[Cite as Brenneman Bros. v. Allen Cty. Commrs.,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

BRENNEMAN BROTHERS, ET AL.,

PLAINTIFFS-APPELLANTS, CASE NO. 1-13-14

v.

ALLEN COUNTY COMMISSIONERS, OPINION

DEFENDANTS-APPELLEES.

Appeal from Allen County Common Pleas Court Trial Court No. CV 2012 0432

Judgment Reversed and Cause Remanded

Date of Decision: October 21, 2013

APPEARANCES:

Michael A. Rumer and Zachary D. Maisch for Appellants

Gregory M. Antalis for Appellees Case No. 1-13-14

PRESTON, P.J.

{¶1} Appellants, Brenneman Brothers, Stanley G. Brenneman, and Kim C.

Brenneman (“the Brennemans”),1 appeal the February 12, 2013 judgment entry of

the Allen County Court of Common Pleas denying the Brennemans’ appeal from

Resolution #421-12 of Appellees, Allen County Commissioners (“the Board”),

disallowing the Brennemans’ objections to the estimated assessments for a ditch-

improvement project known as the Wrasman Project #1268 (“the Wrasman

project”). For the reasons that follow, we reverse.

{¶2} In an earlier appeal concerning the Wrasman project, we discussed the

following background:

On March 18, 2009, the Allen Soil and Water Conservation

District held an informational meeting for a proposed drainage

project known as [the Wrasman project] located in Marion

Township, Allen County. After this meeting, the Soil and Water

Conservation District determined that the Wrasman project was

necessary and conducive to the public welfare, and it requested

approval for the project from the board as required by R.C. 1515.19.

1 The Brennemans’ notice of appeal fails to “specify the party or parties taking the appeal,” as required by App.R. 3(D). Instead, the notice of appeal refers generally to “Appellants,” and “BRENNEMAN BROTHERS, et al.” are named in the caption. (Doc. No. 39). Their civil appeal docketing statement, however, names all three—Brenneman Brothers, Stanley G. Brenneman, and Kim C. Brenneman—as appellants. Therefore, notwithstanding the Brennemans’ failure to comply with App.R. 3(D), we will treat all three parties as appellants in this appeal.

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On April 22, 2009, the board concurred with the recommendation of

the Soil and Water Conservation District and approved the project.

Thereafter, the property owners affected by the Wrasman

project were provided notice, pursuant to R.C. 1515.24(D)(1), of

their estimated assessments and informed that if they had concerns

about the proposed project, they could write a letter of objection

within 30 days to the board. Several landowners, including the

Brennemans, filed letters with the board to express their concerns

about the Wrasman project. These concerns largely involved the

estimated assessments and the cost of the project.

In accordance with R.C. 1515.24(D)(2), the board conducted

a final hearing on the objections on June 25, 2009. At the

conclusion of the hearing, the board once again approved the

Wrasman project and established a schedule for the collection of

assessments. On July 1, 2009, the board made a number of

adjustments to the assessment schedule in recognition of four parcels

of property that had been improperly assessed, which resulted in

increased assessments to the other parcels of land affected by the

Wrasman project.

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Brenneman v. Allen Cty. Bd. of Commrs.,

,

(3d Dist.).

{¶3} Stanley and Kim Brenneman appealed to the Allen County Court of

Common Pleas, challenging the Board’s decision to accept the Wrasman project

and the assessments levied against the property owners affected by the Wrasman

project. Id. at ¶ 5. Based on evidence from another case before it, the Allen

County Court of Common Pleas affirmed the Board’s decision and dismissed the

appeal. Id. at ¶ 8. Stanley and Kim Brenneman appealed to this Court, and we

reversed the trial court’s decision because it abused its discretion when it

“improperly considered evidence from another case that seemingly had nothing to

do with the Wrasman project and issued its judgment using the rationale of this

other case that did not raise the same issues as the present matter.” Id. at ¶ 18.

{¶4} On remand, the trial court vacated the Board’s approval of the

Wrasman project. (See Case No. CV 2012 0432, Doc. No. 7, Attachment No. 19,

Ex. 3). On January 12, 2012, in an executive session meeting of the Board, two or

three members of the Board met with Allen Soil and Water Conservation District

(“Soil and Water”) employees Dan Ellerbrock and Scott Langenkamp, along with

the Board’s counsel, Greg Antalis, the Board’s clerk, Kelli Singhaus, Allen

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County engineer Tim Piper, and Allen County drainage engineer Doug Degan.2

(Dec. 13, 2012 Tr., Vol. 1, at 55, Ex. 9); (Jan. 18, 2013 Tr. at 54). According to

Singhaus, the purpose of that meeting was to discuss the Wrasman project

litigation. (Jan. 18, 2013 Tr. at 54-55). According to Langenkamp’s entry in Soil

and Water’s diary of events, after some discussion, Ellerbrock suggested that Soil

and Water resubmit the same Wrasman project to the Board. (Dec. 13, 2012 Tr.,

Vol. 1, at 55, Ex. 9).

{¶5} On February 8, 2012, after no parties appealed the trial court’s

decision vacating the Board’s approval, Antalis sent a letter to Soil and Water

requesting that it certify to the Board the Wrasman project “exactly the same as

was previously approved by Soil and Water, with no distinguishing new

characteristics which would require a new vote of Soil and Water to recommend

sending the project to the [Board] for approval of construction.” (Case No. CV

2012 0432, Doc. No. 7, Attachment No. 19, Ex. 3).

{¶6} In a letter to the Board dated February 15, 2012, Soil and Water once

again approved the Wrasman project and certified it to the Board. (Id. at

Attachment No. 20, Ex. 4). On March 22, 2012, Soil and Water submitted to the

Board that letter, along with plans, specifications, cost estimates, a watershed area

2 In addition to whether two or three members of the Board attended the January 12, 2012 executive- session meeting, the record contains inconsistent evidence concerning the presence of another individual, Nathan Davis, at the Board’s January 12, 2012 executive-session meeting. (Compare Dec. 13, 2012 Tr., Vol. 1, at 55, Ex. 9, with Jan. 18, 2013 Tr. at 54).

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benefited by the project, a preliminary report, and a schedule of damages.

(Resolution #267-12, Case No. CV 2012 0432, Doc. No. 4, Attachment No. 1).

By Resolution #267-12, dated April 26, 2012, the Board concurred with Soil and

Water and approved the construction of the Wrasman project. (Id.).

{¶7} Also on April 26, 2012, the Board passed Resolution #268-12, in

which it acknowledged receipt of a schedule of estimated assessments from Soil

and Water and directed the clerk of the Board to, pursuant to R.C. 1515.24(D)(1),

notify landowners of the estimated assessments for their respective properties.

(Resolution #268-12, Case No. CV 2012 0432, Doc. No. 4, Attachment No. 2).

Attached to Resolution #268-12 was the schedule of estimated assessments, which

bore an April 23, 2012 printed date in the lower left-hand corner, as well as the

Board’s “RECEIVED” stamp dated March 22, 2012. (Id.). (See also Jan. 18,

2013 Tr. at 50-51).

{¶8} On May 3, 2012, the Board mailed the estimated-assessment notices

to the landowners. (See Case No. CV 2012 0432, Doc. No. 4, Attachment Nos. 9-

18); (Case No. CV 2012 0432, Doc. No. 7, Attachment Nos. 3-12). After the

Brennemans received their notices, they filed separate objections for each parcel

of real estate that they owned. (Id.); (Id.). On June 20, 2012, the Board scheduled

a July 9, 2012 hearing, at which it would hear the Brennemans and other objectors.

(Id. at Resolution #389-12, Attachment No. 21); (Id. at Resolution #389-12,

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Attachment No. 13). The Board notified the objectors of the date, time, and

location of the objection hearing. (Id. at Attachment No. 22); (Id. at Attachment

No. 14).

{¶9} On July 9, 2012, the Brennemans appeared at the objection hearing

and presented their arguments through counsel. (See Case No. CV 2012 0432,

Doc. No. 7, Attachment Nos. 15, 16, 21). That same day, after the hearing, the

Board issued Resolution #421-12, in which it disallowed all of the landowners’

objections. (Id. at Attachment No. 21). The Brennemans filed a notice of appeal

in the trial court on July 26, 2012, challenging Resolution #421-12. (Case No. CV

2012 0601, Doc. No. 1). That appeal was assigned case number CV 2012 0601.

(Id.).

{¶10} Meanwhile, on May 29, 2012, the Brennemans challenged

Resolution #267-12—in which the Board approved the construction of the

Wrasman project—by filing a notice of appeal in the trial court. (Case No. CV

2012 0432, Doc. No. 1). That appeal was assigned case number CV 2012 0432.

(Id.). On August 7, 2012, the trial court granted the Brennemans’ motion to

consolidate the two cases and merge case number CV 2012 0601 into case number

CV 2012 0432. (Case No. CV 2012 0601, Doc. No. 4). After the trial court

merged case number CV 2012 0601 into case number CV 2012 0432, the parties

filed all documents in case number CV 2012 0432. (See id.).

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{¶11} The Board filed the transcript related to Resolution #267-12 on June

26, 2012. (Case No. CV 2012 0432, Doc. No. 4). It filed the transcript related to

Resolution #421-12 on August 15, 2012. (Case No. CV 2012 0432, Doc. No. 7).

{¶12} On September 21, 2012, the Brennemans moved the trial court to

“permit additional evidence to be entered into the record * * * pursuant to R.C.

2506.03,” arguing that the transcript filed in the trial court by the Board did not

contain a report of all evidence admitted or proffered by the Brennemans and that

the testimony adduced before the Board was not given under oath. (Case No. CV

2012 0432, Doc. No. 11). The Board opposed the Brennemans’ motion, and the

Brennemans filed a reply in support. (Case No. CV 2012 0432, Doc. Nos. 13, 16).

The trial court granted the Brennemans’ motion on October 23, 2012, finding well

taken their argument that the transcript filed by the Board did not contain all of the

evidence admitted or proffered. (Case No. CV 2012 0432, Doc. No. 18). The trial

court scheduled an evidentiary hearing for December 13, 2012. (Id.).

{¶13} The day before the evidentiary hearing, the Board moved to dismiss

the Brennemans’ appeal of Resolution #267-12, case number CV 2012 0432,

arguing that the trial court lacked subject-matter jurisdiction because Resolution

#267-12 was a “purely legislative act.” (Case No. CV 2012 0432, Doc. No. 30).

At the evidentiary hearing, after counsel for the Brennemans indicated that they

consented to the dismissal of case number CV 2012 0432, the trial court stated that

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“the Motion to Dismiss will be granted.” (Dec. 13, 2012 Tr., Vol. 1, at 4-5). The

trial court’s final judgment entry of February 12, 2013, as amended by a nunc pro

tunc entry, dismissed case number CV 2012 0432.3 (See Case No. CV 2012 0432,

Doc. No. 37).

{¶14} The parties presented evidence at the evidentiary hearing, which the

trial court held on December 13, 2012 and continued to January 18, 2013. (Dec.

13, 2012 Tr., Vol. 1, at 1); (Jan. 18, 2013 Tr. at 1). As permitted by the trial court,

the Brennemans filed a merit brief on January 28, 2013, which supplemented their

merit brief of September 25, 2012. (Case No. CV 2012 0432, Doc. Nos. 34, 12).

The Board filed its merit brief on February 6, 2013. (Case No. CV 2012 0432,

Doc. No. 35). The Brennemans filed their rebuttal brief on February 11, 2013.

(Case No. CV 2012 0432, Doc. No. 36).

{¶15} The trial court issued its final judgment entry the next day, on

February 12, 2013. (Case No. CV 2012 0432, Doc. No. 37). The trial court

concluded that: (1) a preponderance of reliable, probative, and substantial

evidence supported the Board’s decision to rely on Soil and Water’s cost estimate

based on 2009 costs; (2) holding the objection hearing more than 30 days after the

Board received the Brennemans’ objections did not prejudice the Brennemans and

3 Although the trial court dismissed case number CV 2012 0432, the trial court and the parties continued to file documents under that case number because the trial court had merged case number CV 2012 0601 into case number CV 2012 0432. (See Case No. CV 2012 0601, Doc. No. 4).

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did not void the Board’s adoption of the Wrasman project; (3) the trial court did

not have jurisdiction, in the context of an administrative appeal, to consider the

Brennemans’ argument that the Board violated Ohio’s Open Meetings Act, R.C.

121.22; (4) the apparent backdating of the schedule of estimated assessments did

not invalidate Resolution #267-12; and (5) the Board’s failure to adopt a final

schedule of assessments was a nonissue because R.C. 1515.24(D) did not require

them to do so. (Id.).

{¶16} The Brennemans appealed to this Court on March 13, 2013. (Case

No. CV 2012 0432, Doc. No. 39). They raise three assignments of error for our

review. Because it is dispositive of this appeal, we consider only the Brennemans’

first assignment of error. The Board raises a cross-assignment of error in its brief,

which we also consider.

Assignment of Error No. I

The trial court erred when it concluded it had no jurisdiction in a R.C. 2506.01 et seq. appeal to determine a [sic] violation of the Ohio Open Meetings Law can constitute an illegal act which warrants vacating all Board action subsequent to the violation.

{¶17} In their first assignment of error, the Brennemans argue that the trial

court erred when it concluded that it was without jurisdiction in an administrative

appeal to consider their argument that the Board violated Ohio’s Open Meetings

Act. Specifically, the Brennemans argue that they were not seeking the remedies

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available under the Open Meetings Act when they argued to the trial court that the

Board violated it. Rather, they argue that R.C. 2506.04 allows a trial court to find

that a political subdivision’s adjudication was “illegal,” among other things, and

that the Board’s alleged violation of the Open Meetings Act was an “illegal” act

under R.C. 2506.04 on which the trial court could have relied to vacate “all

subsequent resolutions and formal action taken by the Board regarding the

Wrasman Project.” (Appellant’s Brief at 9).

{¶18} In our Brenneman decision of 2011, we explained the limited

standard of review that we apply in appeals such as this one:

The Revised Code provides that property owners “whose

objections [are] not allowed may appeal within thirty days to the

court of common pleas.” R.C. 1515.24(D)(3). Further, R.C.

2506.01(A) states that “every final order, adjudication, or decision of

any * * * board * * * of any political subdivision of the state may be

reviewed by the court of common pleas of the county in which the

principal office of the political subdivision is located.”

The Revised Code also provides that an appeal to the court of

common pleas “shall proceed as in the trial of a civil action, but the

court shall be confined to the transcript filed under section 2506.02

of the Revised Code unless” one of five enumerated factors exists.

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R.C. 2506.03(A)(1 through 5). If at least one of the five enumerated

factors exists, the common pleas court must consider the appeal

“upon the transcript and additional evidence as may be introduced

by any party.” R.C. 2506.03(B).

When reviewing the judgment of a board, the common pleas

court is to consider the “‘whole record,’ including any new or

additional evidence admitted under R.C. 2506.03, and determine

whether the administrative order is unconstitutional, illegal,

arbitrary, capricious, unreasonable, or unsupported by the

preponderance of substantial, reliable, and probative evidence.”

[Henley v. Youngstown Bd. of Zoning Appeals,

(2000).]

In contrast, “[t]he standard of review to be applied by the

court of appeals in an R.C. 2506.04 appeal is ‘more limited in

scope.’” (Emphasis sic.) [Id., quoting Kisil v. Sandusky,

(1984).]

This statute grants a more limited power to the court of

appeals to review the judgment of the common pleas

court only on “questions of law,” which does not

include the same extensive power to weigh “the

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preponderance of substantial, reliable and probative

evidence,” as is granted to the common pleas court. It

is incumbent on the trial court to examine the

evidence. Such is not the charge of the appellate court.

* * * The fact that the court of appeals, or this court,

might have arrived at a different conclusion than the

administrative agency is immaterial. Appellate courts

must not substitute their judgment for those of an

administrative agency or a trial court absent the

approved criteria for doing so.

[Henley at 147, quoting Lorain City School Dist. Bd. of Edn. v. State

Emp. Relations Bd.,

(1988).] Furthermore,

this court has recognized that administrative appeals under R.C.

2506.04 are reviewed under an abuse-of-discretion standard.

[Briggs v. Dinsmore Twp. Bd. of Zoning Appeals,

,

(3d Dist.).] “Abuse of discretion” implies

that the trial court’s decision was unreasonable, arbitrary, or

unconscionable. [Blakemore v. Blakemore,

(1983).]

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Brenneman,

. See also Armstead v. Lima City Bd. of

Edn.,

(3d Dist. 1991) (“Within the ambit of ‘questions of

law’ for appellate court review would be abuse of discretion by the common pleas

court.” (emphasis and internal quotation marks omitted)), quoting Kisel,

.

{¶19} The issue presented by the Brennemans’ first assignment of error is

whether the trial court had jurisdiction—in the context of the Brennemans’

administrative appeal—to consider whether Resolution #421-12 was invalid based

on a violation of Ohio’s Open Meetings Act, R.C. 121.22.4 We conclude that it

did.

{¶20} Our resolution of that issue involves interpretation of R.C. 121.22.

“When analyzing a statute, our primary goal is to apply the legislative intent

manifested in the words of the statute.” Proctor v. Kardassilaris,

,

, ¶ 12, citing State ex rel. Herman v. Klopfleisch,

(1995). “To discern legislative intent, we first consider the

statutory language, reading the words and phrases in context, according to rules of

grammar and common usage.” Armstrong v. John R. Jurgensen Co.,

,

, citing R.C. 1.42 (additional citations omitted).

4 The General Assembly amended R.C. 121.22 in 2013 Am.Sub.H.B. 59, effective September 29, 2013. Although that bill did not amend the portions of R.C. 121.22 that are relevant to our analysis, our citations to R.C. 121.22 are to the previously effective version of R.C. 121.22.

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“The court may not delete or insert words, but must give effect to the words the

General Assembly has chosen.”

citing Bailey v. Republic Engineered Steels,

Inc.,

(2001). “Statutes that are plain and unambiguous

must be applied as written without further interpretation.” Proctor at ¶ 12, citing

Lake Hosp. Sys. v. Ohio Ins. Guar. Assn.,

(1994).

{¶21} Subsection (H) of R.C. 121.22 provides that a public body’s formal

action is invalid if the public body did not adopt the formal action in an open

meeting, or if the formal action that the public body adopted in an open meeting

resulted from private deliberations:

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.

R.C. 121.22(H).

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{¶22} Subsection (I) sets forth who may bring an action to enforce the

Open Meetings Act and the remedies available in courts of common pleas in the

event of a violation:

(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.

(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. The court, in its discretion, may

reduce an award of attorney’s fees to the party that sought the

injunction or not award attorney’s fees to that party if the court

determines both of the following:

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(i) That, based on the ordinary application of statutory law and

case law as it existed at the time of violation or threatened violation

that was the basis of the injunction, a well-informed public body

reasonably would believe that the public body was not violating or

threatening to violate this section;

(ii) That a well-informed public body reasonably would believe

that the conduct or threatened conduct that was the basis of the

injunction would serve the public policy that underlies the authority

that is asserted as permitting that conduct or threatened conduct.

(b) If the court of common pleas does not issue an injunction

pursuant to division (I)(1) of this section and the court determines at

that time that the bringing of the action was frivolous conduct, as

defined in division (A) of section 2323.51 of the Revised Code, the

court shall award to the public body all court costs and reasonable

attorney’s fees, as determined by the court.

(3) Irreparable harm and prejudice to the party that sought the

injunction shall be conclusively and irrebuttably presumed upon

proof of a violation or threatened violation of this section.

(4) A member of a public body who knowingly violates an

injunction issued pursuant to division (I)(1) of this section may be

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removed from office by an action brought in the court of common

pleas for that purpose by the prosecuting attorney or the attorney

general.

R.C. 121.22(I).

{¶23} The Board argues that the trial court did not have subject-matter

jurisdiction to decide whether the Board’s adoption of Resolution #421-12,

disallowing the Brennemans’ objections, violated R.C. 121.22. Specifically, the

Board argues that the question of whether a public body violated R.C. 121.22 may

be considered only in an original action initiated in common pleas court, and that

because the trial court in this case sat as an appellate body in an administrative

appeal, it was unable to consider whether the Board violated R.C. 121.22.

{¶24} The Board cites cases from the Ohio Court of Appeals for the Fourth

and Eleventh Districts in support of its position that R.C. 121.22 violations may be

considered only in actions initiated in courts of common pleas. In the most recent

case—Stainfield v. Jefferson Emergency Rescue District—an ousted executive

director of the Jefferson Emergency Rescue District appealed to the Ashtabula

County Court of Common Pleas the Emergency Rescue District’s decision to

remove her from the position. 11th Dist. Ashtabula No. 2009-A-0044, 2010-Ohio-

2282, ¶ 1. In one of her assignments of error, the ousted executive director,

Stainfield, argued that the Emergency Rescue District violated the Open Meetings

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Act. Id. at ¶ 30. Although it analyzed whether the public body adhered to the

proper executive-session procedure under R.C. 121.22(G), the Eleventh District

concluded that Stainfield’s assignment of error was without merit because she did

“not properly challenge[ ] the violation in the manner prescribed by statute.” Id. at

¶ 36. Citing the Fourth District’s opinion in Fahl v. Athens, the Eleventh District

observed that Stainfield “filed an administrative appeal pursuant to R.C. 505.72”

and did not initiate an original action in the court of common pleas under R.C.

121.22(I). Id. at ¶ 39-40, citing Fahl v. Athens, 4th Dist. Athens No. 06CA23,

. The court also observed that “Stainfield failed to request an

injunction, imposition of penalties, and/or award of attorney fees due to the

alleged violation of R.C. 121.22.” Id. at ¶ 39.

{¶25} The Board also cites Fahl. In that case, property owners appealed

two ordinances passed by the Athens City Council related to a proposed project to

develop and construct a retirement center.

. The Athens County Court

of Common Pleas dismissed the property owners for lack of standing. Id. at ¶ 5-7.

They appealed to the Fourth District and argued that they had standing to

challenge the ordinances because the City Council violated R.C. 121.22. Id. at ¶

27, 40. In refusing to consider the property owners’ arguments, the Fourth District

quoted the Eleventh District’s opinion in Pfeffer v. Board of County

Commissioners of Portage County, in which the court stated that “an action

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brought to enforce [R.C. 121.22] is an action with original jurisdiction in the court

of common pleas. It is not an appeal.” Id. at ¶ 28, 40, quoting Pfeffer v. Bd. of

Cty. Commrs. of Portage Cty., 11th Dist. Portage No. 2000-P-0030,

, *2 (July 13, 2001) (internal quotation marks omitted). The Fourth

District concluded that because the property owners did not bring “an original

action in the court of common pleas alleging a violation of [R.C. 121.22],” they

could not raise their R.C. 121.22 arguments “in the narrow context of an

administrative appeal.” Id. at ¶ 29.

{¶26} Finally, the Board cites Pfeffer. In that case, the Board of

Commissioners of Portage County adopted a resolution forgiving a $100,000 debt

of a corporation, after meeting unannounced with the corporation’s director.

. Members of the Brady Area Residents Association initiated an

action, styled as a “notice of appeal,” in which they asserted two “claims”: (1)

that the commissioners passed the resolution in violation of R.C. 121.22 and (2)

that the commissioners’ action was “unconstitutional, illegal, arbitrary, capricious

and is not supported by the preponderance, substantial, reliable and probative

evidence on the whole record.” Id. at *1-2. The association members asked the

common pleas court to “impose penalties as per law.” Id. at *3. The

commissioners moved to dismiss, arguing that the association members were

attempting to appeal a legislative resolution, as opposed to a decision following an

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adjudicatory hearing. Id. at *2. The trial court granted the commissioners’

motion, and the association members appealed to the Eleventh District. Id. The

Eleventh District reversed and remanded with instructions for the trial court to

conduct a hearing to determine if the commissioners violated R.C. 121.22,

reasoning that statute “addresses the form and manner in which decisions are

made, and is not concerned with the content of those decisions.” Id. at *3-4. The

court said that notwithstanding the association members improperly labeling their

R.C. 121.22 challenge as an “appeal,” “the trial court, upon a thorough

examination of the statute, should have recognized that an action to enforce R.C.

121.22 is not an appeal.” Id. at *3. The Eleventh District also noted that “the

Supreme Court of Ohio has held that R.C. 121.22(H) invalidates any formal action

taken by a ‘public body’ (as defined within the statute) that results from

deliberations conducted in private.” Id., citing State ex rel. Delph v. Barr,

(1989).

{¶27} We disagree with the holdings in Pfeffer, Fahl, and Stainfield to the

extent the Eleventh and Fourth Districts concluded in those cases that an original

action filed in a court of common pleas is the exclusive method to enforce R.C.

121.22 and that a court of common pleas may not consider in an administrative

appeal whether a public body violated R.C. 121.22. Our decision is based on the

plain and unambiguous language of R.C. 121.22(H), which provides that a

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resolution, rule, or formal action of any kind passed in violation of R.C. 121.22 is

invalid from the moment it is passed:

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.

(Emphasis added.) R.C. 121.22(H). Invalidation of a public body’s action under

R.C. 121.22(H) is not conditioned on any certain challenge to that action. If a

public body’s action is invalid under R.C. 121.22(H), and a trial court can

conclude as much based on the evidence properly before it in an administrative

appeal, nothing in R.C. 121.22 requires the trial court to turn a blind eye to the

action’s invalidation.

{¶28} The procedure set forth in R.C. 121.22(I) does not affect our

conclusion. R.C. 121.22(I)(1) provides that “[a]ny person may bring an action to

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enforce this section.” That subsection does not provide that a public body’s

resolution, rule, or formal action may be declared invalid only in an original action

in common pleas court. It merely sets forth the procedure by which any person

may challenge a public body’s action—an action that, under R.C. 121.22(H), was

or was not valid from the moment the public body acted.

{¶29} The Supreme Court of Ohio has stated that “R.C. 121.22[I] does not

provide the exclusive remedy for a person adversely affected by the failure of a

governmental body to comply with” R.C. 121.22. State ex rel. Long v. Cardington

Village Council,

(2001), citing Hardesty v. River View Local

School Dist. Bd. of Edn.,

, 149 (C.P. 1993). In Hardesty, the

River View Local School District Board of Education suspended students who

allegedly received food items from the school cafeteria without paying sufficient

compensation for them. 63 Ohio Misc.2d at 146. The students appealed the

board’s suspension decisions to the Coshocton County Court of Common Pleas

under the administrative-appeal statutes, R.C. Chapter 2506. Id. The students

argued that “the board’s approvals of the suspensions were the result of at least

one illegal executive session held prior to the public hearings and that the

approvals were voted in violation of R.C. 121.22 * * *.” Id. at 148.

{¶30} The Coshocton County Court of Common Pleas vacated the

suspensions, concluding that the board’s decisions to suspend the students were

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“invalid” under R.C. 121.22 and “illegal” under R.C. 2506.04 because the board

improperly discussed the suspensions in executive session. Id. at 150. The Court

of Common Pleas held that it had jurisdiction within the context of an

administrative appeal to consider potential R.C. 121.22 violations:

Appellee board argues that this court is without jurisdiction to

consider the effect of R.C. 121.22 in this administrative appeal,

reasoning that R.C. 121.22(I) authorizes the bringing of an action to

enforce provisions of this section and appellants in this case have

brought only an R.C. Chapter 2506 appeal. This argument is

unconvincing and appellee has provided to the court no authority for

the principle that the injunction proceedings set forth in R.C. 121.22

are the exclusive remedy for a person adversely affected by an

“invalid” act of a governmental body. R.C. 2506.04 clearly

authorizes the court, “consistent with its findings,” to vacate the

order of the appellee board. It is the opinion of this court that in the

course of an R.C. 2506.04 administrative appeal, an action found to

be “invalid” under R.C. 121.22 can also, under appropriate factual

circumstances, be found to be “illegal” under R.C. 2506.04, and this

court so holds.

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Id. at 149. We agree with the court’s reasoning in Hardesty and the Supreme

Court of Ohio’s reliance on Hardesty in Long.

{¶31} Other decisions of the Supreme Court of Ohio support the conclusion

that courts other than common pleas courts hearing original actions under R.C.

121.22(I) may consider whether public bodies’ resolutions, rules, or other formal

actions are invalid under R.C. 121.22(H). For example, in State ex rel. Delph v.

Barr, the Court “granted a writ of quo warranto to remove a police chief whose

appointment was invalid by operation of R.C. 121.22(H).” State ex rel. Randles v.

Hill,

(1993), citing State ex rel. Delph v. Barr,

(1989). In Delph, an applicant for a police chief position who ultimately

missed out on the appointment initiated a quo warranto action in the Court of

Appeals for Highland County, attempting to oust the appointed police chief and

obtain a writ making the applicant the police chief.

. Notwithstanding

the provisions of R.C. 121.22(I) discussing the power of courts of common pleas

to issue injunctions for violations of R.C. 121.22, and notwithstanding that the

applicant initiated his action in the Court of Appeals, the Supreme Court of Ohio

agreed with the Court of Appeals that the police chief held the office unlawfully

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because his “appointment was not accomplished in compliance with R.C. 121.22 *

* *.”

.5

{¶32} The Supreme Court of Ohio has also considered in mandamus

actions whether R.C. 121.22 was violated. In State ex rel. Fairfield Leader v.

Ricketts, the Court “applied [R.C. 121.22] to supposedly ‘informal’ meetings

where discussions of public interest were held” and “issued a writ of mandamus

compelling the commissioners and the trustees separately to prepare minutes

describing their discussions.” State ex rel. Cincinnati Post v. Cincinnati,

(1996), citing State ex rel. Fairfield Leader v. Ricketts,

(1990). See also State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v.

Cuyahoga Cty. Bd. of Commrs.,

,

(“R.C.

121.22(I), which affords mandatory injunctive relief by way of a common pleas

court action to enforce the provisions of the Open Meetings Act, does not prevent

a mandamus action.”), citing

; Long,

(“An action for a mandatory injunction, however, is an extraordinary remedy that

5 The version of R.C. 121.22(H) below, in effect at the time of the Court’s decision in Delph, was substantially similar to the current version:

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) of this section and conducted at an executive session held in compliance with this section.

See also

.

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does not preclude a writ of mandamus to enforce R.C. 121.22 and 149.43.”

(Emphasis sic.)).

{¶33} We hasten to point out three important aspects of our holding today.

First, we express no opinion as to whether it is possible, given the evidence

properly before the trial court, to determine whether the Board did or did not

violate R.C. 121.22. Nor do we express an opinion as to whether the Board did or

did not violate R.C. 121.22. Those are questions for the trial court to decide on

remand. Second, our holding does not authorize a trial court sitting as an appellate

body in an administrative appeal to allow the parties to present evidence not

authorized by the administrative-appeal statutes, R.C. Chapter 2506. Third, our

opinion does not affect any right that the Brennemans may have under R.C. 121.22

to challenge Resolution #421-12 by filing an original action in the court of

common pleas.

{¶34} For the reasons above, we hold that the trial court had jurisdiction to

consider whether the Board’s Resolution #421-12 was invalid based on a violation

of R.C. 121.22, and the trial court’s conclusion to the contrary was an error of law.

{¶35} The Brennemans’ first assignment of error is therefore sustained.

Assignment of Error No. II

The trial court erred when it concluded that a document which was back dated as part of the public record does not invalidate the Board’s resolution due to such an illegal act.

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Assignment of Error No. III

The trial court erred by not vacating the Wrasman Project due to the Board’s failure to adopt a final schedule of assessments pursuant to R.C. 1515.24(D)(2).

{¶36} In their second assignment of error, the Brennemans argue that the

trial court erred when it concluded the possible backdating of the schedule of

estimated assessments from Soil and Water did not invalidate or render illegal

Resolution #268-12, which the Board passed after it received the possibly

backdated schedule of estimated assessments. In their third assignment of error,

the Brennemans argue that the trial court erred when it concluded that the Board’s

failure to adopt a final schedule of assessments pursuant to R.C. 1515.24(D)(2)

was a “moot” issue because the Board never approved a final schedule of

assessments from which the Brennemans could appeal.

{¶37} In light of our decision that the trial court erred as a matter of law

when it concluded that it did not have jurisdiction in the context of an

administrative appeal to consider the Brennemans’ argument that the Board

violated R.C. 121.22, the Brennemans’ second and third assignments of error have

been rendered moot, and we decline to address them. App.R. 12(A)(1)(c).

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Cross-Assignment of Error

The trial court, sitting as the appellate court for this administrative appeal, committed reversible error in its order entry of October 23, 2012, granting appellants an evidentiary hearing under R.C. §2506.03.

{¶38} Based on our disposition of the Brennemans’ first assignment of

error, resulting in a reversal of the trial court’s decision, we consider this properly

asserted defensive cross-assignment of error. R.C. 2505.22; Byers v. Robinson,

10th Dist. Franklin No. 08AP-204,

(“An appellee who has

not filed a notice of appeal (cross-appeal) can file cross-assignments of error under

R.C. 2505.22.” (citation and internal quotation marks omitted)). See also Conley

v. Endres Processing Ohio, L.L.C., 3d Dist. Wyandot No. 16-12-11, 2013-Ohio-

419, ¶ 23 (“We may consider an appellee’s cross-assignment of error ‘only when

necessary to prevent a reversal of the judgment under review.’”), quoting Parton

v. Weilnau,

(1959), paragraph seven of the syllabus.

{¶39} In its cross-assignment of error, the Board argues that the trial court

erred when it granted the Brennemans’ motion to allow additional evidence

pursuant to R.C. 2506.03. Within 40 days of a party appealing under R.C.

2506.01,

the officer or body from which the appeal is taken, upon the filing of

a praecipe by the appellant, shall prepare and file in the court to

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which the appeal is taken, a complete transcript of all the original

papers, testimony, and evidence offered, heard, and taken into

consideration in issuing the final order, adjudication, or decision.

R.C. 2506.02.

{¶40} Under R.C. 2506.03, “an appeal under R.C. 2506.01 ‘shall proceed

as in the trial of a civil action, but the court shall be confined to the transcript

[from the administrative hearing] * * * unless it appears, on the face of the

transcript or by affidavit filed by the appellant,’ that certain enumerated exceptions

apply.” State ex rel. 506 Phelps Holdings, L.L.C. v. Cincinnati Union Bethel, 1st

Dist. Hamilton Nos. C-120461, C-120462, and C-120474,

.

Those five exceptions are:

(1) The transcript does not contain a report of all evidence admitted

or proffered by the appellant.

(2) The appellant was not permitted to appear and be heard in

person, or by the appellant’s attorney, in opposition to the final

order, adjudication, or decision , and to do any of the following:

(a) Present the appellant’s position, arguments, and contentions;

(b) Offer and examine witnesses and present evidence in support;

(c) Cross-examine witnesses purporting to refute the appellant’s

position, arguments, and contentions;

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(d) Offer evidence to refute evidence and testimony offered in

opposition to the appellant’s position, arguments, and contentions;

(e) Proffer any such evidence into the record, if the admission of it

is denied by the officer or body appealed from.

(3) The testimony adduced was not given under oath.

(4) The appellant was unable to present evidence by reason of a

lack of the power of subpoena by the officer or body appealed from,

or the refusal, after request, of that officer or body to afford the

appellant opportunity to use the power of subpoena when possessed

by the officer or body.

(5) The officer or body failed to file with the transcript conclusions

of fact supporting the final order, adjudication, or decision.

R.C. 2506.03(A).

{¶41} “The Ohio Supreme Court has recognized that R.C. 2506.03 ‘makes

liberal provision for the introduction of new or additional evidence.’” 506 Phelps

Holdings, L.L.C. at ¶ 44, quoting Cincinnati Bell, Inc. v. Glendale,

(1975). See also State ex rel. Chagrin Falls v. Geauga Cty. Bd. of

Commrs.,

,

(“R.C. 2506.03 contains a

liberal provision for the introduction of new or additional evidence to be heard by

a reviewing court.” (internal quotation marks omitted)), quoting Elbert v. Bexley

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Planning Comm.,

(10th Dist. 1995) and In re Annexation

of Certain Territory,

(3d Dist. 1992). “We review the

trial court’s decision to allow the introduction of additional evidence under R.C.

2506.03 under an abuse of discretion standard.” 506 Phelps Holdings, L.L.C. at ¶

44, citing Saeed v. Cincinnati, 1st Dist. Hamilton No. C-030854,

,

¶ 18.

{¶42} Here, the Brennemans moved the trial court to allow additional

evidence under two of the exceptions—R.C. 2506.03(A)(1) and (3). The trial

court rejected the Brennemans’ request under R.C. 2506.03(A)(3), but it granted

their request under R.C. 2506.03(A)(1), finding well taken the Brennemans’

argument that the transcript filed by the Board did not contain all of the evidence

admitted or proffered. Specifically, the Brennemans argued that the transcript

lacked the Brennemans’ notice of appeal to the trial court, documents relating to a

petition filed with the Board by the Brennemans under R.C. Chapter 6131 for a

separate ditch project, and a “corrected” estimated schedule of assessments.

{¶43} Keeping in mind R.C. 2506.03’s “liberal provision for the

introduction of new or additional evidence,” we conclude that the trial court did

not abuse its discretion when it granted the Brennemans’ motion and allowed them

to present additional evidence. See 506 Phelps Holdings, L.L.C. at ¶ 44. The

transcript of the objection hearing—which the Board first filed in audio format and

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later filed in typewritten format—reflects that counsel for the Brennemans directed

the Board’s attention to the R.C. Chapter 6131 petition. The Brennemans’ counsel

argued that because the R.C. Chapter 6131 petition was filed before Soil and

Water certified the Wrasman project to the Board on March 22, 2012, the Board

needed to dispose of the R.C. Chapter 6131 petition before disposing of the

Wrasman project. (Case No. CV 2012 0432, Doc. No. 7, Attachment No. 16);

(Case No. CV 2012 0432, Doc. No. 12, Ex. 3 ). Stanley G. Brenneman swore in

an affidavit attached to the Brennemans’ motion that he was one of the six

petitioners who filed the R.C. Chapter 6131 petition and that the petition was not

included in the transcript filed by the Board. (Case No. CV 2012 0432, Doc. No.

11, attached).

{¶44} Furthermore, notes from the July 9, 2012 objection hearing—filed by

the Board as part of the transcript for the Brennemans’ appeal challenging

Resolution #421-12—indicate that the Brennemans’ R.C. Chapter 6131 petition

“needs to be reviewed prior to approval of Wrasman.” (Case No. CV 2012 0432,

Doc. No. 7, Attachment No. 15). While that notation may or may not have simply

referred to the Brennemans’ counsel’s argument at the hearing, it could have

raised questions in the mind of the trial court of whether the Board included with

the filed transcript all evidence proffered by the Brennemans at the hearing and

whether the filed transcript contained all evidence that the Board considered in

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issuing Resolution #421-12. See R.C. 2506.03(A)(1) and 2506.02. For that reason

alone, we cannot conclude that the trial court abused its discretion by allowing the

Brennemans to present additional evidence. The Board’s cross-assignment of

error is therefore overruled.

{¶45} Having found error prejudicial to the appellants herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

Judgment Reversed and Cause Remanded

ROGERS and SHAW, J.J., concur.

/jlr

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