[Cite as State ex rel. Wengerd v. Baughman Twp. Bd. of Trustees, 2014-Ohio-4749.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

STATE OF OHIO, ex rel. DAVID                              C.A. No.         13CA0048
WENGERD

        Appellant
                                                          APPEAL FROM JUDGMENT
        v.                                                ENTERED IN THE
                                                          COURT OF COMMON PLEAS
BAUGHMAN TOWNSHIP BOARD OF                                COUNTY OF WAYNE, OHIO
TRUSTEES                                                  CASE No.   2012-CV-0737

        Appellee

                                DECISION AND JOURNAL ENTRY

Dated: October 27, 2014



        HENSAL, Presiding Judge.

        {¶1}    The State of Ohio ex rel. David Wengerd appeals a judgment of the Wayne

County Court of Common Pleas that dismissed his complaint against the Baughman Township

Board of Trustees for violating Ohio’s Sunshine Act. The Court also ordered Mr. Wengerd to

pay the Board’s attorney fees. For the following reasons, this Court reverses.

                                                     I.

        {¶2}    In 2012, the Board explored whether the township should create a joint fire

protection district with neighboring communities. To that end, its trustees attended two public

meetings that were being held by other communities. The Board also hosted officials from the

other communities at one of its meetings.

        {¶3}    After Mr. Wengerd learned about the trustees’ participation in these meetings, he

sued the Board, alleging that the trustees had held three public meetings without public notice or
                                                2


keeping a record of the meetings. Mr. Wengerd attached two newspaper articles that described

the meetings to an affidavit that he incorporated into his complaint. He also attached a copy of

the minutes of one of the meetings. After filing its Answer, the Board moved for judgment on

the pleadings under Civil Rule 12(C). The trial court granted its motion and ordered Mr.

Wengerd to pay its attorney fees. Mr. Wengerd has appealed, assigning as error that the trial

court incorrectly dismissed his complaint.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       GRANTED BAUGHMAN TOWNSHIP’S MOTION FOR JUDGMENT ON
       THE PLEADINGS.

       {¶4}    The trial court dismissed Mr. Wengerd’s complaint under Civil Rule 12(C), which

provides that “[a]fter the pleadings are closed but within such time as not to delay the trial, any

party may move for judgment on the pleadings.” Id. According to the Ohio Supreme Court,

dismissal is appropriate under Rule 12(C) if:

       a court (1) construes the material allegations in the complaint, with all reasonable
       inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2)
       finds beyond doubt, that the plaintiff could prove no set of facts in support of his
       claim that would entitle him to relief. Thus, Civ.R. 12(C) requires a
       determination that no material factual issues exist and that the movant is entitled
       to judgment as a matter of law.

Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-

5676, ¶ 18, quoting State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570

(1996). “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.” Id.

       {¶5}    In his complaint, Mr. Wengerd alleged that, on March 12, 2012, the trustees met

with the Marshallville council without giving public notice or keeping minutes of the meeting.
                                                 3


He also alleged that the trustees met with the Sugarcreek Township board of trustees on April 3,

2012, without giving notice or keeping minutes of the meeting. He further alleged that, after the

trustees finished their regular meeting on August 23, 2012, they held a special meeting with

other government entities. Mr. Wengerd incorporated an affidavit into his complaint, which

included newspaper articles about the March 12 and August 23 meetings. The affidavit also

included a copy of the minutes of the April 3 meeting.

       {¶6}    Ohio’s Sunshine Law, Revised Code Section 121.22, provides, in part, that “[a]ll

meetings of any public body are * * * open to the public at all times. * * * The minutes of a

regular or special meeting of any public body shall be promptly prepared, filed, and maintained

and shall be open to public inspection.” R.C. 121.22(C). According to the statute, “‘[m]eeting’

means any prearranged discussion of the public business of the public body by a majority of its

members.” R.C. 121.22(B)(2). It also provides that it “shall be liberally construed to require

public officials to take official action and to conduct all deliberations upon official business only

in open meetings unless the subject matter is specifically excepted by law.” R.C. 121.22(A).

       {¶7}    Construing Section 121.22, this Court has held that “a public body violates the

Sunshine Law where it simultaneously conducts a meeting while deliberating over public

business.” Krueck v. Kipton Village Council, 9th Dist. Lorain No. 11CA009960, 2012-Ohio-

1787, ¶ 14. In its motion for judgment on the pleadings, the Board argued that Mr. Wengerd’s

claims failed because he did not allege that the trustees deliberated at the March 12 and April 3

meetings. It also argued that the minutes of the August 23 meeting established that all of the

discussions regarding the joint fire district occurred during its regular meeting, not a special

meeting that followed.
                                                 4


       {¶8}    Regarding whether the trustees engaged in deliberations during the March 12 or

April 3 meetings, this Court has explained that “‘deliberations’ involve more than information-

gathering, investigation, or fact-finding.” Berner v. Woods, 9th Dist. Lorain No. 07CA009132,

2007-Ohio-6207, ¶ 15.      “Question-and-answer sessions between board members and other

persons who are not public officials do not constitute ‘deliberations’ unless a majority of the

board members also entertain a discussion of public business with one another.” Id. “In this

context, a ‘discussion' entails an ‘exchange of words, comments or ideas by the board.’” Id.,

quoting Holeski v. Lawrence, 85 Ohio App.3d 824, 830 (11th Dist.1993).               “A conclusive

decision among board members on any measure, however, is not necessary to prove a violation.”

Id.

       {¶9}    According to the documents that Mr. Wengerd included as exhibits to the

affidavit that he incorporated into his complaint, on March 12, 2012, “Baughman trustees and

Marshallville council met * * * to discuss options to create a fire district * * *.” On April 3,

2012, “Baughman trustees were present to discuss the fire funding issue and the possibility of

forming a Baughman – Sugar Creek Township Fire District.               No action taken.”      Those

statements, construed in a light most favorable to Mr. Wengerd, suggest that the trustees did

more at the March 12 and April 3 meetings than engage in mere fact-finding. Rather, the articles

suggest that the trustees exchanged thoughts and ideas with the representatives of Sugar Creek

and Marshallville about whether they should form a joint fire district. We, therefore, cannot

“find[ ] beyond doubt” that Mr. Wengerd can “prove no set of facts in support of his claim that

would entitle him to relief.” Rayess, 134 Ohio St.3d 509, 2012-Ohio-5676 at ¶ 18.

       {¶10} Regarding the August 23 meeting, the newspaper article that Mr. Wengerd

attached as an exhibit to the affidavit that he incorporated into his complaint states that, “[a]fter
                                                  5


[the Board’s] monthly trustee meeting,” officials form Sugar Creek, Marshallville, and Dalton

“met to discuss items leading to the creation of a fire district.” The article also indicates that the

four entities verbally agreed to ask a particular law firm to draft an appropriate resolution. The

Board asserts that, while those discussions admittedly took place, the newspaper mistakenly

reported that they occurred after the regular meeting. It notes that it submitted a copy of the

August 23 minutes, which indicate that the discussions happened during the regular meeting, not

a special meeting.

        {¶11} As explained earlier, when reviewing a motion for judgment on the pleadings, we

must view all of the material allegations in favor of Mr. Wengerd. The newspaper article

supports his allegation that the Board held another meeting “[a]fter Baughman Township’s

monthly trustee meeting.” We also note that the alleged copy of the August 23 minutes that the

Board attached to its Answer is not signed and does not contain any other indication that it is an

accurate record of what occurred at the meeting. Accordingly, we cannot “find[ ] beyond doubt”

that Mr. Wengerd can “prove no set of facts in support of his claim that would entitle him to

relief.” Id.

        {¶12} Upon review of the record, we conclude that the trial court incorrectly granted the

Board’s motion for judgment on the pleadings. Mr. Wengerd’s assignment of error is sustained.

                                                 III.

        {¶13} The trial court incorrectly dismissed Mr. Wengerd’s complaint. The judgment of

the Wayne County Court of Common Pleas is reversed, and this matter is remanded for further

proceedings.

                                                                                 Judgment reversed,
                                                                                and cause remanded.
                                                 6




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



CARR, J.
MOORE, J.
CONCUR.

APPEARANCES:

WARNER MENDENHALL, Attorney at Law, for Appellant.

JOHN T. MCLANDRICH and FRANK H. SCIALDONE, Attorneys at Law, for Appellee.
