[Cite as State ex rel. Masiella v. Brimfield Twp. Bd. of Trustees, 2017-Ohio-2934.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO ex rel.                                    :            OPINION
ANTHONY J. MASIELLA, et al.,

                 Relators-Appellants,                    :
                                                                      CASE NO. 2016-P-0038
        - vs -                                           :

BRIMFIELD TOWNSHIP BOARD OF                              :
TRUSTEES, et al.,

                 Respondent-Appellee.                    :



Civil Appeal from the Portage County Court of Common Pleas, Case No. 2012 CV
00669.

Judgment: Affirmed.


George J. Emershaw, Emershaw, Mushkat & Schneier, Quaker Square, 120 East Mill
Street, Suite 437, Akron, OH 44308 and Warner D. Mendenhall, 190 North Union
Street, Suite 201, Akron, OH 44304 (For Relators-Appellants).

James F. Mathews, Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street,
North Canton, OH 44720, Victor V. Vigluicci, Portage County Prosecutor, and
Christopher J. Meduri, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH
44266 (For Respondent-Appellee).




COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellants, Anthony J. Masiella, Janet Masiella, Erica Montbach, Tim

Montbach, Luther H. Myers, Jr., Patricia M. Kennard, and Mindale Farms Co., appeal

from the June 21, 2016 judgment of the Portage County Court of Common Pleas,
granting summary judgment in favor of appellee, Brimfield Township Board of Trustees

(“Board of Trustees”).1 For the reasons stated, we affirm.

       {¶2}    Appellants are owners of real property that abuts or is located across the

street from a large building in Brimfield Township. The approximately 807,000 square

foot building is currently being used by Rubbermaid as a manufacturing and distribution

center. Rubbermaid employs approximately 175 employees at the site. Rubbermaid

made a substantial investment in its project, in the range of 25 million dollars, which has

brought great economic benefit to Brimfield Township.

       {¶3}    According to the affidavit of Dick Messner, Brimfield Township Zoning

Inspector, in order for the building to be built, the original property owner, John “Paul”

Rhoades, sent an application on May 5, 2011 to the Brimfield Township Zoning

Commission (“Zoning Commission”) to rezone the land from Open Space Conservation

(O-C) to Light Industrial (L-1).     Rhoades sought to sell his 93 acres of land to the

developer that eventually built the Rubbermaid facility. On May 11, 2011, a copy of

Rhoades’ application was sent to the Portage County Regional Planning Commission

(“RPC”) for its review. The RPC considered Rhoades’ application at its June 8, 2011

public meeting. After the meeting, the RPC recommended to approve the proposed

zoning change.

       {¶4}    On June 3, 2011, notice of a public hearing was published in the local

newspaper, the Record Courier. And on June 9, 2011, the Zoning Commission held its

hearing. Rhoades’ application to rezone the property was considered. The Zoning

Commission recommended to the Board of Trustees that the rezoning be approved.

1. In its entry, the trial court also granted the motions for summary judgment of respondents, ARC
RMAKNOH001, LLC and Rubbermaid, Inc. ARC and Rubbermaid are not named parties in this appeal.



                                                2
      {¶5}   On June 18, 2011, notice of a public hearing was published in the Record

Courier. And on June 29, 2011, the Board of Trustees held a public hearing on the

zone change request.     The Board of Trustees passed a resolution to rezone the

property from O-C to L-1. A memorandum was sent to the RPC on August 3, 2011

confirming the zone change.

      {¶6}   Thereafter, concerns were expressed to the Zoning Commission that

notice provisions set forth in the Ohio Revised Code relating to the June 9, 2011 Zoning

Commission public hearing had not been fulfilled, i.e., that the record could not confirm

that notices had been delivered to adjacent property owners and published in the local

newspaper in a timely manner. Zoning Inspector Messner indicated in his affidavit that

he brought this issue to the attention of the Zoning Commission at a public Zoning

Commission meeting on September 1, 2011.           Messner also indicated the Zoning

Commission decided to commence another procedure to cure any potential error.

      {¶7}   At a public meeting on September 8, 2011, the Zoning Commission

passed a motion to initiate the zone change from O-C to L-1. A public hearing was

scheduled for October 18, 2011. Notices of the public hearing were sent via first class

mail on September 28, 2011 to the property owners within, contiguous to, and directly

across the street from the area of the Rhoades parcel. The notices advertised the date,

time, and place of the hearing. Appellants do not dispute that the notices were sent.

      {¶8}   The Zoning Commission also published a notice of its scheduled public

hearing in the Record Courier on October 2, 2011. The Zoning Commission heard from

members of the public at the October 18, 2011 hearing. Appellants either attended the

hearing themselves, had a spouse attend for them, or hired legal counsel to represent




                                           3
their interest.   After the hearing, the Zoning Commission voted to recommence the

zoning procedure on November 10, 2011.

       {¶9}   Notices of the November 10, 2011 hearing were sent to the property

owners on October 24, 2011. Appellants do not dispute that the notices were sent. The

Zoning Commission also published a notice of its scheduled public hearing in the

Record Courier on October 28, 2011. At the November 10, 2011 hearing, the Zoning

Commission again heard from many members of the public. Appellants either attended

the hearing themselves, had a spouse attend for them, or hired legal counsel to

represent their interest.   Following the hearing, the Zoning Commission voted to

recommend approval of the zone change from O-C to L-1 and issued a memorandum to

the Board of Trustees.

       {¶10} At the November 16, 2011 regularly scheduled public meeting, the Board

of Trustees acknowledged notice of the Zoning Commission’s recommendation. At that

meeting, the Board of Trustees voted to set a public hearing on the issue for November

30, 2011, i.e., the next regularly scheduled meeting. A notice of the scheduled public

hearing was published in the Record Courier on November 19, 2011. The Board of

Trustees held a public hearing on the proposed rezone of the Rhoades property on

November 30, 2011. Appellants either attended the hearing themselves, had a spouse

attend for them, or hired legal counsel to represent their interest.      Attorney Ida

McDonald presented a petition to the Board of Trustees signed by appellants indicating

they were prepared to file a referendum or a lawsuit related to the zoning amendment.

       {¶11} Following the hearing, the Board of Trustees passed a resolution

approving the zone change from O-C to L-1, which became effective on December 30,




                                          4
2011.    The Board of Trustees did not receive any petition for referendum.                         Also,

appellants did not file an injunction to stop construction of the Rubbermaid facility.

        {¶12} On June 11, 2012, appellants filed a complaint against the Board of

Trustees alleging three causes of action: Count one, declaratory judgment and

injunction (appellants sought a judgment declaring that Brimfield Township’s rezoning

was invalid because the Board of Trustees and the Zoning Commission had not

followed state law or the township’s zoning regulations, and an injunction to prevent the

zoning from taking effect); and Counts two and three, Ohio’s Open Meetings Act and

R.C. 121.22 (alleging that the Board of Trustees and the Zoning Commission violated

the provisions). The Board of Trustees filed an answer to the complaint.

        {¶13} Upon motion of the Board of Trustees, appellants filed an amended

complaint on October 28, 2013 against the Board of Trustees and added ARC (the

current owner of the property at issue) and Rubbermaid as defendants.2 The Board of

Trustees, ARC, and Rubbermaid filed answers to the amended complaint.

        {¶14} The Board of Trustees, ARC, and Rubbermaid filed motions for summary

judgment. Appellants filed oppositions. Appellants acknowledged that their declaratory

judgment action was moot due to their failure to obtain an injunction to prevent

construction of the Rubbermaid building. Thus, the declaratory judgment action was

dismissed. Appellants focused on alleged wrongful conduct of the Zoning Commission

with regard to the Open Meetings Act.




2. The Zoning Commission was never named as a party. The members of the Zoning Commission (in
their official capacities) were never named as parties. Also, Brimfield Township (the political subdivision
entity) was never named as a party.



                                                    5
       {¶15} On June 21, 2016, the trial court granted the Board of Trustee’s motion for

summary judgment.3           Appellants filed a timely appeal and assert the following

assignment of error:4

       {¶16} “The trial court committed reversible error when it dismissed the Relators-

Appellants’ case in the face of genuine issues of material fact as to whether the

Brimfield Township Zoning Commission violated Ohio’s Open Meetings Act by

conducting     a   special    meeting     where       the   Commission      members      deliberated

‘recommencing’ the rezoning process without giving prior notice to the Ravenna

Record-Courier, and as to whether the Zoning Commission later deliberated the zoning

question outside the public view, based on the court’s view that the Zoning Commission

was a party that could have been named in the Relators-Appellants’ suit.”

       {¶17} This appeal involves the trial court’s granting of the Board of Trustee’s

motion for summary judgment.

       {¶18} “Summary judgment is a procedural tool that terminates litigation and thus

should be entered with circumspection. Davis v. Loopco Industries, Inc., 66 Ohio St.3d

64, 66 * * * (1993). Summary judgment is proper where (1) there is no genuine issue of

material fact remaining to be litigated; (2) the movant is entitled to judgment as a matter

of law; and (3) it appears from the evidence that reasonable minds can come to but one




3. As stated, the trial court also granted the motions for summary judgment of respondents, ARC and
Rubbermaid. The court noted that ARC and Rubbermaid were not named parties to appellants’ Open
Meetings Act causes of action; that appellants had not addressed whether the Board of Trustees had
violated the Open Meetings Act; and that the court did not consider evidence that the Zoning Commission
may have violated the Open Meetings Act because the Zoning Commission was not made a party to the
action.

4. Appellants seek to have the trial court’s decision reversed and remanded as to count two of their
amended complaint, i.e., the allegation that the Zoning Commission violated the Open Meetings Act.


                                                  6
conclusion, and, viewing the evidence in the non-moving party’s favor, that conclusion

favors the movant. See e.g. Civ.R. 56(C).

        {¶19} “When considering a motion for summary judgment, the trial court may not

weigh the evidence or select among reasonable inferences.            Dupler v. Mansfield

Journal Co., 64 Ohio St.2d 116, 121 * * * (1980). Rather, all doubts and questions must

be resolved in the non-moving party’s favor. Murphy v. Reynoldsburg, 65 Ohio St.3d

356, 359 * * * (1992). Hence, a trial court is required to overrule a motion for summary

judgment where conflicting evidence exists and alternative reasonable inferences can

be drawn. Pierson v. Norfork Southern Corp., 11th Dist. No. 2002-A-0061, 2003-Ohio-

6682, ¶36. In short, the central issue on summary judgment is, ‘whether the evidence

presents sufficient disagreement to require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law.’ Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-252 * * * (1986). On appeal, we review a trial court’s entry of

summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 * * *

(1996).” (Parallel citations omitted.) Meloy v. Circle K Store, 11th Dist. Portage No.

2012-P-0158, 2013-Ohio-2837, ¶5-6.

        {¶20} Under their sole assignment of error, appellants present two issues:

        {¶21} “1. Did the trial court err when it apparently determined that the Brimfield

Township Zoning Commission was sui juris – and therefore it could disregard evidence

of Open Meetings Act violations by the Commission since it had not been named as a

Respondent – when township boards and departments are generally not amenable to

suit?




                                            7
       {¶22} “2. Did the trial court err when it granted summary judgment to Brimfield

Township in the face of genuine issues of material fact as to whether the Brimfield

Township Zoning Commission violated the Open Meetings Act by failing to give the

Record-Courier advance notice of a special meeting, as required by law, and by

meeting and deliberating a zoning change outside the view of the public?”

       {¶23} Because the arguments contained in appellants’ first and second issues

both involve R.C. 121.22, Ohio’s Open Meeting Act, popularly known as the Sunshine

Law, we will address them together.

       {¶24} “Our review of the trial court’s construction of statutes involves questions

of law, which we review de novo.” Radtke v. Chester Twp., 11th Dist. Geauga No.

2014-G-3222, 2015-Ohio-4016, ¶19 (O’Toole, J., concurred with a Concurring Opinion),

citing Beaumont v. Kvaerner N. Am. Constr., 11th Dist. Trumbull No. 2013-T-0047,

2013-Ohio-5847, ¶8.

       {¶25} R.C. 121.22, “Meetings of public bodies to be public; exceptions; notice,”

states in part:

       {¶26} “(A) This section 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.

       {¶27} “(B) As used in this section:

       {¶28} “(1) ‘Public body’ means any of the following:

       {¶29} “(a) Any board, commission, committee, council, or similar decision-

making body of a state agency, institution, or authority, and any legislative authority or

board, commission, committee, council, agency, authority, or similar decision-making




                                             8
body of any county, township, municipal corporation, school district, or other political

subdivision or local public institution;

       {¶30} “* * *

       {¶31} “(2) ‘Meeting’ means any prearranged discussion of the public business of

the public body by a majority of its members.

       {¶32} “* * *

       {¶33} “(C) All meetings of any public body are declared to be public meetings

open to the public at all times. A member of a public body shall be present in person at

a meeting open to the public to be considered present or to vote at the meeting and for

purposes of determining whether a quorum is present at the meeting.

       {¶34} “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. The

minutes need only reflect the general subject matter of discussions in executive

sessions authorized under division (G) or (J) of this section.

       {¶35} “* * *

       {¶36} “(F) 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.




                                               9
       {¶37} “* * *

       {¶38} (H) A resolution, rule, or formal action of any kind is invalid unless adopted

in an open meeting of the public body. A resolution, rule, or formal action adopted in an

open meeting that results from deliberations in a meeting not open to the public is

invalid unless the deliberations were for a purpose specifically authorized in division (G)

or (J) of this section and conducted at an executive session held in compliance with this

section. A resolution, rule, or formal action adopted in an open meeting is invalid if the

public body that adopted the resolution, rule, or formal action violated division (F) of this

section.

       {¶39} “(I)(1) Any person may bring an action to enforce this section. An action

under division (I)(1) of this section shall be brought within two years after the date of the

alleged violation or threatened violation.      Upon proof of a violation or threatened

violation of this section in an action brought by any person, the court of common pleas

shall issue an injunction to compel the members of the public body to comply with its

provisions.

       {¶40} “(2)(a) If the court of common pleas issues an injunction pursuant to

division (I)(1) of this section, the court shall order the public body that it enjoins to pay a

civil forfeiture of five hundred dollars to the party that sought the injunction and shall

award to that party all court costs and, subject to reduction as described in division (I)(2)

of this section, reasonable attorney’s fees. * * *”

       {¶41} The Open Meetings Act, as codified in R.C. 121.22, contemplates that the

individual boards are sui juris and to be named in litigation relating to the Act. Here,

appellants did not name the Zoning Commission and Brimfield Township. As stated, on




                                              10
June 11, 2012, appellants filed a complaint against the Board of Trustees. On October

28, 2013, appellants filed an amended complaint against the Board of Trustees and

added ARC and Rubbermaid as defendants. However, the Zoning Commission was not

named as a party. The members of the Zoning Commission (in their official capacities)

were not named as parties. Also, Brimfield Township (the political subdivision entity)

was not named as a party.

      {¶42} The record reveals that the Board of Trustees set forth its position in its

supplemental motion for summary judgment that appellants failed to name the proper

party. However, appellants never responded to that position in their opposition, even

though they now bring this issue on appeal.

      {¶43} “Generally, appellate courts do not ‘consider an error which the

complaining party “could have called, but did not call, to the trial court’s attention at a

time when such error could have been avoided or corrected by the trial court.”’ State ex

rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81 * * * (1997), quoting State v.

Williams, 51 Ohio St.2d 112, 117 * * * (1977). Where a party asserts an argument for

the first time on appeal, the argument is waived. State ex rel. Camaco, LLC v. Albu,

10th Dist. Franklin No. 13AP–1002, 2014-Ohio-5330, * * *, ¶8–9.” (Parallel citations

omitted.) Wells Fargo Bank, N.A. v. Watson, 11th Dist. Ashtabula No. 2014-A-0062,

2015-Ohio-2599, ¶64.

      {¶44} In any event, Ohio’s Open Meetings Act contemplates that the individual

board will be sui juris. R.C. 121.22 outlines the requirements for meetings of public

bodies. If a violation is found, the remedy calls for an injunction of the public body that

committed the violation. See R.C. 121.22(I)(1)-(2)(a); Maddox v. Bd. of Dirs. of Greene




                                            11
Cty. Children Servs. Bd., 2d Dist. Greene No. 2013-CA-38, 2014-Ohio-2312, ¶10, 125

(“We find that the OMA itself made CSB sui juris for purposes of Maddox’s lawsuit.

Under the OMA, a ‘public body’ includes any agency, authority, or similar decision-

making body of any county. R.C. 121.22(B)(1)(a). * * * In short, we conclude that CSB

qualified as a ‘public body’ and that R.C. 121.22 explicitly makes a public body subject

to an OMA suit for injunctive relief, civil forfeitures, court costs, and attorney fees.”);

Danis Montco Landfill Co. v. Jefferson Twp. Zoning Comm., 85 Ohio App.3d 494 (2d

Dist.1993) (the appellee brought suit against the Zoning Commission and the Board of

Trustees for violations of R.C. 121.22, Ohio’s “Sunshine Law” – demonstrating that a

Zoning Commission is sui juris.)

       {¶45} A key purpose of Ohio’s Open Meetings Act is to provide notice to the

public and have open meetings.              Citizens are entitled to due process and equal

protection. Transparency is paramount to promoting justice and instilling public faith in

our system of governance.           In this case, there is no direct evidence of any Open

Meetings Act violation. We find that proper notice was provided to the public and open

meetings were held.

       {¶46} A violation of the Ohio Open Meetings Act requires evidence that a

majority of a public body met at a pre-arranged meeting and discussed or deliberated

on a matter of public business, outside of a public meeting. See Radtke, supra, at ¶19-

25.




5. Appellants assert that this court’s decision in Ciganic v. Kaley, 11th Dist. Portage No. 2004-P-0001,
2004-Ohio-6029, undermines the Maddox decision. Ciganik, however, involves a different statute with
different language. Instead of a Zoning Commission and the Ohio Open Meetings Act, R.C. 121.22, (at
issue in the case at bar), Ciganik involves a Sheriff’s Department and the Public Records Act, R.C.
149.351.


                                                  12
       {¶47} Although not properly raised below, appellants now allege that the Zoning

Commission violated the Open Meetings Act by failing to provide adequate notice of a

September 1, 2011 “special meeting.” Ohio Sunshine Law authorizes regular meetings,

special meetings, and emergency meetings. A special meeting requires at least 24

hours advance notice. See R.C. 121.22(F).

       {¶48} There is no evidence that any local newspaper or other media requested

notification of such meeting. Zoning Inspector Messner was responsible for sending out

meeting notices. Messner testified during his deposition that notice was sent at least

three days in advance, i.e., in compliance with the code for a special meeting. Messner

also indicated that proper notice of a special meeting was sent to the Record Courier.

There is no direct evidence that the meeting was secret or closed from the public. The

minutes from the September 1, 2011 Zoning Commission meeting reveal there was no

action or vote taken. Rather, as stated, the Zoning Commission passed a motion to

initiate the zone change from O-C to L-1 at the following regularly scheduled public

meeting on September 8, 2011.

       {¶49} In addition, appellants allege the Zoning Commission held a closed-door

meeting on November 10, 2011 and the Board of Trustees conducted an improper

meeting on November 30, 2011. The record does not establish any Open Meetings Act

violations on either of these dates.

       {¶50} As stated, notices of the November 10, 2011 hearing were sent to the

property owners on October 24, 2011. Appellants do not dispute that the notices were

sent. The Zoning Commission also published a notice of its scheduled public hearing in

the Record Courier on October 28, 2011. At the November 10, 2011 hearing, the




                                          13
Zoning Commission again heard from many members of the public. Appellants either

attended the hearing themselves, had a spouse attend for them, or hired legal counsel

to represent their interest.   Following the hearing, the Zoning Commission voted to

recommend approval of the zone change from O-C to L-1 and issued a memorandum to

the Board of Trustees.

        {¶51} At the November 16, 2011 regularly scheduled public meeting, the Board

of Trustees acknowledged notice of the Zoning Commission’s recommendation. At that

meeting, the Board of Trustees voted to set a public hearing on the issue for November

30, 2011, i.e., the next regularly scheduled meeting. A notice of the scheduled public

hearing was published in the Record Courier on November 19, 2011. The Board of

Trustees held a public hearing on the proposed rezone of the Rhoades property on

November 30, 2011. Appellants either attended the hearing themselves, had a spouse

attend for them, or hired legal counsel to represent their interest.           Attorney Ida

McDonald presented a petition to the Board of Trustees signed by appellants indicating

they were prepared to file a referendum or a lawsuit related to the zoning amendment.

        {¶52} Following the hearing, the Board of Trustees passed a resolution

approving the zone change from O-C to L-1, which became effective on December 30,

2011.    The Board of Trustees did not receive any petition for referendum.              Also,

appellants did not file an injunction to stop construction of the Rubbermaid facility.

        {¶53} Appellants allege that Zoning Commission members were seen exiting a

closed-door meeting.     We note, however, that it is not sufficient for a plaintiff to

demonstrate that a meeting occurred, but rather must also demonstrate that a public

action resulted from a deliberation in the meeting that was not open to the public. See




                                             14
e.g. Holeski v. Lawrence, 85 Ohio App.3d 824, 829 (11th Dist.1993). The members of

the Zoning Commission indicated they did not engage in any discussion of the zone

change with any other member outside of the public hearing.                And appellants

themselves had no evidence that the alleged meeting was prearranged, that the zoning

issue was discussed, or that the zoning amendment resulted from a closed-door

session. Thus, appellants have no direct evidence to support an Open Meetings Act

violation. Accordingly, the trial court did not err in granting summary judgment in favor

of appellee.

       {¶54} For the foregoing reasons, appellants’ sole assignment of error is not well

taken. The judgment of the Portage County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.


                               ______________________


DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.

       {¶55} I concur in the judgment to affirm the trial court’s grant of summary

judgment in favor of the appellee.

       {¶56} I concur in judgment only because I do not believe it is necessary to

decide the issue of whether a zoning commission is sui juris for the purposes of the

Open Meetings Act. The appellants have failed to raise a genuine issue of material fact

that the Open Meetings Act has been violated. This is sufficient to affirm the trial court’s

decision.      Since it is not necessary to address what would be an issue of first




                                            15
impression for this court on which there is conflicting authority, this court should decline

to do so.

       {¶57} Accordingly, I concur in judgment only.




                                            16
