[Cite as State ex rel. Ames v. W. Geauga Local School Dist. Bd.of Edn., 2026-Ohio-3294.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY
STATE OF OHIO ex rel. CASE NO. 2025-G-0049 BRIAN M. AMES,
Relator-Appellant, Civil Appeal from the
Court of Common Pleas
BRIAN M. AMES,
Plaintiff-Appellant, Trial Court No. 2025 M 000622
- vs -WEST GEAUGA LOCAL SCHOOL
DISTRICT BOARD OF EDUCATION,
Respondent/DefendantAppellee.
OPINION AND JUDGMENT ENTRY
Decided: August 24, 2026
Judgment: Affirmed
Brian M. Ames, pro se, 2632 Ranfield Road, Mogadore, OH 44260 (Relator/PlaintiffAppellant).
Matthew John Markling, McGown & Markling Co., L.P.A., 1894 North ClevelandMassillon Road, Akron, OH 44333 (For Respondent/Defendant-Appellee, West Geauga Local School District Board of Education).
SCOTT LYNCH, J.
{¶1} Relator-appellant, Brian M. Ames, appeals the Order of the Geauga County
Court of Common Pleas denying his Motion for the Expedited Dismissal of the
Counterclaim filed by respondent-appellee, West Geauga Local School District Board of
Education. For the following reasons, we find the present action exempt from the application of the Protection of Public Expression Act and affirm the decision of the court
below.
Procedural History
{¶2} On August 29, 2025, Ames filed a Complaint in Mandamus against the
Board of Education raising a claim under R.C. 121.22, the Open Meetings Act.
{¶3} On November 10, 2025, the Board of Education filed an Answer and
Counterclaim. The counterclaim sought to impose liability on Ames for allegedly frivolous
conduct pursuant to R.C. 2323.51, R.C. 121.22(I), and Civ.R. 11, and sought a
declaration that Ames is a vexatious litigator pursuant to R.C. 2323.52.
{¶4} On November 11, 2025, Ames filed a Motion for Expedited Dismissal of
Counterclaim under Revised Code Chapter 2747. Ames sought an order granting
expedited relief by “1) setting a hearing within 60 days of the date of the filing of this
motion wherein the parties may present any evidence that could be considered in ruling
on a motion for summary judgment under Rule 56 of the Rules of Civil Procedure, and 2)
allowing limited of specific information [sic] that cannot be obtained otherwise pursuant to
R.C. 2747.03(C).”
{¶5} On December 30, 2025, the trial court denied the Motion for Expedited
Dismissal. On the same date, Ames filed a Notice of Appeal.
Assignments and Cross-Assignments of Error
{¶6} On appeal, Ames raises the following assignments of error:
[1.] The trial court committed reversible error by denying Appellant’s
Motion for Expedited Dismissal under R.C. Chapter 2747.
[2.] The trial court committed reversible error by denying Appellant’s
Motion for Expedited Dismissal under R.C. Chapter 2747 without
conducting the hearing mandated by R.C. 2747.04(A)(1).
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Case No. 2025-G-0049
{¶7} The Board of Education raises the following cross-assignments of error:1
[2.] The instant appeal must be dismissed on res judicata grounds.
[3.] The decision of the Trial Court must be affirmed because the
frivolous and vexatious litigator claims asserted against Ames are
not based upon Ames exercising a constitutionally protected activity
on a matter of public concern.
[4.] The decision of the Trial Court must be affirmed because R.C.
2323.51, R.C. 121.22(I)(2)(b), Civ.R. 11, and R.C. 2323.52 claims
are exempt from R.C. Chapter 2747.
[5.] The decision of the Trial Court must be affirmed because the
Board pled claims upon which relief can be granted.
[6.] The decision of the Trial Court must be affirmed because Ames
failed to meet his burden of proving both that there is no genuine
issue as to any material fact and Ames is entitled to judgment as a
matter of law on the frivolous and vexatious litigator claims.
Revised Code Chapter 2747. Protection of Public Expression
{¶8} The Protection of Public Expression Act, effective April 9, 2025, “applies to
a cause of action asserted in a civil action against a person based on any of the following:”
(1) The person’s communication in a legislative, executive, judicial,
administrative, or other governmental proceeding;
(2) The person’s communication on an issue under consideration or
review in a legislative, executive, judicial, administrative, or other
governmental proceeding;
(3) The person’s exercise of the right of freedom of speech and of
the press, the right to assemble and petition, and the right of
association, guaranteed by the United States Constitution or the
Ohio Constitution, on a matter of public concern.
R.C. 2747.01(B).
1. The Board of Education moved to withdraw the first cross-assignment of error prior to oral argument.
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{¶9} R.C. Chapter 2747 does not apply to “[a] legal action against a
governmental unit or an employee or agent of the governmental unit who was acting or
purporting to act in an official capacity.” R.C. 2747.01(C)(1).
{¶10} “Not later than sixty days after a party is served with a complaint, crossclaim, counterclaim, third-party claim, or other pleading that asserts a cause of action to
which this chapter applies, the party may file a motion for expedited relief to dismiss the
civil action or claim.” R.C. 2747.02.
{¶11} When a motion for expedited relief to dismiss a civil action or claim is filed,
“the court shall stay all other proceedings in the action between the moving party and
responding party” and “conduct a hearing not later than sixty days after the filing of a
motion for expedited relief.” R.C. 2747.03(A)(1) and R.C. 2747.04(A)(1).
{¶12} “If the court denies a motion for expedited relief under section 2747.04 of
the Revised Code, the denial is a final order under section 2505.02 of the Revised
Code and the moving party has an interlocutory right of appeal under that section.” R.C.
2747.05(C); R.C. 2505.02(B)(9) (“[a]n order that denies a motion for expedited relief
pursuant to section 2747.04 of the Revised Code” constitutes “a final order that may be
reviewed, affirmed, modified, or reversed”).
Second Cross-Assignment of Error
{¶13} We will first consider the Board of Education’s cross-assignment of error in
which it is argued that the present appeal must be dismissed on the grounds of res
judicata. The Board of Education cites original actions filed by Ames in the Supreme
Court of Ohio based on alleged violations of R.C. 121.22: State ex rel. Ames v. Andover
Village Council, Supreme Court Case No. 2025-1097, and State ex rel. Ames v. StowPAGE 4 OF 15
Case No. 2025-G-0049
Munroe Falls City School Dist. Bd. of Edn., Supreme Court Case Nos. 2025-1366, 2025-1424, and 2025-1474.
{¶14} In these cases, counterclaims were filed based upon Ames’s purportedly
frivolous and vexatious conduct. As in the present case, Ames filed motions to dismiss
the counterclaims pursuant to R.C. Chapter 2747. On December 24, 2025, the Supreme
Court in Andover Village and Stow-Monroe Falls denied Ames’s motions for expedited
dismissal of counterclaim “[u]pon consideration” and without further explanation. The
Board of Education concludes: “Since each of the separate orders from the Ohio Supreme
Court denying essentially the same R.C. 2747.02 motions are conclusive as to the rights
of the Board and Ames and constitute an absolute bar to the underlying R.C. 2747.02
motion … involving the same claims, demands, and causes of action, this Honorable
Court must dismiss the instant appeal on res judicata grounds.” Merit Brief of Appellee
at 17-18.
Res Judicata
{¶15} “Under the doctrine of res judicata, ‘a final judgment or decree rendered on
the merits by a court of competent jurisdiction is a complete bar to any subsequent action
on the same claim between the same parties or those in privity with them.’” (Citation
omitted.) Jones v. Wainright, 2020-Ohio-4870, ¶ 6. “In order to invoke res judicata, one
of the requirements is that the parties to the subsequent action must be identical to or in
privity with those in the former action.” Kirkhart v. Keiper, 2004-Ohio-1496, ¶ 8.
Res Judicata is not Grounds for Dismissing the Appeal
{¶16} We reject the Board of Education’s argument on cross-appeal. In the first
instance, the Board of Education has neither argued nor demonstrated that it is in privity
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Case No. 2025-G-0049
with the Andover Village Council and/or the Stow-Munroe Falls City School District Board
of Education. Without privity, res judicata is inapplicable.
{¶17} Moreover, we are not aware of any compelling authority for the proposition
that res judicata constitutes grounds for the dismissal of an appeal (as opposed to
grounds on which an appeal may be decided). The Board of Education cites Zapor
Architects Group, Inc. v. Riley, 2004-Ohio-3201 (7th Dist.) for the proposition that “a
motion to dismiss an appeal is proper on res judicata grounds.” Merit Brief of Appellee at
17. Zapor only supports this proposition incidentally.
{¶18} In Zapor, the court of appeals considered a motion to dismiss the appeal on
the basis of res judicata. The court rejected the argument because its proponent did not
alert the court “to any prior judgment or adjudication that would have preclusive effect,”
but, rather, referred to a document labeled as “Award of Arbitrator” issued subsequent to
the judgment under appeal. Id. at ¶ 15. The court did not consider whether res judicata
properly applied to a case pending on appeal, but concluded instead that, “[a]s res
judicata is concerned with the preclusive effect of prior judgments, the doctrine cannot be
used to justify dismissal of the instant appeal.” Id.
{¶19} Typically, res judicata is raised as an affirmative defense pursuant to Civil
Rule 8(C) and serves as a basis for summary judgment under Civil Rule 56. Notably, res
judicata is not recognized as a cause for the dismissal of an action for failure to state a
claim. See State ex rel. Green v. Wetzel, 2019-Ohio-4228, ¶ 6 (“the court of appeals
erred when it dismissed Green’s mandamus complaint on res judicata grounds,”
inasmuch as “[r]es judicata is an affirmative defense, Civ.R. 8(C), that ‘may not be raised
by motion to dismiss under Civ.R. 12(B)’”) (citation omitted).
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{¶20} Regardless, Civil Rules 8(C), 12 and 56 are “clearly inapplicable” and “shall
not apply to procedure … upon appeal to review any judgment, order or ruling.” Civ.R.
1(C); Nickelson v. Knab, 2012-Ohio-579, ¶ 2 (“[u]nder ordinary circumstances, neither the
Ohio Rules of Criminal Procedure nor the Ohio Rules of Civil Procedure are applicable to
cases on appeal”) (citation omitted); McDougald v. Kuhn, 2020-Ohio-4924, ¶ 10 (“neither
Civ.R. 12(C) nor Civ.R. 55 applies to proceedings on appeal”). Accordingly, res judicata
is not grounds for dismissing the present appeal.
{¶21} The second cross-assignment of error is without merit.
First Assignment of Error; Protection of Public Expression Act
{¶22} In his first assignment of error, Ames claims the trial court misconstrued the
Protection of Public Expression statute when it denied his Motion for Expedited Dismissal.
Matters of statutory interpretation are considered questions of law which are reviewed de
novo. 729 W. 130th St., L.L.C. v. Hinkley Twp. Bd. of Zoning Appeals, 2026-Ohio-595, ¶
16; Z.J. v. R.M., 2025-Ohio-5662, ¶ 17.
{¶23} The trial court denied Ames’s Motion for Expedited Dismissal “based on the
inapplicability of Chapter 2747 to the Defendant School Board per R.C. § 2747.01(C)(1).”
This provision provides: “This chapter does not apply to … [a] legal action against a
governmental unit or an employee or agent of the governmental unit who was acting or
purporting to act in an official capacity.” R.C. 2747.01(C)(1). Ames contends that the
foregoing provision only applies to the original action (mandamus), not the counterclaim
(vexatious litigator): “The Board’s counterclaim is a legal action brought by [a]
governmental unit against a person seeking the enforcement of R.C. 121.22. Since the
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Case No. 2025-G-0049
counterclaim is not against the Board but by the Board, R.C. Chapter 2747 applies.”
Assignments of Error and Brief at 3-4.
{¶24} Acknowledging that the issue is one of first impression (at least in this
Court), we conclude that the trial court was correct in its interpretation of R.C.
2747.01(C)(1), i.e., that the inapplicability of the Protection of Public Expression Act to
“legal action[s] against a governmental unit” encompasses the counterclaim filed by the
Board of Education in the present case.
{¶25} We acknowledge that this construction may produce tension with the Act’s
apparent purpose of protecting individuals who engage in protected public expression
from retaliatory litigation — a tension that is particularly acute where, as here, the
retaliatory claim is lodged by the very governmental unit the relator is suing — but where
the statutory language is plain and unambiguous, it is not the role of this court to override
what the General Assembly has enacted in favor of what it might have intended. Slingluff
v. Weaver, 66 Ohio St. 621 (1902), paragraph two of the syllabus.
Principles of Statutory Construction
{¶26} The first principle in the interpretation of statutes is that “we look at the
language of the statute to determine its meaning.” 729 W. 130th St., 2026-Ohio-595 at ¶
17; Slingluff at paragraph two of the syllabus (“[t]he question is not what did the general
assembly intend to enact, but what is the meaning of that which it did enact”). “When the
statutory language is plain and unambiguous, and conveys a clear and definite meaning,
we must rely on what the General Assembly has said.” Jones v. Action Coupling & Equip.,
Inc., 2003-Ohio-1099, ¶ 12.
{¶27} Adherence to the statutory text includes reliance “on the definitions provided
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Case No. 2025-G-0049
by the legislative body.” Lingle v. State, 2020-Ohio-6788, ¶ 15. “If a legislative definition
is available, we construe the words of the statute accordingly.” State v. Gonzales, 2017-Ohio-777, ¶ 4, citing R.C. 1.42 (“[w]ords and phrases that have acquired a technical or
particular meaning, whether by legislative definition or otherwise, shall be construed
accordingly”).
“Action” Statutorily Defined
{¶28} Within Title XXIII of the Revised Code, governing courts of common pleas,
the following definition of “action” is provided: “An action is an ordinary proceeding in a
court of justice, involving process, pleadings, and ending in a judgment or decree, by
which a party prosecutes another for the redress of a legal wrong, enforcement of a legal
right, or the punishment of a public offense.” R.C. 2307.01.
{¶29} The foregoing definition of “action” established that an “action” involves
pleadings. Ames’s Complaint in Mandamus constitutes “an ordinary proceeding in a court
of justice” and the Board of Education’s Answer and Counterclaim constitutes “pleadings”
within the action for mandamus. Under the plain wording of the statute, then, the
Protection of Public Expression Act does not apply to Ames’s mandamus action inasmuch
as it is an action against a governmental unit involving the Board’s counterclaim.
{¶30} Ames’s argument presupposes that the counterclaim constitutes a separate
or independent action. That position, however, is not supported in Ohio jurisprudence.
“Action” as Treated in the Rules of Civil Procedure
{¶31} We will first consider the Rules of Civil Procedure. The Rules provide that
“[t]here shall be only one form of action, and it shall be known as a civil action.” Civ.R. 2.
“A civil action is commenced by filing a complaint with the court.” Civ.R. 3(A). This
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provision applies to Ames’s Complaint in Mandamus but does not apply to the Board of
Education’s Answer and Counterclaim.
{¶32} The counterclaim is properly part of the Answer and constitutes a claim for
relief. “The Civil Rules identify only seven types of filings as pleadings: a complaint, an
answer, a reply to a counterclaim, an answer to a crossclaim, a third-party complaint, a
third-party answer, and a reply to a third-party answer if ordered by the court.” Ohio
Patrolmen’s Benevolent Assn. v. Cleveland, 2024-Ohio-2651, ¶ 26, citing Civ.R. 7(A). As
treated by the Civil Rules, a counterclaim is part of an answer. “A pleading shall state as
a counterclaim any claim which at the time of serving the pleading the pleader has against
any opposing party, if it arises out of the transaction or occurrence that is the subject
matter of the opposing party’s claim and does not require for its adjudication the presence
of third parties of whom the court cannot acquire jurisdiction.” Civ.R. 13(A). The Board
of Education’s counterclaim in the present case arises out of the Complaint for Mandamus
filed by Ames. See Answer and Counterclaim at 9-10 (“[t]he conduct of Ames in the
instant case amounts to ‘frivolous conduct’” and “‘vexatious conduct’”).
{¶33} Consistent with these Rules, the Supreme Court of Ohio has held: “All
existing claims between opposing parties that arise out of the same transaction or
occurrence must be litigated in a single lawsuit pursuant to Civ.R. 13(A), no matter which
party initiates the action.” Rettig Ents., Inc. v. Koehler, 1994-Ohio-127, paragraph one of
the syllabus. Compare Michigan Millers Mut. Ins. Co. v. Christian, 2003-Ohio-2455, ¶ 16
(3d Dist.) (“it is well established that counterclaims relating to the same transaction or
occurrence underlying the original claim relate back to the commencement of the action”).
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{¶34} We further note that the conception of counterclaims as being part of the
legal action initiated by the filing of a complaint is reflected in case law regarding final
orders. Among the types of orders recognized as final in the Revised Code is “[a]n order
that affects a substantial right in an action that in effect determines the action and prevents
a judgment.” R.C. 2505.02(B)(1). Discussing this statute in a criminal context and without
reference to R.C. 2307.01, the Supreme Court of Ohio remarked that “[t]he word ‘action’
has typically been understood to refer to the entire legal proceeding, regardless of how
many claims or charges are included in the proceeding.” State v. Craig, 2020-Ohio-455,
¶ 13.
{¶35} The Civil Rules provide for an interlocutory appeal upon the finding of no
just cause for delay in situations “[w]hen more than one claim for relief is presented in an
action whether as a claim, counterclaim, cross-claim, or third-party claim.” Civ.R. 54(B).
This Court has relied on the preceding provision to dismiss an appeal for lack of a final
order where “one claim for relief still remain[ed] pending in the form of appellee’s
counterclaim” and the “trial court did not make an express determination that there is no
just reason for delay.” Augusta v. Lemieux, 2004-Ohio-5109, ¶ 4 (11th Dist.). The
implication of these cases is that claims raised by way of counterclaim are part of the
legal action in which they were raised.
Contrary Authority
{¶36} This Court is aware of authority that treats a counterclaim as an “action” as
defined in R.C. 2307.01. In Stults & Assoc., Inc. v. United Mobile Homes, Inc., 1998 WL
720471 (3d Dist.), the court of appeals held that a corporate defendant was prevented
from raising a counterclaim under R.C. 1703.29(A) which “specifically prohibit[ed] an
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unlicensed foreign corporation from maintaining any action in any court until the
corporation obtains an Ohio license.” Id. at *5.
{¶37} Similarly, in Settle-Muter Elec. Ltd. v. Intertech Security, LLC, 2018-Ohio4839 (10th Dist.), the court of appeals held that “the filing and prosecution of a
counterclaim constitutes an action” inasmuch as the party raising the counterclaim “uses
the process and procedures of the Ohio judicial system to seek a legal remedy from or
against another party.” Id. at ¶ 14. In Settle-Muter, the court was construing R.C.
2711.02(B) which provides for the “stay [of] the trial of the action until the arbitration of
[an] issue has been had.” The court concluded that the statute “only obligates a trial court
to stay the litigation of non-arbitrable claims if those claims are encompassed in the action
stayed.” Id. at ¶ 16. In other words, if arbitration is raised in a counterclaim, the statutory
stay only applied to the counterclaim and not to the complaint or cross-claims as these
constituted separate actions.
{¶38} We do not find the decisions in Stults or Settle-Muter precedential or
controlling as they interpreted “action” in the context of statutes which are not relevant to
the present case. Our focus is on the plain meaning of a “legal action against a
governmental unit” as used in R.C. 2747.01(C)(1) and whether such action encompasses
the Board of Education’s counterclaim. The present case, a single action despite multiple
claims, is a legal action against a governmental unit. It is the legal action as a whole, not
particular legal claims, that is excepted from the application of the Protection of Public
Expression Act. Consistent with this understanding, the Civil Rules provide that an action
is commenced by the filing of a complaint while a counterclaim is pled as part of an answer
and case law treats the counterclaim as part of the original action.
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{¶39} Whether the foregoing analysis necessarily precludes or contradicts the
decisions of the Third and Tenth Districts regarding unlicensed corporations raising
counterclaims and stays pending arbitration is not an issue for this Court to decide. In
resolving the present appeal, it is enough to hold that the exception to the applicability of
the Protection of Public Expression Act contained in R.C. 2747.01(C)(1) is written to apply
broadly to a “legal action” which may encompass multiple claims rather than narrowly to
particular claims.
{¶40} The first assignment of error is without merit.
Disposition of the Remaining Assignment of Error and Cross-Assignments of Error
{¶41} In his second assignment of error, Ames argues that the trial court erred by
not holding the hearing required by R.C. 2747.04(A)(1). The requirement to hold a
hearing only becomes operative if the provisions of the Protection of Public Expression
Act apply. Under the first assignment of error, we affirmed the trial court’s judgment that
the Act does not apply to the present action.
{¶42} Accordingly, the second assignment of error is without merit.
{¶43} Likewise, the Board of Education’s third, fifth, and sixth cross-assignments
are premised on the Protection of Public Expression Act being generally applicable, but
assert that Ames is unable to avail himself of its provisions. We find these arguments
moot given our disposition of Ames’s first assignment of error.
{¶44} In the fourth cross-assignment of error, the Board of Education argues that,
“[b]y filing his R.C. 121.22 action against the Board, Ames automatically triggered the
R.C. 2747.01(C)(1) exemption to R.C. Chapter 2747 for the entire legal action.” Merit
Brief of Appellee at 23.
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{¶45} The fourth cross-assignment of error provides an independent and sufficient
ground upon which to affirm the trial court’s judgment. The Board of Education is
unquestionably a governmental unit. See R.C. 9.23(D)(1) (“‘[g]overnmental entity’ means
a state agency or a political subdivision of the state”); R.C. 2744.01(F) (“‘[p]olitical
subdivision’ … means a … school district”). By filing his Complaint in Mandamus against
the Board, Ames initiated a “legal action against a governmental unit” within the plain
meaning of R.C. 2747.01(C)(1). The Protection of Public Expression Act’s exemption
therefore attached to the entire legal action at its inception — not merely to particular
claims or pleadings filed within it. As we have concluded above, a legal action under R.C.
2307.01 is a single proceeding encompassing all pleadings, including counterclaims. It
follows that the exemption written to apply to a "legal action against a governmental unit"
applies with equal force to every claim and counterclaim within that action. Even if our
analysis of the counterclaim-as-pleading question were in error, this independent basis
for affirmance would remain intact. To the extent the fourth cross-assignment of error is
premised on the Board of Education’s status as a governmental unit, it has merit.
{¶46} For the foregoing reasons, the judgment of the Geauga County Court of
Common Pleas is affirmed. Costs to be taxed against the appellant.
EUGENE A. LUCCI, J.,
ROBERT J. PATTON, J.,
concur.
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JUDGMENT ENTRY
For the reasons stated in the Opinion of this court, the fourth cross-assignment of
error is with merit. The two assignments of error and second cross-assignment of error
are without merit. The third, fifth, and sixth cross-assignments of error are moot. The
order of this court is that the judgment of the Geauga County Court of Common Pleas is
affirmed.
Appellee’s Motion to Withdraw the First Cross-Assignment of Error is granted.
Costs to be taxed against appellant.
JUDGE SCOTT LYNCH
JUDGE EUGENE A. LUCCI,
concurs
JUDGE ROBERT J. PATTON,
concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate
pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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