Preview
Filed on 12/01/2014 at 03:50 PM in Wayne County, Ohio
IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
THE CITY OF WOOSTER, OHIO, CASE NO. 13-CV-0657
EX REL. RICHARD R. BENSON, JR.,
LAW DIRECTOR, JUDGE SPITLER
Plaintiff, PLAINTIFF’S BRIEF IN OPPOSITION
TO DEFENDANT’S SUPPLEMENTAL
v. MEMORANDUM IN SUPPORT OF
MOTION TO STRIKE FRIVOLOUS
JAMES N. POOLER, PLEADING AND FOR SANCTIONS
UNDER O.R.C. § 2323.51
Defendant.
1. INTRODUCTION
Through his Supplemental Memorandum,' Defendant James N. Pooler (“Pooler”) persists
im seeking sanctions against Plaintiff, the City of Wooster, Ohio (“Wooster”) because Wooster
challenged — legitimately — Pooler’s standing in this action, including his standing to assert a
counterclaim against Wooster. Wooster’s previously-filed Brief in Opposition? explained that
none of the relief Pooler seeks is warranted. In sum, standing is appropriate to raise at any time
in any procedural context, and Wooster was well within its nghts to brief this issue given
' “Supplemental Memorandum in Support of Motion to Strike Frivolous Pleading
and for Sanctions Under O.R.C. § 2323.51,” filed October 28, 2014.
2 “Plaintiff's Brief in Opposition to Defendant’s Motion to Strike Frivolous
Pleading and for Sanctions Under O.R.C. § 2323.51,” filed September 8, 2014.
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Pooler’s decision to assert a counterclaim and thereby affirmatively seek relief against Wooster.
For the reasons set forth herein, nothing in Pooler’s Supplemental Memorandum overcomes this
essential fact that compels denial of Pooler’s Motion
The Supplemental Memorandum relies entirely on off-the-record discussions occurring at
an October 23, 2014 status conference with the Court. No affidavit from Pooler’s counsel is
attached. These facts entitle the Court to disregard Pooler’s Supplemental Memorandum in its
entirety.
The Supplemental Memorandum was also unnecessary. In seeking leave to file it, Pooler
asserted that he needed to respond to comments made by Wooster’s Law Director at the October
23, 2014 status conference. But the Supplemental Memorandum then says these comments relate
to an urelevant matter — the Law Director's motivation for commencing this action. If the Law
Director's motivation for initiating this case is irrelevant, one wonders why it is necessary to file
an eight-page Supplemental Memorandum responding to those comments.
As it relates to the applicable law, the Supplemental Memorandum merely repeats the
same arguments Pooler previously advanced in his Motion’ and fails to respond to arguments in
Wooster’s Brief in Opposition. Wooster cited cases holding that standing is required to assert a
counterclaim. Pooler has not disputed this. Wooster cited cases holding that a taxpayer claim
cannot be recast as a declaratory judgment claim. Pooler has not disputed this. Wooster
established that Pooler lacks declaratory judgment standing. Pooler has not refuted this.
Ultimately, Pooler’s Supplemental Memorandum fails to provide any basis to support
granting his Motion. The Court should deny that motion in all respects.
3 “Defendant's Motion to Strike Frivolous Pleading and for Sanctions Under
O.R C. § 2323.51 with Memorandum in Support,” filed September 4, 2014.
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Il. FACTS AND PROCEDURAL BACKGROUND
On November 18, 2013, Pooler through counsel, sent a wntten demand to Wooster’s Law
Director, Richard R. Benson, Jr., directing him to “apply to a court of competent jurisdiction for
an injunction to restrain the City of Wooster from taking action under the above Ordinances as
to the Layton School property, as any such action would constitute an abuse of the corporate
powers of the City of Wooster.” (Complaint Exhibit (“Ex.”) E, emphasis added). Further, Pooler
stated that “You. as you are doubtless aware, are directed to take such actions by Ohio Revised
Code § 733.56.” (/d.) Further, Pooler stated “should you fail to take action under that Section
once a written request has been made to you, a tax payer [sic] has the right, under Ohio Revised
Code § 733.59, to institute a suit in his own name on behalf of the City of Wooster.” (/d.)
Finally, the letter noted: “Please consider this letter to be a written request from James Pooler for
you to take the above described actions,” and advised that if the Law Director did not respond
within seven days, Pooler would file his own taxpayer action. (/d.)
On December 3, 2013, Wooster filed suit. The Complaint averred that “Richard R.
Benson, Jr. is the duly appointed, qualified and acting Law Director of Wooster and brings the
claim for injunctive relief (Count II) pursuant to the authority of Section 733.56 of the Ohio
Revised Code, upon the demand of a taxpayer of Wooster, which has been made pursuant to
Section 733.59[.]” (Complaint, { 1). In his Answer and Counterclaim, Pooler requested the Court
“enjoin[{] the City of Wooster from constructing a wireless telecommunications tower and
related facilities on the Property under the exemption of § 1173.09 of the Codified Ordinances of
the City of Wooster.” (Answer & Counterclaim at 10, emphasis added).
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Ill. LAW AND ARGUMENT
A. The Court Should Reject The Arguments In The Supplemental
Memorandum
1. Pooler’s Counsel Did Not File An Affidavit Recreating The Pretrial
Conference
This Court should not consider Pooler's Supplemental Memorandum because it is based
on defense counsel's recitation of informal discussions at a pretrial conference before this Court
that were not recorded and for which no transcript exists. Further, Pooler’s counsel did not
submit an affidavit recreating the pretrial discussions. For this reason alone, the Supplemental
Memorandum may be disregarded. See Briese v. Briese, 11th Dist. No. 2000-P-0079, 2002-Ohio-
1685, 2002 WL 549955, at *5 (“It was an abuse of discretion to make such a finding on the basis
of an informal, unrecorded conference in chambers.”); see also Nelson v. Ford Motor Co , 145
Ohio App.3d 58, 65-66, 761 N.E.2d 1099 (11th Dist. 2001) (“[I]t is well established in Ohio that
when sidebar conferences go unrecorded, and a party wants to raise that issue on appeal, that
party must first use App.R. 9 to reconstruct the content of the unrecorded sidebars and show
prejudice”). The Supplemental Memorandum is based on an unsworn recitation of statements
purportedly made during an unrecorded pretrial conference. Without an affidavit recreating the
comments 1n question, the Court should disregard Pooler’s Supplemental Memorandum.
2. The Supplemental Memorandum Provides No New Arguments And
Relates To Irrelevant Matters
Although Pooler argues that he needed to file a supplement in support of his Motion, the
Supplemental Memorandum was unnecessary and inappropriate. Pooler alleges the Law Director
said at the pretrial conference that “after he received a letter from the Pooler demanding he take
action under § 733.56, he felt he had no choice but to initiate this case to protect his client.”
(Supp. Mem. At 2). In his Motion for Leave to File the Supplemental Memorandum, Pooler
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asserted that “[c]omments by the Law Director ... make it necessary that the Defendant be
allowed to respond in order to clarify his position and address those comments.” (Request for
Leave at 1). He also stated: “Given this discussion, and particularly the assertion by the Law
Director, the Defendant has sought leave to file this Supplemental Memorandum[.]” (Supp.
Mem. at 3).
Yet, in the Supplemental Memorandum, Pooler that “the Law Director's motivation for
initiating this case under §733.56” is not relevant; instead, the only relevant fact is that the Law
Director filed suit first. (Supp. Mem. at 6; see also Supp. Mem. at 7). If the Law Director’s
motivation for initiating this action is irrelevant, then it is unnecessary for the Court and Wooster
to address a supplemental memorandum regarding unrecorded pretrial statements about those
motivations. Rather than presenting a supplemental argument, Pooler is using the statements at
the pretrial conference as a pretext for once again presenting his earlier arguments to the Court.
This is inappropriate. Further, as set forth in Plaintiffs Brief in Opposition, Pooler’s arguments
here and 1n the original Motion are utterly without ment.
B. Pooler Has Failed To Show That Taxpayer Standing Was A Frivolous Issue
For Wooster To Raise
Pooler’s Motion asks that the Court strike legal analysis and arguments in Wooster’s
summary judgment briefing that address Pooler’s lack of standing. Wooster argued that “the
issue of standing, inasmuch as it is jurisdictional in nature, may be raised at any time during the
pendency of the proceedings.” (Plaintiff's Reply Brief in Support of MSJ at 6) (citing cases).
Further, Wooster cited authority providing that “lack of standing is a jurisdictional defect that
cannot be waived.” (/d. at 7) (citing Waterfall Victoria Master Fund Ltd. v. Yeager, 11th Dist.
No. 2012-L-071, 2013-Ohio-3206, 2013 WL 3833467, { 16 (“[T]he lack of jurisdiction is an
issue that cannot be waived and may be raised at any time”)). Pooler does not and cannot dispute
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this jurisprudence. Therefore, in and of itself, raising the issue of standing was not and could not
be frivolous. Clearly, Wooster’s analysis of this issue 1s relevant, and should not be stricken.
Wooster also posited that “Defendant must have independent standing to bring a
Counterclaim against Wooster.” (Plaintiff's Reply Brief in Support of Its MSJ at 3) (citing
Capital Tool Co. v. Great Lakes Tooling Inc., 8th Dist. No. 85774, 2005-Ohio-5141, | 10-11
(affirming dismissal of counterclaim because defendant lacked standing)). Pooler does not and
cannot dispute he brought a counterclaim. He also does not cite any contrary authority.
Therefore, Wooster’s legal analysis is relevant and not frivolous, and should not be stricken.
Instead, Pooler ignores basic principles of standing when he says that Wooster’s decision
to file this action “made the issue of Defendant's standing under § 733.59 wholly irrelevant.”
(Supp. Mem. at 6). In actuality, “[w]hen determining whether a defendant is a real party in
interest with respect to is counterclaim, the analysis should focus on the counterclaim itself, not
the plaintiff's onginal claim against the defendant.” Midland Funding, L.L.C. v. Stowe, 7th Dist.
No. 08 CO 32, 2009-Ohio-7084, § 20. In other words, the Plaintiff's claims do not determine the
standing issues implicated by Pooler’s counterclaim. Instead, the counterclaim must stand on its
own or suffer dismissal. Capital Tool, 2005-Ohio-5141, J 10-11; see also Hicks v. Meadows, 9th
Dist. No. 21245, 2003-Ohio-1473, at § 7 (“The issue of standing is a threshold test that, once
met, permits a court to determine the merits of the questions presented.”). Pooler completely
overlooks these principles. He cites no case law refuting the proposition that his counterclaim
requires that he have independent standing, and his Supplemental Memorandum adds nothing on
this issue.
Wooster also cited case law demonstrating that Pooler lacks taxpayer standing to bring a
counterclaim. (Memorandum in Support of Plaintiff's MSJ at 6; Plaintiff's Brief in Opposition to
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Defendant's MSJ at 3; Plaintiff's Reply Brief at 3-4) (citing State ex rel. Phillips Supply Co. v
Cincinnati, 1st Dist. No. C-120168, 2012-Ohio-6096, 985 N.E.2d 257, 417). Surprisingly,
Pooler acknowledged that he has no taxpayer standing. Therefore, at least as to the essential
requirement of taxpayer standing, Pooler does not disagree with or otherwise refute Wooster’s
legal analysis.
Pooler’s response is that taxpayer standing is not necessary nor at issue in this case
because his counterclaim is for declaratory judgment, not a taxpayer action. As Wooster
explained in its Brief in Opposition, this argument is without merit. Wooster cited the relevant
statutes establishing that the relief sought by Pooler’s counterclaim is only available under R.C.
§ 733.56 and is not available in a declaratory judgment action. (Brief in Opp. at 6). The
Supplemental Memorandum does not overcome this obstacle. Pooler has not established that he
can seek an injunction against Wooster to prohibit construction of a telecommunications tower
on its own property under a declaratory judgment action. Therefore, Wooster’s argument on this
issue is undisputed.
Wooster also cited case law that a taxpayer cannot recast a taxpayer action as a
declaratory judgment action if the remedy sought 1s really an injunction only available under the
taxpayer statute. (Brief in Opp. at 9) (citing City of Garfield Heights ex rel. Kozelka v. City of
Garfield Heights, 8th Dist. No. 92511, 2009-Ohio-5009, 2009 WL 3043577, 4 15). Again, Pooler
has cited no legal authonty disputing this proposition.
Therefore, viewed as a whole, Wooster made the legally supported argument that the
injunction Pooler seeks through his counterclaim was not permitted by, nor could it be recast as,
a declaratory judgment action. Pooler’s only avenue of recourse was the taxpayer statute, as to
which he agrees he lacks standing. Pooler has offered no legal authority to contradict these
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arguments. Therefore, no basis exists to conclude that Wooster’s arguments on this key issue
were frivolous. Pooler’s Motion should be denied.
Finally, Wooster also made the undisputed argument that Pooler “does not allege a
personal legal interest that is at stake or affected by the Ordinance. Therefore, he lacks standing
to bring a claim for declaratory judgment.” (Reply Brief in Support of MSJ at 6). To date, Pooler
has offered no arguments to refute Wooster’s legal arguments that he must have a personal legal
interest in order to have declaratory judgment standing. Therefore, standing is also lacking in this
case as to the purported declaratory judgment theory.*
The Supplemental Memorandum adds nothing to refute this analysis. All Pooler does is
cite to one new case, State ex rel. Longville y. Akron, 9th Dist. No. 25354, 2013-Ohio-1161,
2013 WL 1224710. Yet, Longville does not refute any of Wooster’s dispositive arguments. It
merely holds that the taxpayer who initiated that case did so improperly because she failed to
post the required security. That is clearly not at issue in the instant case.
In fact, Longville supports Wooster’s arguments because it demonstrates the importance
of taxpayer standing in cases where a taxpayer seeks an injunction against a municipality. In that
case, after finding that Ms. Longville failed to pay security and could not maintain her taxpayer
action, the trial court granted her request to issue a mandamus as a common law taxpayer action.
Id. at § 11. On appeal, the court reversed focusing on “whether Ms. Longville has standing to file
a common law taxpayer action[.]” /d. at { 13. This analysis 1s relevant because Pooler argues
here that even though he is without taxpayer standing, he can still seek to enjoin Wooster.
Clearly, Longville does not support Pooler’s position.
‘ Notably, the antitrust challenges that Pooler’s affiliated companies filed against
Wooster related to its contract with TowerCo were similarly dismissed in part because of lack of
standing. See Wooster Indus. Park, LLC v City of Wooster, N.D. Ohio No. 5:13CV2729,
F.3d___, 2014 WL 5406889 (Oct. 23, 2014).
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Instead, the Ninth District concluded in Longville that the taxpayer had no standing based
on Ohio Supreme Court precedent that “in the absence of statutory authority, a taxpayer lacks
legal capacity to institute an action to enjoin the expenditure of public funds unless he has some
special interest therein by reason of which his own property rights are placed in jeopardy.” 2013-
Ohio-1161, at 4 13 (citing State ex rel. Masterson v Ohio State Racing Commission, 162 Ohio
St. 366, 36-367, paragraph one of syllabus (1954)). In Masterson, the Court said:
It is equally fundamental that at common law and apart from
statute, a taxpayer can not bring an action to prevent the carrying
out of a public contract or the expenditure of public funds unless
he had some special interest therein by reason of which his own
property rights are put in jeopardy. In other words, private citizens
may not restrain official acts when they fail to allege and prove
damage to themselves different in character from that sustained
by the public generally.
162 Ohio St. at 368 (emphasis added).
Based on the Longville case that Pooler himself has cited, he should never have asserted a
counterclaim against Wooster. Longville makes clear that “private citizens may not restrain
official acts when they fail to allege and prove damage to themselves different in character from
that sustained by the public generally.” 2013-Ohio-1161, at 13 (citing Masterson, 162 Ohio St.
at 368). Here, as discussed above, Pooler never alleges he has a personal stake in this case. In
turn, he “may not restrain official acts” of Wooster and has no standing to assert a counterclaim.
Wooster was entitled to raised that issue dunng summary judgment briefing.
In short, even the case cited in his Supplemental Memorandum supports a finding that
Pooler lacks standing. If standing 1s required and may always be raised, and if Pooler lacks
standing in any form — taxpayer, declaratory judgment or even common law taxpayer standing —
then raising the issue of taxpayer standing was most certainly not fnvolous.
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In the end, Wooster correctly sought dismissal of Pooler’s counterclaim based on lack of
standing. Accordingly, the only appropriate conclusion is that Pooler’s Motion alleging that
Wooster improperly argued the issue of standing 1s without merit and must be denied.
IV. CONCLUSION
For the foregoing reasons, Pooler’s Motion to Strike and for Sanctions must be demed.
Respectfully submitted,
fo Ld 1 \
\
acne tne
Director of Law
City of Wooster
538 North Market Street
Wooster, OH 44691
Phone: 330-263-5248
Facsimile: 330-263-5247
E-mail: dbenson@woosteroh.com
STEPHEN L. BYRON (Reg. No. 0055657)
Direct Dial: 216-928-2892
DARRELL A. CLAY (Reg. No. 0067598)
Direct Dial: 216-928-2896
AIMEE W. LANE (Reg. No. 0071392)
Direct Dial: 216-928-2985
WALTER & HAVERFIELD LLP
The Tower at Erieview
1301 East Ninth Street, Suite 3500
Cleveland, OH 44114-1821
E-mail:sbyron@walterhav.com
E-mail:dclay@walterhav.com
E-mail: alane@walterhay.com
Facsimile: 216-575-0911
J R (Ree eg. No. 0021968)
Attorneys for Plaintiff City of Wooster, Ohio
{01719545 -4} 10Filed on 12/01/2014 at 03:50 PM in Wayne County, Ohio
CERTIFICATE OF SERVICE
Pursuant to Civil Rule 5(B)(2)(c), I hereby certify that on this 1st day of December, 2014,
a true and correct copy of the foregoing Plaintiff's Brief in Opposition to Defendant's
Supplemental Memorandum in Support of Motion to Strike Frivolous Pleading and for
Sanctions under O.R.C. § 2323.51 was served by e-mail and regular U.S. Mail, first-class
postage prepaid, properly addressed, on the following:
Jason M. Storck, Esq.
Storck Law Office, Ltd.
Post Office Box 1023
Wooster. Ohio 44691
}
fe poy : \
i \
AAy he 5
One of the Attorneys for Plaintiff
{01719545 -4} 11
Preview
Filed on 12/01/2014 at 03:50 PM in Wayne County, Ohio IN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO THE CITY OF WOOSTER, OHIO, CASE NO. 13-CV-0657 EX REL. RICHARD R. BENSON, JR., LAW DIRECTOR, JUDGE SPITLER Plaintiff, PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S SUPPLEMENTAL v. MEMORANDUM IN SUPPORT OF MOTION TO STRIKE FRIVOLOUS JAMES N. POOLER, PLEADING AND FOR SANCTIONS UNDER O.R.C. § 2323.51 Defendant. 1. INTRODUCTION Through his Supplemental Memorandum,' Defendant James N. Pooler (“Pooler”) persists im seeking sanctions against Plaintiff, the City of Wooster, Ohio (“Wooster”) because Wooster challenged — legitimately — Pooler’s standing in this action, including his standing to assert a counterclaim against Wooster. Wooster’s previously-filed Brief in Opposition? explained that none of the relief Pooler seeks is warranted. In sum, standing is appropriate to raise at any time in any procedural context, and Wooster was well within its nghts to brief this issue given ' “Supplemental Memorandum in Support of Motion to Strike Frivolous Pleading and for Sanctions Under O.R.C. § 2323.51,” filed October 28, 2014. 2 “Plaintiff's Brief in Opposition to Defendant’s Motion to Strike Frivolous Pleading and for Sanctions Under O.R.C. § 2323.51,” filed September 8, 2014. {01719545 -4}Filed on 12/01/2014 at 03:50 PM in Wayne County, Ohio Pooler’s decision to assert a counterclaim and thereby affirmatively seek relief against Wooster. For the reasons set forth herein, nothing in Pooler’s Supplemental Memorandum overcomes this essential fact that compels denial of Pooler’s Motion The Supplemental Memorandum relies entirely on off-the-record discussions occurring at an October 23, 2014 status conference with the Court. No affidavit from Pooler’s counsel is attached. These facts entitle the Court to disregard Pooler’s Supplemental Memorandum in its entirety. The Supplemental Memorandum was also unnecessary. In seeking leave to file it, Pooler asserted that he needed to respond to comments made by Wooster’s Law Director at the October 23, 2014 status conference. But the Supplemental Memorandum then says these comments relate to an urelevant matter — the Law Director's motivation for commencing this action. If the Law Director's motivation for initiating this case is irrelevant, one wonders why it is necessary to file an eight-page Supplemental Memorandum responding to those comments. As it relates to the applicable law, the Supplemental Memorandum merely repeats the same arguments Pooler previously advanced in his Motion’ and fails to respond to arguments in Wooster’s Brief in Opposition. Wooster cited cases holding that standing is required to assert a counterclaim. Pooler has not disputed this. Wooster cited cases holding that a taxpayer claim cannot be recast as a declaratory judgment claim. Pooler has not disputed this. Wooster established that Pooler lacks declaratory judgment standing. Pooler has not refuted this. Ultimately, Pooler’s Supplemental Memorandum fails to provide any basis to support granting his Motion. The Court should deny that motion in all respects. 3 “Defendant's Motion to Strike Frivolous Pleading and for Sanctions Under O.R C. § 2323.51 with Memorandum in Support,” filed September 4, 2014. 01719545 4} 2Filed on 12/01/2014 at 03:50 PM in Wayne County, Ohio Il. FACTS AND PROCEDURAL BACKGROUND On November 18, 2013, Pooler through counsel, sent a wntten demand to Wooster’s Law Director, Richard R. Benson, Jr., directing him to “apply to a court of competent jurisdiction for an injunction to restrain the City of Wooster from taking action under the above Ordinances as to the Layton School property, as any such action would constitute an abuse of the corporate powers of the City of Wooster.” (Complaint Exhibit (“Ex.”) E, emphasis added). Further, Pooler stated that “You. as you are doubtless aware, are directed to take such actions by Ohio Revised Code § 733.56.” (/d.) Further, Pooler stated “should you fail to take action under that Section once a written request has been made to you, a tax payer [sic] has the right, under Ohio Revised Code § 733.59, to institute a suit in his own name on behalf of the City of Wooster.” (/d.) Finally, the letter noted: “Please consider this letter to be a written request from James Pooler for you to take the above described actions,” and advised that if the Law Director did not respond within seven days, Pooler would file his own taxpayer action. (/d.) On December 3, 2013, Wooster filed suit. The Complaint averred that “Richard R. Benson, Jr. is the duly appointed, qualified and acting Law Director of Wooster and brings the claim for injunctive relief (Count II) pursuant to the authority of Section 733.56 of the Ohio Revised Code, upon the demand of a taxpayer of Wooster, which has been made pursuant to Section 733.59[.]” (Complaint, { 1). In his Answer and Counterclaim, Pooler requested the Court “enjoin[{] the City of Wooster from constructing a wireless telecommunications tower and related facilities on the Property under the exemption of § 1173.09 of the Codified Ordinances of the City of Wooster.” (Answer & Counterclaim at 10, emphasis added). {O1719S45 -4} 3Filed on 12/01/2014 at 03:50 PM in Wayne County, Ohio Ill. LAW AND ARGUMENT A. The Court Should Reject The Arguments In The Supplemental Memorandum 1. Pooler’s Counsel Did Not File An Affidavit Recreating The Pretrial Conference This Court should not consider Pooler's Supplemental Memorandum because it is based on defense counsel's recitation of informal discussions at a pretrial conference before this Court that were not recorded and for which no transcript exists. Further, Pooler’s counsel did not submit an affidavit recreating the pretrial discussions. For this reason alone, the Supplemental Memorandum may be disregarded. See Briese v. Briese, 11th Dist. No. 2000-P-0079, 2002-Ohio- 1685, 2002 WL 549955, at *5 (“It was an abuse of discretion to make such a finding on the basis of an informal, unrecorded conference in chambers.”); see also Nelson v. Ford Motor Co , 145 Ohio App.3d 58, 65-66, 761 N.E.2d 1099 (11th Dist. 2001) (“[I]t is well established in Ohio that when sidebar conferences go unrecorded, and a party wants to raise that issue on appeal, that party must first use App.R. 9 to reconstruct the content of the unrecorded sidebars and show prejudice”). The Supplemental Memorandum is based on an unsworn recitation of statements purportedly made during an unrecorded pretrial conference. Without an affidavit recreating the comments 1n question, the Court should disregard Pooler’s Supplemental Memorandum. 2. The Supplemental Memorandum Provides No New Arguments And Relates To Irrelevant Matters Although Pooler argues that he needed to file a supplement in support of his Motion, the Supplemental Memorandum was unnecessary and inappropriate. Pooler alleges the Law Director said at the pretrial conference that “after he received a letter from the Pooler demanding he take action under § 733.56, he felt he had no choice but to initiate this case to protect his client.” (Supp. Mem. At 2). In his Motion for Leave to File the Supplemental Memorandum, Pooler 101719545 4} 4Filed on 12/01/2014 at 03:50 PM in Wayne County, Ohio asserted that “[c]omments by the Law Director ... make it necessary that the Defendant be allowed to respond in order to clarify his position and address those comments.” (Request for Leave at 1). He also stated: “Given this discussion, and particularly the assertion by the Law Director, the Defendant has sought leave to file this Supplemental Memorandum[.]” (Supp. Mem. at 3). Yet, in the Supplemental Memorandum, Pooler that “the Law Director's motivation for initiating this case under §733.56” is not relevant; instead, the only relevant fact is that the Law Director filed suit first. (Supp. Mem. at 6; see also Supp. Mem. at 7). If the Law Director’s motivation for initiating this action is irrelevant, then it is unnecessary for the Court and Wooster to address a supplemental memorandum regarding unrecorded pretrial statements about those motivations. Rather than presenting a supplemental argument, Pooler is using the statements at the pretrial conference as a pretext for once again presenting his earlier arguments to the Court. This is inappropriate. Further, as set forth in Plaintiffs Brief in Opposition, Pooler’s arguments here and 1n the original Motion are utterly without ment. B. Pooler Has Failed To Show That Taxpayer Standing Was A Frivolous Issue For Wooster To Raise Pooler’s Motion asks that the Court strike legal analysis and arguments in Wooster’s summary judgment briefing that address Pooler’s lack of standing. Wooster argued that “the issue of standing, inasmuch as it is jurisdictional in nature, may be raised at any time during the pendency of the proceedings.” (Plaintiff's Reply Brief in Support of MSJ at 6) (citing cases). Further, Wooster cited authority providing that “lack of standing is a jurisdictional defect that cannot be waived.” (/d. at 7) (citing Waterfall Victoria Master Fund Ltd. v. Yeager, 11th Dist. No. 2012-L-071, 2013-Ohio-3206, 2013 WL 3833467, { 16 (“[T]he lack of jurisdiction is an issue that cannot be waived and may be raised at any time”)). Pooler does not and cannot dispute {01719545 -4) 5Filed on 12/01/2014 at 03:50 PM in Wayne County, Ohio this jurisprudence. Therefore, in and of itself, raising the issue of standing was not and could not be frivolous. Clearly, Wooster’s analysis of this issue 1s relevant, and should not be stricken. Wooster also posited that “Defendant must have independent standing to bring a Counterclaim against Wooster.” (Plaintiff's Reply Brief in Support of Its MSJ at 3) (citing Capital Tool Co. v. Great Lakes Tooling Inc., 8th Dist. No. 85774, 2005-Ohio-5141, | 10-11 (affirming dismissal of counterclaim because defendant lacked standing)). Pooler does not and cannot dispute he brought a counterclaim. He also does not cite any contrary authority. Therefore, Wooster’s legal analysis is relevant and not frivolous, and should not be stricken. Instead, Pooler ignores basic principles of standing when he says that Wooster’s decision to file this action “made the issue of Defendant's standing under § 733.59 wholly irrelevant.” (Supp. Mem. at 6). In actuality, “[w]hen determining whether a defendant is a real party in interest with respect to is counterclaim, the analysis should focus on the counterclaim itself, not the plaintiff's onginal claim against the defendant.” Midland Funding, L.L.C. v. Stowe, 7th Dist. No. 08 CO 32, 2009-Ohio-7084, § 20. In other words, the Plaintiff's claims do not determine the standing issues implicated by Pooler’s counterclaim. Instead, the counterclaim must stand on its own or suffer dismissal. Capital Tool, 2005-Ohio-5141, J 10-11; see also Hicks v. Meadows, 9th Dist. No. 21245, 2003-Ohio-1473, at § 7 (“The issue of standing is a threshold test that, once met, permits a court to determine the merits of the questions presented.”). Pooler completely overlooks these principles. He cites no case law refuting the proposition that his counterclaim requires that he have independent standing, and his Supplemental Memorandum adds nothing on this issue. Wooster also cited case law demonstrating that Pooler lacks taxpayer standing to bring a counterclaim. (Memorandum in Support of Plaintiff's MSJ at 6; Plaintiff's Brief in Opposition to {01719545 -4} 6Filed on 12/01/2014 at 03:50 PM in Wayne County, Ohio Defendant's MSJ at 3; Plaintiff's Reply Brief at 3-4) (citing State ex rel. Phillips Supply Co. v Cincinnati, 1st Dist. No. C-120168, 2012-Ohio-6096, 985 N.E.2d 257, 417). Surprisingly, Pooler acknowledged that he has no taxpayer standing. Therefore, at least as to the essential requirement of taxpayer standing, Pooler does not disagree with or otherwise refute Wooster’s legal analysis. Pooler’s response is that taxpayer standing is not necessary nor at issue in this case because his counterclaim is for declaratory judgment, not a taxpayer action. As Wooster explained in its Brief in Opposition, this argument is without merit. Wooster cited the relevant statutes establishing that the relief sought by Pooler’s counterclaim is only available under R.C. § 733.56 and is not available in a declaratory judgment action. (Brief in Opp. at 6). The Supplemental Memorandum does not overcome this obstacle. Pooler has not established that he can seek an injunction against Wooster to prohibit construction of a telecommunications tower on its own property under a declaratory judgment action. Therefore, Wooster’s argument on this issue is undisputed. Wooster also cited case law that a taxpayer cannot recast a taxpayer action as a declaratory judgment action if the remedy sought 1s really an injunction only available under the taxpayer statute. (Brief in Opp. at 9) (citing City of Garfield Heights ex rel. Kozelka v. City of Garfield Heights, 8th Dist. No. 92511, 2009-Ohio-5009, 2009 WL 3043577, 4 15). Again, Pooler has cited no legal authonty disputing this proposition. Therefore, viewed as a whole, Wooster made the legally supported argument that the injunction Pooler seeks through his counterclaim was not permitted by, nor could it be recast as, a declaratory judgment action. Pooler’s only avenue of recourse was the taxpayer statute, as to which he agrees he lacks standing. Pooler has offered no legal authority to contradict these {01719845 -4} 7Filed on 12/01/2014 at 03:50 PM in Wayne County, Ohio arguments. Therefore, no basis exists to conclude that Wooster’s arguments on this key issue were frivolous. Pooler’s Motion should be denied. Finally, Wooster also made the undisputed argument that Pooler “does not allege a personal legal interest that is at stake or affected by the Ordinance. Therefore, he lacks standing to bring a claim for declaratory judgment.” (Reply Brief in Support of MSJ at 6). To date, Pooler has offered no arguments to refute Wooster’s legal arguments that he must have a personal legal interest in order to have declaratory judgment standing. Therefore, standing is also lacking in this case as to the purported declaratory judgment theory.* The Supplemental Memorandum adds nothing to refute this analysis. All Pooler does is cite to one new case, State ex rel. Longville y. Akron, 9th Dist. No. 25354, 2013-Ohio-1161, 2013 WL 1224710. Yet, Longville does not refute any of Wooster’s dispositive arguments. It merely holds that the taxpayer who initiated that case did so improperly because she failed to post the required security. That is clearly not at issue in the instant case. In fact, Longville supports Wooster’s arguments because it demonstrates the importance of taxpayer standing in cases where a taxpayer seeks an injunction against a municipality. In that case, after finding that Ms. Longville failed to pay security and could not maintain her taxpayer action, the trial court granted her request to issue a mandamus as a common law taxpayer action. Id. at § 11. On appeal, the court reversed focusing on “whether Ms. Longville has standing to file a common law taxpayer action[.]” /d. at { 13. This analysis 1s relevant because Pooler argues here that even though he is without taxpayer standing, he can still seek to enjoin Wooster. Clearly, Longville does not support Pooler’s position. ‘ Notably, the antitrust challenges that Pooler’s affiliated companies filed against Wooster related to its contract with TowerCo were similarly dismissed in part because of lack of standing. See Wooster Indus. Park, LLC v City of Wooster, N.D. Ohio No. 5:13CV2729, F.3d___, 2014 WL 5406889 (Oct. 23, 2014). 401719545 -4} 8Filed on 12/01/2014 at 03:50 PM in Wayne County, Ohio Instead, the Ninth District concluded in Longville that the taxpayer had no standing based on Ohio Supreme Court precedent that “in the absence of statutory authority, a taxpayer lacks legal capacity to institute an action to enjoin the expenditure of public funds unless he has some special interest therein by reason of which his own property rights are placed in jeopardy.” 2013- Ohio-1161, at 4 13 (citing State ex rel. Masterson v Ohio State Racing Commission, 162 Ohio St. 366, 36-367, paragraph one of syllabus (1954)). In Masterson, the Court said: It is equally fundamental that at common law and apart from statute, a taxpayer can not bring an action to prevent the carrying out of a public contract or the expenditure of public funds unless he had some special interest therein by reason of which his own property rights are put in jeopardy. In other words, private citizens may not restrain official acts when they fail to allege and prove damage to themselves different in character from that sustained by the public generally. 162 Ohio St. at 368 (emphasis added). Based on the Longville case that Pooler himself has cited, he should never have asserted a counterclaim against Wooster. Longville makes clear that “private citizens may not restrain official acts when they fail to allege and prove damage to themselves different in character from that sustained by the public generally.” 2013-Ohio-1161, at 13 (citing Masterson, 162 Ohio St. at 368). Here, as discussed above, Pooler never alleges he has a personal stake in this case. In turn, he “may not restrain official acts” of Wooster and has no standing to assert a counterclaim. Wooster was entitled to raised that issue dunng summary judgment briefing. In short, even the case cited in his Supplemental Memorandum supports a finding that Pooler lacks standing. If standing 1s required and may always be raised, and if Pooler lacks standing in any form — taxpayer, declaratory judgment or even common law taxpayer standing — then raising the issue of taxpayer standing was most certainly not fnvolous. {01719545 4} 9Filed on 12/01/2014 at 03:50 PM in Wayne County, Ohio In the end, Wooster correctly sought dismissal of Pooler’s counterclaim based on lack of standing. Accordingly, the only appropriate conclusion is that Pooler’s Motion alleging that Wooster improperly argued the issue of standing 1s without merit and must be denied. IV. CONCLUSION For the foregoing reasons, Pooler’s Motion to Strike and for Sanctions must be demed. Respectfully submitted, fo Ld 1 \ \ acne tne Director of Law City of Wooster 538 North Market Street Wooster, OH 44691 Phone: 330-263-5248 Facsimile: 330-263-5247 E-mail: dbenson@woosteroh.com STEPHEN L. BYRON (Reg. No. 0055657) Direct Dial: 216-928-2892 DARRELL A. CLAY (Reg. No. 0067598) Direct Dial: 216-928-2896 AIMEE W. LANE (Reg. No. 0071392) Direct Dial: 216-928-2985 WALTER & HAVERFIELD LLP The Tower at Erieview 1301 East Ninth Street, Suite 3500 Cleveland, OH 44114-1821 E-mail:sbyron@walterhav.com E-mail:dclay@walterhav.com E-mail: alane@walterhay.com Facsimile: 216-575-0911 J R (Ree eg. No. 0021968) Attorneys for Plaintiff City of Wooster, Ohio {01719545 -4} 10Filed on 12/01/2014 at 03:50 PM in Wayne County, Ohio CERTIFICATE OF SERVICE Pursuant to Civil Rule 5(B)(2)(c), I hereby certify that on this 1st day of December, 2014, a true and correct copy of the foregoing Plaintiff's Brief in Opposition to Defendant's Supplemental Memorandum in Support of Motion to Strike Frivolous Pleading and for Sanctions under O.R.C. § 2323.51 was served by e-mail and regular U.S. Mail, first-class postage prepaid, properly addressed, on the following: Jason M. Storck, Esq. Storck Law Office, Ltd. Post Office Box 1023 Wooster. Ohio 44691 } fe poy : \ i \ AAy he 5 One of the Attorneys for Plaintiff {01719545 -4} 11