[Cite as State ex rel. Ames v. Rootstown, 2020-Ohio-3855.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO ex rel. BRIAN M. AMES,                     :   OPINION

                 Relator-Appellant,                      :
                                                             CASE NOS. 2019-P-0114
        - vs -                                           :             2020-P-0001

ROOTSTOWN TOWNSHIP BOARD OF                              :
TRUSTEES,
                                                         :
                 Respondent-Appellee.


Civil Appeals from the Portage County Court of Common Pleas.
Case Nos. 2019 CV 00226 & 2019 CV 00180.

Judgment: Affirmed.


Brian M. Ames, pro se, 2632 Ranfield Road, Mogadore, OH 44260 (Relator-Appellant).

James F. Mathews and Andrea K. Ziarko, Baker, Dublikar, Beck, Wiley & Mathews,
400 South Main Street, North Canton, OH 44720 (For Respondent-Appellee).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Brian M. Ames (“Ames”), appeals from a decision rendered by

the Portage County Court of Common Pleas dismissing his claims in two cases against

appellee, the Rootstown Township Board of Trustees (“the Board”). The trial court’s

judgment is affirmed.

        {¶2}     Ames filed two complaints against the Board (Case Nos. 2019-CV-180

and 2019-CV-226), alleging violations of R.C. 121.22, Ohio’s Open Meetings Act
(“OMA”).1 The Board filed answers to both complaints on April 9, 2019, denying it had

violated any provisions of the OMA. The Board also asserted thirteen defenses in each

of its answers, including defenses under Civ.R. 12(B) that (1) Ames failed to state a

claim upon which relief can be granted; and (2) Ames failed to join a necessary party

under Civ.R. 19 and 19.1.

       {¶3}    In Case No. 2019-CV-180, a status conference was set for May 23, 2019,

which resulted in a magistrate’s order filed on May 24, 2019. The order set a trial date

for October 22, 2019, a final pretrial date for October 1, 2019, and a dispositive motion

deadline for August 16, 2019. Thereafter, on July 25, 2019, Ames filed a motion for a

protective order and a preliminary hearing “to determine the Board’s first and fifth

defenses pursuant to Civ.R. 12(D).”

       {¶4}    In Case No. 2019-CV-226, the record does not reflect a status conference,

magistrate’s order, trial or pretrial dates, or deadlines set prior to August 2, 2019. Ames

filed a motion for a preliminary hearing in the matter “to determine the Board’s first and

fifth defenses pursuant to Civ.R. 12(D)” on July 26, 2019.

       {¶5}    On August 2, 2019, the trial court sua sponte found a conflict of interest

with the assigned judge in each case and requested the Ohio Supreme Court to appoint

an out-of-county visiting judge to handle both matters. On August 26, 2019, the Ohio

Supreme Court appointed Judge Thomas J. Pokorny in both cases. On September 4,

2019, Judge Pokorny issued an order in both cases, which reads as follows:

               BENCH TRIALS IN THE ABOVE ENTITLED CASE HAS BEEN
               SCHEDULED ON December 17, 2019 AT 10:00 am BEFORE
               JUDGE THOMAS J. POKORNY, COURTROOM #4.


1. The claims were not consolidated by the trial court, but they were consolidated for all purposes on
appeal by this court on February 11, 2020.


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      {¶6}   On December 4, 2019, Ames filed a motion for summary judgment and

memorandum in support in Case No. 2019-CV-226, which was not ruled on by the trial

court. On December 17, 2019, the two causes were heard by the trial court together.

The parties appeared, and Ames indicated he was not prepared to go forward on either

claim. His stated reasons for being unprepared are incorporated in the present appeal

as assignments of error. As a result, the trial court dismissed both causes on the

Board’s oral motion and memorialized the dismissals in a judgment entry that same day.

      {¶7}   Ames filed a timely notice of appeal and raises three assignments of error

for our review. Ames’ first assignment of error states:

             THE TRIAL COURT ERRED BY HOLDING A BENCH TRIAL ON
             DECEMBER 17, 2019 THAT IT HAD NOT SET THEREBY
             PREJUDICING MR. AMES.

      {¶8}   Ames asserts the trial court never set a trial for December 17, 2019. He

cites case law supporting the legal principle that “a court speaks exclusively through its

judgment entries and not through any oral pronouncements.” Stone v. Cellura, 11th

Dist. Portage No. 2014-P-0043, 2015-Ohio-2453, ¶22 (citation omitted).

      {¶9}   While Ames’ legal proposition is accurate, it is inapposite in the present

matter because the record in both cases clearly reflects a written order issued on

September 4, 2019, setting the matters for trial on December 17, 2019. Ames does not

dispute having notice of these orders; to the contrary, he attended the trial at the time,

date, and courtroom listed on each order. Therefore, Ames’ argument that the trial

court never ordered a trial for December 17, 2019, is inaccurate, and his first

assignment of error lacks merit.

      {¶10} Ames’ second assignment of error states:




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              THE TRIAL COURT ERRED BY HOLDING A BENCH TRIAL ON
              DECEMBER 17, 2019 WITHOUT HOLDING THE PRELIMINARY
              HEARING REQUIRED BY CIV.R. 12(D) THEREBY PREJUDICING
              MR. AMES.

       {¶11} Ames’ second assignment of error asserts the trial court was required to

hold a preliminary hearing on his motions “to determine the Board’s first and fifth

defenses pursuant to Civ.R. 12(D).” Ames argues the trial court’s failure to hold a

hearing on the motions prior to trial prejudiced him by “depriving him of necessary

predicates to his planned course of action.” He cites the following language contained

in Civ.R. 12(D):

              Preliminary Hearings. The defenses specifically enumerated (1) to
              (7) in subdivision (B) of this rule, whether made in a pleading or by
              motion, and the motion for judgment mentioned in subdivision (C)
              of this rule shall be heard and determined before trial on application
              of any party.

       {¶12} The Board’s argument in response is three-fold: (1) a hearing is not

required under Civ.R. 12(D) on the defenses of failure to state a claim upon which relief

can be granted under Civ.R. 12(B)(6) or failure to join a necessary party under Civ.R.

12(B)(7); (2) the trial court proceeding to trial without ruling on the motion for a

preliminary hearing presumptively overruled the motion; and (3) Ames was not

prejudiced by not being given a separate hearing before trial.

       {¶13} Civ.R. 12(D) pertains to preliminary hearings and states that the

applicable defenses “shall be heard and determined” on application by a party. This

court has previously stated, however, that “[t]he term ‘hearing’ has been liberally

construed and may be limited to a review of the record without oral argument.” In re

Swain, 68 Ohio App.3d 737, 741 (11th Dist.1991) (referring to Juv.R. 40), citing Ohio

Motor Vehicle Dealers Bd. v. Central Cadillac Co., 14 Ohio St.3d 64, 67 (1984).



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Further, various other Ohio appellate courts have concluded that “Civ.R. 12(D) does not

mandate that the trial court hold an oral hearing.” See McKinley Machinery, Inc. v.

Acme Corrugated Box Co., Inc., 9th Dist. Lorain No. 98CA007160, 2000 WL 961300,

*1, fn. 1 (July 12, 2000); T.S. Expediting Services, Inc. v. Mexican Indus., Inc., 6th Dist.

Wood No. WD-01-060, 2002-Ohio-2268,¶26, fn. ix; Savage v. Godfrey, 10th Dist.

Franklin No. 01AP-388, 2001 WL 1143197, *6 (Sept. 28, 2001); Jones v. Mahoning Cty.

Clerk of Court, 7th Dist. Mahoning No. 18 MA 0074, 2019-Ohio-1097, ¶16.

       {¶14} Further, this court has previously held that, “‘[g]enerally, when a trial court

fails to rule on a motion, the appellate court will presume the trial court overruled the

motion.’” Karlen v. Carfangia, 11th Dist. Trumbull No. 2000-T-0081, 2001 WL 589381

(June 2, 2001), *3, quoting Dozer v. Dozer, 88 Ohio App.3d 296, 303 (4th Dist.1993);

accord Rozzi v. Cafaro Co., 11th Dist. Trumbull No. 2001-T-0090, 2002-Ohio-4817, ¶14.

       {¶15} Where the trial court does err in a civil matter, it may be deemed

“harmless error,” as defined in Civ.R. 61 as follows:

              [N]o error or defect in any ruling or order or in anything done or
              omitted by the court or by any of the parties is ground for granting a
              new trial * * * or for vacating, modifying or otherwise disturbing a
              judgment or order, unless refusal to take such action appears to the
              court inconsistent with substantial justice. The court at every stage
              of the proceeding must disregard any error or defect in the
              proceeding which does not affect the substantial rights of the
              parties.

       {¶16} In the matter sub judice, the trial court should have ruled on Ames’ motion

under Civ.R. 12(D) to determine whether two of the Board’s thirteen asserted defenses

under Civ.R.12(B)(6) and 12(B)(7) had merit, but it was not required to conduct an oral

hearing. At most, the failure to expressly rule on the Civ.R. 12(D) motion prior to trial

constitutes harmless error. By setting a trial date and proceeding to trial, the trial court



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is presumed to have denied Ames’ motion for a preliminary hearing. Further, the trial

court’s failure to rule on the motion did not affect the outcome of the case because the

trial court did not dismiss Ames’ claims on the basis of either Civ.R.12(B)(6) or 12(B)(7).

As such, this argument advanced by Ames is without merit.

       {¶17} Ames’ second assignment of error lacks merit.

       {¶18} Ames’ third assignment of error states:

               THE TRIAL COURT ERRED BY HOLDING A BENCH TRIAL ON
               DECEMBER 17, 2019 WITHOUT FIRST DETERMINING IF
               THERE WAS ANY MATERIAL FACTS [sic] IN DISPUTE.

       {¶19} Ames’ third assignment of error pertains to his motion for summary

judgment filed on December 4, 2019, which the trial court did not rule on before trial on

December 17, 2019. He argues that proceeding to trial without ruling on the motion is

reversible error. The Board responds that the trial court was not required to rule on the

motion, which was filed without leave of court thirteen days before the trial date and two

months after the trial date was set.

       {¶20} Civ.R. 56 governs the filing of summary judgment motions, and

subdivision (A) specifically limits a party from filing a motion for summary judgment once

a matter is set for trial, stating: “If the action has been set for pretrial or trial, a motion for

summary judgment may be made only with leave of court.” (Emphasis added.)

       {¶21} Because Ames did not obtain leave to file his motion for summary

judgment, the trial court was not required to consider the motion. Ames was given an

opportunity to present the evidence and arguments contained in his motion for summary

judgment at the duly ordered trial set by court order on September 4, 2019, yet he

arrived unprepared to do so.




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      {¶22} Ames’ third assignment of error lacks merit.

      {¶23} The judgment of the Portage County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J., concurs,

THOMAS R. WRIGHT, J., concurs in judgment only.




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