The opinion
[Cite as State ex rel. McGrail v. Lordstown Village Council, 2025-Ohio-4630.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO ex rel. CASE NO. 2024-T-0072
MARK R. MCGRAIL,
Relator-Appellant, Civil Appeal from the
Court of Common Pleas
- vs -
LORDSTOWN VILLAGE Trial Court No. 2023 CV 01713
COUNCIL, et al.,
Respondents-Appellees.
OPINION AND JUDGMENT ENTRY
Decided: October 6, 2025
Judgment: Affirmed
Mark R. McGrail, pro se, 3656 Goldner Lane, S.W., Warren, OH 44481 (Relator-
Appellant).
Matthew M. Ries, Harrington, Hoppe & Mitchell, LTD., 108 Main Avenue, S.W., Suite
500, Warren, OH 44481 (For Respondents-Appellees).
ROBERT J. PATTON, P.J.
{¶1} Appellant, Mark R. McGrail (“McGrail”), appeals from the decision of the
Trumbull County Court of Common Pleas granting summary judgment in favor of
appellees, Lordstown Village Council, et al. (“the Village”). For the following reasons, we
affirm the trial court’s decision.
Substantive and Procedural History
{¶2} On November 15, 2023, McGrail filed a “Verified Complaint in Declaratory
Judgment and Injunction for Enforcement of O.R.C. § 121.22.” In the complaint, McGrail
alleged that on seven occasions, between November 2021 and September 2023, the
Village held executive session for unapproved matters or purposes under R.C. 121.22,
otherwise known as the Open Meetings Act (“OMA”). Counts 1 through 7 of the complaint
pertain to specific meeting dates, while in count 8, McGrail alleged that the Village did not
reconvene into open session after holding the executive sessions, or if they did, they
failed to keep full accurate minutes of the meetings, in violation of the OMA. Further,
McGrail sought to enjoin the Village from holding executive sessions for the alleged
improper purposes, to enjoin the Village to keep and maintain full and accurate minutes
including the reconvening of open session after an executive session, and a civil forfeiture
payment to McGrail of $500 for each violation, along with court costs and attorney fees.
{¶3} On February 16, 2024, the Village filed a motion to dismiss pursuant to
Civ.R. 12(B)(1) and Civ.R. 12(B)(6). In its motion, the Village asserted that counts 1
through 6 and count 8 should be dismissed as moot, as they are identical to claims
previously litigated in trial court Case No. 2022-CV-01498 (the Open Government
Advocates Case”), brought by Open Government Advocates against the Village. The
motion to dismiss further asserted that the executive session held during the meeting
addressed in count 7 was for a proper purpose under the OMA, and therefore not a viable
claim.
{¶4} The Village attached six exhibits to its motion to dismiss: (1) the complaint
from Open Government Advocates Case (“Exhibit A”); (2) an agreed entry from the Open
Government Advocates Case (“Exhibit B”); (3) a letter requesting to submit an objection
on behalf of the Village of an amendment to an application filed by Clean Energy Future
– Trumbull, LLC, to be filed with the Ohio Power Siting Board (“Exhibit C”); (4) a complaint
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Case No. 2024-T-0072
and request for relief brought by the Village against Clean Energy Future – Trumbull, LLC,
timestamped as received on July 24, 2023, with the Ohio Power Siting Board of Ohio
(“Exhibit D”); (5) transcripts of proceedings before the Ohio Power Siting Board held on
August 28, 2023 in In the Matter of the Application of Clean Energy Future – Trumbull,
LLC, Application for a Second Amendment to the Certificate of Environmental
Compatibility and Public Need (“Exhibit E”); and (6) an Entry entered on October 19, 2023
on In the Matter of the Application of Clean Energy Future-Trumbull, LLC Application for
a Certificate of Environmental Compatibility and Public Need for an Electric Generation
Facility in Trumbull County, Ohio (“Exhibit F”).
{¶5} McGrail filed “Relator’s Memorandum in Opposition to Respondents’ Motion
[to] Dismiss” on March 11, 2024. On March 19, 2024, the Village filed its “Reply in Support
of Motion to Dismiss.”
{¶6} McGrail then filed “Relator’s Amended Memorandum in Opposition to
Respondent’s Motion to Dismiss,” on March 22, 2024. On March 26, 2024, the Village
filed its “Reply to Relator’s Amended Memorandum in Opposition to Motion to Dismiss.”
{¶7} On May 2, 2024, the trial court issued a judgment entry converting the
Village’s motion to dismiss to a motion for summary judgment, setting the matter for a
memo only hearing on June 21, 2024, and instructing that “[r]elator may respond to the
motion for summary judgment on or before May 31, 2024 if he wishes to amend his
response as a summary judgment and Respondents may amend their response on or
before June 14, 2024.”
{¶8} On June 5, 2024, the Village filed its “Reply in Support of Motion to
Dismiss/Motion for Summary Judgment.” On June 12, 2024, McGrail filed his “Motion for
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Case No. 2024-T-0072
Leave to File Sur-Reply Brief or in the Alternative Response to Summary Judgment
[Instanter].” On June 13, 2024, the Village filed its “Respondent’s Opposition to Relator’s
Motion for Leave to File Sur-Reply Brief or in the Alternative Response to Summary
Judgment Instanter.” On June 14, 2024, McGrail filed “Realtor’s Amended Motion for
Leave to File Sur-Reply Brief or in the Alternative Response to Summary Judgment
[Instanter].” On June 14, 2024, the Village filed “Respondents’ Opposition to Relator’s
Amended Motion for Leave to File Sur-Reply Brief or in the Alternative Response to
Summary Judgment Instanter.”
{¶9} On August 19, 2024, the trial court granted summary judgment in favor of
the Village.
{¶10} On September 18, 2024, McGrail filed this appeal.
Assignments of Error
{¶11} McGrail asserts four assignments of error on appeal:
{¶12} “[1.] The trial court committed reversible error by granting summary
judgment before the pleadings were closed. (T.d. 33)”
{¶13} “[2.] The trial court committed reversible error by converting the Motion to
Dismiss to a motion [for] summary judgment without a predefined procedure to be
followed that results in a bona fide motion for summary judgment. (T.d. 27)”
{¶14} “[3.] The trial court committed reversible error by mistaking the date January
3, 2023 as January 3, 2022. (T.d. 33)”
{¶15} “[4.] The trial court committed reversible error by holding that the executive
session complained of in Count 7 was permissible. (T.d. 33)”
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Case No. 2024-T-0072
Standard of Review
{¶16} An appellate court’s standard of review for a trial court’s actions regarding
a motion to dismiss is de novo. Pirock v. Crain, 2020-Ohio-869, ¶ 101 (11th Dist.), citing
Ivancic v. Enos, 2012-Ohio-3639, ¶ 33 (11th Dist.). A motion to dismiss pursuant to Civ.R.
12(B)(6) is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 1992-Ohio-73, ¶ 9, citing Assn. for the Defense of the
Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). When ruling on
a Civ.R. 12(B)(6) motion, a court may not rely upon evidence or allegations outside the
complaint. State ex rel. Fuqua v. Alexander, 1997-Ohio-169, ¶ 5, citing State ex rel.
Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d. 580, 581 (1996).
{¶17} Appellate courts review a summary judgment order de novo. “We review de
novo a trial court’s order granting summary judgment.” Pirock at ¶ 111, citing Sabo v.
Zimmerman, 2012-Ohio-4763, ¶ 9 (11th Dist.). “A reviewing court will apply the same
standard a trial court is required to apply, which is to determine whether any genuine
issues of material fact exist, and whether the moving party is entitled to judgment as a
matter of law.” Id. Thus, we review McGrail’s assignments of error under a de novo
standard’
First Assignment of Error
{¶18} In McGrail’s first assignment of error he contends that the trial court erred
by granting summary judgment when only a complaint was filed, and the Village did not
file an answer. Specifically, McGrail asks, “May a trial court grant summary judgment
based on a single pleading, a complaint?” McGrail contends that “[i]n the absence of an
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Case No. 2024-T-0072
answer summary judgment cannot be granted because all the unanswered averments of
the complaint must be deemed admitted pursuant to Civ.R. 8(D).”
{¶19} The Ohio Civil Rules describe “responsive pleadings” to a civil complaint,
which may be either in an Answer or Motion to Dismiss filed pursuant to Civ.R. 12. Civ.R.
12(A)(1) explains in relevant part that “[t]he defendant shall serve his answer within
twenty-eight days after service of the summons and complaint upon him. . . .” Civ.R.
12(B)(1)-(7) lists defenses to claims that may be made by motion and further explains “[a]
motion making any of these defenses shall be made before pleading if a further pleading
is permitted. . . . When a motion to dismiss for failure to state a claim upon which relief
can be granted presents matters outside the pleading and such matters are not excluded
by the court, the motion shall be treated as a motion for summary judgment and disposed
of as provided in Rule 56.”
{¶20} This Court has specifically addressed situations where a trial court may
consider matters outside of the pleadings without converting a Civ.R. 12 motion to a
motion for summary judgment pursuant to Civ.R. 56:
[A] court may generally take judicial notice of at least some
matters outside of the pleadings in determining a Civ.R.
12(B)(6) motion without converting it to a motion for summary
judgment, such as copies of other courts’ decisions and
judgment entries related to cases before it. State ex rel.
Kolkowski v. Bd. of Commrs. of Lake Cty., 11th Dist. Lake No.
2008-L-138, 2009-Ohio-2532, ¶ 31; see also State ex rel.
Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, ¶
10 (finding it appropriate to take judicial notice of a dismissal
entry in a separate case to decide whether dismissal in a
prohibition claim was warranted); State ex rel. Scott v.
Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573, ¶ 26 (courts
can take judicial notice of appropriate matters in determining
a Civ.R. 12(B)(6) motion without converting it to a motion for
summary judgment); Pirock v. Crain, 11th Dist. No. 2019-T-
0027, 2020-Ohio-869, ¶ 104.
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Lanza v. Lanza, 2020-Ohio-6805, ¶ 18 (11th Dist.).
{¶21} Additionally, when a motion to dismiss is filed and then subsequently
converted to a summary judgment motion, the time to file an answer is tolled until the
summary judgment motion is resolved. State ex rel. Zimmerman v. Tompkins, 1996-Ohio-
211, ¶ 8, citing Civ.R. 12(A) and (B). “The filing of a Civ.R. 12(B)(6) motion to dismiss is
an alternative to answering the complaint. Baker v. Ohio Dept. of Rehab. & Corr., 144
Ohio App.3d 740, 754, 2001-Ohio-2553, 761 N.E. 2d 667. A defendant who files such a
motion does not have to answer the complaint until after the motion is decided; if the
defendant prevails on the motion, he or she may never have to answer. Id.” Cromartie v.
Goolsby, 2010-Ohio-2604, ¶ 14 (8th Dist.). See also PSE Credit Union, Inc. v. Wells,
2016-Ohio-7780, ¶ 11 (8th Dist.).
{¶22} Here, McGrail filed his complaint on November 15, 2023. On February 16,
2024, after several motions for leave to plead were granted, the Village timely filed its
motion to dismiss. The trial court converted the Village’s motion to dismiss to a motion for
summary judgment on May 2, 2024. After both parties briefed the issues, the trial court
granted summary judgment in favor of the Village on August 19, 2024, and therefore the
Village was not required to file an answer.
{¶23} McGrail cites State ex rel. Ames v. Portage Cty. Bd. of Commrs., 2019-
Ohio-3730, (11th Dist.) (the “Ames case”), contending that the trial court in that case
required an answer when the motion to dismiss was converted into a motion for summary
judgment. McGrail’s reliance on the aforementioned case is misplaced. In the Ames case,
Ames filed a complaint, the defendant filed an answer. Without leave from the trial court,
Ames filed an amended complaint. The defendant filed a motion to dismiss or in the
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Case No. 2024-T-0072
alternative, a motion for summary judgment. Ames filed a brief in opposition with a cross-
motion for summary judgment. The trial court then issued a judgment entry converting the
defendant’s motion to dismiss to a motion for summary judgment. At that point, the
defendant’s time to file an answer to Ames’s amended complaint was tolled pending the
disposal of the converted motion for summary judgment. Zimmerman at ¶ 8. The
defendant then filed an answer. There is nothing in the Ames case to support McGrail’s
argument that a defendant is required to answer a complaint after a motion to dismiss is
converted to a motion for summary judgment.
{¶24} Accordingly, McGrail’s first assignment of error is without merit.
Second Assignment of Error
{¶25} In McGrail’s second assignment of error, he contends that
“[b[efore a court may ‘convert’ a motion to dismiss to a motion for summary judgment,
there must be a predefined procedure to be followed that results in a bona fide motion for
summary judgment.”
{¶26} Further, McGrail asserts that “[t]he Civil Rules provide no procedure to be
followed when a court ‘converts’ a motion to dismiss to a motion for summary judgment.”
However, this is a factually incorrect statement.
{¶27} As mentioned above, Civ.R. 12(B) explicitly states the procedure. “When a
motion to dismiss for failure to state a claim upon which relief can be granted presents
matters outside the pleading and such matters are not excluded by the court, the motion
shall be treated as a motion for summary judgment and disposed of as provided in Rule
56. . . . All parties shall be given reasonable opportunity to present all materials made
pertinent to such a motion by Rule 56.” (Emphasis added.) Civ.R. 12(B).
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Case No. 2024-T-0072
{¶28} “‘A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint. * * * Thus, the movant
may not rely on allegations or evidence outside the complaint; otherwise, the motion must
be treated, with reasonable notice, as a Civ.R. 56 motion for summary judgment.’” State
ex rel. Ames v. Baker, Dublikar, Beck, Wiley & Mathews, 2023-Ohio-263, ¶ 10 (11th Dist.),
quoting State ex rel. Hanson, 1992-Ohio-73 at ¶ 9.
{¶29} The trial court issued a judgment entry on May 2, 2024, converting the
Village’s motion to dismiss to a motion for summary judgment. In the entry, the trial court
explained the procedure that would follow:
The Court has considered the pleadings, the motion, the
response, and the applicable law.
Respondents have submitted extraneous materials in the
motion to dismiss. . . . It is the trial courts ‘responsibility either
to disregard extraneous material or to convert a motion to
dismiss into a motion for summary judgment when additional
materials are submitted.’ Keller v. Columbus, 100 Ohio St.3d
192, 2003-Ohio-5599, 797 N.E.2d 964, ¶ 18. If a 12(B)(6)
motion presents matters outside the pleading, ‘and such
matters are not excluded by the court, the motion shall be
treated as a motion for summary judgment.’ Civ.R. 12(B).
Prior to converting a motion to dismiss for failure to state a
claim into a motion for summary judgment, a trial court must
give actual notice to the parties and provide an opportunity to
respond. State ex rel. Baran v. Fuerst, 55 Ohio St.3d 94, 97,
563 N.E.2d 713 (1990).
Because extraneous materials were submitted and are
necessary to determine the motion, this matter shall be
converted to a motion for summary judgment and set for
memo only hearing on June 21, 2024. Realtor may respond
to the motion for summary judgment on or before May 31,
2024 if he wishes to amend his response as a summary
judgment and Respondents may amend their response on or
before June 14, 2024.
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Case No. 2024-T-0072
{¶30} Our standard of review when analyzing whether a trial court properly
converted a motion to dismiss to a motion for summary judgment is de novo. Pirock, 2020-
Ohio-869 at ¶ 101 (11th Dist.). The trial court can take judicial notice of certain documents
without converting a motion to dismiss to a motion for summary judgment. Lanza, 2020-
Ohio-6805 at ¶ 18 (11th Dist.). If the motion to dismiss contains extraneous documents
attached that are necessary to determine the motion, it must be converted to a motion for
summary judgment. Civ.R. 12(B).
{¶31} Upon determining the motion to dismiss contained extraneous materials to
be used by the trial court, it properly converted the motion to dismiss to a motion for
summary judgment and gave the parties notice and opportunity to respond. The judgment
entry explained that the motion would be treated as a motion for summary judgment. At
that point, the parties followed the procedure the trial court set forth for them in its
judgment entry. Following the relevant law, the trial court then disposed of the case
pursuant to Civ.R. 56, granting judgment in favor of defendants, the Village.
{¶32} Accordingly, McGrail’s second assignment of error is without merit.
Third Assignment of Error
{¶33} In McGrail’s third assignment of error, he contends that the trial court
mistook the meeting date of January 3, 2023, that McGrail alleged violations, with the
actual date of January 3, 2022, causing reversible error when it then deemed McGrail’s
allegations moot. The Village responds that it does not matter as to the date, as the date
of the injunction granted in the previously litigated case was issued on February 24, 2023,
prohibiting the violative act that would have occurred on either date – January 3, 2022, or
January 3, 2023. We agree.
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Case No. 2024-T-0072
{¶34} R.C. 121.22(I) provides in relevant part:
(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.
(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 . . . reasonable
attorney’s fees.
{¶35} The trial court’s August 19, 2024 judgment entry determined that counts 1
through 6 and 8 of McGrail’s complaint were moot, as the Open Government Advocates
case had already resulted in an order enjoining the Village from committing the same
violations McGrail asserted, based on the same facts and meeting dates. The trial court
based its decision relying on Ohio & I.R. Co. v. Wyandot County Commrs., 7 Ohio St.
278, 280 (1857) (the court will not award a peremptory writ of mandamus for conduct the
trial court has already enjoined). As the conduct that McGrail sought to prohibit was
already enjoined by the trial court’s prior order, regardless of the discrepancy between
the mistaken meeting date and the actual meeting date, the issue is therefore moot.
{¶36} Accordingly, McGrail’s third assignment of error is without merit.
Fourth Assignment of Error
{¶37} In his fourth and final assignment of error, McGrail asks this Court to answer
the question, “[i]s [t]he Ohio Power Siting Board a court?” Specifically, McGrail asserts
that the trial court erred in determining that the executive session held on September 5,
2023, the meeting date in count 7, was for a permissible purpose because it was to
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Case No. 2024-T-0072
discuss pending or imminent litigation. McGrail contends that the trial court erred because
the Ohio Power Siting Board is not a court, therefore, the Village improperly called
executive session. McGrail essentially argues that if the Ohio Power Siting Board is not
a court, then any discussion about the application filed with the Ohio Power Siting Board
could not constitute pending or imminent court action as it relates to R.C. 121.22(G)(3).
{¶38} R.C. 121.22(G)(3) provides:
(G) Except as provided in divisions (G)(8) and (J) of this
section, the members of a public body may hold an executive
session only after a majority of a quorum of the public body
determines, by a roll call vote, to hold an executive session
and only at a regular or special meeting for the sole purpose
of the consideration of the following matters:
(3) Conferences with an attorney for the public body
concerning disputes involving the public body that are the
subject of pending or imminent court action. . . .
{¶39} In its brief, the Village notes that R.C. 4906.13(B) gives the Ohio Power
Siting Board exclusive authority to adjudicate the complaint and objection to the Clean
Energy Future – Trumbull, LLC case.
{¶40} R.C. 4906. 13(B) provides:
No public agency or political subdivision of this state may
require any approval, consent, permit, certificate, or other
condition for the construction or operation of a major utility
facility or economically significant wind farm authorized by a
certificate issued pursuant to Chapter 4906. of the Revised
Code. . . .
{¶41} The Ohio Supreme Court retains jurisdiction over Ohio Power Siting Board
Proceedings. R.C.4903.12 provides:
No court other than the supreme court shall have power to
review, suspend, or delay any order made by the public
utilities commission, or enjoin, restrain, or interfere with the
commission or any public utilities commissioner in the
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Case No. 2024-T-0072
performance of official duties. A writ of mandamus shall not
be issued against the commission or any commissioner by
any court other than the supreme court.
{¶42} The Village avers that the executive session held on (the date in count 7)
September 5, 2023, was to discuss the Clean Energy Future – Trumbull, LLC case and
discuss a recent evidentiary hearing on the matter conducted on August 28, 2023, before
Judge Marcelletti at Ohio Power Siting Board in Columbus, Ohio, with the Village solicitor.
{¶43} The Village further asserts that Ohio courts have recognized the policy
considerations behind the R.C. 121.22(G)(3) exception to the OMA, citing State ex rel.
Hardin v. Clermont County Bd. of Elections, 2012-Ohio-2569, ¶ 64 (12th Dist.):
The legislature clearly contemplated that litigation need not
have formally begun to reach a sensitive stage where the
public’s need to know is outweighed by the public body’s need
for confidentiality . . .. The term “imminent” is satisfied where
the public body has formally committed itself to a litigative
solution and assumed a litigative posture. Such a posture is
frequently manifested by the public body’s decision to commit
government resources to the prospective litigation.
Id., quoting State ex rel. Cincinnati Enquirer v. Hamilton County Commrs., 2002-Ohio-
2038, ¶ 16.
{¶44} McGrail does not argue the existence of a dispute over a complaint and
objection with the Ohio Power Siting Board regarding the Clean Energy Future –
Trumbull, LLC case. The trial court’s August 19, 2024 judgment entry acknowledged that
the objection “involved an ongoing dispute between the Village of Lordstown and [Clean
Energy Future – Trumbull, LLC] over [their] construction of an electric generating facility
on a residentially zoned parcel of land in disregard of the Village’s stop work order.”
McGrail’s contention is that if the Ohio Power Siting Board is not a court, then the
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Case No. 2024-T-0072
executive session could not have met the exception in R.C. 121.22(G)(3) as it is did not
concern a “court action” as the statute requires.
{¶45} The record indicates that the executive session that is the subject of
McGrail’s count 7 allegation was for “potential litigation for [Clean Energy Future –
Trumbull, LLC] stop-work order . . . .” The meeting minutes, attached to the complaint as
Exhibit 5, indicate “potential litigation” was the subject of discussion and no action was
taken while in executive session. Complaint, Dkt. 1, p. 14 of Exhibit 5. In its August 19,
2024 judgment entry, the trial court expounded on the origins of the dispute between the
Village and Clean Energy Future – Trumbull, LLC:
The Village Council held an executive session on September
5, 2023 to discuss with their Solicitor the litigation pending
before the Ohio Power [Siting] Board (“OPSB”) involving a
dispute between the Village of Lordstown and [Clean Energy
Future – Trumbull, LLC] (“TEC”). Initially, on July 10, 2023,
the Village filed an objection to the decision of the OPSB in
the case captioned In Re Clean Energy [Future – Trumbull],
LLC [Second Amendment Case], Case No. 22-1175-EL-BGA.
The objection involved an ongoing dispute between the
Village of Lordstown and TEC over TEC’s construction of an
electric generating facility on a residentially zoned parcel of
land in disregard of the Village’s stop work order. The Village
filed a Complaint against [Clean Energy Future – Trumbull,
LLC] on July 24, 202[3 [with] the OPSB seeking an order to
enjoin further construction. . . .
A hearing was held August 28, 2023 before Administrative
Law Judge Isabel Marcelletti where attorneys for the Village
and [Clean Energy Future – Trumbull, LLC] called witnesses
and presented evidence to support their positions. Ultimately,
Judge Marcelletti ruled against the Village and recommended
approving the [Clean Energy Future – Trumbull, LLC’s]
application to the [Ohio Power Siting Board], which the [Ohio
Power Siting Board] approved in a journal entry dated October
19, 2023 ruling. Between the August 28, 2023 hearing and the
October 19, 2023 ruling, the Village held the September 5,
2023 executive session at issue herein.
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Case No. 2024-T-0072
The essence of the dispute between the Village and Clean Energy Future – Trumbull,
LLC pertained to the certificate they received from the Ohio Power Siting Board to
construct an electric generating facility. The certificate, according to the Village’s
complaint, was based on the site being zoned as industrial, when in fact it was zoned
residential. Ultimately the Ohio Power Siting Board ruled against the Village. As
previously noted, the September 5, 2023 executive session, subject of McGrail’s appeal,
was held between the Ohio Power Siting Board hearing date and the decision rendered
as a result of those proceedings.
{¶46} The First District explained what “pending” court action means within the
context of R.C. 121.22, in State ex rel. Bond v. Montgomery, 63 Ohio App.3d 728, 737
(1989): “‘Pending’ court action has been described as that period of time between the
inception of the lawsuit and rendition of final judgment. See Ex parte Craig (C.A.2, 1921),
274 F. 177.” 1 The question appears to turn on whether an action within an administrative
agency constitutes court action, for the purposes of R.C. 121.22.
{¶47} The action the Village describes as litigation within the Ohio Power Siting
Board and involving Clean Energy Future – Trumbull, LLC, concerned a dispute which
began at its inception with a complaint and involved an evidentiary hearing which
concluded in a decision reviewable by the Ohio Supreme Court. The Ohio Supreme Court
has found that the doctrines of res judicata and collateral estoppel apply to administrative
proceedings where parties are afforded “ample opportunity to litigate the issues involved.”
Green v. City of Akron, 1997 WL 625484, *2 (9th Dist. Oct. 1, 1997), citing Jacobs v.
1. We rely on Bond v. Montgomery, 63 Ohio App.3d 728 (1989), which looks at the inception of a lawsuit
through the rendering of final judgment to define a “pending” court action. Until the Supreme Court of Ohio
provides Ohio courts with further guidance on the issue of what constitutes a ‘pending’ court action we will
follow Bond and its progeny.
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Case No. 2024-T-0072
Teledyne, Inc. 39 Ohio St.3d 168, 169; accord Superior’s Brand Meats, Inc. v. Lindley, 62
Ohio St.2d 133, 135 (1980). See also Green at *3 (“[A]ppellees were represented by
counsel at the hearing. They presented evidence and examined witnesses. They have
not argued that the [administrative agency] unfairly restricted their opportunity to litigate
their case. For these reasons, we find that appellees did have ample opportunity to
present their case at the administrative hearing, and that the hearing was the type of
proceeding which the Ohio Supreme Court intended res judicata to attach.”).
{¶48} Similarly, the Supreme Court of Ohio has held that administrative agency
decisions resulting from quasi-judicial proceedings, such as those that are conducted “in
the nature of legal proceedings, providing notice and an opportunity to introduce
testimony through witnesses” may be appealed to the courts. BC Westlake, Inc. v.
Hamilton County Bd. of Revision, 1998-Ohio-445, ¶ 19. Likewise, the decision from the
Ohio Power Siting Board is an appealable decision to the court. The September 5, 2023,
executive session was held before the Ohio Power Siting Board issued its decision. R.C.
121.22(G)(3) permits executive session for not only “pending” litigation, but “imminent”
litigation, meaning that which has not yet begun. “The definition we adopted . . . something
‘about to happen’ [-] was not meant to have strictly a temporal meaning. The definition is
more elastic because of the protean nature of litigation, in which court action is not always
a foregone conclusion.” State ex rel. Cincinnati Enquirer, 2002-Ohio-2038 at ¶15 (1st
Dist.).
{¶49} Based on the foregoing, it appears that the subject litigation discussed
during the executive session constituted pending or imminent court action for the
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purposes of R.C. 121.22(G)(3). As such, it cannot be said that the that the executive
session held on September 5, 2023, was held for an improper purpose.
{¶50} In conclusion, the trial court properly granted summary judgment, as the
executive sessions held in counts 1 through 6 of McGrail’s complaint and count 8 were
moot, and the executive session subject of count 7 of McGrail’s complaint concerned
pending or imminent court action, was for a permitted purpose, and therefore exempted
by the OMA.
{¶51} McGrail’s fourth assignment of error is without merit.
{¶52} Accordingly, we affirm the decision of the Trumbull County Court of
Common Pleas.
SCOTT LYNCH, J., concurs,
JOHN J. EKLUND, J., concurs in part and dissents in part with a Dissenting Opinion.
________________________________
JOHN J. EKLUND, J., concurs in part and dissents in part with a Dissenting Opinion .
{¶53} I concur in the Judgment we announce today with respect to the trial court’s
decision granting summary judgment for Appellee on Counts One through Six and Count
Eight of Appellant’s Complaint. But I would reverse the trial court’s decision on Count
Seven. I disagree with the Court’s analysis of Appellant’s fourth assignment of error and
would remand for further proceedings on Count Seven of Appellant’s Complaint.
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{¶54} Today we do something that, as far as I can discern, no court in Ohio has
done. We hold that a proceeding before the Ohio Power Siting Board (“OPSB”) is a
“pending . . . court action” for purposes of R.C. 121.22(G)(3).
{¶55} The OPSB granted to Clean Energy Future-Trumbull, LLC (“TEC”) a
Certificate of Environmental Compatibility and Public Need (“Certificate”) to build an
electric generating facility. In 2022, TEC applied to OPSB for an amendment to the
Certificate (the “Application”). The Application was entered on the OPSB’s docket and
assigned a case number. Appellee filed objections with the OPSB and asked the OPSB
to stop construction. OPSB scheduled a hearing on the Application. It proceeded before
one of the OPSB’s Administrative Law Judges. The OPSB is the only entity that can
amend or deny a Certificate.
{¶56} Eight days after the hearing, on September 5, 2023, during Appellee’s
Council Meeting, the Council adjourned into executive session with the Village Solicitor.
{¶57} First, what was discussed in the Village Council’s executive sessions on
September 5, 2023, is unclear from the record before us. The minutes of the open
meeting that day say it was “potential litigation” concerning a stop-work order Appellee
had issued. Beyond that we do not know whether that litigation was “imminent.” Certainly,
there is nothing in the record to guide us. In any event, here Appellee now consistently
says the subject of the executive session was the “TEC Case” then pending before the
OPSB. The trial court whose judgment we are reviewing in this appeal seems to have
adopted that view of the case below.
{¶58} But, while the record does not make clear what, if any litigation was
“imminent,” we do know what was “pending” when the Village Council met in executive
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Case No. 2024-T-0072
session on September 5, 2023. It was an OPSB administrative proceeding commenced
and underway before a statutory administrative body, not a court. In a very broad sense,
it could be considered “pending litigation”; similarly, it could be considered a “case.” But
it was not a “court action.”
{¶59} That a hearing was part of the OPSB process is, to me, of no moment for
our present purposes. Whatever procedural trappings attended it, the case was not a
“court action”; it was an OPSB proceeding.
{¶60} That the OPSB’s ultimate decision was appealable to the Ohio Supreme
Court is, to me, of no moment for us, either. It would simply be an appeal from an
administrative agency’s decision, not a court’s decision. The Supreme Court’s
jurisdiction does not define the nature of the proceedings and decisions it reviews; the
legislature does that.
{¶61} Finally, no one in this matter has argued that the prospect of an appeal to
the Ohio Supreme Court was present and could therefore constitute an “imminent court
case” contemplated by R.C. 121.22(G)(3). We properly decline to examine that issue
because it is not before us.
{¶62} Naturally, the Ohio Legislature could have written R.C. 121.22(G)(3) to
expand or narrow the exception to open meetings that it creates. It still can. With enough
votes, and barring a veto, it would be law. But it did not and to date it has not. We should
not re-write the statute.
{¶63} The First District’s holding in State ex rel. Bond v. Montgomery, 63 Ohio
App.3d 728 (1st Dist. 1989), merely provides a definition of what “pending” means in
R.C. 121.22(G)(3). We do not need that question answered here – nor do we need to
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Case No. 2024-T-0072
follow Bond. It is undisputed that something was pending when the Village Council went
into executive session.
{¶64} The Village Council met in executive session to discuss a pending OPSB
case, not a pending (or imminent, so far as the record reveals) court action. Therefore, I
would reverse the trial court’s judgment as to Count Seven of Appellant’s complaint only,
affirm the trial court’s grant of summary judgment on the remaining Counts, and remand
for proceedings accordingly.
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Case No. 2024-T-0072
JUDGMENT ENTRY
For the reasons stated in the opinion of this court, appellant’s assignments of error
are without merit. It is the judgment and order of this court that the judgment of the
Trumbull County Court of Common Pleas is affirmed.
Costs to be taxed against appellant.
PRESIDING JUDGE ROBERT J. PATTON
JUDGE SCOTT LYNCH,
concurs
JUDGE JOHN J. EKLUND,
concurs in part and dissents in part
with a Dissenting Opinion
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate
pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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Case No. 2024-T-0072