[Cite as State ex rel. Esrati v. Dayton Metro Library , 2021-Ohio-3753.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY [STATE EX REL.] DAVID ESRATI Plaintiff-Appellant

v. DAYTON METRO LIBRARY, et al. Defendants-Appellees : : : : : : : : : : Appellate Case No. 29050 Trial Court Case No. 2018-CV-560 (Civil Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 22nd day of October, 2021.

. . . . . . . . . . . DAVID ESRATI, 113 Bonner S treet, Dayton, Ohio 45410 Plaintiff-A ppellant, Pro Se MATHIAS H. HECK, JR. by NATHANIEL S. PETERSON, Atty. Reg. No. 0 095312, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Str eet, 5th Floor, Dayton, Ohio 45422 Attorney for Defendants-Appellees

. . . . . . . . . . . . . EPLEY, J.-2-

{¶ 1} Relator-Appellant David Esrati appeals from a judgment of the M ontgomery County Court of Common Pleas, which denied his motion for sanct ions and motion requesting damages and a hearing in his lawsuit against the Day ton Metro Library and its executive director, Tim Kambitsch (collectively, “Dayton Librar y”). For the reasons that follow, the trial court’s judgment will be affirmed.
I. Facts and Procedural History {¶ 2} On August 19, 2017, Esrati was ejected from Dayton Library for videotaping on the premises. The incident was captured by Dayton Library’s video surveillance system. That same day, Esrati verbally requested that Dayton Li brary provide the video surveillance footage of his ejectment, which he claimed was a p ublic record. His counsel then sent a second request via email on August 31, 2017. {¶ 3} On September 19, 2017, Dayton Library emailed Esrati’s counsel that it would not be providing the requested surveillance video. Dayton Library asserted that the video was not subject to release under the Ohio Public Records Act because the video footage was a “library record” and/or “patron information” with in the meaning of R.C. 149.432. Discussion about the public records request was then postponed because Esrati and Dayton Library were in the process of negotiating a resolut ion. After the negotiations failed, Esrati made a third request for the surveillance footag e on November 15, 2017. Dayton Library again denied the request. {¶ 4} On February 1, 2018, Esrati filed a petition for a writ of mand amus against Dayton Library, alleging violations of the Ohio Public Records Act. Dayton Library responded with a motion to dismiss pursuant to Civ.R. 12(B)(6). The trial court denied the-3- motion to dismiss, and both parties filed motions for summary j udgment. {¶ 5} The trial court granted Esrati’s motion for summary judgment, d enied Dayton Library’s motion for summary judgment, and granted Esrati’s req uest for a writ of mandamus. The court reasoned that the surveillance video at iss ue was a public record and did not fall within the “library records” exemption under R .C. 149.432(A)(2)(b). The trial court ordered Dayton Library to turn over the surveillanc e video to Esrati within 90 days and to “edit the video” only to the extent “necessary to o bscure the faces of other library patrons in the video.” Further, it required Dayton Libr ary to reimburse Esrati for the court costs of the action and awarded him $1,000, the maximum s tatutory damages under R.C. 149.43(C)(2). The trial court did not, however, award Esra ti attorney fees, finding that Dayton Library did not act unreasonably. {¶ 6} The trial court scheduled a follow-up hearing for January 30, 2 020. At that hearing, Esrati raised concerns that the videos were not time c oded. Dayton Library’s attorneys posited that the video software could not both blur t he faces of the patrons and overlay time codes. The court entered an order clarifying which camera angles were to be provided to Esrati and gave Dayton Library 30 days to comply . The court did not order time codes. {¶ 7} Dayton Library filed a notice of compliance on February 27, 202 0. According to the record, Dayton Library provided a total of 58 angles fro m the video footage and redacted the other patrons’ faces per court order. The videos d id not have time codes overlaid, but each file was given a name containing the date an d time. {¶ 8} On September 25, 2020, Esrati, now appearing pro se and upset t hat the provided surveillance footage was still not time coded to his l iking, filed a motion for-4- sanctions alleging that Dayton Library’s statements regarding t he surveillance footage capabilities were false and amounted to frivolous conduct. He c ontended that the video extraction software could, in fact, both redact faces and provi de an overlaid time code. {¶ 9} On December 30, 2020, Esrati filed a “motion requesting damages and hearing motion for sanction.” He asserted that it had been 1,22 9 days since he originally requested the video surveillance footage and that, because of t his alleged delay, he was unable to comply with filing deadlines in a federal civil right s case he wished to pursue. He also alleged that the “delays and lies in court amount to a conspiracy between the Prosecutors [sic] Office, the Library, and [the trial] Court to damage my integrity and cause personal financial hardship.” Motion at 4. He asked for “damage s to my reputation, waste of my time, and as the victim of a state-run criminal organizat ion, the Montgomery County Prosecutors [sic] office.” {¶ 10} The trial court denied Esrati’s motions on February 5, 2021, fi nding that the motion was time-barred by statute, that Dayton Library had not engaged in frivolous conduct, that Esrati had not been negatively affected by Dayton Library’s actions, that there were no grounds for contempt of court, and that Civ.R. 11 was inapplicable to the case. It did not, however, give any reasons for denying Esrati’ s motion for damages and a hearing. {¶ 11} Esrati has appealed that judgment. II. The trial court did not abuse its discretion {¶ 12} In his brief, Esrati does not list any assignments of error as required by App.R. 16. However, he does lodge many complaints, including hi s issues with: (1) the statutory 10-day time window of Sunshine Laws; (2) the R.C. 232 3.51(B)(1) time filing-5- requirement; (3) the Prosecutor’s Office’s representing Dayton Library; (4) his request for Civ.R. 60 relief; and (4) attorneys and pro se litigants being treated dissimilarly vis- à -vis attorney fees. While Esrati’s appeal could justifiably be dispa tched for not adhering to the Appellate Rules, we infer that he is challenging the trial cour t’s denials of his motion for sanctions and motion requesting damages and a hearing. Esrati’s additional issues are outside the scope of the trial court’s February 5, 2021 decisio n (i.e., the judgment on appeal) and we will not address them. See, e.g. , State v. Brandon , 2d Dist. Clark No. 2019-CA-53, 2020-Ohio-5406, ¶ 22 (issues outside the scope of t he judgment on appeal were not properly before the court); State v. Baumgartner , 6th Dist. Erie No. E-07-034, 2008-Ohio-5794, ¶ 10. Motion for sanctions under R.C. 2323.51 {¶ 13} In his “motion requesting damages and hearing motion for sancti on,” Esrati claimed that he was entitled to sanctions pursuant to R.C. 2323 .51. The trial court, however, found the motion to be untimely. We agree with the tri al court. {¶ 14} R.C. 2323.51(B)(1) states that a party adversely affected by fr ivolous conduct may file a motion for an “award of court costs, reasona ble attorney’s fees, and other reasonable expenses incurred in connection with the civil action” at any time not more than thirty days after the entry of a final judgment in th e matter. The term “final judgment” as used in the statute is synonymous with the term “f inal appealable order.” State ex rel. DiFranco v. S. Euclid , 144 Ohio St. 3d 571, 2015-Ohio-4915, 45 N.E.3d 987, ¶ 10. When a motion for sanctions under R.C. 2323.51 is filed o ut of time, the motion can be “denied on that ground alone.” Id. at ¶ 9. {¶ 15} In this case, Esrati filed his motion for sanctions on Septembe r 25, 2020.-6- When the motion was filed, the most recent final appealable ord er on the docket was the trial court’s summary judgment decision, filed on July 29, 2019 – 424 days prior

̶ and thus it was past the 30-day threshold. Even using the most rece nt prior order (one that was not final and appealable), which was filed by the court on January 31, 2020, Esrati was about six months past the deadline. His motion did not meet the 30-day requirement imposed by R.C. 2323.51(B)(1), and the trial court correctly ov erruled the motion as untimely. {¶ 16} Contrarily, if the motion for sanctions under R.C. 2323.51(B)(1 ) could have survived the timeliness issue, we would affirm the trial court’ s denial of the motion on the merits. “On appeal, [this court] will not reverse a lower court ’s decision on whether to award sanctions under R.C. 2323.51 absent a showing of an abuse of discretion.” State ex rel. Bell v. Madison Cty. Bd. of Commrs., 139 Ohio St.3d 106, 2014-Ohio-1564, 9 N.E.3d 1016, ¶ 10, citing State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio5350, 957 N.E.2d 19, ¶ 11. To prove such an abuse, Esrati must demonstrate that the trial court’s denial of sanctions was unreasonable, arbitrary, or unconscionable. State ex rel. DiFranco at ¶ 13. {¶ 17} Esrati must demonstrate that Dayton Library’s conduct regardin g the surveillance video was frivolous. “Frivolous conduct, as contem plated by R.C. 2323.51(A)(2)(a), is judged under an objective, rather than a s ubjective standard, and must involve egregious conduct.” (Citations omitted.) State ex rel. DiFranco at ¶ 15. After examining the record, we conclude, as the trial court did, that Dayton Library’s conduct did not rise to the level of “frivolous.” {¶ 18} Esrati’s primary argument for sanctions was that Dayton Library acted in-7- bad faith in delaying the deliver y of the surveillance video an d by not producing a timestamped copy of the footage that met his requirements. The problem with his argument, though, is that Dayton Library complied with all the trial cour t’s orders. Each time the trial court issued an order requiring Dayton Library to produce the p ublic records, it did so within the prescribed time frame. The record also reflects a go od-faith attempt by Dayton Library to comply with each trial court order; in one case, Day ton Library went above and beyond what was required of it and turned over 58 camera angles instead of the requisite 56. {¶ 19} Esrati, however, continues to argue that he should have been gi ven surveillance footage with a time-stamp overlay, although the tr ial court did not order any time code on any video. Nevertheless, each video file prepared by Dayton Librar y was given a name containing the date and time, and the trial court found Dayton Library’s explanation as to why it was unable to provide a time-coded ove rlaid copy of the video(s) credible. {¶ 20} Based on our review of the record, we cannot say that the trial court abused its discretion when it overruled Esrati’s motion for sanctions pursuant to R.C. 2323.51. Motion for sanctions under Civ.R. 11 {¶ 21} The trial court also held that Civ.R. 11 was inapplicable to th e facts at issue in Esrati’s motion for sanctions. {¶ 22} Civ.R. 11 states that the signature of an attorney constitutes a certificate by the attorney that he or she has read the document, believes the re is good ground to support it, and that the document is not interposed for delay. Civ.R. 11. If a party willfully violates this Rule, he or she, upon motion of a party or the co urt, may be subject to-8- “appropriate action, including an award to the opposing party o f expenses and reasonable attorney fees incurred in bringing any motion under this Rule.” Id

. {¶ 23} It is important to stress that a purported violation of this pa rt of Civ.R. 11 must be done willfully to incur sanctions from the trial court. We have previously stated that “Civ.R. 11 employs a subjective bad-faith standard to invo ke sanctions.” Swartz v. Hendrix , 2d Dist. Darke No. 2010-CA-18, 2011-Ohio-3422, ¶ 11. Because the Rule uses the phrase “may be subject to appropriate action,” the impositi on of sanctions is at the discretion of the court and is reviewed for an abuse of discret ion. Id

. {¶ 24} In this case, Esrati never specified which requirement he belie ved Dayton Library violated (i.e., 1. the filing was not read; 2. there we re not good grounds to support it; or, 3. it was interposed for delay), and he did not specify in which filing the alleged Rule violation occurred. The trial court assumed Esrati was referrin g to Dayton Library’s “notice of compliance,” filed on January 31, 2020. It then found that E srati had not provided evidence that Dayton Library was in violation of any of the thr ee requirements and further stated that there was no evidence that any potential violation was made willfully or in bad faith. {¶ 25} We agree. Assuming, as the trial court did, that Esrati was ref erring to the “notice of compliance,” there was no evidence that the attorney for Dayton Library did not read the filing, did not believe there was good ground to suppo rt it, or that it was filed for purposes of delay. Further, even if one of the three requiremen ts applied, Esrati had not provided any evidence that any of the alleged conduct by Dayton Library was “willful” conduct, instead of merely negligent. See Ponder v. Kamienski , 9th Dist. Summit No. 2370, 2007-Ohio-5035, ¶ 36 (if any of the Civ.R. 11 requirement s are not satisfied, the-9- trial court must then determine if the violation was willful as opposed to merely negligent). {¶ 26} There is nothing in the record that would indicate Dayton Libra ry violated Civ.R. 11, let alone willfully so. The trial court did not abus e its discretion in rejecting Esrati’s motion for sanctions under Civ.R. 11. Motion requesting a hearing, damages, and costs {¶ 27} On December 30, 2020, Esrati filed his “motion requesting damag es and hearing motion for sanction.” The motion did not specify the am ount of damages he sought, or under what theory of law he was eligible, but it did express Esrati’s displeasure with Dayton Library, the Montgomery County Prosecutor’s Office, and the trial court. Esrati cited no authority that would enable the collection of d amages, and hence, the trial court construed the irregular motion as a second motion for san ctions and analyzed it accordingly. There were no grounds for the trial court to awar d Esrati sanctions under either R.C. 2323.51 or Civ.R. 11 . The trial court did not abuse its discretion. III. Conclusion {¶ 28} The judgment of the trial court will be affirmed.

. . . . . . . . . . . . .

HALL, J. and TUCKER, J., concur.

Copies sent to: Mathias H. Heck, Jr. Nathaniel S. Peterson David Esrati Hon. Gerald Parker