Nolan v. Wetzel
| Decision Date | 08 December 2022 |
| Docket Number | 22AP0001 |
| Citation | 2022 Ohio 4382 |
| Parties | KATHRYN L. NOLAN, ET AL Plaintiffs-Appellants v. MAYOR R.D. WETZEL, ET AL Defendants-Appellees |
| Court | Ohio Court of Appeals |
Civil appeal from the Morgan County Court of Common Pleas, Case No 20CV0189
For Plaintiffs-Appellants ANN VOSBURG Pro Se KATHRYN L. NOLAN
For Defendants-Appellees PAUL-MICHAEL LAFAYETTE CARA M. WRIGHT
OPINION
{¶1} Appellants Kathryn Nolan and Ann Vosburg appeal the December 23, 2021 judgment entry of the Morgan County Court of Common Pleas granting appellees' motion for summary judgment.
{¶2} Appellant Kathryn Nolan resides in the Village of Chesterhill in a home owned by a friend, appellant Ann Vosburg. In 2007, a magistrate at the mayor's court found Nolan in violation of Village Ordinance 06-7-2 (nuisance code) concerning upkeep of the property, and ordered her to pay $725.00 in fines and costs. When Nolan failed to pay the fines and court costs, the magistrate found Nolan in contempt of court and sentenced her to ten days in jail, but gave her thirty days to pay the fine and purge her contempt. The magistrate also instructed Councilman Kenneth Peters to give Nolan a list of the violations that needed to be corrected. Nolan met with Councilman Peters and received the list of violations needing correction. Nolan failed to pay the fine or complete the tasks within thirty days. Several weeks later, Nolan began paying the fine in $10.00 increments. The magistrate issued a bench warrant. Nolan was arrested and spent several days in jail.
{¶3} On December 4, 2020, appellants filed a complaint against appellees the Village of Chesterhill ("Village"), R.C. Wetzel (mayor), John Wells (Chesterhill Village attorney), Gordon Armstrong (Village Administrator), and Jerica Simmons (Village Fiscal Officer). The complaint alleges appellees have denied appellants records they requested "over and over" under the Sunshine Laws. In the complaint, appellants state, "plaintiffs request the records be at once delivered to them from defendants."
{¶4} Appellees filed an answer on January 25, 2021. Appellees filed a motion for summary judgment on November 2, 2021. Appellants filed a memorandum in opposition on November 30, 2021.
{¶5} Appellees filed a reply brief on December 10, 2021. Attached to their reply brief is the affidavit of Jerica Simmons, the Village Clerk and Fiscal Officer since 2017. Simmons avers she is the designated records custodian for the Village. She further states that on September 24, 2020, she compiled all of the records responsive to a request from Nolan and gave the records to Nolan.
{¶6} The trial court issued a judgment entry on December 23, 2021, granting appellees' motion for summary judgment. The court construed appellants' complaint as a mandamus action seeking the production of records. The trial court found the complaint is deficient on its face for failing to allege a clear legal right to the requested records or a clear legal duty on the part of appellees to produce the records.
{¶7} Appellants appeal the December 23, 2021 judgment entry of the Morgan County Court of Common Pleas and assign the following as error:
{¶8} "I. THE TRIAL COURT ERRED IN NOT DEMANDING THE DEFENDANTS/APPELLEES COMPLETE THEIR DELIVERY OF RECORDS REQUESTED.
{¶9} "II. THE COURT SEEMED TO DENY VALUES INVOLVED AND COSTS OF MATERIALS AS WELL AS THE DIFFICULTY OF FINDING AGE-MATCHING TILES.
{¶10} "III. THE COURT ERRED IN CLAIMING THE PLAINTIFFS/APPELLANTS HAVE NOT PROVED A LEGAL RIGHT TO THE RECORDS STILL TO COME.
{¶11}
{¶12} Ohio's Public Records Act requires a public office to make copies of public records available to any person on request and within a reasonable period of time. R.C 149.43(B)(1); State ex rel. McDougald v. Greene, 161 Ohio St.3d 130, 2020-Ohio-3686, 161 N.E.3d 575. The Ohio Supreme Court construes the Public Records Act as "liberally in favor of broad access" to public records. State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 662 N.E.2d 334 (1996).
{¶13} Under R.C. 149.43(C)(1)(b), a mandamus action is the remedy for a person denied access to a public record. "To prevail on a claim for mandamus relief in a public-records case, a party must establish a clear legal right to the requested relief and a corresponding clear legal duty on the part of the respondents to provide that relief." State ex rel. Penland v. Ohio Dept. of Rehabilitation and Correction, 158 Ohio St.3d 15, 2019-Ohio-4130, 139 N.E.3d 862, citing State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553.
{¶14} Civil Rule 56 states, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, 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 or stipulation construed most strongly in the party's favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
{¶15} A trial court should not enter summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning-Ferris Inds. Of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist. 1999).
{¶16} When reviewing a trial court's decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
{¶17} In their first and third assignments of error, appellants contend the trial court committed error in granting appellees' motion for summary judgment because they are entitled to the records.
{¶18} "It is the responsibility of the person who wishes to inspect and/or copy records to identify with reasonable clarity the records at issue." State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208.
{¶19} In their complaint, appellants do not identify what records they seek. However, in their opposition to appellees' motion for summary judgment, they state they are seeking the following records: photographs cropped and enlarged from the mayor's court, including the judge's notes on the back of each photograph; prison records from Nolan's ten-day incarceration; the "contract" the village had with dustman Dustin Parsons; the letter asked for by Parsons defending him and his right to come on the property written by a lawyer and paid for by the Village; anything written by Village Administrator Armstrong who told Parsons he could take anything "not nailed down"; and any written orders to Simmons ordering her to "give Kathryn Nolan * * * nothing."
{¶20} With regards to the request for photographs with judge's notes on the back, the Ohio Supreme Court has ruled that a judge's personal, handwritten notes made during the course of trial are not public records. State ex rel. Steffen v. Kraft, 67 Ohio St.3d 439, 1993-Ohio-32, 619 N.E.2d 688; State ex rel. Summers v. Fox, 163 Ohio St.3d 217, 2020-Ohio-5585, 169 N.E.3d 625. The notes are "simply personal papers kept for the judge's own convenience and not official records." Id. Further, Simmons states in her affidavit that there were no photographs in the mayor's court file. Appellees have "no duty to create or provide access to nonexistent records." State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-Ohio-609, 861 N.E.2d 530. Appellants provide no Civil Rule 56 evidence to rebut Simmons' averment. Accordingly, the trial court did not commit error in granting appellees' motion for summary judgment on this claim.
{¶21} As to appellants' request for a "letter asked for by Dustin Parsons defending him and his right to come on the property written by a lawyer paid for the Village," Simmons avers in her affidavit that no such record exists. Appellants provide no Rule 56 evidence to dispute this assertion. Appellees have "no duty to create or provide access to nonexistent records." Id. Further Ohio courts have consistently recognized that "[r]ecords of communications between attorneys and their state-government clients pertaining to the attorneys' legal advice are excepted from disclosure under R.C. 149.43(...
To continue reading
Request your trial