IN THE COMMON PLEAS COURT OF LOGAN COUNTY, OHIO

GENERAL DIVISION

 

 

 

STATE  OF OHIO ex rel. EDWIN DAVILA,

 

                                    Relator,

 

                        vs.                                                                   Case No.  CV 09 07 0361

 

CITY OF BELLEFONTAINE et al,

 

                                    Respondents.

 *                       *                       *

JUDGMENT ENTRY

             This cause comes before the Court upon motions for summary judgment by both the Relator and the Respondents, a motion to dismiss or for sanctions by the Respondents and related motions concerning the admissibility of Civ.R. 56 materials.  The Court, by this entry, will rule on all outstanding motions.

            This cause was commenced with the filing of the complaint for a writ of mandamus and alternatively for a civil forfeiture pursuant to R.C. 149.351.  The first cause of action was a mandamus for reel-to-reel tapes, the second cause of action is a civil forfeiture pursuant to R.C. 149.351(B)(2).  The Relator, in his memorandum, indicates the amount of the civil forfeiture would be in excess of five million dollars.

            The first motion the Court will rule upon is the motion to dismiss or for sanctions by all Respondents.  Said motion was filed October 15, 2010.  Relator filed a memorandum in opposition November 5, 2010. 

            This motion arises out of the discovery deposition taken of Relator on May 5, 2010.  Respondents’ motion alleges that during Relator’s deposition he made multiple sarcastic and facetious comments.  It alleges that his testimony was vexatious and flippant when he was under oath.  The motion further argues and cites examples from the deposition where the Relator had an impertinent attitude during his testimony. 

            Relator’s memorandum in opposition points out that the Respondents engaged in ad hominem attacks and accused the Respondents of Machiavellian tactics.  The Court reviewed the deposition in question.  Refusal to answer can be sanctioned in the same manner as non-attendance at a deposition.  While the Court considers dismissal of an action an extreme measure, the Court believes Relator and his counsel should be much more forthcoming and less evasive than was done in this deposition.  Conversely, Respondents counsel should be more circumspect in its charges that the Relator is being litigious.  The Third District Court of Appeals has recently instructed that the trial court has a duty to prevent exploitation of the prejudice against litigiousness.  Yeager v. Carpenter, Union App. No. 14-09-19, 2010-Ohio-3675, at ¶ 38.  There was little discussion as to how the Respondents were damaged.  Their main damages are probably that they filed the motion to dismiss.  The Court would be more persuaded as to their sincerity if this was filed shortly after the deposition and not as part of the dispositive pleadings.  The Court finds the motion to dismiss and for sanctions not to be well taken.

            The Court next turns to the motions for summary judgment.  Before the Court can consider the motions for summary judgment, it must determine which materials are appropriate under Civ.R. 56 for the Court to consider.  The Relator’s deposition and the deposition of Brad Kunze have been filed.  There appears to be no objections to those depositions.  Likewise, the exhibits attached to the motions have not been objected to except for Relator’s affidavit.  Respondents have filed a motion to strike the Relator’s affidavit and a motion for leave to file a rebuttal affidavit.  Respondents’ motion to strike was filed November 4, 2010, Relator filed a memorandum in opposition November 15, 2010.  The Respondents’ motion for leave to file rebuttal evidence was filed November 12, 2010 and the Relator’s memorandum contra was filed November 22, 2010.  Respondents’ also filed additional memorandum in reply November 29, 2010.

            This Court has dealt with the issue of affidavits contradicting the affiant’s deposition. Williams  v. Logan County Cooperative Power and Light Assoc. Inc. (1991), 62 Ohio Misc.2d 196.  In Williams the Plaintiff, at his deposition, claimed a total loss of memory about how he received his injury.  After Defendant filed a motion for summary judgment with supporting affidavit, the Plaintiff regained his memory and gave a detailed affidavit contradicting Defendant’s evidence.  In Williams the truth was clear to the Court; the Court did not find any genuine issues of material fact in spite of the Plaintiff’s contradictory affidavit.  The Ohio Supreme Court has dealt with this same issue in Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455.  The guidance of the Supreme Court in Byrd is that there must be an analysis of the deposition compared to the affidavit as to whether or not the two contradict or supplement each other.  While the Relator’s conduct during the deposition has already been the subject of Respondents’ motion to dismiss or to have sanctions applied, the Court finds that the deposition and affidavit are not contradictory to the extent that the affidavit should be stricken.  However, the Court believes that the Relator’s conduct at the deposition and his subsequent affidavit, gives the Respondents good cause to file additional Civ.R. 56 material and the Court accordingly, finds the Respondents’ motion for leave to file rebuttal evidence well taken.  Accordingly, the Court has Davila’s affidavit before it as well as the rebuttal evidence of the City’s former Service Safety Director, Gary Carmean.

            The Court then turns to the consideration of the Respondents’ motion for summary judgment filed October 15, 2010. Relator filed a memorandum in opposition on November 4, 2010 and Respondents filed a reply November 12, 2010.

            Respondents’ motion for summary judgment alleges that the City of Bellefontaine produced all police logs requested by Relator and accordingly, this Court should grant summary judgment on this issue.  Secondly, said motion argues Relator’s request for all reel-to-reel tapes that Bellefontaine ever used is overly broad and the Court should not enforce such a request.  Thirdly, the motion states even if Relator made a proper public records request, he fails to meet the standard of an aggrieved party under R.C. 149.351.  Finally, the motion alleges that the trial court should limit Relator’s potential judgment to $250,000 pursuant to R.C. 2744.05.

            Respondents’ first assertion in its motion is that Bellefontaine produced all police logs requested by Davila so the City should be granted summary judgment on that issue.  Besides raising this issue in its memorandum, the Respondent attached to its motion an affidavit of the Bellefontaine Police Department, Chief of Police, Brad Kunze.  That affidavit accounted in detail the correspondence that went on between Davila and the police chief and a meeting where Davila had an opportunity to listen to the tapes in questions and listened to five of one hundred sixty tapes in a little over three hours. 

To the Respondents’ first claim, Relator argues that Respondents are required to maintain 911 recordings until they obtained authority to dispose of them.  Respondents are arguing that since the tapes were properly disposed of, the city could not then provide all of the tapes the Relator was entitled to.  The factual allegations made in Chief Kunze’s affidavit that there were protracted correspondence between his counsel and Relator’s counsel to set up an inspection of the tapes is not denied.  Nor is Chief Kunze’s affidavit testimony denied that Relator could only review five of the one hundred sixty-one tapes in three hours.  Chief Kunze’s opinion in his affidavit that it would take over thirty-eight hundred hours to review all of tapes is not commented upon or refuted by the Relator’s response.  Instead, Relator invites the Court to find that there should have been more tapes reviewable if the procedure that the Relator says is applicable was followed.  The Relator’s memorandum in response states that the Respondents had not provided Relator with full access to all the “911 style” reel-to-reel audio tapes which he requested – because they no longer exist.  Relator states that the 911 style tapes were destroyed long before the effective date of any of the applicable RC-2 forms.  The City in response, argues that Relator’s evidence is insufficient to prove that the record retention schedule was not properly passed in 2007 and the lack of public notices and minutes of meetings fails to prove that the record commission failed to meet and pass the record’s retention schedule.  The City relies on the testimony of Service Safety Director Carmean (which affidavit the Court has allowed to be filed) who states the commission met on subsequent occasions and ratified any actions taken in past meetings.  The Court concludes from a review of the materials filed that there is a genuine issue of material fact as to whether or not the retention schedules were properly passed and the tapes disposed of in accordance with those schedules.

The Court notes that the Relator attaches and cites Judge Faulkner’s decision from Crawford County in support of this position.  This Court notes that Judge Faulkner’s decision was after trial and was not granted on the basis of summary judgment.  Further, in that case Judge Faulkner recognized certain admissions that were made pursuant to requests for admissions.  The case before this Court and the case before Judge Faulkner are in different procedural postures and that Court had different evidence before it.   Accordingly, the Court finds there is a genuine issue of material fact as to whether or not the Respondents provided all of the tapes, and that branch of the Respondents’ motion is not well taken.

            The Respondents’ motion for summary judgment next argues that the Relator’s request for public records was over broad.  Relator’s response to that argument is that it is not timely raised as it has not here-to-for been pled.  Respondents argue that this defense was set forth in its motion to dismiss, its answer and amended answer.  The Court cannot find this defense in the answer or the amended answer, but the court does find that this defense was part of the Respondents’ motion to dismiss filed August 6, 2009.  The Third District Court of Appeals has held that an affirmative defense cannot be raised for the first time in a summary judgment pleading.  Eulrich v. Weaver Bros., 165 Ohio App.3d 313, 2005-Ohio-5891.  That Court also discussed this issue in Kritzwiser v. Bonetsky, Logan App. No. 8-07-24, 2008-Ohio-4952, at ¶ 25 and indicated that the affirmative defense could be pled in a pre-pleading Civ.R. 12(B) motion to dismiss.  Accordingly, the Court finds that the motion for summary judgment has properly raised this affirmative defense in that this defense was raised in the Respondent’s motion to dismiss.

            Both parties cite and rely upon the Supreme Court case of State ex. rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788.  That case stands for the proposition that it is the responsibility of a person who wishes to inspect and/or copy records to identify with reasonable clarity the records at issue.  The Relator alleges that this was done.  However, the correspondence attached to Respondents’ motion and memorandum indicates the Relator did not specify the information sought but instead wanted a broad category of information.  In fact, in the Relator’s deposition, at page twenty-one, he stated that he wanted tapes for thirty years if they had them.[1]  Even when the city produced one hundred sixty-one tapes, the Relator only listened to five and it would have taken longer, almost two years’ worth of work to review them all.  Even then the Relator’s claim is that they didn’t produce all of the tapes because other tapes had been destroyed so that the Relator’s request is broader even than the one hundred sixty-one tapes.  Accordingly, the Court finds that the Relator has not identified with specific clarity the records requested as the request was too broad.  The Court finds that the motion is well taken on this ground. 

Although the next issue may now be moot, the parties argued extensively as to whether or not the Relator was an aggrieved party.  The definition which seems to be accepted by the weight of authority is anyone who requests a public record and doesn’t get it is aggrieved.  It doesn’t appear any requirement in the statute or in the case law that there be documentation of economic loss or some other type of injury. Walker v. Ohio State University Board of Trustees, Franklin App. No. 09AP-748, 2010-Ohio-373, at ¶ 26. 

The Court has also considered Relator’ motion for summary judgment filed October 15, 2010.  Respondents filed a memorandum in opposition on November 4, 2010. Relator then filed a reply in support of the motion for summary judgment on November 15, 2010. 

Relator’s motion alleges that the Respondents are liable for civil forfeiture because they removed, destroyed, mutilated, transferred or otherwise damaged or disposed of the data recorded onto the subject reel-to-reel tapes in whole or in part without giving prior notice to the Ohio Historical Society as required by R.C. 149. 39.  Respondents in their November 4, 2010 memorandum contends that the procedure they used complies with the law and the tapes were disposed of in accordance with the city’s records retention schedule.  This same issue was raised in the summary judgment requested by the Respondents in the first branch of their motion.  To that branch the Court found that there was a material issue of fact.  The parties cite conflicting theories; their arguments of when and how certain procedures were approved reflect that there is a genuine issue of material fact.  The Court finds again that there are genuine issues of material fact on this issue and that accordingly, the Relator’s motion for summary judgment is not well taken.  This motion is also rendered moot by the Court’s findings that the Respondents’ motion for summary judgment is well taken.

It is therefore ORDERED, DECREED and ADJUDGED that Respondents’ motion to dismiss and/or for sanctions be, and hereby is denied.

It is further ORDERED that the Respondents’ motion to strike the affidavit of Relator be, and hereby is denied.

It is further ORDERED that the Respondents’ motion to file rebuttal affidavits be, and hereby is granted.

It is further ORDERED that the Relator’s motion for summary judgment be, and hereby is denied.

It is further ORDERED that the Respondents’ motion for summary judgment be granted.  Relator’s complaint is hereby dismissed with prejudice.

All other motions not herein specifically dealt with are hereby denied.

Costs to Relator.

 

                                                                                                __________________________

                                                                                                Mark S. O’Connor, Judge

 

 

ENDORSEMENT REGARDING NOTICE OF JUDGMENT

 

To the Clerk:

 

            You are hereby directed to serve upon all parties Notice of Judgment and the date on which it was journalized pursuant to Civil Rule 58(B).

 

           

                                                                                                __________________________

                                                                                                Mark S. O’Connor, Judge

 

 

 

cc:       WILLIAM E WALKER

MARK R WEAVER