[Cite as Johns v. Allen, 2013-Ohio-2045.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
ELISE JOHNS, : PER CURIAM OPINION
Relator, : CASE NO. 2013-T-0007 - vs - :
KAREN INFANTE ALLEN, et al., :
Respondents. :
Original Action for Writ of Mandamus.
Judgment: Petition dismissed.
Elise Johns, pro se, 1932 Stepney Street, Niles, Ohio 44406 (Relator).
Dennis Watkins, Trumbull County Prosecutor, LuWayne Annos, Assistant Prosecutor, and Lynn B. Griffith, III, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Respondents).
PER CURIAM.
{¶1} This action in mandamus is presently before this court on the Motion for
Dismissal or in the Alternative Motion for Summary Judgment of respondents, Trumbull
County Clerk of Courts Karen Infante Allen, Trumbull County Prosecuting Attorney
Dennis Watkins, and Trumbull County Assistant Prosecuting Attorney Diane Barber. As
the basis for this Motion, respondents maintain that the Petition of relator, Elise Johns,
fails to state a claim upon which a writ can be granted because her request for public
records is moot. For the following reasons, respondents’ Motion has merit and,
accordingly, relator’s Petition is dismissed. {¶2} In relator’s Petition for Writ of Mandamus, filed February 4, 2013, she
requested that respondents be ordered to provide certain public records to her. These
records include various documents related to Trumbull County Court Case Nos. 95-CR-
696 and 96-CR-599, State v. Cioffi. Relator argues that she requested these items
pursuant to R.C. 149.43, the Ohio Public Records Act, but her request was denied by
respondents.
{¶3} In moving to dismiss relator’s claim, respondents have raised several
arguments. They assert that the claim is moot, since respondents have agreed to
provide all available records to relator. In support, respondents attached a letter they
assert has been mailed to relator, dated February 21, 2013, which stated that the public
records were available for the relator to view and copy at the courthouse.
{¶4} Relator did not file a response to the Motion to Dismiss.
{¶5} As an initial matter, respondents emphasize that relator failed to properly
caption her petition and this is grounds for dismissal. “The failure to caption an original
action properly constitutes sufficient grounds for dismissing the petition.” (Citation
omitted.) Snype v. Enlow, 11th Dist. No. 2011-P-0096, 2012-Ohio-1272, ¶ 4; see also
Allen v. Court of Common Pleas of Allen Cty., 173 Ohio St. 226, 227, 181 N.E.2d 270
(1962). R.C. 2731.04 states, in part, that an “[a]pplication for the writ of mandamus
must be by petition, in the name of the state on the relation of the person applying, and
verified by affidavit.” The caption of relator’s Petition in this case does not indicate that
the request is made in the name of the state on the relation of Johns. Instead, the
petition was filed by Johns in her individual capacity.
{¶6} However, even if relator had properly captioned her petition, respondents
would still be entitled to judgment as a matter of law.
2 {¶7} “A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural in nature and tests the sufficiency of the complaint.” Huffman v.
Willoughby, 11th Dist. No. 2007-L-040, 2007-Ohio-7120, ¶ 16, citing State ex rel.
Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378
(1992). Under Civ.R. 12(B)(6), “the factual allegations and all reasonable inferences in
a complaint must be accepted as true and viewed in a light most favorable to the
plaintiff. In order to dismiss a complaint under Civ.R. 12 or to enter judgment on the
pleadings, a court must be convinced, based solely on the allegations in the complaint,
that the plaintiff can prove no set of facts entitling him to recovery.” (Citation omitted.)
State ex rel. Simeone v. Niles, 11th Dist. No. 2008-T-0059, 2008-Ohio-7000, ¶ 18.
{¶8} In the present matter, relator has asserted in her Petition that she has not
received the records she requested. Since this is a motion to dismiss pursuant to Civ.R.
12(B)(6), this court must rely on the factual allegations in the Petition and accept these
allegations as true.
{¶9} Mandamus is a writ issued to a public officer to perform an act “which the
law specially enjoins as a duty resulting from an office.” R.C. 2731.01. “For a writ of
mandamus to issue, the relator must establish a clear legal right to the relief prayed for;
the respondent must have a clear legal duty to perform the act; and the relator must
have no plain and adequate remedy in the ordinary course of the law.” State ex rel.
Widmer v. Mohney, 11th Dist. No. 2007-G-2776, 2008-Ohio-1028, ¶ 31, citing State ex
rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79, 80, 526 N.E.2d 786
(1988).
{¶10} This court has found that, although it would usually be inappropriate to
consider evidentiary materials in ruling on a motion to dismiss under Civ.R. 12(B)(6),
3 such materials can be reviewed when the basis of the dismissal motion is mootness.
State ex rel. Robinson v. McKay, 11th Dist. No. 2001-T-0125, 2002 Ohio App. LEXIS
587, *3 (Feb. 15, 2002). Respondent alleges that the present action is moot, such that
it would be appropriate to consider the evidentiary materials attached to the Motion to
Dismiss. In support of its assertion that the action is moot, respondent attached the
February 21, 2013 letter, stating that the materials requested by relator were either
available for review at the courthouse or were not part of the record because they were
privileged.
{¶11} In the present matter, we find that dismissal of the Petition against
respondent Allen is warranted. There is an adequate remedy at law through
respondent’s agreement to provide all available documents to relator. The letter sent to
relator specifically stated that she could come to the courthouse to review the case file
and would be allowed to make copies of the documents in the file. Under R.C.
149.43(B)(1), “making the records ‘available for inspection to any person at all
reasonable times during regular business hours’” fulfills the requirement of complying
with a public records request. (Citation omitted.) Strothers v. Norton, 131 Ohio St.3d
359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 21. This is what respondents have done, as
indicated by the letter from Allen.
{¶12} Since respondent Allen has agreed to provide access to the documents in
the court file and did not deny relator’s request as to these items, relator’s request is
moot. State ex rel. Gannett Satellite Information Network v. Shirey, 78 Ohio St.3d 400,
401, 678 N.E.2d 557 (1997) (“provision of the requested records to the relator in a
mandamus action brought under R.C. 149.43 renders the mandamus claim moot”);
State ex rel. Cincinnati Enquirer v. Ronan, 124 Ohio St.3d 17, 2009-Ohio-5947, 918
4 N.E.2d 515, ¶ 4 (the mandamus complaint was moot because the respondent produced
the requested records after the mandamus action was filed); State ex rel. Darling v.
Lake Cty., 11th Dist. No.
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[Cite as Johns v. Allen, 2013-Ohio-2045.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
ELISE JOHNS, : PER CURIAM OPINION
Relator, : CASE NO. 2013-T-0007 - vs - :
KAREN INFANTE ALLEN, et al., :
Respondents. :
Original Action for Writ of Mandamus.
Judgment: Petition dismissed.
Elise Johns, pro se, 1932 Stepney Street, Niles, Ohio 44406 (Relator).
Dennis Watkins, Trumbull County Prosecutor, LuWayne Annos, Assistant Prosecutor, and Lynn B. Griffith, III, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Respondents).
PER CURIAM.
{¶1} This action in mandamus is presently before this court on the Motion for
Dismissal or in the Alternative Motion for Summary Judgment of respondents, Trumbull
County Clerk of Courts Karen Infante Allen, Trumbull County Prosecuting Attorney
Dennis Watkins, and Trumbull County Assistant Prosecuting Attorney Diane Barber. As
the basis for this Motion, respondents maintain that the Petition of relator, Elise Johns,
fails to state a claim upon which a writ can be granted because her request for public
records is moot. For the following reasons, respondents’ Motion has merit and,
accordingly, relator’s Petition is dismissed. {¶2} In relator’s Petition for Writ of Mandamus, filed February 4, 2013, she
requested that respondents be ordered to provide certain public records to her. These
records include various documents related to Trumbull County Court Case Nos. 95-CR-
696 and 96-CR-599, State v. Cioffi. Relator argues that she requested these items
pursuant to R.C. 149.43, the Ohio Public Records Act, but her request was denied by
respondents.
{¶3} In moving to dismiss relator’s claim, respondents have raised several
arguments. They assert that the claim is moot, since respondents have agreed to
provide all available records to relator. In support, respondents attached a letter they
assert has been mailed to relator, dated February 21, 2013, which stated that the public
records were available for the relator to view and copy at the courthouse.
{¶4} Relator did not file a response to the Motion to Dismiss.
{¶5} As an initial matter, respondents emphasize that relator failed to properly
caption her petition and this is grounds for dismissal. “The failure to caption an original
action properly constitutes sufficient grounds for dismissing the petition.” (Citation
omitted.) Snype v. Enlow, 11th Dist. No. 2011-P-0096, 2012-Ohio-1272, ¶ 4; see also
Allen v. Court of Common Pleas of Allen Cty., 173 Ohio St. 226, 227, 181 N.E.2d 270
(1962). R.C. 2731.04 states, in part, that an “[a]pplication for the writ of mandamus
must be by petition, in the name of the state on the relation of the person applying, and
verified by affidavit.” The caption of relator’s Petition in this case does not indicate that
the request is made in the name of the state on the relation of Johns. Instead, the
petition was filed by Johns in her individual capacity.
{¶6} However, even if relator had properly captioned her petition, respondents
would still be entitled to judgment as a matter of law.
2 {¶7} “A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural in nature and tests the sufficiency of the complaint.” Huffman v.
Willoughby, 11th Dist. No. 2007-L-040, 2007-Ohio-7120, ¶ 16, citing State ex rel.
Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378
(1992). Under Civ.R. 12(B)(6), “the factual allegations and all reasonable inferences in
a complaint must be accepted as true and viewed in a light most favorable to the
plaintiff. In order to dismiss a complaint under Civ.R. 12 or to enter judgment on the
pleadings, a court must be convinced, based solely on the allegations in the complaint,
that the plaintiff can prove no set of facts entitling him to recovery.” (Citation omitted.)
State ex rel. Simeone v. Niles, 11th Dist. No. 2008-T-0059, 2008-Ohio-7000, ¶ 18.
{¶8} In the present matter, relator has asserted in her Petition that she has not
received the records she requested. Since this is a motion to dismiss pursuant to Civ.R.
12(B)(6), this court must rely on the factual allegations in the Petition and accept these
allegations as true.
{¶9} Mandamus is a writ issued to a public officer to perform an act “which the
law specially enjoins as a duty resulting from an office.” R.C. 2731.01. “For a writ of
mandamus to issue, the relator must establish a clear legal right to the relief prayed for;
the respondent must have a clear legal duty to perform the act; and the relator must
have no plain and adequate remedy in the ordinary course of the law.” State ex rel.
Widmer v. Mohney, 11th Dist. No. 2007-G-2776, 2008-Ohio-1028, ¶ 31, citing State ex
rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79, 80, 526 N.E.2d 786
(1988).
{¶10} This court has found that, although it would usually be inappropriate to
consider evidentiary materials in ruling on a motion to dismiss under Civ.R. 12(B)(6),
3 such materials can be reviewed when the basis of the dismissal motion is mootness.
State ex rel. Robinson v. McKay, 11th Dist. No. 2001-T-0125, 2002 Ohio App. LEXIS
587, *3 (Feb. 15, 2002). Respondent alleges that the present action is moot, such that
it would be appropriate to consider the evidentiary materials attached to the Motion to
Dismiss. In support of its assertion that the action is moot, respondent attached the
February 21, 2013 letter, stating that the materials requested by relator were either
available for review at the courthouse or were not part of the record because they were
privileged.
{¶11} In the present matter, we find that dismissal of the Petition against
respondent Allen is warranted. There is an adequate remedy at law through
respondent’s agreement to provide all available documents to relator. The letter sent to
relator specifically stated that she could come to the courthouse to review the case file
and would be allowed to make copies of the documents in the file. Under R.C.
149.43(B)(1), “making the records ‘available for inspection to any person at all
reasonable times during regular business hours’” fulfills the requirement of complying
with a public records request. (Citation omitted.) Strothers v. Norton, 131 Ohio St.3d
359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 21. This is what respondents have done, as
indicated by the letter from Allen.
{¶12} Since respondent Allen has agreed to provide access to the documents in
the court file and did not deny relator’s request as to these items, relator’s request is
moot. State ex rel. Gannett Satellite Information Network v. Shirey, 78 Ohio St.3d 400,
401, 678 N.E.2d 557 (1997) (“provision of the requested records to the relator in a
mandamus action brought under R.C. 149.43 renders the mandamus claim moot”);
State ex rel. Cincinnati Enquirer v. Ronan, 124 Ohio St.3d 17, 2009-Ohio-5947, 918
4 N.E.2d 515, ¶ 4 (the mandamus complaint was moot because the respondent produced
the requested records after the mandamus action was filed); State ex rel. Darling v.
Lake Cty., 11th Dist. No. 2012-L-079, 2013-Ohio-1291, ¶ 27 (since respondent is willing
to make the requested document available to relator, “her mandamus action is
essentially seeking performance of an obligation that either does not exist or has
already been met, thereby rendering it moot”).
{¶13} We emphasize that relator, who filed no responsive pleading to the Motion
to Dismiss, did not deny the assertion that she was sent the letter and was provided
access to the documents she requested through access to the court file. She also
attached Allen’s letter to a subsequent filing, a response letter she wrote to Allen,
acknowledging that she received the letter. Relator’s failure to deny the assertions that
she was able to view the records at any time and her acknowledgment that she
received the letter informing her of this makes her unable to deny that the material is
being provided to her. See Darling at ¶ 23 (“In her responsive pleadings, relator has
never denied or otherwise challenged the assertions contained in this notice.
Therefore, it is not refuted that a significant amount of material has been made available
to relator that, for whatever reason, she simply refuses to pick up. This puts relator in a
position where she is unable to deny that the material has been provided to her.”).
{¶14} Further, relator has not been denied access because she has not
attempted to obtain the documents that respondents have agreed to make available.
Relator has made no assertion that this compliance by the respondents does not meet
her needs, that certain documents are not being made available, or that respondents’
action is insufficient to fulfill their statutory duty. The only response to the letter was a
5 March 4, 2013 letter filed by her, asking for the documents to be prepared for her pick
up and requesting information related to the time and place of pick up.
{¶15} In regards to the other respondents, Watkins and Barber, they argue that
they were never given a public records request and, therefore, they cannot be said to
have denied such a request. A document attached to relator’s Petition, a photocopy of
certified mail that was returned to relator, showed that delivery was attempted but the
mail carrier was unable to forward the request. Relator concedes that this letter was
undelivered. Further, relator asserts that she attempted to serve the respondents but
does not affirmatively allege that such service was completed. Since relator has failed
to allege that respondents Watkins and Barber actually received a public records
request, we find that they had no duty to prepare or make available public records being
sought by relator. See State v. Bush, 11th Dist. No. 2001-T-0042, 2001 Ohio App.
LEXIS 4511, *3 (Oct. 5, 2001) (a person seeking access to public records under R.C.
149.43 must make a proper request before seeking recourse through a mandamus
action).
{¶16} For the foregoing reasons, the dismissal of relator’s Petition is justified
under Civ.R. 12(B)(6) because she has failed to state a viable claim for any requested
relief and the matter is moot. Respondents’ Motion to Dismiss is granted. It is the order
and judgment of this court that relator’s Petition for Writ of Mandamus is hereby
dismissed in its entirety.
TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., THOMAS R. WRIGHT, J., concur.