# Then v. Elizabeth Twp. Bd. of Trustees

> Ohio Court of Claims · November 25, 2024 · 2024 Ohio 5967

URL: https://www.frixlaw.com/law-library/cases/10765067

## Case

- **Court:** Ohio Court of Claims
- **Decided:** November 25, 2024
- **Citations:** 2024 Ohio 5967
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Sadler
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[Cite as Then v. Elizabeth Twp. Bd. of Trustees, 2024-Ohio-5967.]

IN THE COURT OF CLAIMS OF OHIO

MICHAEL J. THEN Case No. 2024-00496PQ

Requester Judge Lisa L. Sadler

v. DECISION AND ENTRY

ELIZABETH TOWNSHIP BOARD OF
TRUSTEES

Respondent

{¶1} In this public-records case, Requester has filed written objections to a Special
Master’s Report and Recommendation. The Court overrules Requester’s written
objections and adopts the Special Master’s Report and Recommendation for reasons
discussed below.
I. Background
{¶2} On June 10, 2024, Requester filed a Complaint against Respondent, alleging
a denial of access to public records in violation of R.C. 149.43(B). In an attachment to
the Complaint, Requester states: “For each record request, I defined both the event and
an associated time period. I provided my public records request on May 1, 2024. We
received the responses on June 5, 2024. Elizabeth Township never contacted us to
provide response status, and we asked twice the status.” 1
{¶3} The Court appointed a Special Master who referred the case to mediation.
After mediation failed to successfully resolve all disputed issues between the parties, the
case was returned to the Special Master’s docket. Respondent subsequently filed a
response, asking for dismissal of the Complaint and the issuance of a judgment in its

1 In the Report and Recommendation (R&R) the Special Master notes: “Mr. Then’s public records
request contained 17 unnumbered parts. He only disputes the Township’s response to seven of those parts.
His complaint denominated the disputed parts as parts 1 through 7, both in the body of his complaint and
in the copy of the request attached to his complaint.” (R&R, 2, fn. 2.)
Case No. 2024-00496PQ -2- DECISION & ENTRY

favor. Requester filed a reply to Respondent’s response, appending additional evidence
(i.e., affidavits). The Special Master permitted Respondent to file a surreply.
{¶4} On October 30, 2024, the Special Master issued a Report and
Recommendation (R&R) in which the Special Master concludes that Requester’s claim
for production of records fails for want of proof (R&R, 2-5), that Requester’s other claims
(i.e., claim of an alleged failure to properly preserve records and claim of an allegedly
unreasonable delay by Respondent in responding to Requester’s public-records
requests) are not properly before the Court (R&R, 6), and costs should be assessed to
Requester. (R&R, 6.) The Special Master recommends (1) entering judgment for
Respondent on Requester’s claim for production of records, (2) denying all other relief,
and (3) assessing costs against Requester. (R&R 1, 6.)
{¶5} On November 12, 2024, Requester filed written objections to the Special
Master’s Report and Recommendation. According to an accompanying Certificate of
Service, Requester served a copy of the objections on Respondent’s counsel by means
of certified mail, return receipt requested. 2 Later—on November 21, 2024—Respondent
filed a response in opposition to Requester’s written objections. According to an
accompanying Certificate of Service, Respondent’s counsel served a copy of the
response “via ordinary U.S. mail.” 3

2 Requester’s service of objections is in accord with procedural requirements contained in R.C.
2743.75(F)(2). Under R.C. 2743.75(F)(2) either party may object to a Report and Recommendation within
seven business days after receiving the Report and Recommendation by filing a written objection with the
Clerk and “sending a copy to the other party by certified mail, return receipt requested.”

3 Respondent’s service of its response by “ordinary U.S. Mail” is not in accord with procedural
requirements contained in R.C. 2743.75(F)(2). Pursuant to R.C. 2743.75(F)(2), “[i]f either party timely
objects, the other party may file with the clerk a response within seven business days after receiving the
objection and send a copy of the response to the objecting party by certified mail, return receipt requested.”
(Emphasis added.) Thus, by R.C. 2743.75(F)(2)’s express terms, R.C. 2743.75(F)(2) does not permit
service of a response by “ordinary U.S. mail.”

Despite the irregularity of Respondent’s service of its response, the Court is mindful that the Ohio
Supreme Court “has repeatedly emphasized the fundamental tenet that courts should strive to decide cases
on their merits.” Natl. Mut. Ins. Co. v. Papenhagen, 30 Ohio St.3d 14, 15 (1987). Therefore, in this instance,
despite the procedural irregularity of Respondent’s service of its response, the Court shall consider it in this
matter.
Based on the Court’s review of the docket in this case, there is no confirmation from the United
States Postal Service that Respondent has received a copy of the Special Master’s Report and
Recommendation that was sent by the Court by means of certified mail on October 31, 2024. Despite such
lack of confirmation from the United States Postal Service, the Court finds that no material prejudice to
Respondent will result if the Court proceeds to a judgment in this case, because, as discussed within, (1)
Case No. 2024-00496PQ -3- DECISION & ENTRY

II. Law and Analysis
{¶6} The General Assembly has created an alternative means to resolve public-
records disputes through the enactment of R.C. 2743.75. Welsh-Huggins v. Jefferson
Cty. Prosecutor’s Office, 2020-Ohio-5371, ¶ 11. See R.C. 2743.75(A). Under Ohio law
a requester “must establish entitlement to relief in an action filed in the Court of Claims
under R.C. 2743.75 by clear and convincing evidence.” Viola v. Cuyahoga Cty.
Prosecutor’s Office, 2021-Ohio-4210, ¶ 16 (8th Dist.), citing Hurt v. Liberty Twp., 2017-
Ohio-7820, ¶ 27-30 (5th Dist.). See Welsh-Huggins at ¶ 32. Clear and convincing
evidence “is that measure or degree of proof which is more than a mere ‘preponderance
of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable
doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469 (1954), paragraph three of the syllabus. It is a requester’s burden to prove, by clear
and convincing evidence, that the requested records exist and are public records
maintained by a respondent. See State ex rel. Cordell v. Paden, 2019-Ohio-1216, ¶ 8.
{¶7} A public-records custodian has the burden to establish the applicability of an
exception to disclosure of a public record. State ex rel. Cincinnati Enquirer v. Jones-
Kelley, 2008-Ohio-1770, paragraph two of the syllabus. In Jones-Kelley the Ohio
Supreme Court held:
Exceptions to disclosure under the Public Records Act, R.C.
149.43, are strictly construed against the public-records
custodian, and the custodian has the burden to establish the
applicability of an exception. A custodian does not meet this
burden if it has not proven that the requested records fall
squarely within the exception. (State ex rel. Carr v. Akron, 112
Ohio St.3d 351, 2006 Ohio 6714, 859 N.E.2d 948, P 30,
followed.)

the Court determines that a judgment should be issued in Respondent’s favor, (2) Respondent has
responded to Requester’s Objections and in Respondent’s Response it refers to the Report and
Recommendation, thereby demonstrating knowledge about the existence of the Special Master’s Report
and Recommendation, and (3) the General Assembly has required that, within seven business days after
the response to an objection is filed, this Court “shall issue a final order that adopts, modifies, or rejects the
report and recommendation.” R.C. 2743.75(F)(2).
Case No. 2024-00496PQ -4- DECISION & ENTRY

Kelley at paragraph two of the syllabus.
{¶8} R.C. 2743.75(F)(2) requires that any objection to a report and
recommendation “shall be specific and state with particularity all grounds for the
objection.” Requester asserts in his Objections that certain factual issues were not
properly addressed in the Special Master’s Report and Recommendation. (Objections,
1.) Requester maintains, among other things, that:
● With respect to the Background Section of the Report and Recommendation: “[M]y
request for public records was not based upon the Trustees actions concerning a noise
ordinance and this conclusion is not factual.”
● With respect to Section A, Part 1, of the Report and Recommendation: “Affidavits on
behalf of the requester not recognized in the report. Key evidence offered to support my
claim that a text exists was a statement made by Mr. Ryman at the February 7, 2024
Elizabeth Township Trustees meeting. The meeting was witnessed by myself, my wife,
and a neighbor. All three of us submitted affidavits documenting Mr. Ryman’s statement,
but the affidavits were not recognized by the special master in the report.”
● With respect to Section A, Part 1, of the Report and Recommendation: “Evidence
provided viewed separately in report, not collectively.”
● With respect to Section A, Part 2, of the Report and Recommendation: “Official business
was transacted without documenting records.”
● With respect to Section A, Parts 4 and 5, of the Report and Recommendation: “Affidavit
unclear of what devices searched “Official business was transacted without documenting
records.”
● With respect to Section A, Part 6, of the Report and Recommendation: “The Report
does not recognize a portion of the affidavit testimony was incomplete in relation to my
Court of Claims complaint.”
● With respect to Section B of the Report and Recommendation: “Report states
Requestor's other claims are not properly before the court.”
● With respect to Section C (assessment of costs) of the Report and Recommendation:
“Ohio Revised Codes and Casetext do not pertain to our complaint.”
{¶9} In opposition Respondent contends that Requester’s Objections “are nothing
more than a restatement of the evidence and arguments he previously made to the Court
Case No. 2024-00496PQ -5- DECISION & ENTRY

in his various filings” and that the Objections “do nothing to alter such findings or cast
doubt upon the recommendations of the Special Master.”
{¶10} For ease of analysis, the Court shall address some of Requester’s
Objections together and some of Requester’s Objections in an order different from the
order presented by Requester.
{¶11} Upon independent review, the Court finds that none of Requester’s
Objections are persuasive, especially given Requester’s burden in this case filed under
R.C. 2743.75 to establish by clear and convincing evidence an entitlement to relief. See
Viola, supra, 2021-Ohio-4210, ¶ 16 (8th Dist.).
A. The Special Master’s purported misapprehension of Requester’s reason for
seeking public records is of no consequence.
{¶12} Requester maintains that his request for public records was not based upon
the actions of the Elizabeth Township Board of Trustees concerning a noise ordinance,
as suggested by the Special Master in the Report and Recommendation. In construing
R.C. 149.43(B), the Ohio Supreme Court “has consistently held that * * * a person does
not have to explain his or her reasons for wanting to inspect and copy a public record in
order to validly request the record.” Rhodes v. City of New Philadelphia, 2011-Ohio-3279,
¶ 20, citing State ex rel. Fant v. Enright, 66 Ohio St.3d 186, 188 (1993); Gilbert v. Summit
Cty., 2004-Ohio-7108, ¶ 10. To the extent that the Special Master may have
misapprehended Requester’s reason, or reasons, for the public-records request, such
misapprehension is of no consequence.
B. Certain Objections have qualities akin to a manifest-weight-of-the-evidence
challenge in civil cases and these certain objections are not persuasive.
{¶13} Some of Requester’s Objections to Section A, Parts 1 and 6 (e.g., claims
that certain affidavits of Requester were not recognized, certain evidence was not viewed
collectively, certain affidavit testimony was incomplete) raise arguments akin to a
manifest-weight-of-the-evidence challenge in civil cases. See Eastley v. Volkman, 2012-
Ohio-2179, ¶ 17-23 (determining that the standard of review for manifest weight of the
evidence, as set forth in State v. Thompkins, 78 Ohio St.3d 380 (1997), applies in civil
cases); State v. Thompkins, 78 Ohio St.3d 380 (1997). In Thompkins the Ohio Supreme
Court stated:
Case No. 2024-00496PQ -6- DECISION & ENTRY

Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather
than the other. It indicates clearly to the jury that the party having the burden
of proof will be entitled to their verdict, if, on weighing the evidence in their
minds, they shall find the greater amount of credible evidence sustains the
issue which is to be established before them. Weight is not a question of
mathematics, but depends on its effect in inducing belief.” (Emphasis
added.) [Black’s Law Dictionary 1594 (6th Ed. 1990)].
Thompkins at 387. After reviewing the evidence submitted by Requester and Respondent
on September 23, 2024, the Court concludes that Requester’s contentions that the
Special Master failed to recognize evidence that Requester maintains is “key,” that
evidence was not viewed collectively, that certain affidavits were “incomplete” are not
persuasive.
C. This Court lacks statutory authority under R.C. 2743.75 to determine
Requester’s claims that official business was transacted without
documentation.
{¶14} This Court is a statutorily created court, see R.C. 2743.03; State ex rel.
DeWine v. Court of Claims of Ohio, 2011-Ohio-5283, ¶ 19, which may exercise only such
powers as are directly conferred by legislative action. State ex re. DeWine at ¶ 19. In
R.C. 2743.75(A) the General Assembly established that this Court shall be the sole and
exclusive authority in this State that adjudicates or resolves complaints based on alleged
violations of R.C. 149.43(B) (public-records requests), except for a court that hears a
mandamus action pursuant to R.C. 149.43(B). See R.C. 2743.75(A). A review of R.C.
2743.75(A) discloses that this statute does not confer statutory jurisdiction upon this Court
to determine whether a public entity did, or did not, transact official business without
documenting records. Compare R.C.149.351 (prohibition against destruction or damage
of record); R.C. 121.22(I)(1) and (2) (enforcement of alleged violation of Open Meetings
Act).
{¶15} Requester’s contention that in Section A, Parts 2, 4, and 5 the Special Master
failed to adequately address Requester’s claim that official business was transacted
without appropriate documentation is not persuasive.
Case No. 2024-00496PQ -7- DECISION & ENTRY

D. The Special Master has identified the relevant facts and has correctly applied
statutory law and case law as they existed at the time of the filing of
Requester’s Complaint.
{¶16} R.C. 2743.75(F)(1) requires a Special Master to submit to this Court a report
and recommendation “based on the ordinary application of statutory law and case law as
they existed at the time of the filing of the complaint.” Despite Requester’s Objections
that the Special Master misapplied the law to the relevant facts, based on the Court’s
independent review, the Court concludes that the Special Master has identified in the
Report and Recommendation the relevant facts and that the Special Master has correctly
applied statutory law and case law as they existed at the time that Requester filed his
Complaint.
E. The Special Master’s recommendation to assess court costs against
Requester is consistent with the ordinary application of Ohio law.
{¶17} In Section C of the Report and Recommendation, the Special Master
recommends the assessment of costs against Requester because Requester implicitly
agreed to pay those costs by filing this case. The Special Master’s recommendation to
assess court costs against Requester based on an implied contract is consistent with
Ohio law. In Strattman v. Studt, 20 Ohio St.2d 95 (1969), paragraph six of the syllabus,
the Ohio Supreme Court held: “The duty to pay court costs is a civil obligation arising from
an implied contract.” The Ohio Supreme Court explained, “By being involved in court
proceedings, any litigant, by implied contract, becomes liable for the payment of court
costs if taxed as a part of the court’s judgment.” Strattman at 103. Accord Foster v.
Idegy, Inc., 2014-Ohio-3015, ¶ 6 (10th Dist.), citing Landefeld v. State Med. Bd., 2000
Ohio App. LEXIS 2556 (10th Dist. June 15, 2000) (“[a] trial court is empowered to award
costs only to a prevailing party”).
{¶18} Because the Special Master concluded in the Report and Recommendation
that judgment should be rendered in favor of Respondent (not Requester), a
recommendation to assess court costs against Requester—a non-prevailing party—is
consistent with Ohio law. Requester’s Objection concerning the Special Master’s
recommendation to assess court costs against Requester is unpersuasive.
III. Conclusion
Case No. 2024-00496PQ -8- DECISION & ENTRY

{¶19} The Court OVERRULES Requester’s written objections and ADOPTS the
Special Master’s Report and Recommendation for reasons explained above. In
accordance with the Special Master’s recommendations, the Court enters judgment for
Respondent on Requester’s claim for production of records, denies all other relief, and
assesses court costs against Requester. The Clerk shall serve upon all parties notice of
this Decision and Entry and its date of entry upon the journal.

LISA L. SADLER
Judge

Filed November 25, 2024
Sent to S.C. Reporter 12/20/24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10765067. Public record. Not legal advice.