STATE OF OHIO, ex rel., GMS MANAGEMENT CO., INC., RELATOR, - VS - ANTHONY VIVO, CLERK OF COURT, et al., RESPONDENTS.
CASE NO. 10 MA 1
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
August 17, 2010
2010-Ohio-4184
CHARACTER OF PROCEEDINGS: Petition for Writ of Mandamus. JUDGMENT: Petition Dismissed.
For Relator: Attorney Michael R. Stavnicky Singerman, Mills, Desberg & Kauntz Co., L.P.A. 3401 Enterprise Parkway, Suite 200 Beachwood, OH 44122
For Respondents: Attorney Paul J. Gains Prosecuting Attorney Attorney Donald A. Duda, Jr. Assistant Prosecuting Attorney 761 Industrial Road Youngstown, OH 44509
JUDGES: Hon. Mary DeGenaro Hon. Joseph J. Vukovich Hon. Cheryl L. Waite
PER CURIAM:
{¶1} Relator, GMS Management Co., Inc., filed a Complaint for Writ of Mandamus seeking an order compelling Respondents, Anthony Vivo, Clerk of Court for Mahoning County Court; David D‘Apolito, Judge, Mahoning County Court, Area No. 4; and the Mahoning County Court (hereinafter Respondents) to provide Relator with an accounting of all court costs and fees associated with Relator‘s matters at the Mahoning County Court for the years 2005 through 2009. Relator asserts two separate grounds for the relief requested: (1) Respondents’ failure to abide by a September 24, 2009 Agreed Judgment Entry in Mahoning County Court No. 4 Case No. 09 OPEN, in which Respondents agreed to provide the accounting, and (2) Respondents’ failure to comply with Relator‘s subsequent
Facts and Procedural Background
{¶2} The facts as can be gleaned from the pleadings are generally undisputed. A dispute arose between the parties regarding payment of court costs and fees along with the timely processing of court filings. As a result of this dispute, on August 6, 2009, Relator filed an original action in the Ohio Supreme Court, Case No. 09-1417, seeking writs of mandamus, prohibition, and procedendo. While that case was pending, on September 2, 2009, Respondent County Court sua sponte entered a final appealable judgment against Relator in a case the County Court created under the case number “09 OPEN” and entitled In re: GMS Management Co., Inc. v. Unpaid Court Costs, Fees and Delinquencies. In that entry, Respondent Trial Court ordered Relator to pay alleged delinquent court costs in excess of $3,000.00. That judgment also barred Respondent Mahoning County Clerk of Courts from accepting any new pleadings from Relator, whether or not court costs were advanced, until all prior alleged delinquent costs and fees were paid in full.
{¶3} On September 24, 2009, the parties entered into an Agreed Judgment Entry
{¶4} On October 20, 2009, Relator wrote a letter to Respondents inquiring about the status of the accounting. In response, in a letter dated October 29, 2009, Respondents provided Relator with a list of all cases it had filed in the County Court during the relevant time period and directed Relator to the publicly accessible online docket to calculate its own accounting of costs and fees. Respondents also attached a copy of a docket sheet for one of Relator‘s cases as an example. Finally, Respondents attached a fee schedule from the Sheriff‘s Department.
{¶5} On November 11, 2009, Relator replied via letter, directly to Respondent Anthony Vivo, asserting that merely directing it to the online docket was insufficient as Respondents had agreed in the September 24, 2009 judgment entry to provide a full accounting of all costs and fees. In that same letter, Relator made a formal public records request, pursuant to
{¶6} On November 20, 2009, Respondent Vivo responded and again directed Relator to the Court‘s online docket. In the event Relator still sought the accounting via a public records request Respondent Vivo advised Relator that it would have to pay up-front costs of ten cents per page, plus an additional $5.00 fee per cost bill.
{¶7} Relator filed the instant complaint for writ of mandamus with this Court on January 6, 2010, attached to which was a brief in support along with six exhibits, including
Legal Framework
{¶8} A
{¶9} If, however, pertinent facts are uncontroverted and it appears beyond doubt that a relator is entitled to the requested extraordinary relief in mandamus, a peremptory writ will be granted. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, at ¶14.
{¶10} In order to be entitled to a writ of mandamus a relator must establish (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide such relief, and (3) the lack of an adequate remedy in the ordinary course of law. State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448, 663 N.E.2d 639. The burden is on the relator to establish the elements to obtain the writ. State ex rel. Dehler v. Sutula (1995), 74 Ohio St.3d 33, 34, 656 N.E.2d 332.
Initial Procedural Arguments
{¶11} As a threshold matter, Relator argues that Respondents’
{¶12} First, “[t]he Rules of Civil Procedure are generally applicable in original
Agreed Judgment Entry Claim
{¶13} In Count One of its complaint, Relator claims it is entitled to a writ of mandamus compelling Respondents to provide it with an accounting based upon Respondents’ failure to abide by the terms of the September 24, 2009 Agreed Judgment Entry.
{¶14} Initially, Respondents argue that this court may not consider Relator‘s brief in support of its complaint for mandamus and corresponding exhibits, including the Agreed Judgment Entry and the subsequent written correspondence between the parties. We disagree. “Where documents are attached or incorporated into the complaint, the face of the complaint to be evaluated includes those documents. See
{¶15} Furthermore, in their Answer, Respondents concede the existence of the Agreed Judgment Entry along with the subsequent written correspondence between the parties regarding the accounting. Answer at ¶12-14, 16, 17.
{¶16} Thus, we will consider the attachments to Relator‘s complaint, one of which is the Agreed Judgment Entry which states in pertinent part:
{¶18} “ORDERED, ADJUDGED AND DECREED that the parties shall proceed via a direct appeal from the [September 2, 2009] Judgment relating to the Dispute, the Court‘s ability to assess certain charges, and the validity of the [September 2, 2009] Judgment. GMS has agreed to dismiss the Original Action [in the Ohio Supreme Court] without prejudice. In exchange for dismissing the Original Action, Respondents have agreed to: (i) stay the Judgment and permit GMS to file new pleadings, motions and actions; (ii) timely process and sign all requests, entries, orders, judgments, writs, and garnishments sought by GMS; (iii) timely and expeditiously hold all trials and hearing in matters relating to GMS; and (iv) provide GMS with an accounting of all court costs and fees associated with GMS matters for the years 2005 through 2009.” (Emphasis added).
{¶19} It is undisputed that after a written request for the accounting, Respondents directed Relator to the County Court‘s online docket and explained how Relator could create its own accounting. Relator argues that the terms of the Agreed Judgment Entry require Respondents to provide Relator with an accounting created by Respondents, and the First Count of Relator‘s mandamus complaint requests a writ compelling Respondents to provide the same.
{¶20} To the contrary, Respondents argue that the Agreed Judgment Entry does not impose upon them a clear legal duty. They contend that for mandamus purposes, the legal duty must stem from a statute. Although there is a dearth of case law addressing this precise situation, mandamus will lie to compel performance based on a court order. See, e.g., State ex rel. Maloney v. Sherlock, 100 Ohio St.3d 77, 2003-Ohio-5058, 796 N.E.2d 897, at ¶25 (holding that mandamus is an appropriate vehicle for enforcing a court‘s funding order); State ex rel. Donaldson v. Alfred (1993), 66 Ohio St.3d 327, 329, 612 N.E.2d 717 (same).
{¶21} Respondents also contend that Relator‘s first claim should be dismissed because Relator has an adequate remedy at law. Specifically, they claim that Relator could have filed a show cause motion with the County Court with regard to the Agreed Judgment Entry. Indeed, the filing of a contempt action is an adequate remedy in the ordinary course of law that precludes the grant of a writ of mandamus. State ex rel. Weaver v. Ohio Adult Parole Auth., 116 Ohio St.3d 340, 2007-Ohio-6435, 879 N.E.2d 191, at ¶6.
{¶22} Relator contends, however, that asking the County Court to hold a hearing to decide whether the County Court is itself in contempt of the Agreed Judgment Entry, to which it is a party, is far outside the ordinary course of law and would not provide Relator with an adequate remedy. The inherent problem with this argument, however, is that although the County Court is a party to the Agreed Judgment Entry, it is not the party from whom the accounting is sought. Rather, only Respondent Anthony Vivo, Clerk of Court, can provide the accounting. It is within the ordinary course of law for a court to hold a contempt proceeding regarding its own clerk. And in the event a party disagrees with the disposition of such contempt proceedings, the decision may be appealed. See, e.g., In re Ahmed, 7th Dist. No. 03 BE 74, 2005-Ohio-1116 (involving appeal by conservatee from probate court‘s denial of her motion to hold deputy probate court clerk in contempt and order clerk to file a complete record in various appeals).
{¶23} Relator had an adequate remedy in the ordinary course of law with regard to enforcement of the accounting provision in the Agreed Judgment Entry. Accordingly, we grant Respondents’ motion to dismiss the First Count of Relator‘s complaint.
Public Records Request Claim
{¶24} Count Two of Relator‘s complaint concerns its subsequent public records request for the accounting. As indicated, on November 11, 2009, Relator made a formal public records request to Respondent Vivo, pursuant to
{¶25} In its mandamus complaint, Relator claims that pursuant to
{¶26} Sup.R. 44 through 47 provide specific procedures regarding public access to court records. ” ‘Court record’ means both a case document and an administrative document, regardless of physical form or characteristic, manner of creation, or method of storage.” Sup.R. 44(B). The Rules of Superintendence differ from
{¶27} Sup.R. 47 provides that “a person aggrieved by the failure of a court or clerk of court to comply with the requirements of Sup. R. 44 through 47 may pursue an action in mandamus pursuant to Chapter 2731. of the Revised Code.” In Cleveland Constr., Inc., the Eighth District dismissed a mandamus complaint where the relator sought court records pursuant to
{¶28} Likewise, Relator has no legal right under the statute asserted in the complaint, i.e.,
Conclusion
{¶29} Based on the foregoing, we grant Respondents’
{¶30} Costs taxed against Relator. Final order. Clerk to serve notice as provided in the Civil Rules.
Vukovich, P.J., concurs.
Waite, J., concurs.
DeGenaro, J., concurs.