The opinion
[Cite as State ex rel. Pelmear v. Henry Cty. Land Reutilization Corp., 2025-Ohio-4998.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO, EX REL.,
DOUGLAS A. PELMEAR, CASE NO. 7-25-05
RELATOR-APPELLANT,
v.
HENRY COUNTY LAND OPINION AND
REUTILIZATION CORP., ET AL.,
JUDGMENT ENTRY
RESPONDENTS-APPELLEES.
Appeal from Henry County Common Pleas Court
Trial Court No. 24CV003
Judgment Affirmed
Date of Decision: November 3, 2025
APPEARANCES:
Douglas Alan Pelmear, Appellant
Katie Nelson for Appellee
Case No. 7-25-05
ZIMMERMAN, J.
{¶1} Relator-appellant, Douglas A. Pelmear (“Pelmear”), pro se, appeals the
April 18, 2025 judgment of the Henry County Court of Common Pleas granting
judgment in favor of respondents-appellees, the Henry Count Land Reutilization
Corporation (“Land Bank”) and, in their official capacities as members of the Land
Bank, Diana Wachtman (“Wachtman”), Robert Hastedt (“Hastedt”), Glenn Miller
(“Miller”), Doug Prigge (“D. Prigge”), and Andrew Small (“Small”) (collectively,
“Respondents”). For the reasons that follow, we affirm.
{¶2} Pelmear’s specific interest in this case stems from an alleged financial
lien that he claimed to have held against a property owned by Matthew T. Prigge
(“M. Prigge”) that was the subject of a foreclosure action. He alleges the Henry
County Prosecutor’s Office and the Land Bank prevented him from enforcing his
claimed lien by having the Land Bank accept a deed in lieu of foreclosure for the
property on January 5, 2022. Pelmear contends the Land Bank’s acceptance of the
deed was an invalid act because it was not authorized by any public resolution or
meeting record, thus violating Ohio’s Open Meetings Act (“OMA”).1
1
R.C. 121.22 does not authorize a private individual to bring an action to enforce the Open Meetings Act on
behalf of the State. See State ex rel. Ames v. Geauga Cty. Bd. of Dev. Disabilities, 2024-Ohio-5441, ¶ 28
(11th Dist.). Here, while the trial court expressed concern regarding Pelmear’s standing to bring this action
on behalf of the State, it ultimately did not decide the issue. Because the issue was not raised by the parties
on appeal, we are proceeding with this appeal by assuming without deciding that Pelmear has proper standing
to bring this action.
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{¶3} Consequently, on January 4, 2024, Pelmear filed a complaint in the trial
court seeking injunctive relief against the Land Bank. His single-count complaint
alleged that the Land Bank violated the OMA by failing to provide proper public
notice for twelve meetings of the Land Bank in 2022 and 2023. Pelmear requested
that the trial court invalidate any actions taken by the Land Bank at these meetings
in addition to statutory damages, attorney fees, and court costs. The Respondents
filed their answer on February 5, 2024.
{¶4} The case’s procedural path was complicated by Pelmear’s related
filings in the Supreme Court of Ohio. Specifically, on February 26, 2024, Pelmear
filed a writ seeking to disqualify the Henry County Prosecutor’s Office from
representing the Respondents. As a result, on March 14, 2024, the trial court ordered
the Respondents to halt its response to discovery until the Supreme Court ruled on
the matter. Thereafter, Pelmear filed a separate motion on April 23, 2024 to
disqualify the trial judge. While both matters were pending, Pelmear scheduled
depositions for Prigge, Miller, Small, Hastedt, Wachtman, and the corporate
representative of the Land Bank (to occur on May 8, 2024), prompting the trial court
to stay the case on May 1, 2024.2 Ultimately, on May 16, 2024, the Supreme Court
denied Pelmear’s motion to disqualify the trial judge, and, on May 22, 2024, it
dismissed his writ seeking to disqualify the prosecutor’s office.
2
Despite the trial court’s order staying the case, Pelmear proceeded with the scheduled depositions, but the
Respondents did not appear.
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{¶5} After the Supreme Court disposed of his filings, Pelmear filed a motion
on May 28, 2024 requesting that the trial court compel discovery and impose
sanctions on the Respondents. In his motion, Pelmear argued that the Respondents
failed to provide the required initial disclosures under Civ.R. 26 and that its
representatives refused to appear for their depositions that were scheduled for May
8, 2024. As a result, Pelmear requested that the trial court order the Respondents to
participate in discovery and to pay him $1,472.00 in sanctions for the costs that he
incurred from the missed depositions. The Respondents filed a memorandum in
opposition to Pelmear’s motion on June 11, 2024, arguing that the motion should be
denied because the trial court had stayed the case and separately ordered them not
to respond to discovery until the Supreme Court resolved the writ and the motion
for disqualification. The Respondents also countered that Pelmear’s discovery
requests were improper under Civ.R. 26. Pelmear filed his reply on June 13, 2024.
{¶6} On July 8, 2024, the trial court denied Pelmear’s motion to compel and
for sanctions after determining that the discovery delays were reasonable in light of
Pelmear’s multiple filings with the Supreme Court. In the same entry, the trial court
established new discovery deadlines, ordering the Respondents to provide their
initial disclosures as required by Civ.R. 26(B)(3) by July 31, 2024, and for all
written discovery to be completed by September 30, 2024. On July 31, 2024, the
Respondents certified that they served their initial disclosures on Pelmear as
required by Civ.R. 26(B)(3).
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{¶7} The Respondents filed a motion for summary judgment on November
27, 2024. On December 26, 2024, Pelmear filed a motion to strike the Respondents’
motion for summary judgment or, in the alternative, a memorandum in opposition
to the Respondents’ motion for summary judgment and a request for sanctions.
Pelmear filed a motion for judgment on the pleadings under Civ.R. 12(C) that same
day. The Respondents filed their reply in support of their motion for summary
judgment on January 2, 2025 and a memorandum in opposition to Pelmear’s Civ.R.
12(C) motion on January 9, 2025 (to which Pelmear filed a motion to strike the next
day). Following a hearing on January 9, 2025, the trial court on January 22, 2025
denied Pelmear’s motions to strike the filings of the Respondents, Pelmear’s
motions for sanctions, Pelmear’s Civ.R. 12(C) motion, and the Respondents’ motion
for summary judgment.
{¶8} On February 10, 2025, Pelmear filed a motion in limine requesting that
the trial court preclude any and all testimony from the Land Bank or its
representatives at the upcoming trial. He argued this sanction was necessary
because they failed to attend their depositions or provide discovery as required by
Civ.R. 26(B) by the discovery deadline. In his motion, Pelmear also renewed his
request for $1,472.00 in sanctions for the missed depositions.
{¶9} The case proceeded to trial on February 14, 2025. Prior to trial, the trial
court requested Pelmear to specify the evidence that he was seeking to exclude with
his motion in limine. Because his response was unclear and non-specific, the trial
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court denied Pelmear’s motion and renewed request for sanctions. However, when
the Respondents introduced their Exhibits A and B during trial, Pelmear objected,
arguing that they should be excluded for not being produced during discovery. The
trial court overruled his objection after finding that Pelmear never served the
Respondents with a formal written request for the production of documents as
required by Civ.R. 34. Notably, the trial court indicated it was applying this
standard to both sides, stating it would have also overruled a similar objection if the
Respondents had raised one against Pelmear’s exhibits.
{¶10} On April 18, 2025, the trial court entered judgment in favor of the
Respondents, but its substantive analysis applied only to the Land Bank.
Specifically, the court concluded that Pelmear’s complaint failed to allege any
specific wrongdoing against the individually named members of the Land Bank and
determined that it would therefore not address any claims against them. Regarding
the Land Bank, the trial court concluded that Pelmear failed to meet his burden of
proving a violation of the OMA’s public notice requirement. In particular, the trial
court found that Pelmear presented insufficient evidence that meetings occurred on
3 of the 12 dates that he alleged. For the remaining 9 meetings, the trial court relied
on the Land Bank’s code of regulations—admitted at trial as Defendant’s Exhibit
B—to conclude that a reasonable notice policy was in place and to determine that
Pelmear failed to present evidence that this policy was not followed.
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{¶11} Pelmear filed his notice of appeal on April 21, 2025. He raises three
assignments of error for our review. For ease of our discussion, we will begin by
addressing Pelmear’s first assignment of error, then his second and third
assignments of error together.
First Assignment of Error
The trial court abused its discretion by allowing Respondent to
introduce evidence that was in violation of Civ.R. 26 and court
orders compelling compliance with discovery. This failure
constituted undue surprise and prejudiced Relator and the
outcome of the case.
{¶12} In his first assignment of error, Pelmear argues that the trial court erred
by permitting the Respondents to introduce exhibits at trial that had not been
disclosed during discovery in violation of Civ.R. 26. In particular, he contends this
failure created undue surprise that was prejudicial because it deprived him of the
ability to fairly respond to the evidence and ultimately changed the outcome of the
case.
Standard of Review
{¶13} “A trial court has broad discretion when imposing discovery sanctions
and a reviewing court shall review these rulings only for an abuse of discretion.”
Collias v. Redburn, 2012-Ohio-2128, ¶ 25 (3d Dist.). See also Simpson v.
Kuchipudi, 2006-Ohio-5163, ¶ 9 (3d Dist.) (recognizing that this court reviews a
trial court’s decision to admit or exclude evidence for an abuse of discretion). An
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abuse of discretion suggests the trial court’s decision is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶14} “‘Although the decision to impose discovery sanctions is a matter
within the sound discretion of the trial court, “the exclusion of reliable and probative
evidence is a severe sanction and should be invoked only when clearly necessary to
enforce willful noncompliance or to prevent unfair surprise.”’” Long v. Harding,
2021-Ohio-4240, ¶ 35 (12th Dist.), quoting Grady v. Charles Kalinsky, D.D.S., Inc.,
2005-Ohio-5550, ¶ 14 (8th Dist.), quoting Nickey v. Brown, 7 Ohio App.3d 32, 34
(9th Dist. 1982).
Analysis
{¶15} A key purpose of the Rules of Civil Procedure is to prevent surprises
at trial by ensuring a free flow of information between the parties. Hanick v.
Ferrara, 2020-Ohio-5019, ¶ 29 (7th Dist.). To achieve this, the discovery process
requires parties to share information upon request and imposes sanctions for failing
to respond to reasonable inquiries. Id.
{¶16} “Civ.R. 26 sets forth general provisions governing discovery.” Long
at ¶ 36. To that end, Civ.R. 26(B)(1) provides that parties may generally
obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action,
the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit. Information within
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this scope of discovery need not be admissible in evidence to be
discoverable.
Under Civil Rule 26(B)(3), both sides in a lawsuit must automatically provide each
other with basic, essential information at the start of the case. In particular, the rule
provides, in its relevant part, that the parties must,
[w]ithout awaiting a discovery request, . . . provide to the other parties,
except as exempted by Civ. R. 26(B)(3)(b) or as otherwise stipulated,
or ordered by the court:
(i) the name and, if known, the address, telephone number, and e-mail
address of each individual likely to have discoverable information—
along with the subjects of that information—that the disclosing party
may use to support its claims or defenses, unless the use would be
solely for impeachment;
(ii) a copy—or a description by category and location—of all
documents, electronically stored information, and tangible things that
the disclosing party has in its possession, custody, or control and may
use to support its claims or defenses, unless the use would be solely
for impeachment.
Civ.R. 26(B)(3)(a)(i), (ii). See In re Estate of Carte v. Bringardner, 2023-Ohio-
4286, ¶ 75 (10th Dist.).
{¶17} Pursuant to Civ.R. 34(C), and subject to the scope of discovery under
Civ.R. 26(B), a party seeking materials—beyond the automatic initial disclosures
mandated by Civ.R. 26(B)(3)—may serve on another party a request to produce
designated materials that are in the possession, custody, or control of the party
receiving the request. See Buckner v. Washington Mut. Bank, 2014-Ohio-5189, ¶
24 (12th Dist.). Critically, “[t]he Ohio Rules of Civil Procedure clearly state that
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Rule 34 requests are the only means by which discovery of documents from a party
may be had.” Gibson-Myers & Assoc., Inc. v. Pearce, 1999 WL 980562, *3 (9th
Dist. Oct. 27, 1999), citing Civ.R. 45(A)(1)(c) (noting that “documents may be
obtained from a party in discovery only pursuant to Civ.R. 34”). “If the party upon
whom the request is served fails to answer the request for inspection, then Civ.R.
37(A)(2) allows the requesting party to move for an order to compel discovery.” Id.
{¶18} “Civ.R. 37 vests courts with the authority to sanction parties and their
attorneys for flouting the Rules of Civil Procedure and violating discovery orders .
. . .” Bellamy v. Montgomery, 2010-Ohio-2724, ¶ 21 (10th Dist.). See also Elliott-
Thomas v. Smith, 2018-Ohio-1783, ¶ 16 (“Civ.R. 37 provides trial courts with broad
discretion to impose sanctions upon a party who violates the rules governing the
discovery process.”). “The failure to provide discovery material under an order
may result in the court prohibiting a designated matter from being introduced into
evidence.” Hanick, 2020-Ohio-5019, at ¶ 28 (7th Dist.), citing Civ.R. 37(B)(1)(b).
{¶19} “When imposing a discovery sanction, the trial court must impose the
least severe sanction that is consistent with the purpose of the rules of discovery.
Black v. Hicks, 2020-Ohio-3976, ¶ 55 (8th Dist.). See also Elliott-Thomas at ¶ 16
(noting that the civil rules provide “adequate remedies to deter and punish
interference with and concealment of evidence by parties and counsel”). “When
issuing discovery sanctions, the Ohio Supreme Court has held that ‘the trial court
should weigh the conduct of the party offering [evidence] along with the level of
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prejudice suffered by the opposing party attributable to the discovery violation, in
order to determine the appropriate sanction.’” Black at ¶ 55, quoting Savage v.
Correlated Health Servs., 64 Ohio St.3d 42, 55 (1992). “And, because the exclusion
of reliable and probative evidence is such a severe sanction, it should only be
imposed when necessary to enforce willful noncompliance or to prevent unfair
surprise.” Id.
{¶20} Based on our review of the record before us, we conclude that the trial
court did not abuse its discretion by overruling Pelmear’s objection and by admitting
the Respondents’ Exhibits A and B because there is no evidence in the record that
Pelmear ever complied with Civ.R. 34 by filing any written request for the
production of documents. See Gibson-Myers, 1999 WL 980562, at *4. Indeed, the
record is clear that, while the Respondents served their initial disclosures on July
31, 2024, Pelmear never served the Respondents with a written request for the
production of documents under Civ.R. 34. Compare id. at *4, fn. 2 (acknowledging
that “[w]hile Civ.R. 30(B)(4) allows a Civ.R.34 request to accompany a notice of
deposition, no such request was clearly set forth in Appellee’s notice”). Without
such a request, the Respondents had no duty to produce the specific exhibits they
intended to use at trial. See Disciplinary Counsel v. Hunter, 2023-Ohio-4168, ¶ 19
(noting that “there is no evidence in the record to demonstrate that Hunter requested
discovery or filed a formal request for the production of documents pursuant to
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Civ.R. 34 or that she filed a motion for an order to compel discovery pursuant to
Civ.R. 37”).
{¶21} Nevertheless, Pelmear contends that he requested the documents in
writing. However, the record reveals that this request was an informal email, not a
formal request for production served in accordance with the Civil Rules. (See Jan.
9, 2025 Tr. at 6). Indeed, an informal email is not a substitute for the procedures
mandated by the rules and does not trigger an opposing party’s duty to respond. See
Bilton v. Danbury Twp. Bd. of Zoning Appeals, 2025-Ohio-123, ¶ 24 (6th Dist.) (“It
is well-established law that a reviewing court cannot consider evidence outside the
record on appeal.”); State v. Vore, 2021-Ohio-185 (4th Dist.) (noting that an
appellant court “may not consider these emails as we would be relying on
information outside the record which we are not permitted to do”). Because Pelmear
failed to use the proper procedural tools to obtain the documents, the trial court did
not abuse its discretion by denying Pelmear’s objection to the Respondents’ reliance
on the Respondents’ Exhibit A or B or by admitting those exhibits at trial.
{¶22} Pelmear’s first assignment of error is overruled.
Second Assignment of Error
The trial court erred in failing to issue an injunction pursuant to
overwhelming evidence of violation of R.C. 121.22(F).
Third Assignment of Error
The trial court erred in failing to issue an injunction pursuant to
R.C. 121.22(I)(1) as required after Relator proved by clear and
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convincing evidence of any violation of the Open Meetings Act
contained in Relator’s Complaint.
{¶23} In his second and third assignments of error, Pelmear argues that the
trial court erred by failing to issue an injunction because he presented overwhelming
evidence that the Land Bank violated the OMA by failing to provide adequate public
notice for 12 of its meetings. In particular, he contends that, because he proved
these notice violations, the trial court had a non-discretionary, mandatory duty under
R.C. 121.22(I)(1) to issue the injunction.
Standard of Review
{¶24} In general, “[t]he decision to grant or deny an injunction is within the
discretion of the trial court, and we review that decision on appeal for an abuse of
discretion.” Gimex Properties Corp. v. Reed, 2022-Ohio-4771, ¶ 59 (6th Dist.),
citing Danis Clarkco Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist., 73 Ohio
St.3d 590 (1995), paragraph three of the syllabus. See also Ames v. Rootstown Twp.
Bd. of Trustees, 2022-Ohio-4605, ¶ 21 (explaining that “when a trial court is faced
with multiple violations of the OMA, it is required to issue injunctive relief [under
R.C. 121.22(I)(1)] but it has discretion in setting the terms of that relief”). Again,
an abuse of discretion suggests the trial court’s decision is unreasonable, arbitrary,
or unconscionable. Blakemore, 5 Ohio St.3d at 219.
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Analysis
{¶25} Ohio’s OMA ensures government transparency, providing that “‘[a]ll
meetings of any public body are declared to be public meetings open to the public
at all times.’” Ames at ¶ 2, quoting R.C. 121.22(C). See also Keystone Commt. v.
Switzerland of Ohio Sch. Dist. Bd. of Edn., 2016-Ohio-4663, ¶ 24 (7th Dist.) (“R.C.
121.22 requires public bodies in Ohio to take official action and conduct all
deliberations on official business only in open meetings where the public can attend
and observe such deliberations.”). The OMA “‘is to be liberally construed to require
a public body at all times to take official action and conduct deliberations upon
official business in meetings open to the public.’” Tobacco Use Prevention &
Control Found. Bd. of Trustees v. Boyce, 2009-Ohio-6993, ¶ 64 (10th Dist.), quoting
R.C. 121.22(A). “‘Its purpose is to assure accountability of elected officials by
prohibiting their secret deliberations on public issues.’” Id., quoting State ex rel.
Cincinnati Enquirer v. Hamilton Cty. Commrs., 2002 WL 727023, *1 (Apr. 26,
2002 1st Dist.).
{¶26} The OMA defines a “public body” to include “‘[a]ny . . . board,
commission, committee, council, agency, authority, or similar decision-making
body of any county, township, municipal corporation, school district, or other
political subdivision or local public institution.’” Ames at ¶ 2, quoting R.C.
121.22(B)(1)(a). The parties agree that the Land Bank is a public body under the
OMA.
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{¶27} Under the OMA, a “meeting” is any prearranged discussion of public
business by a majority of a public body’s members. R.C. 121.22(B)(2). The OMA
authorizes different types of meetings, including regular, special, and emergency
meetings, and requires public bodies to establish a reasonable method for the public
to determine the time and place for each. Keystone at ¶ 24; State ex rel. Masiella v.
Brimfield Twp. Bd. of Trustees, 2017-Ohio-2934, ¶ 47 (11th Dist.); R.C. 121.22(F).
For special meetings in particular, the body must also state the specific purpose of
the meeting and provide at least 24 hours’ advance notice. State ex rel. Thomas v.
Wood Cty. Bd. of Elections, 2024-Ohio-379, ¶ 48; R.C. 121.22(F).
{¶28} “Public officials may discuss certain sensitive information in a private
executive session from which the public is excluded, if particular procedures are
followed.” State ex rel. Young v. Bd. of Edn. Lebanon School Dist., 2013-Ohio-
1111, ¶ 48 (12th Dist.); R.C. 121.22(G). In particular, “[a]n executive session is a
closed-door conference convened by a public body, after a roll call vote, that is
attended by only the members of the public body (and those they invite), that
excludes the public.” Keystone at ¶ 25. “The [OMA] allows for executive sessions
for only certain limited purposes, and those are to be strictly construed.” Id.
Specifically, “[a] public body may only discuss the matters specifically enumerated
in R.C. 121.22(G) during executive session.” Id. And, “[f]inally, a public body
may not take any formal action, such as voting or reaching any collective decision,
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during an executive session and any formal action taken in an executive session is
invalid.” Id.
{¶29} “Once a meeting has concluded, the minutes ‘shall be promptly
prepared, filed, and maintained and shall be open to public inspection.’” Ames at ¶
5, quoting R.C. 121.22(C). However, the minutes for an executive session are only
required to reflect the general subject matter of the discussion by stating the legally
permitted purpose for which the session was held. State ex rel. Hicks v. Clermont
Cty. Bd. of Commrs., 2022-Ohio-4237, ¶ 17.
{¶30} The OMA sets out specific, non-discretionary remedies that a court
must impose upon proof of a violation. Ames at ¶ 7. Central to this appeal, the
statute requires that a court “shall issue an injunction” to force the public body to
comply with the law. R.C. 121.22(I)(1). See id. at ¶ 20 (“‘[W]hile R.C. 121.22(I)(1)
requires the trial court to issue ‘an injunction to compel the members of the public
body to comply with [the] provisions’ of the OMA, these well-established principles
that we have articulated in our caselaw still afford the trial court discretion in
crafting that relief.”), quoting R.C. 121.22(I)(1). Upon proof of a violation or a
threatened violation, irreparable harm and prejudice to the party seeking the
injunction are automatically presumed, making the case for an injunction conclusive
and irrebuttable. R.C. 121.22(I)(3).
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{¶31} If an injunction is issued, the court must also order the public body to
pay a $500 civil forfeiture, court costs, and reasonable attorney fees to the party who
brought the lawsuit. R.C. 121.22(I)(2)(a). Finally, any member of a public body
who knowingly violates the court’s injunction may be removed from office in a
separate action. R.C. 121.22(I)(4).
{¶32} “Plaintiffs alleging violations of Ohio’s OMA, R.C. 121.22, bear the
burden of proving the violations they have alleged.” Hicks, 2022-Ohio-4237, at ¶
40. See also Keystone, 2016-Ohio-4663, at ¶ 26 (7th Dist.) (“A party seeking
injunctive relief has the burden of proof by clear and convincing evidence.”).
“Therefore, the party alleging a violation of the [OMA] must establish that the
public body held a meeting with a majority of its members and that the meeting
improperly excluded the public.” Keystone at ¶ 26. “There is no requirement for
the public body to conversely prove that no violation occurred.” Hicks at ¶ 11.
{¶33} Importantly, under a legal principle known as the “presumption of
regularity,” Ohio law presumes that public officials and government boards have
performed their duties properly and legally. Brenneman Bros. v. Allen Cty.
Commrs., 2015-Ohio-148, ¶ 18 (3d Dist.). To overcome this presumption, a
challenger cannot rely on mere allegations; they must present actual evidence to
prove the public body acted improperly. Id.
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{¶34} In its April 18, 2025 entry denying his request for an injunction, the
trial court concluded that Pelmear failed to satisfy his burden of proving a violation
of the Land Bank’s own rules or of R.C. 121.22(F). Specifically, the trial court
resolved that the Land Bank established a reasonable notice policy, as required by
R.C. 121.22(F), by adopting its code of regulations. The trial court further
determined that, for the nine meetings that it found to have occurred, Pelmear failed
to provide sufficient evidence that the Land Bank failed to follow its notice policy.
{¶35} On appeal, Pelmear argues the trial court abused its discretion by
denying his request for an injunction because he contends that he proved that the
Land Bank violated the OMA by failing to adopt a regular meeting schedule, to
properly notice its special meetings, and to keep adequate minutes. However, as a
threshold matter, Pelmear’s claim regarding the adequacy of the Land Bank’s
meeting minutes is not properly before this court. Indeed, the trial court correctly
declined to address this issue (and any issue related to R.C. 121.22(G)) after
determining that Pelmear’s complaint contained only a single count alleging
violations of the OMA’s public notice requirements under R.C. 121.22(F). Because
the issue of inadequate minutes was not raised in Pelmear’s complaint, it is not
properly before us, and we will likewise not address it. See Shie v. Bd. of Education
of Hamilton City School Dist., 1981 WL 5217, *1 (12th Dist. Oct. 10, 1981).
{¶36} We therefore limit our analysis to Pelmear’s arguments pertaining to
violations of the OMA’s public notice requirements. Pelmear first argues that none
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of the Land Bank’s gatherings qualified as regular meetings because it failed to
follow its own internal rule requiring the adoption of a yearly meeting schedule. He
next argues that, because all meetings were consequently special meetings, the Land
Bank then violated the OMA by failing to follow its own mandatory notice
procedures for those meetings.
{¶37} Based on our review of the record, we conclude that the trial court did
not err by denying Pelmear’s request for an injunction under R.C. 121.22(I)(1)
because he failed to satisfy his burden of proving that the Land Bank violated the
OMA’s public notice requirements. See Hicks, 2022-Ohio-4297, at ¶ 10-12
(holding that the plain language of the OMA places the full burden of proof on the
plaintiff to prove a violation occurred, and the public body has no corresponding
burden to prove its compliance). Pelmear’s primary argument is that none of the
Land Bank’s gatherings qualified as regular meetings because it failed to adopt a
yearly meeting schedule, which he contends was required by its own rules. To
prevail on this point, Pelmear had the burden of proving that the Land Bank’s Code
of Regulations actually contains such a requirement. He failed to do so.
{¶38} Critically, the evidence presented at trial established that the Land
Bank adopted its code of regulations on August 3, 2017, which set forth its rules
regarding its open meetings. The Land Bank’s code of regulations specifically
delineates, in its relevant part:
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Article IV
MEETINGS: NOTICES THEREOF
...
Section 4.2. Annual Meeting. The Board of Directors shall hold an
annual meeting each calendar year on the third Thursday of the third
month after the close of the Corporation’s fiscal year or on such later
date for which notice of such annual meeting is given in accordance
with Section 4.5.1 hereof . . . Each annual meeting shall be held in the
County at the place set forth in the notice therefore. Notice of such
annual meeting shall be given by the Secretary of the Corporation in
accordance with Section 4.5.1 . . . .
Section 4.3. Regular Meetings. In addition to the annual meeting, the
Board of Directors shall hold at least one regular meeting per calendar
quarter of each fiscal year of the Corporation on such dates and at
such times as the Board of Directors shall determine. Notice of each
regular meeting shall be given by the Secretary of the Corporation in
accordance with the provisions of Section 4.5.2 . . .
Section 4.4. Special Meetings. The President of the Board of
Directors, a majority of the Directors, an Ex officio Director or the
Executive Director of the Corporation may call a special meeting of
the Board of Directors. Notice of any such special meeting shall be
given in accordance with the provisions of Section 4.5.3 hereof.
Section 4.5 Notices to Directors of Meetings. Notice of each regular
meeting, special meeting and annual meeting of the Corporation shall
be given to each Director in accordance with the provisions of this
Section 4.5.
Section 4.5.1. Annual Meeting. Not less than seven (7) days and not
more than thirty (30) days prior to an annual meeting, notice stating
the date, time, place of the meeting shall be given to the Directors by
the Secretary of the Corporation. . . .
Section 4.5.2. Regular Meetings. Not less than seven (7) days nor
more than fourteen (14) days prior to a regular meeting, notice stating
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the date, time, place of the meeting shall be given to the Directors by
or at the direction of the Secretary of the Corporation. . . .
Section 4.5.3. Special Meetings. At least twenty-four (24) hours prior
to a special meeting of the Board of Directors, notice stating the date,
time and place of the meeting shall be given to the Directors by or at
the direction of the Secretary of the Corporation or of the person or
persons calling the same.
...
Section 4.9. Open Meeting Requirement. Except as otherwise
provided in [R.C.] 1724.11(B)(1) . . . , all meetings of the Board at
which a determination of the Board is required shall be open to the
public. In connection with compliance with this provision, notice to
the public, including the news media, of meetings of the Directors for
the purpose of conducting the Public Business of the Corporation shall
be given as provided in this Section 4.9, including Sections 4.9.1,
4.9.2, 4.9.3, and 4.9.4 hereof.
...
Section 4.9.2. Posted or Published Notice of Meetings. Notice of all
meetings, specifying the time, place and purpose thereof, shall be
given not later than twenty-four (24) hours in advance thereof (1) by
posting at the office of the Corporation and at the offices of the County
Commissioners and the County Treasurer and (2) by publishing the
notice on the publicly accessible website of the County and/or
Corporation.
(Bold and underline in original.); (Italics added.) (Respondents’ Ex. B).
{¶39} Based on our review of the plain language of the Land Bank’s Code
of Regulations, it is apparent that Section 4.3 does not mandate the adoption of a
full yearly schedule.3 It provides the Land Bank with the flexibility to set its meeting
3
Though the plain language does not mandate the adoption of a meeting schedule, evidence was presented
at trial that the Land Bank established a quarterly meeting schedule at its March 1, 2023 meeting. This fact,
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dates as needed, so long as it meets quarterly, and it does not require that those
quarterly meeting dates to be scheduled in advance. Thus, since Pelmear failed to
point to any provision of the Land Bank’s Code of Regulations that supports his
interpretation, he did not meet his burden of proving that the Land Bank violated its
own rules, and his argument that all meetings were consequently special meetings
is without merit.
{¶40} Having rejected Pelmear’s premise that all of the Land Bank’s
gatherings were special meetings, his argument that the Land Bank failed to follow
the procedures for such meetings necessarily fails. Consequently, our analysis
therefore turns to whether the trial court abused its discretion by finding that
Pelmear failed to prove the Land Bank violated the general notice requirements
established in its Code of Regulations. See State ex rel. Masiella v. Brimfield Twp.
Bd. of Trustees, 2017-Ohio-2934, ¶ 53 (11th Dist.) (holding that a plaintiff fails to
prove an OMA violation where they present no direct evidence that the gathering
was prearranged, that public business was discussed, or that any official action
resulted from it).
{¶41} Critically, to overcome the legal presumption that the Land Bank acted
properly, Pelmear was required to present actual evidence of a violation, not just
bare allegations. Our review of the record reveals that Pelmear’s case was largely
however, does not alter our analysis. The dispositive issue is what the plain language of the Code of
Regulations requires, not what the Land Bank may have done in practice.
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predicated on such allegations. For instance, Pelmear incorrectly presumed that the
dates that the Land Bank accepted a property from M. Prigge (January 5, 2022) and
later transferred it (June 8, 2023) were dates on which improper meetings must have
occurred. The trial court, however, was presented with testimony from Land Bank
board member Robert Hastedt (“Hastedt”) refuting these claims.
{¶42} Importantly, Hastedt’s testimony established that no meetings
occurred on 3 of the 12 dates Pelmear alleged: January 5, 2022, January 11, 2022,
and April 4, 2023. For the nine meetings that did occur, Hastedt testified that notice
was posted in compliance with Section 4.9.2 of the Code of Regulations.
Specifically, he testified that the Land Bank provided public notice by physically
posting it at the county commissioners’ office and by publishing it on the county’s
website via the commissioners’ public agendas. (See Feb. 14, 2025 Tr. at 59, 61).
He further testified that the Maumee Valley Planning Organization’s website also
informs the public that all meetings are open, held at the commissioners’ office on
an “as-needed basis,” and provides contact information for citizens to confirm the
next scheduled meeting date. (Id. at 49); (Relator’s Ex. 5).
{¶43} Nevertheless, Pelmear argues that the trial court erred by denying his
request for an injunction because the trial court found that it “heard no evidence as
to whether notice . . . was posted at the Henry County Treasurer’s office.” (Doc.
No. 82). This is where Pelmear’s burden of proof is dispositive. Importantly, the
absence of evidence on one point is not, by itself, affirmative proof of a violation.
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See Gargano v. Grunder, 1995 WL 411835, *3 (11th Dist. June 23, 1995)
(explaining that a plaintiff does not meet their burden of proof simply by pointing
to an “absence of evidence” on a particular fact, as such an absence does not
constitute affirmative proof of a violation).
{¶44} In this case, the trial court was presented with testimony from Hastedt
affirming the Land Bank’s general compliance with its notice procedures. In
contrast, Pelmear presented no evidence to demonstrate that the Land Bank failed
to post the required notice. His reliance on a gap in the record is not a substitute for
the actual evidence he was required to produce to satisfy his burden and overcome
the presumption of regularity. Thus, since he failed to produce any evidence of a
violation, Pelmear did not meet his burden of proving a violation of R.C. 121.22(F).
Consequently, because Pelmear failed to satisfy his burden, we conclude that the
trial court did not err by denying Pelmear’s requested injunctive relief.
{¶45} For these reasons, Pelmear’s second and third assignments of error are
overruled.
{¶46} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and WILLAMOWSKI, J.J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
William R. Zimmerman, Judge
Mark C. Miller, Judge
John R. Willamowski, Judge
DATED:
/hls
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