Gold v. Bertram

• Docket Number: 22CA9
• Decision Date: 13 December 2023
• Citation: 2023 Ohio 4567
• Parties: ARI GOLD, Relator-Appellant, v. PAUL BERTRAM, III, ET AL., Respondents-Appellees.
• Court: Ohio Court of Appeals

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2023-Ohio-4567

ARI GOLD, Relator-Appellant, v. PAUL BERTRAM, III, ET AL., Respondents-Appellees.

No. 22CA9

Court of Appeals of Ohio, Fourth District, Washington

December 13, 2023

Anne C. Labes, Attorney at Law, Parkersburg, West Virginia, for Relator-Appellant.

Jared A. Wagner, Jane M. Lynch, Green & Green, Dayton, Ohio Paul Bertram, III, City of Marietta Law Director, Marietta Ohio, for Respondents-Appellees.

DECISION AND JUDGMENT ENTRY

Jason P. Smith Presiding Judge

{¶1} Relator-Appellant Ari Gold appeals the March 15, 2022 decision on "Defendant's Motion for Judgment on the Pleadings" entered in the Washington County Court of Common Pleas. Relator asserts six assignments of error relating to the trial court's decision to grant judgment on the pleadings to Respondents-Appellees and ultimately dismissing his mandamus action. Based on our de novo review of the record, we agree with the judgment of the trial court. Relator's first and fifth assignments of error are overruled. As a result, Relator's second, third, fourth, and sixth assignments of error are rendered moot and we decline to consider them. The judgment of the trial court is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

{¶2} On September 29, 2021, Relator filed a Complaint and Petition for Writ of Mandamus, naming Paul Bertram III, Law Director for the City of Marietta; Joshua Schlicher, Mayor of the City of Marietta; Steven Wetz, Safety Director for the City of Marietta; and Susan Vessels, President of the Marietta City Council, as Respondents. The complaint arose from a dispute regarding a July 28, 2021 request for public records which Relator emailed to Respondents and other individuals not named in the complaint.

{¶3} The July 28, 2021 records request email sent to the email address "@mariettaoh.net" contained the following requests for information to be provided within 14 days:^[1]

a. Any written conversation of the city, city officials, third party in any written form, minutes, emails, notes, memo, text, piece of paper, etc., that includes the following individuals: "Ari gold," "*David Labes," (star means anyone with the last name of Labes), "cristie Thomas", "Barbara Bradley", "Barb Bradley", business name includes "Emanuel*", "Emanuel's", "TLV*", "740 Social", "Restore marietta INC" "Marietta Main Street", search words "Swasaka", "Jew"," Resident trouble maker of downtown". Those conversations/emails/communications/letters will include any communication the officials had with parties that were not a government entity.

b. Any communication and emails that include the word "DORA," "Ohio Liquor Law."

c. Any documents, emails, conversations, texts, notes, etc., related to the prior Marietta Police Chief, including an investigation done by a third party that is not a government entity, unless you can prove that a decision, prior to the investigation, was made that comply with ORC 121.22(G) and (H). And in that matter I would need to see a council meeting setting the subject under that ORC that was dated prior to the investigation.

d. All Council approvals for the following committee members and their expiration date (as claimed by the mayor, the council required to approve any member):

Finance and Taxation:

Michael Scales, Michael McCauley, Cassidi Shoaf

Street and Transportation:

Susan Boyer, Geoff Schenkel, Bill Farnsworth

Water, Sewer, and Sanitation

Michael McCauley, Michael Scales, Cassidi Shoaf

Public Lands, Buildings and Parks

William Farnsworth, Geoff Schekel, Bill Gossett

Employee Relations

Cassidi Shoaf, Susan Boyer, William Farnsworth

Police and Fire

William Gossett, Michael Scales, Mike McCauley

Planning, Zoning, Annexation and Housing:

Geoff Schenkel, William Gossett, Susan Boyer

e. Council approval and minutes, plus the expiration date of members to the following commissions and boards: Planning Commission, Recreational Commission, Traffic Commission, Records Commission, Civil Service Commission, Disabilities Advisory Commission, Brick Streets Commission, Building Enforcement Board, Information Technology Advisory Board, Development Advisory Board, Mayor's Alternative Transportation Advisory Committee, Board of Control, Harbor Advisory Board, Board of Building Appeals, Belpre Marietta Health Committee.

f. I request a full transcript of every word said of any meeting related to any subject hereby requested ORC 121.22(C).

{¶4} In the complaint, Relator alleged denial of access to the public records requested in the July 28, 2021 email, violation of Ohio's Sunshine Laws, and entitlement to a writ of mandamus commanding access to the requested records. The complaint also included language stating that a member of a public body may be subject to removal from public office via court action for a violation of the Open Meeting Act. Relator requested monetary damages, costs, and reasonable attorney's fees.

{¶5} On October 29, 2021, Respondents filed an answer admitting the court's jurisdiction and venue over the matter; that they were public servants employed by the City of Marietta; and that the Sunshine Laws, R.C. 143.49, were applicable to the matter. The answer further set forth Respondents' attempts to fulfill the requests and to communicate with Relator. Respondents also indicated they were continuing to undertake the monumental task of reviewing and producing materials to Relator.

{¶6} Respondents denied many of the allegations. At Paragraph 12 of the answer, Respondents answered as follows: "Plaintiff has failed to state a claim upon which relief can be granted pursuant to Ohio Rule of Procedure 12(B)(6) and 12(C)." At Paragraph 36, Respondents asserted the following as their 26th defense:

Defendants incorporate any and all available and applicable affirmative defenses, including but not limited to, the affirmative defenses set forth in Ohio Rule of Civil Procedure 8, as if fully rewritten herein ….

"Res judicata" is an affirmative defense listed under Civ.R. 8. Respondents demanded that the Complaint be dismissed.

{¶7} On January 20, 2022, Respondents filed "Defendant's Motion for Judgment on the Pleadings." In the motion, Respondents argued the action was barred by the doctrine of res judicata for the reason that the public records request at issue had already been the subject of an earlier filed mandamus action, Washington County Common Pleas Court Case Number 21OT150. Respondents also asserted that dismissal would be appropriate because the public records request at issue was overly broad, ambiguous, and improper. Respondents further argued that Relator could not meet his burden of proving a right to mandamus by clear and convincing evidence.

{¶8} Relator responded to the motion for judgment on the pleadings by arguing that res judicata was clearly inapplicable on the facts, and that the requests were not overly broad or ambiguous. Respondents filed a reply memorandum. On March 15, 2022, the trial court entered its decision, finding that the doctrine of res judicata did apply to bar the action. The court further found that Relator did not submit an appropriate public records request via the July 28, 2021 email because the requests were vague, ambiguous, and overly broad.

{¶9} Relator timely appealed. Additional facts will be set forth within where pertinent.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED BY GRANTING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS, CONTRARY TO THE ALLEGATIONS CONTAINED IN PLAINTIFF'S COMPLAINT AND ESTABLISHED LAW.

II. THE TRIAL COURT ERRED BY DEEMING PLAINTIFF'S RECORDS REQUEST NOT

"APPROPRIATE," AND CONTRARY TO THE APPLICABLE LEGAL STANDARD, THE ALLEGATIONS CONTAINED IN PLAINTIFF'S COMPLAINT, AND ESTABLISHED LAW.

III. THE TRIAL COURT ERRED BY DEEMING PLAINTIFF'S PUBLIC RECORDS REQUEST OVERLY-BROAD, CONTRARY TO THE ALLEGATIONS CONTAINED IN PLAINTIFF'S COMPLAINT AND ESTABLISHED LAW.

IV. THE TRIAL COURT ERRED BY BASING THE DECISION TO GRANT DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS ON EVIDENCE OUTSIDE OF PLAINTIFF'S COMPLAINT.

V. THE TRIAL COURT ERRED BY DECIDING THAT THE ACTION WAS BARRED BY COLLATERAL ESTOPPEL, CONTRARY TO THE ALLEGATIONS IN PLAINTIFF'S COMPLAINT AND ESTABLISHED LAW.

VI. THE TRIAL COURT ERRED BY DECIDING PLAINTIFF DID NOT ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT HE WAS ENTITLED TO MANDAMUS, WHICH IS NOT THE PROPER LEGAL STANDARD IN MANDAMUS ACTIONS UNDER OHIO LAW.

A. STANDARD OF REVIEW

{¶10} Appellate courts conduct a de novo review of trial court decisions concerning Civ.R. 12(C) motions for judgment on the pleadings. Leckrone v. Kimes Convalescent Center, 2021-Ohio-556, 168 N.E.3d 565, at ¶ 7 (4th Dist); Harris Farms, LLC v. Madison Twp. Trustees, 4th Dist. Scioto No. 17CA3817, 2018-Ohio-4123, at ¶ 12; see also State ex rel. Mancino v. Tuscarawas Cty. Court of Common Pleas, 151 Ohio St.3d 35, 2017-Ohio-7528, 85 N.E.3d 713, ¶ 8. Therefore, appellate courts independently review trial court decisions regarding a Civ.R. 12(C) motion for judgment on the pleadings. Harris Farms, supra, citing Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 18 ("Because the review of a decision to dismiss a complaint pursuant to Civ.R. 12(C) presents only questions of law, * * * our review is de novo.").^[2]

{¶11} Civ.R. 12(C) provides: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." A court that considers a Civ.R. 12(C) motion for judgment on the pleadings "must construe the material allegations in the complaint, along with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true." See Ohio Manufacturers' Assn. v. Ohioans for Drug Price Relief Act, 147 Ohio St.3d 42, 2016-...