[Cite as State ex rel. Atty. Gen. v. Lager, 2020-Ohio-3260.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Ohio Attorney General, : 

 Plaintiff-Appellee, : 

 No. 19AP-265 

v. : (C.P.C. No. 18CV-7094)

William Lager et al., : (ACCELERATED CALENDAR) 

 Defendants-Appellees, : 

(City of Dayton Public Schools et al., : 

 Proposed Intervenors- : 

 Appellants). 

 : 

State ex rel. Ohio Attorney General, 

 : 

 Plaintiff-Appellee, 

 : No. 19AP-330 

v. (C.P.C. No. 18CV-7094)

 : 

William Lager et al., (REGULAR CALENDAR) 

 : 

 Defendants-Appellees, 

 : 

(Woodridge Local Schools et al., 

 : 

 Proposed Intervenors- 

 Appellants). : 

 

D E C I S I O N 

Rendered on June 9, 2020 

 

On brief: Dave Yost, Attorney General, Todd R. Marti, 

Reid T. Caryer, and Mia Meucci Yaniko, for appellee Ohio 

Attorney General. Argued: Todd R. Marti. 
Nos. 19AP-265 and 19AP-330 2 

On brief: McNees Wallace & Nurick LLC, Karl H. 

Schneider, Todd A. Long, and David M. Marcus, for appellees 

William Lager et al. Argued: Karl H. Schneider. 

On brief: Cohen Rosenthal & Kramer LLP, Ellen M. 

Kramer, James B. Rosenthal, and Joshua R. Cohen, for 

proposed intervenors-appellants, City of Dayton Public 

Schools et al. Argued: Ellen M. Kramer. 

 

APPEALS from the Franklin County Court of Common Pleas 

KLATT, J. 

{¶ 1} Proposed intervenors-appellants, City of Dayton Public Schools, Toledo City 

School District, Northern Local School District, Woodridge Local Schools, Cuyahoga Falls 

City School District, and Springfield City School District appeal from a judgment of the 

Franklin County Court of Common Pleas denying their amended motion to intervene in 

this action.1 Because appellants have not demonstrated that the trial court abused its 

discretion in denying their motion, we affirm the trial court's judgment. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} The Electronic Classroom of Tomorrow ("ECOT") was an Ohio community 

school. Administrative proceedings determined that ECOT was overpaid $79,646,748 in 

public monies because it failed to meet statutory requirements that it document the hours 

of instruction for which it had billed the Ohio Department of Education. Electronic 

Classroom of Tomorrow v. Ohio Dept. of Edn., 154 Ohio St.3d 584, 2018-Ohio-3126. This 

debt rendered ECOT insolvent and a special master was appointed to preserve/liquidate 

ECOT's assets. Among ECOT'S assets are potential claims against individuals owing ECOT 

fiduciary duties and certain private for-profit entities that managed significant portions of 

ECOT's operations or provided circular materials or marketing, media production, 

communication and/or public relation services. The ECOT assets also include potential 

claims against an insurance company that provided surety bonds to certain fiduciaries 

 

1 City of Dayton Public Schools, Toledo City School District, and Northern Local School District filed a 

notice of appeal initiating case No. 19AP-265. Woodridge Local Schools, Cuyahoga Falls City School District 

and Springfield City School District filed a separate appeal–case No. 19AP-330. These appeals have been 

consolidated. 
Nos. 19AP-265 and 19AP-330 3 

and/or entities. The judge presiding over the liquidation proceeding ordered that these 

claims be assigned to the state for prosecution, with any proceeds to be distributed among 

ECOT's creditors under his direction. (May 1, 2019 Compl. at ¶ 45 and Ex. 3 thereto.)2 In 

turn, on August 21, 2018, the state, acting through the Ohio Attorney General, filed a 

complaint on ECOT's behalf to pursue these claims.

{¶ 3} On January 29, 2019, appellants filed an amended motion to intervene in this 

action pursuant to Civ.R. 24(A) and (B). Appellee, the attorney general, as well as the 

defendants-appellees, Altair Learning Management I, Inc., IQ Innovations, LLC, and 

William Lager, opposed appellants' amended motion to intervene. On February 14, 2019, 

the attorney general also filed a motion for leave to file an amended complaint to assert 

additional claims and add additional defendants to the action. In a decision dated April 22, 

2019, the trial court granted the attorney general's motion for leave to file an amended 

complaint and denied appellants' amended motion to intervene. With respect to 

appellants' motion for intervention as of right pursuant to Civ.R. 24(A), the trial court 

determined that appellants failed to demonstrate that the attorney general would not 

adequately represent their interests. The trial court further determined that intervention 

pursuant to Civ.R. 24(B) (permissive intervention) was not warranted because appellants 

did not present common issues of law or fact and because intervention would cause undue 

delay in the proceedings. Appellants appeal assigning the following errors:

1. The trial court erred as a matter of law in refusing to permit 

City of Dayton Public Schools, Toledo City School District, 

Northern Local School District, Woodridge Local Schools, 

Cuyahoga Falls City School District, and Springfield City 

School District (the "School Districts") to intervene as of right 

pursuant to Ohio Rule of Civil Procedure 24(A)(2). 

2. In the alternative, the trial court abused its discretion in 

refusing to permit the School Districts to intervene as of right 

pursuant to Ohio Rule of Civil Procedure 24(A)(2). 

 

2 We also note that pursuant to R.C. 3314.074(A), "[i]f any community school established under this chapter 

permanently closes and ceases its operation as a community school, the assets of that school shall be 

distributed first to the retirement funds of employees of the school, employees of the school, and private 

creditors who are owed compensation, and then any remaining funds shall be paid to the department of 

education for redistribution to the school districts in which the students who were enrolled in the school at 

the time it ceased operation were entitled to attend school under section 3313.64 or 3313.65 of the Revised 

Code. The amount distributed to each school district shall be proportional to the district's share of the total 

enrollment in the community school." 
Nos. 19AP-265 and 19AP-330 4 

3. The trial court abused its discretion in refusing to the 

School Districts to permissively intervene pursuant to Ohio 

Rule of Civil Procedure 24(B). 

II. LEGAL ANALYSIS 

 A. Standard of Review 

{¶ 4} The appellants challenge the trial court's denial of their amended motion to 

intervene as of right pursuant to Civ.R. 24(A), and alternatively to permissively intervene 

pursuant to Civ.R. 24(B). Appellants agree that the denial of permissive intervention is 

reviewed for abuse of discretion. (Appellant's Brief at 11.) However, appellants contend in 

their first assignment of error that their amended motion to intervene as of right is subject 

to a de novo standard of review. We disagree. 

{¶ 5} It is well-established that an appellate court reviews a trial court's decision to 

deny both a motion to intervene pursuant to Civ.R. 24(A) (intervention as of right) and 

Civ.R. 24(B) (permissive intervention) for abuse of discretion. State ex rel. Merrill v. Ohio 

Dept. of Natural Resources, 130 Ohio St.3d 30, 2011-Ohio-4612, ¶ 41; Petty v. Kroger Food 

& Pharmacy, 10th Dist. No. 05AP-592, 2005-Ohio-6641, ¶ 7 (Civ.R. 24(A) motion); State 

ex rel. Montgomery v. Columbus, 10th Dist. No. 02AP-963, 2003-Ohio-2658, ¶ 14. The 

phrase "abuse of discretion" connotes more than an error of law or judgment; it implies 

that the court's attitude is unreasonable, arbitrary, or unconscionable. Id., citing 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). However, courts construe Civ.R. 24 

liberally to permit intervention. Merrill at ¶ 41, citing State ex rel. SuperAmerica Group v. 

Licking Cty. Bd. of Elections, 80 Ohio St.3d 182, 184 (1997). 

B. Intervention as of Right–Civ.R. 24(A) 

{¶ 6} "In order for an applicant to intervene as a matter of right under Civ.R. 24(A), 

either a statute of this state must confer an unconditional right to intervene upon the 

applicant, or the applicant must: (1) claim an interest relating to the property or transaction 

that is the subject of the action; (2) be so situated that the disposition of the action may, as 

a practical matter, impair or impede the applicant's ability to protect his or her interest; 

(3) demonstrate that his or her interest is not adequately represented by the existing 

parties; and (4) move to intervene in a timely manner. Failure to satisfy any one of the 

elements in Civ.R. 24(A) will result in the denial of the motion to intervene." Petty at ¶ 8, 
Nos. 19AP-265 and 19AP-330 5 

citing Fairview Gen. Hosp. v. Fletcher, 69 Ohio App.3d 827, 831 (10th Dist.1990). 

Although intervention as a matter of right is to be liberally construed in favor of the putative 

intervenor, the intervenor must demonstrate all of the required elements set forth in Civ.R. 

24(A). Snider Interests, L.L.C. v. Cannata, 8th Dist. No. 103659, 2017-Ohio-85, ¶ 15. 

{¶ 7} Appellants do not point to any statute that provides for an unconditional right 

to intervene in this action. Therefore, appellants must satisfy all four of the above 

enumerated elements of Civ.R. 24(A) in order for intervention as of right to be appropriate. 

Petty at ¶ 9. A government agency charged by law with representing the interest of a 

proposed intervenor will usually be deemed adequate to represent the proposed 

intervenor's interest. Montgomery at ¶ 26. This presumption may be overcome by 

demonstrating adversity of interest, collusion, or nonfeasance. Id. at ¶ 25. 

{¶ 8} In the case at bar, the trial court's denial of appellants' amended motion to 

intervene as a matter of right was based on its determination that appellants failed to 

establish that their interest in the property that is the subject of the action (monies sought 

to be recovered on ECOT's behalf) is not adequately represented by the attorney general. 

Given its finding that appellants failed to establish this element, the trial court found it 

unnecessary to address the remaining requirements of Civ.R. 24(A).3

{¶ 9} In their first and second assignments of error, appellants contend that the 

trial court erred in denying their amended motion to intervene as a matter of right pursuant 

to Civ.R. 24(A). Appellants argue that they presented non-speculative evidence that the 

attorney general would not adequately represent their interest. In support of their 

argument, appellants contend that they overcame the presumption of adequate 

representation by the attorney general by demonstrating adversity of interest and 

nonfeasance based upon the following allegations: 

 

3 The trial court denied appellants' amended motion to intervene as of right based solely on its finding that 

the appellants failed to show that the attorney general would not adequately represent their interest. 

Although the attorney general and the defendants-appellees also alleged that appellants lacked standing to 

intervene and that any interest appellants have in this litigation is contingent and too remote to warrant 

intervention, the trial court did not address those issues. The trial court did not make any findings with 

respect to appellants' standing or the nature of their interest in the subject of this litigation. For purposes 

of deciding the issue before us, we assume, without deciding, that appellants did not need to establish 

standing to assert a claim in order to seek intervention under Civ.R. 24(A) and (B) and that they have "an 

interest relating to the property or transaction that is the subject of the action" as required by Civ.R. 24(A). 
Nos. 19AP-265 and 19AP-330 6 

1. The attorney general and/or his predecessor took a more 

aggressive litigation strategy in two earlier cases involving 

failed charter schools; 

2. The attorney general and/or his predecessor took a less 

aggressive litigation strategy in another case involving a charter 

school and a charter school management company in which he 

was representing the Ohio Department of Education; 

3. The attorney general has in the past spoken at ECOT 

commencement events and has previously received political 

contributions from two of the individual defendants in this 

case; 

4. The attorney general and/or his predecessor have not 

actively prosecuted this case as evidenced by his delay in 

amending the complaint to add a new defendant and new 

claims and by not aggressively pursuing discovery; and, 

5. The attorney general actively opposed appellants' motion to 

intervene. 

Appellants rely on the same allegations in challenging the trial court's finding that the 

attorney general and appellants have the same ultimate goal–to recover the maximum 

amount of money possible on ECOT's behalf. Lastly, appellants argue that these 

allegations demonstrate that the attorney general has a conflict of interest and that his 

representation in this case violates the Rules of Professional Conduct. 

{¶ 10} In response to appellants' allegations, the attorney general contends that 

there are significant factual differences in the other cases involving charter schools cited by 

appellants and that these factual differences explain the differences in the claims asserted 

and remedies sought by the attorney general. The attorney general argues that appellants' 

comparison of cases is nothing more than a conclusory critique of litigation tactics without 

any analysis of these differing facts and circumstances. The attorney general further 

contends that appellants have presented nothing to show that the trial court was wrong in 

concluding that his office and appellants share the same ultimate goal. Quite the contrary, 

the attorney general asserts that the amended complaint and appellants' proposed 

complaint attached to their amended motion to intervene demonstrate that both his office 

and appellants share the same ultimate goal–to recover the maximum amount of money on 

ECOT's behalf. To rebut appellants' general assertion that he is too friendly to charter 
Nos. 19AP-265 and 19AP-330 7 

schools and/or the individual defendants in this case, the attorney general points out that 

since 2011 the attorney general's office has: 

1. Obtained $8,224,776.30 in judgments on audit findings 

related to charter schools; 

2. Pursued, and continues to pursue, another $5,010,999 in 

judgments on charter school related audit findings; 

3. Obtained or is seeking an additional $53,330,730.90 in 

judgments against persons/entities who had no audit findings 

issued against them, but violated common law and statutory 

duties in connection with charter schools; 

4. Aggressively sought to preserve charter school-related 

debts in bankruptcy proceedings; 

5. Successfully prosecuted multiple administrative 

proceedings to revoke professional licenses based on 

misappropriations of charter school funds; and, 

6. Taken an aggressive posture in this case seeking very 

substantial damages against defendants-appellees, including 

individual defendants that have previously made political 

contributions. 

{¶ 11} As previously noted, a government agency charged by law with representing 

the interest of a proposed intervenor is presumed to adequately represent the proposed 

intervenor's interest. Montgomery, 2003-Ohio-2658, at ¶ 26. To rebut this presumption, 

appellants had the burden to show adversity of interest, collusion, or nonfeasance. Id. at 

¶ 25. Appellants did not allege collusion. Therefore, appellants had to demonstrate 

adversity of interest or nonfeasance. The trial court expressly considered the evidence 

presented by appellants and the attorney general and concluded that appellants had not 

satisfied their burden to show adversity of interest or nonfeasance. We fail to see how the 

trial court abused its discretion in reaching this conclusion. 

{¶ 12} Although appellants are clearly critical of the attorney general's litigation 

strategy in this case, a mere disagreement over litigation strategy does not establish 

inadequate representation. Id. at ¶ 24. The trial court could reasonably conclude that 

appellants' comparison of claims and remedies sought in this case to those asserted by the 

attorney general in other cases involving failed charter schools did not demonstrate 
Nos. 19AP-265 and 19AP-330 8 

nonfeasance. As noted by the attorney general and the trial court, the facts and 

circumstances in these cases are different and appellants provide only conclusory criticism 

without any analysis of these factual differences. In addition, appellants' assertion that the 

attorney general should have moved more aggressively with discovery and should have 

asserted certain claims against certain defendants in the original complaint, rather than in 

the subsequently filed amended complaint, did not require the trial court to find 

nonfeasance. Quite the contrary, it demonstrates the attorney general's intent to pursue 

the very claims appellants want asserted. 

{¶ 13} Nor does appellants' contention that the attorney general's past support for 

charter schools demonstrates an inability to represent appellants' interests in this case. 

Other evidence presented to the trial court supports the attorney general's assertion that he 

has taken aggressive action in cases involving charter schools when justified. The trial court 

could consider the actions undertaken by the attorney general to recover public monies by 

pursuing claims involving other failed charter schools, and/or by asserting claims against 

those who violated fiduciary and/or statutory duties to charter schools, in assessing 

whether the attorney general shares a common interest with appellants in this case and 

whether he would adequately represent appellants' interests. We also note the trial court 

expressly found that the attorney general and appellants share the same ultimate goal–"to 

recover the maximum amount of money allegedly owed from the defendants under the 

law." (Apr. 22, 2019 Decision & Entry at 6.) In reaching that conclusion, the trial court 

reviewed the claims asserted in the attorney general's amended complaint and those 

contained in appellants' proposed complaint–noting that appellants conceded "the claims 

proposed by the School Districts overlap with those asserted by [the State] in many 

respects." Id. Given the evidence before the trial court, appellants have not shown that the 

trial court abused its discretion in finding that the attorney general can adequately 

represent appellants' interest in this case–particularly in view of the presumption of 

adequate representation afforded to a government agency. Montgomery at ¶ 24. 

Therefore, the trial court did not err in denying appellants' motion to intervene pursuant to 
Nos. 19AP-265 and 19AP-330 9 

Civ.R. 24(A). For these reasons, we overrule appellants' first and second assignments of 

error.4

{¶ 14} In appellants' third assignment of error, they argue that the trial court erred 

in denying its motion to permissively intervene pursuant to Civ.R. 24(B). Again, we 

disagree. 

{¶ 15} Appellants sought permissive intervention under Civ.R. 24(B), which 

provides in relevant part: 

Upon timely application anyone may be permitted to intervene 

in an action * * * when an applicant's claim or defense and the 

main action have a question of law or fact in common. * * * In 

exercising its discretion the court shall consider whether the 

intervention will unduly delay or prejudice the adjudication of 

the rights of the original parties. 

{¶ 16} The trial court expressly recognized appellants' concession that they "were 

not involved in the facts underlying the state's claims." (Decision & Entry at 7.) Based on 

this concession, the trial court found that appellants had not demonstrated they had a claim 

or defense in common with the action brought by the attorney general. The trial court also 

noted appellants' concession that granting their request to intervene might delay these 

proceedings. Id. Given these admissions and the trial court's inherent authority to manage 

its docket, appellants have not shown that the trial court abused its discretion in denying 

their request for permissive intervention. Therefore, we overrule appellants' third 

assignment of error. 

{¶ 17} Having overruled appellants' three assignments of error, we affirm the 

judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed.

SADLER, P.J., and LUPER SCHUSTER, J., concur. 

 

 

4 This court has no jurisdiction to determine whether the attorney general's representation in this case 

constitutes a violation of Prof.Cond.R. 1.7, and therefore, we do not address that aspect of appellants' 

argument.