2017.12.06.memo in Opp To Application For Reconsideration

NAILAH K.
BYRD
CUYAHOGA COUNTY CUERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Appeals
BRIEF IN OPPOSITION TO
December 6, 2017 08:46
By: SHANA SAMSON 0072871
Confirmation Nbr. 1242757
STATE OF OHIO EX REL. MORE BRATENAHL, ET AL. CA 16 105281
vs.
Judge:
VILLAGE OF BRATENAHL, OHIO, ET AL.
Pages Filed: 52
Electronically Filed 12/06/2017 08:46 / FILING OTHER THAN MOTION / CA 16 105281 / Confirmation Nbr. 1242757 / CLSXN
IN THE COURT OF APPEALS
EIGHTH APPELLATE DISTRICT
CUYAHOGA COUNTY, OHIO
STATE OF OHIO ex rel. )

PATRICIA MEADE ) Case No. CA-16-105281
)
Relator-Appellant, ) Trial Court Case No.
) CV-16-857888
vs. )
)
VILLAGE OF BRATENAHL, et al, )
)
Respondents-Appellees. )
BRIEF IN OPPOSITION TO APPELLANT’S

APPLICATION FOR RECONSIDERATION
Counsel for Respondents-Appellees, Counsel for Relator-Appellant,
DAVID J. MATTY (0012335) CHRISTOPHER P. FINNEY

SHANA A. SAMSON (0072871) BRIAN C. SHRIVE
MARK B. MARONG (0082865) Finney Law Firm, LLC
Matty, Henrikson & Greve 4270 Ivy Pointe Blvd., Suite 225
55 Public Square, Suite 1775 Cincinnati, Ohio 45245
Cleveland, Ohio 44113 (513) 943-6655
(216) 621-6570 chris@finneylawfirm.com
(216) 621-1127—Fax brian@finneylawfirm. com
dmatty@mhglegal.com
s samson@mhglegal. com
mmarong@mhglegal.com
I. INTRODUCTION
For the reasons set forth below, Appellant is not entitled to reconsideration pursuant to
Ohio Appellate Rule 26.
II. PROCEDURAL HISTORY
On January 25, 2016, Relators Patricia Meade and MORE Bratenahl (“Relator” or
“Appellant”) filed a one count Complaint in this action alleging that the Village of Bratenahl, Ohio,
and councilmembers Mary Beckenbach, James F. Puffenberger, Erin E. Smith, Geoffrey B.C.
Williams and Marla Murphy (“Respondents” or “Appellees”) violated the Open Meeting Act
(“OMA”), R.C. 121.22. See Pagination (“Pag.”), 1. The Complaint requested injunctive relief
pursuant to R.C. 121.22(1) contending that the aforementioned Respondents violated or threatened
to violate the OMA by using secret ballots to conduct official business when electing the president
pro tempore of the Bratenahl Village Council on January 21, 2015.
On April 21, 2016, after exchanging written discovery, Relators filed an Amended
Complaint adding three additional counts and naming Village of Bratenahl Mayor, John Licastro
as an additional named defendant/respondent. See Pag. 17. Count II of the Amended Complaint
requested injunctive relief pursuant to R.C. 121.22(1) contending that the Respondents violated or
threatened to violate the OMA by failing to keep and maintain minutes of the Finance Committee
of the Bratenahl Village Council that comply with the OMA for the meetings held on January 19,
2016, February 16, 2016, March 14, 2016 and April 18, 2016. See Pag. 17. In Counts III and IV,
Relators alleged the Village Council conducted public business of the Council in illegal executive
sessions and/or entered into executive session in violation of the requirements of the OMA on
August 19, 2015 (Count III) and November 19, 2014 (Count IV). Counsel for Relator dismissed
Relator MORE Bratenahl and verbally dismissed Count IV at the July 26, 2016 pretrial. See Pag.
20.1
Relator’s Motion for Summary Judgment, filed on September 12, 2016, was limited to
alleged violations of the OMA in Counts I, II and III of the Amended Complaint and requested a
mandatory statutory injunction pursuant to R.C. 121.22(1). See Pag. 22 and 23. Respondents filed
a Motion for Summary Judgment on November 2, 2016 in accordance with the Court’s briefing
schedule. See Pag. 28. Relator’s Motion for Summary Judgment was denied by the trial court on
December 15, 2016 and Respondents’ Motion for Summary Judgment was granted by the trial
court as Relator failed to meet her burden of persuasion by a preponderance of the evidence that
Respondents violated or threatened to violate the OMA. See Pag. 34. This appeal ensued and the
Court of Appeals issued a Decision on November 9, 2017 affirming the trial court’s decision
granting summary judgment in favor of the Respondents. Appellant’s application for
reconsideration was filed on November 15, 2017.
III. LAW AND ARGUMENT
A. Standard of Review
The standard to be utilized in reviewing an Application for Reconsideration, pursuant to
Rule 26 of the Ohio Rules of Appellate Procedure, is whether the Application "calls to the attention
of the Court an obvious error in its decision or raises an issue for consideration that was either not
considered at all or was not fully considered by the Court when it should have been." Board of
Education of Cleveland City School District v. URS Company, 1994 WL 665727, 8th Dist. No.
64496, citing Columbus v. Hodge, 37 Ohio 3d 68 (10th Dist. 1987) P 1 of the syllabus; Matthews
1 Relator filed a motion to amend the complaint striking Count IV on December 15, 2016. This motion was granted
by the trial court on December 19, 2016. See Pag. 35.
v. Matthews, 5 Ohio App. 3d 140 (10th Dist. 1981) P 2 of the syllabus. An application for
reconsideration is "a mechanism by which a party may prevent miscarriages of justice that could
arise when an appellate court makes an obvious error or renders an unsupportable decision under
the law" and, thus, must demonstrate more than the fact that the movant "simply disagrees with
the conclusions reached and the logic used by an appellate court." State v. Owens (1996), 112 Ohio
App.3d 334, 336.
Because Appellant fails to satisfy this standard, it is respectfully requested this Court deny
Appellant’s application for reconsideration of its November 9, 2017 decision.
B. All issues raised by the Court were fully briefed and properly relied upon.
Appellant alleges in her application for reconsideration that the Court deprived her of due
process by deciding the case on matters not put at issue by the pleadings, but, rather on issues
created by the Court and not briefed or argued, and without notice and opportunity to brief the
issues. Despite Appellant’s arguments to the contrary, nothing prevents a Court of Appeals from
passing upon an error which was neither briefed nor pointed out by a party. See C. Miller
Chevrolet, Inc. v. City of Willoughby Hills, 38 Ohio St.2d 298. Yet, in this case, the Court of
Appeals did not violate the tenets of due process because their decision with regard to the issue of
secret ballots was based on Ohio Attorney General Opinion No. 2011-038 which was sufficiently
at issue in the pleadings and not an issue created by the Court. All parties had notice and
opportunity to brief arguments regarding the applicability of Ohio Attorney General Opinion No.
2011-038 as the evidence is clear that there are no Ohio cases that address the issue of secret
ballots. Furthermore, all questions considered by the Court of Appeals regarding the Finance
Committee Minutes and the August 19, 2015 Executive Session were also fully presented in the
pleadings and not issues created by the Court. Appellant is unable to establish that she was
deprived of her due process on appeal in this matter.
C. The Court’s decision is not unsupportable under the law.
1. Election ofPresident Pro Tempore
In response to Appellant’s first set of interrogatories to Respondents, copies of the
handwritten ballots were provided to Appellant’s attorneys on/or about March 24, 2016. Attached
please find the original ballots provided to Appellant (Exhibit A). The members of the Bratenahl
Village Council did not include their names on the handwritten ballots in open council on January
21,2015. However, Respondents provided copies of the handwritten ballots including post-it notes
identifying the Council member who made each vote in response to Appellant’s second set of
interrogatories on/or about July 5, 2016 after conferring with the Council members regarding their
votes. Attached please find the ballots provided to Appellant through discovery identifying the
Council members’ votes (Exhibit B). However, this inaccuracy does not render an unsupportable
decision under the law requiring reconsideration.
The decision is supportable under the law because there is no evidence in the record that
there was any intent by the Respondents to engage in secret deliberations or conceal information
from the public. Appellant failed to establish her burden of proof that Respondents violated the
letter or spirit of the OMA. Appellant went to remarkable lengths in her efforts to exclude evidence
from the record and continues to do so in her application for reconsideration in order to manipulate
Respondents’ actions to fit her legal theory. Despite these tactics, the exhibits were properly
submitted in accordance with Civil Rule 56 as they were either contained within the pleadings or
answers to interrogatories. There is no dispute that the original handwritten ballots were
maintained by the Village of Bratenahl and not asked to be made public until Appellant submitted
her first set of discovery requests in this lawsuit against the Village. The ballots could have been
requested and produced to the public at any time after the vote was taken on January 21, 2015. In
addition, the minutes reflect that the vote was conducted in an open meeting with the results
announced publicly by the Village Solicitor and the election of the President Pro Tempore
confirmed in open session by the Mayor. For all of these reasons, the votes were part of the public
record and therefore, not secret. This argument was not raised sua sponte by the Court of Appeals
as Respondents previously argued in their Cross-Motion for Summary Judgment that the ballots
were maintained by the Village and there was no intention to conceal this information from the
public. Appellant’s argument that the Decision assumes that these ballots were made part of the
minutes is baseless as there is no such reference to this assumption in the Decision. The Decision
accurately states that the “written ballots were then maintained by Bratenahl as a public records
and subsequently produced to Meade.” Decision, f 19.
The OMA seeks to prevent public bodies from engaging in secret deliberations with no
accountability to the public. See Berner v. Woods, 2007-0hio-6207, PI5 (“The intent of the
Sunshine law is to require governmental bodies to deliberate public issues in public.”); Cincinnati
Enq. v. Cincinnati Board of Education, 2011 -Ohio-703, p9, discretionary appeal not allowed,
2011 -Ohio-2905. Relator is unable to establish her burden by a preponderance of the evidence that
Respondents violated or threatened to violate the OMA on January 21, 2015 because the ballots
were made part of the public record. Therefore, Appellant’s application for reconsideration should
be denied as the Court’s decision is not unsupportable under the law.
2. Finance Committee Minutes
Appellant argues that the Court of Appeals’ decision regarding the Finance Committee
Minutes assumes that the audio recordings were part of the meeting minutes. Yet, a review of the
paragraphs referenced by Appellant on page 5 of her brief do not support the Appellant’s argument.
In Paragraph 22, the Court discusses the definition of “minutes”. In Paragraph 23, the Court
discussed the Ohio Supreme Court’s decision in White v. Clinton Cty. Bd. ofCommrs. In Paragraph
24, the Court finds that the “meeting minutes in question provide an accurate and adequate record
of the Finance Committee’s proceedings, recommendations, and the Bratenahl Council’s action
on the same”. The Court only references the fact that Appellant herself acknowledged that the
meetings were audio recorded and does not conclude that the audio recordings were part of the
minutes of the Finance Committee Meetings or part the public record. Paragraph 25 states the
Court’s conclusion that Appellant failed to establish a violation or threatened violation with regard
to the Finance Committee’s minutes. Thus, there is no evidence of an obvious error in the
Appellant’s application for reconsideration or the Decision regarding the issue of the Finance
Committee Minutes or the Executive Session. Consequently, Appellant’s application for
reconsideration should be denied.
The Court reviewed the case law argued by both all parties in the pleadings and rejected
Appellant’s interpretation. The fact that these audio recordings were not part of the public record
as they were created and maintained by a private citizen does not make the Court’s decision
unsupportable under the law. The Court determined that the “meeting minutes in question provide
an accurate and adequate record of the Finance Committee’s proceedings, recommendations, and
the Bratenahl Council’s action on the same.” Decision, ^24. The law is clear that reconsideration
motions should not be granted when the movant simply disagrees with the conclusions reached
and the logic use by an appellate court. See Reighard v. Cleveland Elec. Illuminating (7th Dist.),
2006-0hio-2814, P 2.
3. Executive Session
Again, Appellant relies on the inaccurate assertion that the Court of Appeals assumes
Appellant’s personal audio recordings were made part of the public record to support its
application for reconsideration with regard to the Decision as to the August 19, 2015 Executive
Session. Yet, the Decision does not state that that it is relying upon the audio recordings as part of
the minutes or the public record. The Decision concludes that Respondents complied with the
OMA based upon the Bratenahl Clerk’s notes and the August 19,2015 meeting minutes. The Court
only references the audio recording to confirm that the motion and roll call vote to hold executive
session were clearly taken. Decision, ^[29. Nowhere in the Decision does the Court conclude that
the audio recordings taken by Appellant were part of the minutes or the public record.
At its core, the Appellant’s Application for Reconsideration as to the Finance Committee
Minutes and Executive Session is little more than an attempt to reargue positions rejected in the
Decision. The reassertion of substantive arguments does nothing to show the obvious error or other
shortcomings required by Matthews before an application for reconsideration may be granted. The
Appellant attempts to satisfy the burden set forth in Matthews through a critique of this Court’s
Decision, but this critique is not sufficient to establish her burden.
IV. CONCLUSION
For the foregoing reasons, Respondents respectfully request that Appellant’s Application
for Reconsideration be denied. In reaching their conclusion, the panel rendered a supportable
decision under the law and the findings are firmly grounded in precedent.
Respectfully submitted,
/s/ Shana A. Samson

DAVID J. MATTY (0012335)
SHANA A. SAMSON (0072871)
MARK B. MARONG (0082865)
Matty, Henrikson & Greve
55 Public Square, Suite 1775
Cleveland, Ohio 44113
(216) 621-6570, (216) 621-1127—Fax
Email: dmatty@mhglegal.com
ssamson@mhglegal.com
mmarong@mhglegal.com
Attorneys for Appellees,

City of Brecksville and Virginia Price
Electronically Filed 12/06/2017 08:46 / FILING OTHER THAN MoTION / CA 16 105281 / Confirmation Nbr. 1242757 / CLSXN
CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of December 2017, a true and correct copy of the
foregoing Appellees’ Brief in Opposition to Appellant’s Application for Reconsideration was
filed electronically and served through the Court’s electronic filing system:
Christopher P. Finney, Esq.

Brian C. Shrive, Esq.
Finney Law Firm, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
/s/ Shana A. Samson

Shana A. Samson
EXHIBIT
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2017.12.06.memo in Opp To Application For Reconsideration

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2017.12.06.memo in Opp To Application For Reconsideration

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NAILAH K.

By: SHANA SAMSON 0072871

Confirmation Nbr. 1242757

STATE OF OHIO EX REL. MORE BRATENAHL, ET AL. CA 16 105281

STATE OF OHIO ex rel. )

BRIEF IN OPPOSITION TO APPELLANT’S

Counsel for Respondents-Appellees, Counsel for Relator-Appellant,

DAVID J. MATTY (0012335) CHRISTOPHER P. FINNEY

Ohio Appellate Rule 26.

II. PROCEDURAL HISTORY

pro tempore of the Bratenahl Village Council on January 21, 2015.

granting summary judgment in favor of the Respondents. Appellant’s application for

reconsideration was filed on November 15, 2017.

III. LAW AND ARGUMENT

The standard to be utilized in reviewing an Application for Reconsideration, pursuant to

App.3d 334, 336.

Appellant’s application for reconsideration of its November 9, 2017 decision.

deprived of her due process on appeal in this matter.

C. The Court’s decision is not unsupportable under the law.

1. Election ofPresident Pro Tempore

In response to Appellant’s first set of interrogatories to Respondents, copies of the

decision under the law requiring reconsideration.

and subsequently produced to Meade.” Decision, f 19.

be denied as the Court’s decision is not unsupportable under the law.

Committee Minutes or the Executive Session. Consequently, Appellant’s application for

reconsideration should be denied.

Decision, but this critique is not sufficient to establish her burden.

/s/ Shana A. Samson

Attorneys for Appellees,

foregoing Appellees’ Brief in Opposition to Appellant’s Application for Reconsideration was

Christopher P. Finney, Esq.

/s/ Shana A. Samson

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