of costs and

reasonable fees. Given this purpose, it does not follow that the General Assembly

intended to deprive a plaintiff of his or her right to due process vis-à-vis a determination

of the frivolous conduct issue. Accordingly, even though the letter of the statute states

the determination must occur “at that time” the court denies injunctive relief, giving the

statute its plain meaning would either: (1) defeat due process or (2) require the court to

hold a hearing on the issues relating to frivolousness prior to announcing the

determination on injunctive relief in order to preserve due process. The former is plainly

contrary to fundamental constitutional jurisprudence, and the latter would produce odd,

cumbersome, and absurd results.

{¶29} With respect to the first outcome, due process inheres all proceedings

where the deprivation of life, liberty, or property is at stake. See Fourteenth

Amendment, United States Constitution. Plainly, a party facing a deprivation of property

through a mandatory order requiring him or her to pay costs and reasonable attorney

fees is entitled to due process under such circumstances. Regarding the second

outcome, if court announces its intention to hold a hearing on the issue of frivolous

conduct, it necessarily follows it has already determined injunctive relief would be

denied; to comply with the statute as written, however, the court is prohibited from

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formally announcing its decision as it relates to injunctive relief until it has made a

determination on the frivolous conduct issue. Such a procedure elevates form over

substances because it requires a court to hold a hearing on the frivolous conduct issue

without a dispositional order on the principle issue of whether the public body is liable.

{¶30} We accordingly conclude it would be unreasonable and nonsensical to

give the “at that time” clause set forth in R.C. 121.22(I)(2)(b) its plain meaning. The

intention of the legislature in enacting this provision is to deter frivolous conduct and that

intention is not advanced by requiring a court to make a frivolous conduct finding at the

time it denies injunctive relief. Although contrary to the letter of the statute, we hold a

trial court may deny injunctive relief and, upon such an order, alert the plaintiff of its

intention to hold a hearing on the frivolous conduct issue to preserve his or her right to

due process as well as the orderly and coherent administration of justice.

{¶31} For the foregoing reasons, we reverse the trial court’s finding of

frivolousness on due process grounds. With respect to damages, the trial court did not

award appellee fees or costs; that issue was not appealed and thus is barred by res

judicata. On remand, therefore, the trial court may elect to do nothing, and leave the

finding of frivolousness vacated, or conduct a hearing on the issue of frivolousness. If it

elects to proceed with the latter, it must provide notice to the parties, schedule a

hearing, and conduct the same. We therefore conclude the matter must be reversed

and remanded for the trial court to proceed as it deems appropriate.

{¶32} Appellant’s first assignment of error has merit.

{¶33} Appellant’s second assignment of error provides:

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 {¶34} “The trial court erred in denying Ames’ motion for summary judgment and

in holding that suspended meetings that were held were regularly scheduled meetings

rather than special meetings (Counts I, II, III, V, and XI).”

{¶35} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” 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 that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence * * * construed most strongly in the

party’s favor.” A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105 (1996). “A de novo review requires the appellate court to conduct

an independent review of the evidence before the trial court without deference to the

trial court’s decision.” (Citation omitted.) Peer v. Sayers, 11th Dist. Trumbull No. 2011-T-

0014, 2011-Ohio-5439, ¶27.

{¶36} To prevail on a motion for summary judgment, the moving party has the

initial burden to affirmatively demonstrate that no genuine issue of material fact exists to

be resolved in the case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If this initial

burden is met, the nonmoving party then bears the reciprocal burden to set forth specific

facts demonstrating the existence of a genuine issue of fact to be litigated. Id. at 293,

citing Civ.R. 56(E). If the moving party’s burden is not met in the first instance, the

burden never shifts to the nonmoving party, and the motion for summary judgment must

be denied. Id.

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 {¶37} Appellant contends five alleged special meetings, all occurring in 2014,

were held without the requisite 24-hour notice mandated by Resolution 14-0025. And

appellant maintains the trial court erred by relying on “the unprovable statement that ‘no

news media made any request of any of the Board’s meetings let alone its special

meetings.’”

{¶38} R.C. 121.22(F) provides:

{¶39} Every public body, by rule, shall establish a reasonable method
whereby any person may determine the time and place of all
regularly scheduled meetings and the time, place, and purpose of
all special meetings. A public body shall not hold a special meeting
unless it gives at least twenty-four hours’ advance notice to the
news media that have requested notification, except in the event of
an emergency requiring immediate official action. In the event of an
emergency, the member or members calling the meeting shall
notify the news media that have requested notification immediately
of the time, place, and purpose of the meeting.

{¶40} Resolution 14-0025 provides: “Special meetings may be held as often as

deemed necessary, at which the Board of Commissioners may take any action that is

not restricted by law to a particular regular session. Special sessions require a 24-hour

notice and may be held at a location other than the usual office at the county seat * * *.”

{¶41} R.C. 121.22(F) appears to only require 24-hour notice of a special meeting

to the news media that request such notification. Resolution 14-0025, however, states

that special meetings require 24-hour notice regardless of whether the media requests

notification.

{¶42} Pursuant to Resolution 14-0024, in 2014, appellees reserved Tuesdays

and Thursdays as regular meeting days. Appellant claims that although the meeting

held on Tuesday, February 11, 2014 (the subject of Count I) was designated a regular

meeting, it was transformed into a special meeting because it commenced at

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approximately 1:00 p.m. rather than 10:30 a.m., as it was advertised. Initially, appellant

set forth no authority for the proposition that a delay in a regular meeting’s starting time

changes that meeting into a special meeting. Appellant, as movant, was required to

demonstrate no genuine issue of material fact on this point. He failed to do so and

without this necessary premise, appellant’s argument fails. Moreover, appellee

produced evidence, via affidavit, that notice of the February 11, 2014 meeting was

published in the Record-Courier, a daily newspaper, on February 8, 2014. Accordingly,

even if we assume the meeting was a special session, sufficient notice was provided.

The trial court did not err in granting appellee summary judgment on Count I.

{¶43} Appellant next claims that the meeting held on Tuesday, February 18,

2014 (the subject of Count II) was a special meeting because it was not regularly

scheduled. As discussed above, Resolution 14-0024 pre-designated Tuesdays and

Thursdays for regular meetings. Although the Resolution also states that Tuesday

meetings would be suspended unless appellee deemed it necessary to conduct

business, this does not imply meetings that convened on Tuesdays were special.

Again, appellee produced evidence that notice of the meeting was published in the

Record Courier and that notice stated appellees would convene for a “regular business

meeting.” In light of these points, appellant failed to meet his initial burden of

establishing the February 18, 2014 meeting was a special meeting. Hence, appellee

was entitled to summary judgment on Count II.

{¶44} Next, appellant asserts the special meeting held on Monday, March 10,

2014 (the subject of Count III) was held with inadequate notice. Appellant

acknowledges notice was given on appellee’s calendar on Friday, March 7, 2014; he

contends, however, the notice was not posted until 4:27 p.m. Because, he argues,

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there was only three minutes remaining in the business/working day, and the special

meeting was scheduled to commence at 9:00 a.m. on Monday, the public had only one

hour and three minutes notice. We do not agree with this construction.

{¶45} Resolution 14-0025 does not state notice of a special meeting must be

given 24 business/working hours before such a meeting is held. Moreover, appellee

produced affidavit evidence demonstrating it posted the notice publicly and sent notice

to local media outlets to afford the public additional knowledge of the public meeting.

Appellant failed to rebut these points and additionally failed to produce any evidence

that notice, per R.C. 121.22(F) or the resolution, required 24 business/working hours to

be effective. Appellee was entitled to summary judgment on this count.

{¶46} Appellant next claims the notice for the special meeting held on Monday,

March 17, 2014 (the subject of Count V) was inadequate because it stated the meeting

would commence at 11:00 a.m., but the meeting actually began at 1:00 p.m. Appellant

does not provide any statutory authority or case law to support his claim that a delay in

the commencement of a meeting fatally undermines an otherwise effective notice to the

public. He accordingly assumes evidence or information he was required to produce to

shift the burden to appellee.

{¶47} Moreover, appellee, via affidavit, clarified that the purpose of this meeting

was to enter executive session to discuss employment issues. Two individuals had

appointments, one at 11:00 a.m. and one at 1:00 p.m. The 11:00 a.m. appointment was

cancelled by the individual scheduled to appear and thus executive session was

postponed until 1:00 p.m. Appellee noted the purpose of the meeting did not change.

The explanation for the delay is reasonable and unrebutted. And because appellant

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offered no evidence to establish the delay vitiated the original notice, appellee was

entitled to summary judgment on Count V.

{¶48} Finally, appellant argues the notice of the special meeting held on

September 29, 2014 (the subject of Count XI) failed to provide adequate notice because

it stated the meeting would commence at 11:30 a.m., but instead began at 12:13 p.m.

As emphasized in our discussion of the March 17, 2014 meeting, appellant failed to

provide any authority to support his position that a delay in commencement defeats

otherwise proper notice. He therefore failed to shift the burden to appellee. Hence, the

trial court did not err in granting summary judgment in appellee’s favor on this Count.

{¶49} Appellant’s second assignment of error lacks merit.

{¶50} Appellant’s third assignment of error provides:

{¶51} “The trial court erred in granting, after it had been denied 173 days prior,

the Board’s motion to strike appellant’s amended complaint, thereby dismissing the

actions Ames’ brought under R.C. 121.22 after the two-year statute of limitations had

run.”

{¶52} Preliminarily, the recused judge never granted or denied appellee’s motion

to strike the amended complaint. Although the judge, in her judgment recusing herself,

stated appellee would have 90 days from that entry to respond to the amended

complaint, no formal order was entered on the motion to strike. During the June 2016

status conference, the newly-appointed judge discussed the status of the motion to

strike the amended complaint with the parties. The judge asked appellant if he wished

to respond to the pending motion to strike and appellant stated he had previously

responded. At no point did appellant assert that appellee’s motion had been formally

15
denied and, when the prosecutor asked about the deadlines set by the recused judge,

the appointed judge stated “those dates are off.”

{¶53} We initially point out it is not entirely clear that the recused judge was

authorized to set the deadline; after all, the deadline was set simultaneously with the

judge’s order recusing herself. Even assuming the deadline set in the recusal order

was a valid case management order, however, it is well established that a trial court has

the authority to control its own docket. See, e..g., State v. Unger, 67 Ohio St.2d 65, 67

(1981). Simply because the recused judge set a deadline does not imply that order

was immutable. Appellee’s motion to strike remained pending and the appointed judge

was obligated to rule upon the same. And it would appear appellant agreed with this

point. At the status conference, appellant did not argue the recused judge had, perhaps

implicitly, overruled appellee’s motion to strike by setting the deadline. To the contrary,

appellant represented to the appointed judge that he had responded to the motion to

strike and did not object to the judge entertaining the arguments advanced in the motion

and responsive pleading.

{¶54} Appellant further argues that upholding the judge’s order striking the

amended complaint is unjust because the additional claims advanced therein are barred

by the two-year statute of limitations. See R.C. 121.22(I)(1). We do not agree.

{¶55} A review of the amended complaint reveals the great balance of the

additional claims took place in 2015. The trial court issued its order striking the

amended complaint on September 12, 2016. Appellant had the opportunity to file

another action including the additional claims within the limitations period, or seek

reconsideration of the order, but elected against these courses of action. Appellant’s

argument is therefore unavailing.

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 {¶56} The third assignment of error is without merit.

{¶57} For the reasons discussed in this opinion, the judgment of the Portage

County Court of Common Pleas is affirmed in part, reversed in part and remanded for

proceedings consistent with this opinion.

THOMAS R. WRIGHT, P.J., concurs,

MARY JANE TRAPP, J., concurs in part and dissents in part with a Concurring/
Dissenting Opinion.

_____________________________

MARY JANE TRAPP, J., concurs in part and dissents in part with a Concurring/
Dissenting Opinion.

{¶58} I would affirm the judgment of the trial court below.

{¶59} In regard to Mr. Ames’ first assignment of error and his contention the trial

court violated the procedures set forth under R.C. 2323.51(B) and thereby violated his

right to due process by concluding his conduct was frivolous without a hearing, I agree

with the majority that R.C. 121.22(I)(2)(b) states that, to the extent the record supports a

finding under R.C. 2323.51(A), a claim under Ohio’s Open Meetings Act may be found

frivolous by the court. I also agree that there is no provision requiring a hearing on this

issue. R.C. 2323.51(B)’s statutory due process provisions do not apply because the

court must make a frivolous conduct determination “at that time” it denies injunctive

relief.

{¶60} The majority goes on to rightly acknowledge that the plain language of the

statute would “ostensibly require the trial court to proceed to make a finding of

17
frivolousness without a hearing,” which would indeed deny the litigants the due process

protections afforded by the Federal and Ohio constitutions.

{¶61} The Fourteenth Amendment to the United States Constitution provides:

“nor shall any state deprive any person of life, liberty, or property without due process of

law[.]” The Ohio Constitution, Article I, Section 16, provides: “All courts shall be open,

and every person, for an injury done him in his land, goods, person, or reputation, shall

have remedy by due course of law, and shall have justice administered without denial or

delay. Suits may be brought against the state, in such courts and in such manner, as

may be provided by law.”

{¶62} “‘Fundamental due process requires ‘notice’ sufficient to apprise the

defendant of the action’s pendency so that objections by the defendant may be

presented.’” Crist v. Battle Run Fire Dist., 115 Ohio App.3d 191, 197 (3d Dist.1996),

quoting Sampson v. Hooper Holmes, Inc., 91 Ohio App.3d 538, 540 (9th Dist.1993).

Further, “[a] fundamental requirement of due process is ‘the opportunity to be heard.’

Grannis v. Ordean, 234 U.S. 385, 394 [1914] * * *. It is an opportunity which must be

granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380

U.S. 545, 552 (1965).

{¶63} It is apparent these due process requirements were omitted by the

General Assembly when R.C. 121.22(I)(2)(b) was drafted. Given the plain language

excepting R.C. 122.22 from the frivolous conduct statute, R.C. 2323.51, it is fair to

assume the exclusion was intentional. We must also be mindful of the admonition that

“[t]he first rule of statutory construction is that a statute which is clear is to be applied,

not construed.” Vought Indus., Inc. v. Tracy, 72 Ohio St.3d 261, 265 (1995).

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 {¶64} While it may be fairly argued that despite the lack of any mandate in the

statute, R.C. 121.22(I)(2)(b) should require the trial court to notify a party of its intention

to find his or her conduct frivolous, set a date for a hearing, and conduct that hearing so

the party can defend against the potential consequence of being deprived of his or her

property in the form of a fee award, I am of the opinion that we need not undertake the

analysis of whether the trial court was required to follow all R.C. 2323.51 procedures

before it could enter a finding of frivolous conduct in this case because the trial court did

not award attorney fees. The failure to award fees and costs was not appealed and

thus is res judicata.

{¶65} The sanctions contemplated by the frivolous conduct statute are in the

form of attorney fees incurred as the direct result of the frivolous conduct. Inasmuch as

there were no attorney fees awarded by the trial court, the trial court was not obligated

to follow that statute’s requirements. See Davis v. Eachus, 4th Dist. Pike No. 04CA725,

2004-Ohio-5720, ¶18.

{¶66} Here, as in Davis, “we note that the trial court was apparently offering an

observation and expressing its opinion as to the merits of the appellant's claims. Those

observations are essentially dicta and, even if improper, constitute at most harmless

error. See Civ.R. 61.” Id. This is especially true in this matter because the Portage

County Board of Commissioners did not file a motion for R.C. 2323.51 sanctions, and

the trial court is precluded by the plain language of the frivolous conduct statute from

raising the R.C.2323.51 sanctions issue sua sponte. Shaffer v. Mease, 66 Ohio App.3d

400, 409 (4th Dist.1991).

{¶67} I concur with the majority’s conclusions on the remaining assignments of

error.

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