State ex rel. Bristow v. Frary & Sheldon

2018 Ohio 3178

• Court: Ohio Court of Appeals
• Decided: August 8, 2018
• Docket: 18CA29
• Status: Published

Opinion

[Cite as State ex rel. Bristow v. Frary & Sheldon, 2018-Ohio-3178.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX REL : JUDGES: LONNY BRISTOW : : Hon. John W. Wise, P.J. Relator : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise Jr., J. -vs- : : LINDA FRARY : Case No. 18CA29 Richland County Clerk of Courts : : and : : STEVE SHELDON : Richland County Sheriff : : : Respondents : OPINION

CHARACTER OF PROCEEDING: Writ of Mandamus

JUDGMENT: Dismissed

DATE OF JUDGMENT: August 8, 2018

APPEARANCES:

For Relator: For Respondent:

Lonny Bristow Gary D. Bishop P.O. Box 1316 Richland County Prosecuting Attorney Wooster, Ohio 44691 Harrison L. Crumrine Assistant Prosecuting Attorney 38 South Park Street Mansfield, Ohio 44902 Delaney, P.J.

{¶1} Relator has filed a Petition for Writ of Mandamus requesting this Court

order Respondents to comply with Ohio Revised Code Section 2335.30. Respondents

have filed a motion to dismiss for failure to state a claim upon which relief may be granted.

We converted the motion to a motion for summary judgment pursuant to Civ.R. 12(B).

FACTS

{¶2} Revised Code Section 2335.30 provides,

Within three months after being elected or appointed to office, each county officer shall make and post, in a conspicuous place in his office, for the inspection by all persons who have business in his office, a table of the fees to which he is entitled.

{¶3} Relator visited Respondents’ offices and could not locate a table of fees

posted pursuant to R.C. 2335.30. Respondents provided affidavits in support of their

motion to dismiss stating the tables of fees have been posted.

{¶4} Respondent Frary’s affidavit indicates she placed the table of fees on a

bulletin board across from the clerk’s office. While the affidavit provided by Respondent

Sheldon’s office indicates the table of fees has been placed “in a binder that is marked

on the cover ‘Richland County Sheriff’s Office Records Policy & Fee Schedule,’ which is

located in a conspicuous place on the front counter of the Sheriff’s Office’s Records and

Administration Office. . .”, Relator takes issue with the manner in which Respondent

Sheldon posted the table. Relator argues Respondent Sheldon has not complied with

the statute because the table of fees was not “posted.” MANDAMUS

{¶5} To be entitled to extraordinary relief in mandamus, [a relator] must establish

a clear legal right to the requested relief, a clear legal duty on the part of [a respondent]

to provide it, and the lack of an adequate remedy in the ordinary course of the law. State

ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012–Ohio–69, 960 N.E.2d 452, ¶ 6.

{¶6} The purpose of the statute is to provide notice to the public of the fees the

county office can collect. The significance of the statute is the notice to the public and

not the manner in which the notice is provided.

{¶7} Relator appears to argue the notice must be hanging in the office in a

vertical fashion, however, one definition of the verb post is to “display (a notice) in a

public place.” Google Dictionary,

https://www.google.com/search?q=definition+of+post&ie=utf-8&oe=utf-8&client=firefox-

b-1 (July 9, 2018).

{¶8} Respondent Sheldon has complied with the spirit and intent of the statute

by displaying the table in a labeled binder in a conspicuous location for the public to

view. Likewise, Respondent Frary has complied with the statute by placing the table on

a bulletin board in the hallway across from the clerk’s counter.

{¶9} The Supreme Court has held mandamus will not issue where the

requested relief has been obtained, “Neither procedendo nor mandamus will compel the

performance of a duty that has already been performed.” State ex rel. Kreps v.

Christiansen (2000), 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668. {¶10} Because Respondents have already complied with the statute, the

complaint for writ of mandamus is dismissed as moot.

By: Delaney, J.

J. Wise, P.J. and

E. Wise Jr., J. concur.