[Cite as State ex rel. Wengerd v. Baughman Twp. Bd. of Trustees , 2014-Ohio-4749.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE ) STATE OF OHIO, ex rel. DAVID WENGERD Appellant

v.

BAUGHMAN TOWNSHIP BOARD OF TRUSTEES Appellee C.A. No. 13CA0048

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 2012-CV-0737

DECISION AND JOURNAL ENTRY Dated: October 27, 2014

HENSAL, Presiding Judge. {¶1} The State of Ohio ex rel. David Wengerd appeals a judgment of the Wayne County Court of Common Pleas that dismissed hi s complaint against the Baughman Township Board of Trustees for violating Ohio’s Sunshine Act. The Court also ordered Mr. Wengerd to pay the Board’s attorney fees. For the following reasons, this Court reverses.

I. {¶2} In 2012, the Board explored whether the township should create a joint fire protection district with neighboring communities. To that end, its trus tees attended two public meetings that were being held by other communities. The Board also hosted officials from the other communities at one of its meetings. {¶3} After Mr. Wengerd learned about the trust ees’ participation in these meetings, he sued the Board, alleging that the trustees had he ld three public meetings without public notice or2

keeping a record of the meetings. Mr. Wengerd attached two newspaper articles that described the meetings to an affidavit that he incorporated into his complaint. He also attached a copy of the minutes of one of the meetings. After filing its Answer, the Board moved for judgment on the pleadings under Civil Rule 12(C). The tr ial court granted its motion and ordered Mr. Wengerd to pay its attorney fees. Mr. Wengerd has appealed, assigning as error that the trial court incorrectly dismissed his complaint.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT GRANTED BAUGHMAN TOWNSHIP’S MOTION FOR JUDGMENT ON THE PLEADINGS. {¶4} The trial court dismissed Mr. Wengerd’s complaint unde r Civil Rule 12(C), which provides that “[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Id . According to the Ohio Supreme Court, dismissal is appropriate under Rule 12(C) if: a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that would entitle him to relie f. Thus, Civ.R. 12(C) requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law. Rayess v. Educational Comm. for Foreign Med. Graduates , 134 Ohio St.3d 509, 2012-Ohio5676, ¶ 18, quoting State ex rel. Midwest Pride IV, Inc. v. Pontious , 75 Ohio St.3d 565, 570 (1996). “Because the review of a decision to dismiss a complaint pursuant to Civ.R. 12(C) presents only questions of law, * * * our review is de novo.” Id

. {¶5} In his complaint, Mr. Wengerd alleged that, on March 12, 2012, the trustees met with the Marshallville council without giving public notice or keeping minutes of the meeting.3

He also alleged that the trustees met with the Sugarcreek Township board of trustees on April 3, 2012, without giving notice or keeping minutes of th e meeting. He further alleged that, after the trustees finished their regular meeting on August 23, 2012, they held a special meeting with other government entities. Mr. Wengerd incorporated an affidavit into his complaint, which included newspaper articles about the March 12 and August 23 meetings. The affidavit also included a copy of the minutes of the April 3 meeting. {¶6} Ohio’s Sunshine Law, Revised Code Sec tion 121.22, provides, in part, that “[a]ll meetings of any public body are * * * open to the public at all times. * * * The minutes of a regular or special meeting of any public body sha ll be promptly prepare d, filed, and maintained and shall be open to public inspec tion.” R.C. 121.22(C). According to the statute, “‘[m]eeting’ means any prearranged discussion of the public bus iness of the public body by a majority of its members.” R.C. 121.22(B)(2). It also provides th at it “shall be liberally construed to require public officials to take official action and to c onduct all deliberations upon official business only in open meetings unless the subject matter is specifically excepted by law.” R.C. 121.22(A). {¶7} Construing Section 121.22, this Court has held that “a public body violates the Sunshine Law where it simultaneously conduct s a meeting while deliberating over public

business.” Krueck v. Kipton Village Council , 9th Dist. Lorain No. 11CA009960, 2012-Ohio1787, ¶ 14. In its motion for judgment on the pleadings, the Board argued that Mr. Wengerd’s claims failed because he did not allege that the trustees deliberated at the March 12 and April 3 meetings. It also argued that the minutes of the August 23 meeting established that all of the discussions regarding the joint fire district occurred during its regular meeting, not a special meeting that followed.4

{¶8} Regarding whether the trustees engaged in deliberations during the March 12 or April 3 meetings, this Court has explained that “‘deliberations’ involve more than informationgathering, investigation, or fact-finding.” Berner v. Woods , 9th Dist. Lorain No. 07CA009132, 2007-Ohio-6207, ¶ 15. “Question-and-answer se ssions between board members and other persons who are not public officials do not constitute ‘deliberations’ unless a majority of the

board members also entertain a discussion of public business w ith one another.” Id . “In this context, a ‘discussion' entails an ‘exchange of words, comments or ideas by the board.’” Id ., quoting Holeski v. Lawrence , 85 Ohio App.3d 824, 830 (11th Dist.1993). “A conclusive decision among board members on any measure, howev er, is not necessary to prove a violation.”

Id

. {¶9} According to the documents that Mr. Wengerd included as exhibits to the affidavit that he incorporated into his co mplaint, on March 12, 2012, “Baughman trustees and

Marshallville council met * * * to discuss options to create a fire district * * *.” On April 3, 2012, “Baughman trustees were present to discuss the fire funding issue and the possibility of forming a Baughman – Sugar Creek Township Fire District. No action taken.” Those statements, construed in a light most favorable to Mr. Wengerd, suggest that the trustees did more at the March 12 and April 3 meetings than engage in mere fact-finding. Rather, the articles suggest that the trustees exchanged thoughts a nd ideas with the representatives of Sugar Creek and Marshallville about whether they should form a joint fire district. We, therefore, cannot “find[ ] beyond doubt” that Mr. Wengerd can “prove no set of facts in support of his claim that

would entitle him to relief.” Rayess , 134 Ohio St.3d 509, 2012-Ohio-5676 at ¶ 18. {¶10} Regarding the August 23 meeting, the newspaper article that Mr. Wengerd

attached as an exhibit to the affidavit that he in corporated into his complaint states that, “[a]fter5

[the Board’s] monthly trustee meeting,” officials form Sugar Creek, Marshallville, and Dalton “met to discuss items leading to the creation of a fire district.” The article also indicates that the four entities verbally agreed to ask a particular law firm to draft an appropriate resolution. The Board asserts that, while those discussions admittedly took place, the newspaper mistakenly reported that they occurred after the regular meeting. It notes that it submitted a copy of the August 23 minutes, which indicate that the disc ussions happened during the regular meeting, not a special meeting. {¶11} As explained earlier, when reviewing a motion for judgment on the pleadings, we must view all of the material allegations in favor of Mr. Wengerd. The newspaper article supports his allegation that the Board held an other meeting “[a]fter Baughman Township’s monthly trustee meeting.” We also note that the alleged copy of the August 23 minutes that the Board attached to its Answer is not signed and do es not contain any other i ndication that it is an

accurate record of what occurred at the meeti ng. Accordingly, we cannot “find[ ] beyond doubt” that Mr. Wengerd can “prove no set of facts in support of his claim that would entitle him to

relief.” Id

. {¶12} Upon review of the record, we conclude th at the trial court incorrectly granted the Board’s motion for judgment on the pleadings. Mr. Wengerd’s assignment of error is sustained.

III. {¶13} The trial court incorrectly dismissed Mr. Wengerd’s complaint. The judgment of the Wayne County Court of Common Pleas is reve rsed, and this matter is remanded for further proceedings. Judgment reversed, and cause remanded.6

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee.

JENNIFER HENSAL FOR THE COURT

CARR, J. MOORE, J. CONCUR.

APPEARANCES: WARNER MENDENHALL, Attorney at Law, for Appellant. JOHN T. MCLANDRICH and FRANK H. SCIALDONE, Attorneys at Law, for Appellee.