Cool v. Frenchko

• Decision Date: 20 October 2022
• Docket Number: 21AP-4
• Citation: 200 N.E.3d 562
• Parties: Thomas S. COOL, Plaintiff-Appellant, v. Michelle Nicole FRENCHKO et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

200 N.E.3d 562

Thomas S. COOL, Plaintiff-Appellant,

v.Michelle Nicole FRENCHKO et al., Defendants-Appellees.

No. 21AP-4

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on October 20, 2022

On brief: Brunner Quinn, Rick L. Brunner, and Patrick M. Quinn, Columbus, for appellant. Argued: Rick L. Brunner.

On brief: Hennig, Szeman & Klammer Co., L.P.A., and Joseph P. Szeman, Painesville, for appellee Michelle Nicole Frenchko. Argued: Joseph P. Szeman.

On brief: Joseph P. Szeman, Painesville, pro se. Argued: Joseph P. Szeman.

On brief: Dave Yost, Attorney General, and Anthony J. Farris, for appellee Ohio Department of Education. Argued: Anthony J. Farris.

On brief: Dave Yost, Attorney General, Michael A. Walton, and Caitlyn N. Johnson, for appellee Ohio Attorney General. Argued: Michael A. Walton.

On brief: Squire Patton Boggs LLP, and Emily R. Spivack, Cleveland, for appellee Mentor Exempted Village Schools District Board of Education.

DECISION

JAMISON, J.

{¶ 1} Appellant, Thomas S. Cool ("Cool"), appeals the judgment of the Franklin County Court of Common Pleas granting appellees’ Civ.R. 12(C) motions for judgment on the pleadings and Civ.R. 12(B)(6) motions to dismiss, and denying Cool's motion to shorten the case track. For the following reasons, we affirm the judgment of the trial court.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} Cool is a resident of Trumbull County and brings this action for declaratory relief against several parties alleging a candidate for Trumbull County Commissioner was not qualified for office due to her residence in another county.

{¶ 3} Appellee, Michelle Nicole Frenchko ("Frenchko"), was a 2020 candidate for Trumbull County Commissioner, and defeated Daniel Polivka ("Polivka"), the incumbent commissioner, in the general election held on November 3, 2020. Appellee, Joseph Peter Szeman ("Szeman"), is Frenchko's domestic partner, and resides in neighboring Lake County. Frenchko owns a residence in Trumbull County, but spends time at Szeman's house in Lake County. Frenchko's child attends school in Lake County, based on Szeman's residence.

{¶ 4} Appellees, Trumbull County Board of Elections ("BOE"), Trumbull County Prosecutor Dennis Watkins ("Trumbull Prosecutor"), Ohio Secretary of State Frank LaRose ("SOS"), Mentor Public Schools ("Mentor Schools"), Mentor Board of Education ("Mentor Board"), Ohio Department of Education ("ODE"), Ohio Attorney General David Yost ("AG"), and Ohio Auditor Keith Fabor ("Auditor"), were named as defendants in the complaint, but all assert that they have no interest in this matter.

{¶ 5} On July 7, 2020, Cool sent a letter to the BOE requesting an investigation pursuant to R.C. 3501.11 to determine Frenchko's residence. Cool asserted that Frenchko is actually a resident of Lake County where her child attends school, and therefore, ineligible to vote or hold office in Trumbull County.

{¶ 6} On September 8, 2020, the BOE conducted an investigatory hearing, and unanimously determined that Frenchko was a qualified resident elector of Trumbull County, and therefore eligible to run for office.

{¶ 7} On September 16, 2020, Cool filed an action under Ohio Revised Code Chapter 2721 in the Franklin County Court of Common Pleas, requesting a judgment declaring (1) the word "reside" in R.C. 3313.64(B)(1) means to live where the residential parent resides under R.C. 3503.02(D), (2) R.C. 3503.02 should be applied to domestic partners to ensure equal protection of the law, (3) a person cannot be an elector in one county and have a child attend public school in another county, and (4) Frenchko is a resident of Lake County and does not have a residence in Trumbull County for purposes of R.C. 3503.02, and cannot serve as a Trumbull County Commissioner.¹ On September 30, 2020, Cool filed a motion to shorten the case track due to the approaching election. On October 22, 2020, the trial court denied Cool's request to shorten the case track, and subsequently denied Cool's motion to reconsider on November 17, 2020.

{¶ 8} Frenchko and Szeman filed motions for judgment on the pleadings under Civ.R. 12(C), and appellees SOS, AG, ODE, Mentor Board, and Mentor Schools filed motions to dismiss under Civ.R. 12(B)(6). The BOE and Trumbull Prosecutor filed a motion for summary judgment on November 30, 2020.

{¶ 9} On November 30, 2020, Cool's counsel, on behalf of Polivka and 66 Trumbull County residents including Cool ("contestors"), filed a petition in election protest under R.C. 3515.08(C) in the Trumbull County Court of Common Pleas. Polivka's allegations mirror Cool's, including "most principally the allegation that Appellee Frenchko was ineligible to run for, and is ineligible to serve as, a commissioner in Trumbull County because she in fact is a resident of Lake County." (Mar. 31, 2021 Mot. to Stay at 2.) On December 30, 2020, the court conducted a hearing, and issued a judgment entry on February 2, 2021 denying the petition and finding that the BOE investigation properly determined Frenchko was a resident of Trumbull County. On February 22, 2021, the contestors appealed to the Supreme Court of Ohio. On April 19, 2021, the Supreme Court dismissed the appeal.

{¶ 10} On December 3, 2020, the trial court granted appellees’ motions for judgment on the pleadings and motions to dismiss. On January 4, 2021, Cool appealed the judgments of the Franklin County Court of Common Pleas.

II. ASSIGNMENTS OF ERROR

{¶ 11} Cool assigns the following as trial court error:

[1.] The trial court erred in granting Defendant-Appellees Frenchko's and Szeman's Motions for judgment on the pleadings which were filed before either said Defendant had filed an Answer in the proceedings and Plaintiff stated a claim upon which relief can be granted.

[2.] The trial court erred in granting Defendant-Appellees Secretary of State, Auditor of State and Attorney General (collectively referred to by the trial court as the "State Defendants") and Defendant-Appellee's Ohio Department of Education respective Motions to Dismiss for reasons including that the court failed to properly apply R.C. 2721.12 and Plaintiff stated a claim upon which relief can be granted applying Civ. R. 12(B)(6) in tandem with R.C. 2721.12.

[3.] The trial court abused its discretion in overruling Plaintiff's unopposed Motion to Shorten Case Track for an Election Matter especially when it acknowledged it had not paid attention that the matter was time sensitive after it was pointed out in Plaintiff's unopposed Motion to Reconsider.

III. STANDARD OF REVIEW

{¶ 12} A motion made under Civ.R. 12(C) is "specifically for resolving questions of law" and appellate review is "de novo, without deference to the trial court's determination." Garb-Ko, Inc. v. Benderson , 10th Dist. No. 12AP-430, 2013-Ohio-1249, 2013 WL 1303815, ¶ 7. "For purposes of appellate review, a standing question is generally a question of law reviewed under a de novo standard."

Ohio Concrete Constr. Assn. v. Ohio DOT , 10th Dist. No. 08AP-905, 2009-Ohio-2400, 2009 WL 1444118, ¶ 9. "A motion to dismiss based on lack of standing involves a question of law that we review independently and without deference to the trial court." In re Adoption of G.M.B. , 4th Dist. No. 19CA12, 2019-Ohio-3884, 2019 WL 4696112, ¶ 7.

{¶ 13} "A motion to dismiss for failure to state a claim is procedural and tests whether the complaint is sufficient." Morrow v. Reminger & Reminger Co. LPA , 183 Ohio App.3d 40, 2009-Ohio-2665, ¶ 7, 915 N.E.2d 696. "An appellate court reviews a trial court's dismissal pursuant to Civ.R. 12(B)(6) de novo." Dunlop v. Ohio Dept. of Job & Family Servs. , 10th Dist. No. 16AP-550, 2017-Ohio-5531, 2017 WL 2778157, ¶ 10.

{¶ 14} "However, a trial court's dismissal of a declaratory judgment action is reviewed under an abuse of discretion standard." Ohio Assn. of Pub. School Emps. (OAPSE) v. School Emps. Retirement Sys. of Ohio , 10th Dist. No. 19AP-288, 2020-Ohio-3005, 2020 WL 2537669, ¶ 12. "Importantly, the abuse of discretion standard only applies to the review of a trial court's holding regarding justiciability." Id. at ¶ 14. "[O]nce a trial court determines that a matter is appropriate for declaratory judgment, its holdings regarding questions of law are reviewed on a de novo basis." Arnott v. Arnott , 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 13.

{¶ 15} "An appellate court may find an abuse of discretion when the trial court ‘applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.’ " Bellamy v. Montgomery , 10th Dist. No. 11AP-1059, 2012-Ohio-4304, 2012 WL 4321160, ¶ 7.

{¶ 16} We therefore apply an abuse of discretion standard of review to the trial court's determination that there was no justiciable controversy.

IV. LEGAL ANALYSIS

{¶ 17} Cool filed a complaint under R.C. 2721.03 requesting the court declare that a school residency statute apply to Frenchko and other non-married individuals. "The three prerequisites to declaratory relief include ‘(1) a real controversy between the two parties, (2) justiciability, and (3) the necessity of speedy relief to preserve the parties’ rights." Ohioans for Concealed Carry, Inc. v. Columbus , 164 Ohio St.3d 291, 2020-Ohio-6724, 172 N.E.3d 935, ¶ 30. "[A] declaratory judgment action lies when a party challenges a statute as it specifically applies to him or her." Kuhar v. Medina Cty. Bd. of Elections , 9th Dist. No. 06CA0076-M, 2006-Ohio-5427, 2006 WL 2959468, ¶ 13.

{¶ 18} "A trial court may dismiss a complaint for declaratory judgment without addressing the merits of the case if there is (1) neither a justiciable issue nor an actual controversy between the parties requiring speedy relief, or (2) the declaratory judgment will not terminate the uncertainty or controversy." M6 Motors, Inc. v. Nissan of North Olmsted, LLC. , 8th Dist. No. 100684, 2014-Ohio-2537, 14 N.E.3d 1054, ¶ 19. R.C. 2721.03 requires "an actual controversy, the resolution of which will confer certain rights or...