THE STATE EX REL. MILLER, APPELLEE AND CROSS-APPELLANT, v. BRADY, JUDGE, APPELLANT AND CROSS-APPELLEE.
No. 2009-0313
Supreme Court of Ohio
Submitted September 16, 2009—Decided September 24, 2009.
123 Ohio St.3d 255, 2009-Ohio-4942
{¶ 1} This is an appeal and cross-appeal from a judgment granting a writ of mandamus to compel appellant and cross-appellee, Michael L. Brady, in his capacities as judge and clerk of the Logan County Court of Common Pleas, Family Court, Probate Division, to make an assessment that was filed in a guardianship case in the probate court available for inspection and copying under the Public Records Act,
Case Background
{¶ 2} Miller is a party to a guardianship proceeding concerning her father in the Logan County Probate Court, and Brady presides over the case. On May 29, 2008, a consultation summary assessment of Miller‘s father by Dr. J. Tennenbaum, Ph.D., was filed in the guardianship case. On that same date, Brady
{¶ 3} Miller requested copies of the assessment by letter dated May 31 and facsimile dated June 2. Brady in effect refused Miller‘s requests by failing to respond to them within a reasonable period of time.
{¶ 4} Miller filed a complaint in the Court of Appeals for Logan County for a writ of mandamus to compel Brady, in his capacities as judge and clerk of the probate court, to provide her with access to, including the right to inspect and copy, the assessment that was filed in the guardianship case. She also requested an award of reasonable attorney fees. Brady submitted an answer.
{¶ 5} The court of appeals issued an alternative writ and ordered Brady to file a response in the form of a trial brief setting forth good cause why the requested relief should not be granted. More specifically, the court of appeals stated that the judge “shall set forth good cause why the Assessment at issue is not a ‘public record’ subject to [Miller‘s] request to inspect and be provided a copy pursuant to
{¶ 6} In November 2008, the court of appeals issued a decision granting the writ of mandamus to compel the judge to make the assessment filed in the guardianship case available for inspection and copying during regular business hours. The court of appeals also denied an award of statutory damages, which Miller had not specifically requested in either her complaint or her reply brief. Finally, the court of appeals granted Miller‘s request for attorney fees and instructed Miller‘s counsel to submit an affidavit and documentation in support.
{¶ 7} After Miller‘s attorney filed affidavits in support of the request for attorney fees, Brady first filed an objection to the reasonableness of the amount requested. Shortly thereafter, however, the judge secured a new attorney as co-counsel and filed a motion to vacate the award of attorney fees and to revise the court‘s previous decision. In his memorandum in support of the motion, Brady sought reconsideration of the court‘s previous decision, arguing that the court was free to revise the decision because it was not a final order. Brady raised for the first time his claim that the court‘s application of the Public Records Act to his decision to limit access to the assessment report violated the separation-of-powers doctrine. Miller filed a memorandum in opposition and also requested leave to supplement her request for attorney fees to include the attorney fees incurred in opposing the judge‘s motion to vacate.
{¶ 8} In February 2009, the court of appeals denied Brady‘s motion to vacate because (1) the judge waived his separation-of-powers argument when he failed to raise it in response to the alternative writ to show cause why the assessment was
{¶ 9} This cause is now before the court upon Brady‘s appeal and Miller‘s cross-appeal.
Appeal: Waiver of Claim
{¶ 10} In his appeal, Brady asserts that we should reverse the court of appeals’ judgment denying his motion to revise and vacate the attorney-fee award because, based on the separation-of-powers doctrine, “the Public Records Act does not apply to judges’ decisions when exercising their power to adjudicate.”
{¶ 11} We need not address this constitutional claim, however, because it is not absolutely necessary to do so. See State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, ¶ 57, quoting Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, ¶ 54 (“‘courts decide constitutional issues only when absolutely necessary’ “).
{¶ 12} The court of appeals’ judgment granting the writ and determining that Miller is entitled to an award of attorney fees is not subject to reversal, because Brady does not challenge all of the independent reasons given by the court of appeals for granting the writ. State ex rel. Schmidt v. School Emps. Retirement Sys., 100 Ohio St.3d 317, 2003-Ohio-6086, 798 N.E.2d 1088, ¶ 5; Stewart v. Corrigan, 97 Ohio St.3d 80, 2002-Ohio-5316, 776 N.E.2d 103, ¶ 4 (“even if the court‘s rationale on this ground was incorrect, its judgment denying the writ based on the grounds that Stewart does not contest on appeal was proper“). Brady does not expressly contest the court of appeals’ ruling that he waived his separation-of-powers claim by failing to raise it in response to the court‘s alternative writ to show cause why Miller should not be granted the requested relief.
{¶ 13} Moreover, even if the issue of waiver were properly before us, the court of appeals did not abuse its discretion in holding that the judge waived his separation-of-powers claim by failing to raise it in response to the court‘s alternative writ and show-cause order. Because of the interlocutory nature of the court of appeals’ initial order granting the writ and awarding attorney fees while deferring the determination of the amount of fees pending the submission of evidence,1 Brady‘s motion to vacate was in the nature of a motion for
{¶ 14} In addition, although Brady cites our plenary power in extraordinary-writ cases, he has not established any error by the court, which is generally a prerequisite for the invocation of this authority. See, e.g., State ex rel. Natl. Elec. Contrs. Assn., Ohio Conference v. Ohio Bur. of Emp. Servs. (2000), 88 Ohio St.3d 577, 579, 728 N.E.2d 395. Moreover, “our exercise of plenary authority is not automatic; it is within our discretion.” State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 2009-Ohio-4149, 914 N.E.2d 159, ¶ 16. And as we reiterated in Doe, in an appeal of a judgment granting or denying fees in a public-records case, we have consistently applied an abuse-of-discretion rather than a de novo standard. Id. at ¶ 15.
{¶ 15} Therefore, we affirm the judgment of the court of appeals granting the writ of mandamus to compel Judge Brady to make the assessment filed in the guardianship case available for copying and awarding attorney fees to Rosanna Miller.
Cross-Appeal: Statutory Damages and Attorney Fees
{¶ 16} In the cross-appeal, Miller first challenges the court of appeals’ failure to award statutory damages.
{¶ 17} Her contention lacks merit for two reasons. First, she waived this argument by failing to claim entitlement to statutory damages in either her complaint or in her various filings in the court of appeals. See, e.g., McGhan v. Vettel, 122 Ohio St.3d 227, 2009-Ohio-2884, 909 N.E.2d 1279, ¶ 26. Second, she did not introduce sufficient evidence establishing that she transmitted either of her written requests for copies of the assessment “by hand delivery or certified mail,” as required by
{¶ 18} Miller also contends that the court of appeals erred in failing to grant her leave to supplement her request for attorney fees under
{¶ 19} Under
Conclusion
{¶ 20} We affirm the judgment of the court of appeals granting a writ of mandamus to compel Judge Brady to permit Rosanna Miller to inspect and make copies of the assessment filed in the guardianship case, awarding attorney fees to Miller, and denying statutory damages. We reverse the judgment of the court of appeals denying Miller‘s request for additional attorney fees, and remand the cause to that court to determine the reasonable amount of additional fees to which Miller is entitled. We also deny the parties’ joint request for oral argument.
Judgment accordingly.
MOYER, C.J., and LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
PFEIFER, J., concurs in judgment only.
Wolfe & Russ, L.L.C., and Grant A. Wolfe, for appellee and cross-appellant.
Baker & Hostetler, L.L.P., and David L. Marburger; and Gerald L. Heaton, Logan County Prosecuting Attorney, for appellant and cross-appellee.