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Filed on 09/08/2014 at 11:00 AM in Wayne County, Ohio
IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
THE CITY OF WOOSTER, OHIO,
EX REL. RICHARD R. BENSON, JR.,
LAW DIRECTOR,
Plaintiff,
v.
JAMES N. POOLER,
Defendant.
I. INTRODUCTION
CASE NO. 13-CV-0657
JUDGE SPITLER
PLAINTIFF’S BRIEF IN OPPOSITION
TO DEFENDANT’S MOTION TO
STRIKE FRIVOLOUS PLEADING AND
FOR SANCTIONS UNDER
O.R.C. § 2323.51
For two reasons, the Court should summarily deny Defendant James N. Pooler’s
(“Defendant”) Motion to Strike Frivolous Pleading and for Sanctions under O.R.C. § 2323.51
directed at portions of Plaintiff, The City of Wooster’s (“Wooster”) Motion for Summary
Judgment (“Motion”), Memorandum in Support of Plaintiff's Motion for Summary Judgment
(“Memorandum”) and Brief in Opposition to Defendant’s Motion for Summary Judgment
(“Opposition”).
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First, Plaintiff's Motion, Memorandum, and Opposition are not “pleadings”; therefore, as
a matter of law, they are not properly the subject of a Rule 12(F) Motion to Strike. Second,
Wooster has not engaged in any frivolous conduct in violation of Ohio Revised Code (“R.C.”)
§ 2323.51. Accordingly, there is no need for a hearing on, nor cause for issuing, sanctions
against Wooster.
Defendant has apparent forgotten that the only reason this case is pending before this
Court is that he served upon Wooster a taxpayer demand pursuant to R.C. § 733.59. Wooster
responded by filing the suit that Defendant alleged he had a right to file as a taxpayer. Now
Defendant says he “least of all” asserts he has taxpayer standing. This stunning revelation begs
the question whether Defendant’s initial taxpayer demand was itself frivolous. In any event,
Defendant cannot demand that Wooster commence this action on pain that he will do so, assert a
counterclaim against Wooster seeking relief only available through a taxpayer action, and then
protest when Wooster points out the barriers inherent in Defendant’s right to do what he has
done.
Defendant elected to assert a counterclaim in this matter; ergo, he must have presumed at
that time that he had standing to do so. Here, he seeks an injunction prohibiting Wooster from
constructing a telecommunications tower on property Wooster owns. Although Defendant styles
his claim as a “declaratory judgment action” and invokes R.C. § 2721.01, his self-chosen label
for the relief sought is irrelevant. What matters is the true nature of his counterclaim, which is a
taxpayer claim seeking a remedy that is only authorized under R.C. §§ 733.56 and 733.59.
The real concern here is Defendant’s confession that he has no taxpayer standing and, as
set forth in Wooster’s Reply in Support of Plaintiff's Motion for Summary Judgment, Defendant
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also lacks declaratory judgment standing. Defendant’s Motion to Strike and for Sanctions must
be denied. Further, Defendant’s Counterclaim should be dismissed with prejudice.
Tl. FACTS AND PROCEDURAL BACKGROUND
On November 18, 2013, Defendant, through his legal counsel, sent a written 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, Defendant unequivocally stated that “You, as you are doubtless aware, are directed to
take such actions by Ohio Revised Code § 733.56.” (/d.) Further, Defendant 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.) In no uncertain terms, Defendant stated “{p]lease consider
this letter to be a written request from James Pooler for you to take the above described actions.”
(d.) Further, if the Law Director did not respond to Defendant seven days, Defendant 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, J 1). In the Prayer for Relief in his Answer and Counterclaim,
Defendant specifically asks this Court to “enjoin{] the City of Wooster from constructing a
wireless telecommunications tower and related facilities on the Property under the exemption of
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§ 1173.09 of the Codified Ordinances of the City of Wooster.” (Answer & Counterclaim at 10)
(emphasis added).
Ill. LAW AND ARGUMENT
A. DEFENDANT’S MOTION TO STRIKE MusT BE DENIED BECAUSE CIVIL RULE
12(F) ONLY APPLIES TO “PLEADINGS,” AND PLAINTIFF’S MOTION,
MEMORANDUM, AND OPPOSITION ARE NOT “PLEADINGS.”
Defendant's Motion to Strike must be denied because Civil Rule 12(F) applies only to
pleadings, and therefore Wooster’s Motion, Memorandum, or Opposition are not subject to being
struck.
Civil Rule 12(F) provides that a motion to strike may be filed “by a party before
responding to a pleading” and that “the court may order stricken from any pleading any
insufficient claim or defense or any redundant, immaterial, impertinent, or scandalous matter.”
Civ. R. 12(F) (emphasis added). In turn, Civil Rule 7(A) defines “pleading” to include a
complaint, answer, reply to counterclaim, answer to cross-claim, third-party complaint, and a
third-party answer. Further, Rule 7(A) is exclusive in stating “/njo other pleading shall be
allowed[.]” Civ. R. 7(A) (emphasis added).
Defendant cites no cases supporting the proposition that routine filings such as Wooster’s
Motion, Memorandum, and Opposition are subject to being struck pursuant to Civil Rule 12(F).
This makes sense, because the purpose of Rule 12(F) is to allow a court to dispose of an
insufficient claim set forth in an otherwise sufficient pleading, whereas a Rule 12(B) motion to
dismiss allows a Court to dispense with a pleading that is wholly insufficient. See State ex rel.
Neff v. Corrigan, 75 Ohio St.3d 12, 14, 661 N.E.2d 170 (1996) (“[A] Civ.R. 12(B)(6) motion to
dismiss is directed to the entire pleading, whereas a Civ.R. 12(F) motion to strike based on
insufficiency of a claim should only be used to attack individual claims which are not dispositive
of the entire action.”).
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Wooster’s Motion, Memorandum, and Opposition are not pleadings. Therefore,
Defendant’s motion to strike pursuant to Rule 12(F) must be denied.
B. WOOSTER’S ARGUMENTS ATTACKING DEFENDANT’S LACK OF TAXPAYER
STANDING ARE NOT FRIVOLOUS CONDUCT UNDER R.C. § 2323.51.
qd) Frivolous Conduct Under R.C. § 2323.51.
Under R.C. § 2323.51(A)(2), the conduct of a party is considered “frivolous conduct” if,
in relevant part, it: (1) serves “merely to harass or maliciously injure another party ... or is for
another improper purpose, including, but not limited to, causing unnecessary delay or a needless
increase in the cost of litigation;” (2) is “not warranted under existing law, or cannot be
supported by a good faith argument for an extension, modification, or reversal of existing law, or
... by a good faith argument for the establishment of new law;” or (3) consists of “allegations or
other factual contentions that have no evidentiary support.” R.C. § 2323.51(A)(2)(i)-(iv).
To determine whether an attorney has engaged in frivolous conduct, the test “is whether
no reasonable lawyer would have brought the action in light of the existing law.” Lisboa v.
Kleinman, 8th Dist. No. 89703, 2008-Ohio-1270, 2008 WL 740522, 4 6, citing Orbit Electronics,
Inc. v. Helm Instrument Co., 167 Ohio App.3d 301, 2006-Ohio-2317, 855 N.E.2d 91, 9 49 (8th
Dist.). “In other words, a claim is frivolous if it is absolutely clear under the existing law that no
reasonable lawyer could argue the claim.” Hickman v. Murray, No. CA 15030, 1996 WL
125916, at *5 (2nd Dist. March 22, 1996). However, “the statute was not intended to punish
mere misjudgment or tactical error.” /d. Further, “the statute does not define frivolous conduct so
as to include the assertion of a claim or defense which is not wel] grounded in fact.” Richmond
Glass & Aluminum Corp. v. Wynn, No. 90-C-46, 1991 WL 172902, at *2 (7th Dist. Sept. 5,
1991),
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Defendant cannot establish that any of Wooster’s conduct in this action meets the
standard for frivolous conduct under R.C. § 2323.51. Thus, Defendant’s motion for sanctions
must be denied.
(2) Wooster Properly Raised The Issue of Taxpayer Standing Because
The True Nature of Defendant’s Claim Is a Taxpayer Suit Under
Chapter 733.
Defendant claims that taxpayer standing was a frivolous issue to raise because he cited a
declaratory judgment statute in his Counterclaim, not § 733.59. There is no merit to this
incredible argument.
Wooster was not frivolous in raising taxpayer standing because the true nature of
Defendant’s counterclaim, as he himself has characterized, is a taxpayer claim under Chapter
733, including §§ 733.56 and 733.59. Defendant’s Answer and Counterclaim speak for
themselves. Defendant’s prayer for relief asks this Court to “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). Defendant’s taxpayer demand likewise makes clear that
this is an action under Chapter 733. (Complaint Ex. E.)
A declaratory judgment action gives Defendant no right to an injunction. Only R.C.
§ 733.56, permits “an order of injunction to restrain ... the municipal corporation.” To obtain an
injunction under R.C. §§ 733.56 and 733.59, Defendant must have taxpayer standing.
Accordingly, Wooster acted appropriately in raising the issue that Defendant does not have
' Section 733.56 provides that the law director can apply “to a court of competent
jurisdiction for an order of injunction to restrain the misapplication of funds of the municipal
corporation, the abuse of its corporate powers, or the execution or performance of any contract
made in behalf of the municipal corporation in contravention of the laws or ordinance(s)
governing it, or which was procured by fraud or corruption.” R.C. § 733.56 (emphasis added).
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standing, which Defendant concedes in noting that he “least of all” has claimed taxpayer
standing. (Def. Mem. Supp. Mot. Strike at 6). Therefore, Defendant’s Motion for Sanctions is
without merit.
Of the cases Defendant cites, none are helpful to him, much less relevant to any issue in
this case. Roth merely holds that the taxpayer cannot file a wholly separate action after asking
the law director to file suit that the law director then files and is still pending. State ex rel. Roth v.
Lewis, 128 N.E.2d 141 (8th Dist. 1955). Mulder holds that a taxpayer claim cannot be brought
before the law director receives notice under the statute. Mulder v. Village of Amherst, 115 Ohio
App. 117, 184 N.E.2d 602 (9th Dist. 1962). Neither Roth nor Mulder address the circumstance
where the law director brings a claim and the taxpayer brings a counterclaim, as is the case here.
Finally, Zeislofi, a common pleas court decision from 1920 prior to the enactment of
Chapter 733, does not address the issue in this case either because the taxpayer was not named as
a party in the action. City of Akron v. Zeislofi, 31 Ohio Dec. 335, 1920 WL 589 (Ct. Com. PI.
Summit County June 10, 1920). Instead, the taxpayer tried to intervene and his request was
denied. Intervention is not at issue here as Defendant was a party to this case from the beginning.
Therefore, none of Defendant’s cases supports his position.
Defendant attempts a tortured interpretation of R.C. Chapter 733 by arguing that he did
not bring a claim under R.C. § 733.59 and, therefore, this is not a taxpayer action and taxpayer
standing does not matter. (Def. Mem. Supp. Mot. Strike at 4) (the action “was not commenced
by the Defendant under § 733.59 but, instead, was brought by the Law Director of the City of
Wooster under his authority pursuant to § 733.56”) However, R.C. § 733.59 operates in
conjunction with § 733.56, which specifies the actual relief the law director or taxpayer may
seek. Section 733.59 only provides that “the taxpayer may institute suit in his own name, on
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behalf of the municipal corporation.” R.C. § 733.59. To find out what type of relief a taxpayer
can seek under § 733.59, the taxpayer must refer back to § 733.56, which has been invoked by
Wooster. One cannot be read without referring to the other. Therefore, the distinction Defendant
is attempting to draw between a claim brought by a law director and a taxpayer is nothing more
than a fiction — and a poorly-conceived one, at that. Both claims arise under § 733.56, which
contains the type of relief Defendant has requested in this action.
Defendant also avers that his counterclaim is a declaratory judgment action, not a
taxpayer action. (Def. Mem. Supp. Mot. Strike at 4) (“Defendant’s Counterclaim specifically
notes that is ‘brought pursuant to O.R.C. § 2721.01, et seq., and O.R.C. § 2727.01, et seq.’ and
not pursuant to O.R.C. § 733.59”). Although Defendant styles his Counterclaim a declaratory
judgment action, this self-chosen label is irrelevant. Instead, the true nature of the relief he seeks
is determinative of the nature of his claim and the applicable requirements, such as taxpayer
standing.
The Ohio Supreme Court has held that “[t]he availability of the relief, of course, is not
dependent upon the allegations of the complaint. Rather, it is derived from the nature of the relief
sought by the plaintiff and afforded by statute.” Westbrook v. Prudential Ins. Co., 37 Ohio St.3d
166, 168, 524 N.E.2d 485 (1988). In Westbrook, which also dealt with a taxpayer claim against a
municipality, the Ohio Supreme Court held that “where statutory relief is afforded and clearly
applies to the circumstances giving rise to the action, the statute constitutes the exclusive avenue
for seeking redress.” /d. at 170. The Court rejected the attempt by the taxpayer, who was past the
statute of limitations, to recast his taxpayer lawsuit as a common law claim. /d. The Court
reasoned that the taxpayer could not maintain a common-law action after the statute of
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limitations on the taxpayer claim had expired because the statutory action was the exclusive
remedy. Jd.
Courts have also rejected similar attempts to re-cast an unsuccessful taxpayer claim as a
declaratory judgment action. In City of Garfield Heights ex rel. Kozelka v. City of Garfield
Heights, 8th Dist. No. 92511, 2009-Ohio-5009, 2009 WL 3043577, q 15, the taxpayer argued
that “the trial court erred when it found that his taxpayer suit was filed beyond the statute of
limitations under R.C. 733.60 because ... he was seeking declaratory judgment, not an
injunction [despite] acknowledge[ing] that one of his prayers was for an injunction.” /d. at
415 (emphasis added). The court rejected this argument. /d. at { 23. Similar to the facts in this
case, the court found as evidence that the true nature of the claim was a taxpayer action, the fact
that ‘Koselka’s letter to Garfield Heights’ law director demanded the law director to ‘file an
action for injunctive relief? in accordance with R.C. 733.56 ‘to enjoin performance[.]’” /d. at
9/26. The court found “that Kozelka’s claims, despite being labeled declaratory judgment
actions, actually seek injunctive relief to enjoin Garfield Heights from performing any part of
the 2005 Orders.” /d. at { 27. Citing to Westbrook, the court concluded that “[w}here statutory
relief is afforded and clearly applies to the circumstances giving rise to the action, the statute
constitutes the exclusive avenue for seeking redress.” /d. at § 27, citing Westbrook, 37 Ohio
St.3d 166 (emphasis added). The court in Kozelka concluded that “each of Kozelka’s claims
ultimately sought to enjoin Garfield Heights from performing an illegal contract. Thus, his action
fell squarely within R.C. 733.56 and 733.59[.]” Clearly, the same logic applies in this case.
Similarly, in Village of Chardon v. Burgess & Niple, Ltd., No. 92-G-1734, 1993 WL
419091 (11th Dist. June 11, 1993), the court found that:
The complaint and cross-claim may be characterized as declaratory
relief, as the prayers for relief request the trial court to ‘declare’
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things. However, ... R.C. Chapter 733 is the exclusive means by
which a municipal corporation or a taxpayer may seek to enjoin a
contract entered into by the municipal corporation. Therefore,
appellant’s attempt to characterize the action as a declaratory
relief action is ineffective.
Id. at *3 (emphasis added). Here, Defendant also tries to characterizes his claim as one seeking a
declaratory judgment, although he seeks as relief to enjoin Wooster’s construction. Again,
Defendant’s arguments are ineffective in attempting to cast his counterclaim as something it
clearly is not.
Likewise, in Jenkins v. Eberhart, 71 Ohio App.3d 351, 358, 594 N.E.2d 29 (4th Dist.
1991), the court also reached the conclusion that the taxpayer could not prevail on a declaratory
judgment claim when the true nature of the claim was an unsuccessful taxpayer action. The court
reasoned that “(t]he General Assembly has provided a statutory remedy for injunctions under
R.C. 733.56 and we are not persuaded by appellant’s attempts to circumvent the operation
of the statute by including a request for declaratory judgment.” Jd. at 358. The court
affirmed the trial court’s decisions to dismiss the taxpayer claim which was instituted before a
demand on the law director. /d. at 359. The court concluded “that the failure of the taxpayer
action below mandates that the request for declaratory relief fails as well.” /d. at 358, citing
Ryan y, Tracy, 6 Ohio St.3d 363, 453 N.E.2d 661 (1983).
Here, the same rationale applies: Defendant’s Counterclaim is a taxpayer claim under
Chapter 733 because Defendant himself characterized it as such, and because he ultimately seeks
the type of injunction only available to him pursuant to this Chapter. In tum, because his
Counterclaim against Wooster falls under Chapter 733, Defendant must have taxpayer standing
to bring this type of claim. Although he claims this is a declaratory judgment action only, this
recasting is ineffective. This is a taxpayer claim. As a result, raising the issue of lack of taxpayer
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standing, which Defendant now plainly admits he does not have, was proper for Wooster. There
is no frivolous conduct. Defendant’s Motion for Sanctions should be denied.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Strike and for Sanctions must be
denied. If anyone should be sanctioned for frivolous conduct, it is Defendant for bringing this
unsubstantiated motion in the first place.
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Respectfully submitted,
RICHARD R. BENSON, JR. (Reg. No. 0021968)
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@walterhav.com
Facsimile: 216-575-0911
Attorneys for Plaintiff City of Wooster, Ohio
CERTIFICATE OF SERVICE
Pursuant to Civil Rule 5(B)(2)(c), 1 hereby certify that on this sth day of September,
2014, a true and correct copy of the foregoing Plaintiff's Brief in Opposition to Defendant’s
Motion to Strike Frivolous Pleading and for Sanctions under O.R.C. § 2323.51 was served by
ordinary 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
{01668602 -3} 12
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Filed on 09/08/2014 at 11:00 AM in Wayne County, Ohio IN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO THE CITY OF WOOSTER, OHIO, EX REL. RICHARD R. BENSON, JR., LAW DIRECTOR, Plaintiff, v. JAMES N. POOLER, Defendant. I. INTRODUCTION CASE NO. 13-CV-0657 JUDGE SPITLER PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO STRIKE FRIVOLOUS PLEADING AND FOR SANCTIONS UNDER O.R.C. § 2323.51 For two reasons, the Court should summarily deny Defendant James N. Pooler’s (“Defendant”) Motion to Strike Frivolous Pleading and for Sanctions under O.R.C. § 2323.51 directed at portions of Plaintiff, The City of Wooster’s (“Wooster”) Motion for Summary Judgment (“Motion”), Memorandum in Support of Plaintiff's Motion for Summary Judgment (“Memorandum”) and Brief in Opposition to Defendant’s Motion for Summary Judgment (“Opposition”). {01668602 -3}Filed on 09/08/2014 at 11:00 AM in Wayne County, Ohio First, Plaintiff's Motion, Memorandum, and Opposition are not “pleadings”; therefore, as a matter of law, they are not properly the subject of a Rule 12(F) Motion to Strike. Second, Wooster has not engaged in any frivolous conduct in violation of Ohio Revised Code (“R.C.”) § 2323.51. Accordingly, there is no need for a hearing on, nor cause for issuing, sanctions against Wooster. Defendant has apparent forgotten that the only reason this case is pending before this Court is that he served upon Wooster a taxpayer demand pursuant to R.C. § 733.59. Wooster responded by filing the suit that Defendant alleged he had a right to file as a taxpayer. Now Defendant says he “least of all” asserts he has taxpayer standing. This stunning revelation begs the question whether Defendant’s initial taxpayer demand was itself frivolous. In any event, Defendant cannot demand that Wooster commence this action on pain that he will do so, assert a counterclaim against Wooster seeking relief only available through a taxpayer action, and then protest when Wooster points out the barriers inherent in Defendant’s right to do what he has done. Defendant elected to assert a counterclaim in this matter; ergo, he must have presumed at that time that he had standing to do so. Here, he seeks an injunction prohibiting Wooster from constructing a telecommunications tower on property Wooster owns. Although Defendant styles his claim as a “declaratory judgment action” and invokes R.C. § 2721.01, his self-chosen label for the relief sought is irrelevant. What matters is the true nature of his counterclaim, which is a taxpayer claim seeking a remedy that is only authorized under R.C. §§ 733.56 and 733.59. The real concern here is Defendant’s confession that he has no taxpayer standing and, as set forth in Wooster’s Reply in Support of Plaintiff's Motion for Summary Judgment, Defendant {01668602 -3} 2Filed on 09/08/2014 at 11:00 AM in Wayne County, Ohio also lacks declaratory judgment standing. Defendant’s Motion to Strike and for Sanctions must be denied. Further, Defendant’s Counterclaim should be dismissed with prejudice. Tl. FACTS AND PROCEDURAL BACKGROUND On November 18, 2013, Defendant, through his legal counsel, sent a written 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, Defendant unequivocally stated that “You, as you are doubtless aware, are directed to take such actions by Ohio Revised Code § 733.56.” (/d.) Further, Defendant 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.) In no uncertain terms, Defendant stated “{p]lease consider this letter to be a written request from James Pooler for you to take the above described actions.” (d.) Further, if the Law Director did not respond to Defendant seven days, Defendant 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, J 1). In the Prayer for Relief in his Answer and Counterclaim, Defendant specifically asks this Court to “enjoin{] the City of Wooster from constructing a wireless telecommunications tower and related facilities on the Property under the exemption of {01668602 -3} 3Filed on 09/08/2014 at 11:00 AM in Wayne County, Ohio § 1173.09 of the Codified Ordinances of the City of Wooster.” (Answer & Counterclaim at 10) (emphasis added). Ill. LAW AND ARGUMENT A. DEFENDANT’S MOTION TO STRIKE MusT BE DENIED BECAUSE CIVIL RULE 12(F) ONLY APPLIES TO “PLEADINGS,” AND PLAINTIFF’S MOTION, MEMORANDUM, AND OPPOSITION ARE NOT “PLEADINGS.” Defendant's Motion to Strike must be denied because Civil Rule 12(F) applies only to pleadings, and therefore Wooster’s Motion, Memorandum, or Opposition are not subject to being struck. Civil Rule 12(F) provides that a motion to strike may be filed “by a party before responding to a pleading” and that “the court may order stricken from any pleading any insufficient claim or defense or any redundant, immaterial, impertinent, or scandalous matter.” Civ. R. 12(F) (emphasis added). In turn, Civil Rule 7(A) defines “pleading” to include a complaint, answer, reply to counterclaim, answer to cross-claim, third-party complaint, and a third-party answer. Further, Rule 7(A) is exclusive in stating “/njo other pleading shall be allowed[.]” Civ. R. 7(A) (emphasis added). Defendant cites no cases supporting the proposition that routine filings such as Wooster’s Motion, Memorandum, and Opposition are subject to being struck pursuant to Civil Rule 12(F). This makes sense, because the purpose of Rule 12(F) is to allow a court to dispose of an insufficient claim set forth in an otherwise sufficient pleading, whereas a Rule 12(B) motion to dismiss allows a Court to dispense with a pleading that is wholly insufficient. See State ex rel. Neff v. Corrigan, 75 Ohio St.3d 12, 14, 661 N.E.2d 170 (1996) (“[A] Civ.R. 12(B)(6) motion to dismiss is directed to the entire pleading, whereas a Civ.R. 12(F) motion to strike based on insufficiency of a claim should only be used to attack individual claims which are not dispositive of the entire action.”). {01668602 -3} 4Filed on 09/08/2014 at 11:00 AM in Wayne County, Ohio Wooster’s Motion, Memorandum, and Opposition are not pleadings. Therefore, Defendant’s motion to strike pursuant to Rule 12(F) must be denied. B. WOOSTER’S ARGUMENTS ATTACKING DEFENDANT’S LACK OF TAXPAYER STANDING ARE NOT FRIVOLOUS CONDUCT UNDER R.C. § 2323.51. qd) Frivolous Conduct Under R.C. § 2323.51. Under R.C. § 2323.51(A)(2), the conduct of a party is considered “frivolous conduct” if, in relevant part, it: (1) serves “merely to harass or maliciously injure another party ... or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation;” (2) is “not warranted under existing law, or cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or ... by a good faith argument for the establishment of new law;” or (3) consists of “allegations or other factual contentions that have no evidentiary support.” R.C. § 2323.51(A)(2)(i)-(iv). To determine whether an attorney has engaged in frivolous conduct, the test “is whether no reasonable lawyer would have brought the action in light of the existing law.” Lisboa v. Kleinman, 8th Dist. No. 89703, 2008-Ohio-1270, 2008 WL 740522, 4 6, citing Orbit Electronics, Inc. v. Helm Instrument Co., 167 Ohio App.3d 301, 2006-Ohio-2317, 855 N.E.2d 91, 9 49 (8th Dist.). “In other words, a claim is frivolous if it is absolutely clear under the existing law that no reasonable lawyer could argue the claim.” Hickman v. Murray, No. CA 15030, 1996 WL 125916, at *5 (2nd Dist. March 22, 1996). However, “the statute was not intended to punish mere misjudgment or tactical error.” /d. Further, “the statute does not define frivolous conduct so as to include the assertion of a claim or defense which is not wel] grounded in fact.” Richmond Glass & Aluminum Corp. v. Wynn, No. 90-C-46, 1991 WL 172902, at *2 (7th Dist. Sept. 5, 1991), {01668602 -3} 5Filed on 09/08/2014 at 11:00 AM in Wayne County, Ohio Defendant cannot establish that any of Wooster’s conduct in this action meets the standard for frivolous conduct under R.C. § 2323.51. Thus, Defendant’s motion for sanctions must be denied. (2) Wooster Properly Raised The Issue of Taxpayer Standing Because The True Nature of Defendant’s Claim Is a Taxpayer Suit Under Chapter 733. Defendant claims that taxpayer standing was a frivolous issue to raise because he cited a declaratory judgment statute in his Counterclaim, not § 733.59. There is no merit to this incredible argument. Wooster was not frivolous in raising taxpayer standing because the true nature of Defendant’s counterclaim, as he himself has characterized, is a taxpayer claim under Chapter 733, including §§ 733.56 and 733.59. Defendant’s Answer and Counterclaim speak for themselves. Defendant’s prayer for relief asks this Court to “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). Defendant’s taxpayer demand likewise makes clear that this is an action under Chapter 733. (Complaint Ex. E.) A declaratory judgment action gives Defendant no right to an injunction. Only R.C. § 733.56, permits “an order of injunction to restrain ... the municipal corporation.” To obtain an injunction under R.C. §§ 733.56 and 733.59, Defendant must have taxpayer standing. Accordingly, Wooster acted appropriately in raising the issue that Defendant does not have ' Section 733.56 provides that the law director can apply “to a court of competent jurisdiction for an order of injunction to restrain the misapplication of funds of the municipal corporation, the abuse of its corporate powers, or the execution or performance of any contract made in behalf of the municipal corporation in contravention of the laws or ordinance(s) governing it, or which was procured by fraud or corruption.” R.C. § 733.56 (emphasis added). {01668602 -3} 6Filed on 09/08/2014 at 11:00 AM in Wayne County, Ohio standing, which Defendant concedes in noting that he “least of all” has claimed taxpayer standing. (Def. Mem. Supp. Mot. Strike at 6). Therefore, Defendant’s Motion for Sanctions is without merit. Of the cases Defendant cites, none are helpful to him, much less relevant to any issue in this case. Roth merely holds that the taxpayer cannot file a wholly separate action after asking the law director to file suit that the law director then files and is still pending. State ex rel. Roth v. Lewis, 128 N.E.2d 141 (8th Dist. 1955). Mulder holds that a taxpayer claim cannot be brought before the law director receives notice under the statute. Mulder v. Village of Amherst, 115 Ohio App. 117, 184 N.E.2d 602 (9th Dist. 1962). Neither Roth nor Mulder address the circumstance where the law director brings a claim and the taxpayer brings a counterclaim, as is the case here. Finally, Zeislofi, a common pleas court decision from 1920 prior to the enactment of Chapter 733, does not address the issue in this case either because the taxpayer was not named as a party in the action. City of Akron v. Zeislofi, 31 Ohio Dec. 335, 1920 WL 589 (Ct. Com. PI. Summit County June 10, 1920). Instead, the taxpayer tried to intervene and his request was denied. Intervention is not at issue here as Defendant was a party to this case from the beginning. Therefore, none of Defendant’s cases supports his position. Defendant attempts a tortured interpretation of R.C. Chapter 733 by arguing that he did not bring a claim under R.C. § 733.59 and, therefore, this is not a taxpayer action and taxpayer standing does not matter. (Def. Mem. Supp. Mot. Strike at 4) (the action “was not commenced by the Defendant under § 733.59 but, instead, was brought by the Law Director of the City of Wooster under his authority pursuant to § 733.56”) However, R.C. § 733.59 operates in conjunction with § 733.56, which specifies the actual relief the law director or taxpayer may seek. Section 733.59 only provides that “the taxpayer may institute suit in his own name, on {01668602 -3} 7Filed on 09/08/2014 at 11:00 AM in Wayne County, Ohio behalf of the municipal corporation.” R.C. § 733.59. To find out what type of relief a taxpayer can seek under § 733.59, the taxpayer must refer back to § 733.56, which has been invoked by Wooster. One cannot be read without referring to the other. Therefore, the distinction Defendant is attempting to draw between a claim brought by a law director and a taxpayer is nothing more than a fiction — and a poorly-conceived one, at that. Both claims arise under § 733.56, which contains the type of relief Defendant has requested in this action. Defendant also avers that his counterclaim is a declaratory judgment action, not a taxpayer action. (Def. Mem. Supp. Mot. Strike at 4) (“Defendant’s Counterclaim specifically notes that is ‘brought pursuant to O.R.C. § 2721.01, et seq., and O.R.C. § 2727.01, et seq.’ and not pursuant to O.R.C. § 733.59”). Although Defendant styles his Counterclaim a declaratory judgment action, this self-chosen label is irrelevant. Instead, the true nature of the relief he seeks is determinative of the nature of his claim and the applicable requirements, such as taxpayer standing. The Ohio Supreme Court has held that “[t]he availability of the relief, of course, is not dependent upon the allegations of the complaint. Rather, it is derived from the nature of the relief sought by the plaintiff and afforded by statute.” Westbrook v. Prudential Ins. Co., 37 Ohio St.3d 166, 168, 524 N.E.2d 485 (1988). In Westbrook, which also dealt with a taxpayer claim against a municipality, the Ohio Supreme Court held that “where statutory relief is afforded and clearly applies to the circumstances giving rise to the action, the statute constitutes the exclusive avenue for seeking redress.” /d. at 170. The Court rejected the attempt by the taxpayer, who was past the statute of limitations, to recast his taxpayer lawsuit as a common law claim. /d. The Court reasoned that the taxpayer could not maintain a common-law action after the statute of {01668602 -3} 8Filed on 09/08/2014 at 11:00 AM in Wayne County, Ohio limitations on the taxpayer claim had expired because the statutory action was the exclusive remedy. Jd. Courts have also rejected similar attempts to re-cast an unsuccessful taxpayer claim as a declaratory judgment action. In City of Garfield Heights ex rel. Kozelka v. City of Garfield Heights, 8th Dist. No. 92511, 2009-Ohio-5009, 2009 WL 3043577, q 15, the taxpayer argued that “the trial court erred when it found that his taxpayer suit was filed beyond the statute of limitations under R.C. 733.60 because ... he was seeking declaratory judgment, not an injunction [despite] acknowledge[ing] that one of his prayers was for an injunction.” /d. at 415 (emphasis added). The court rejected this argument. /d. at { 23. Similar to the facts in this case, the court found as evidence that the true nature of the claim was a taxpayer action, the fact that ‘Koselka’s letter to Garfield Heights’ law director demanded the law director to ‘file an action for injunctive relief? in accordance with R.C. 733.56 ‘to enjoin performance[.]’” /d. at 9/26. The court found “that Kozelka’s claims, despite being labeled declaratory judgment actions, actually seek injunctive relief to enjoin Garfield Heights from performing any part of the 2005 Orders.” /d. at { 27. Citing to Westbrook, the court concluded that “[w}here statutory relief is afforded and clearly applies to the circumstances giving rise to the action, the statute constitutes the exclusive avenue for seeking redress.” /d. at § 27, citing Westbrook, 37 Ohio St.3d 166 (emphasis added). The court in Kozelka concluded that “each of Kozelka’s claims ultimately sought to enjoin Garfield Heights from performing an illegal contract. Thus, his action fell squarely within R.C. 733.56 and 733.59[.]” Clearly, the same logic applies in this case. Similarly, in Village of Chardon v. Burgess & Niple, Ltd., No. 92-G-1734, 1993 WL 419091 (11th Dist. June 11, 1993), the court found that: The complaint and cross-claim may be characterized as declaratory relief, as the prayers for relief request the trial court to ‘declare’ {01668602 -3} 9Filed on 09/08/2014 at 11:00 AM in Wayne County, Ohio things. However, ... R.C. Chapter 733 is the exclusive means by which a municipal corporation or a taxpayer may seek to enjoin a contract entered into by the municipal corporation. Therefore, appellant’s attempt to characterize the action as a declaratory relief action is ineffective. Id. at *3 (emphasis added). Here, Defendant also tries to characterizes his claim as one seeking a declaratory judgment, although he seeks as relief to enjoin Wooster’s construction. Again, Defendant’s arguments are ineffective in attempting to cast his counterclaim as something it clearly is not. Likewise, in Jenkins v. Eberhart, 71 Ohio App.3d 351, 358, 594 N.E.2d 29 (4th Dist. 1991), the court also reached the conclusion that the taxpayer could not prevail on a declaratory judgment claim when the true nature of the claim was an unsuccessful taxpayer action. The court reasoned that “(t]he General Assembly has provided a statutory remedy for injunctions under R.C. 733.56 and we are not persuaded by appellant’s attempts to circumvent the operation of the statute by including a request for declaratory judgment.” Jd. at 358. The court affirmed the trial court’s decisions to dismiss the taxpayer claim which was instituted before a demand on the law director. /d. at 359. The court concluded “that the failure of the taxpayer action below mandates that the request for declaratory relief fails as well.” /d. at 358, citing Ryan y, Tracy, 6 Ohio St.3d 363, 453 N.E.2d 661 (1983). Here, the same rationale applies: Defendant’s Counterclaim is a taxpayer claim under Chapter 733 because Defendant himself characterized it as such, and because he ultimately seeks the type of injunction only available to him pursuant to this Chapter. In tum, because his Counterclaim against Wooster falls under Chapter 733, Defendant must have taxpayer standing to bring this type of claim. Although he claims this is a declaratory judgment action only, this recasting is ineffective. This is a taxpayer claim. As a result, raising the issue of lack of taxpayer {01668602 -3} 10Filed on 09/08/2014 at 11:00 AM in Wayne County, Ohio standing, which Defendant now plainly admits he does not have, was proper for Wooster. There is no frivolous conduct. Defendant’s Motion for Sanctions should be denied. IV. CONCLUSION For the foregoing reasons, Defendant’s Motion to Strike and for Sanctions must be denied. If anyone should be sanctioned for frivolous conduct, it is Defendant for bringing this unsubstantiated motion in the first place. {01668602 -3} 11Filed on 09/08/2014 at 11:00 AM in Wayne County, Ohio Respectfully submitted, RICHARD R. BENSON, JR. (Reg. No. 0021968) 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@walterhav.com Facsimile: 216-575-0911 Attorneys for Plaintiff City of Wooster, Ohio CERTIFICATE OF SERVICE Pursuant to Civil Rule 5(B)(2)(c), 1 hereby certify that on this sth day of September, 2014, a true and correct copy of the foregoing Plaintiff's Brief in Opposition to Defendant’s Motion to Strike Frivolous Pleading and for Sanctions under O.R.C. § 2323.51 was served by ordinary 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 {01668602 -3} 12