Opinion
No. 91-1657
Submitted December 3, 1991 —
Decided February 5, 1992.
APPEAL from the Court of Appeals for Franklin County, No. 90AP-1323.
Henry J. Fant, pro se. Lee I. Fisher, Attorney General, Patrick A. Devine and Robert A. Zimmerman, for appellee William Flaherty, Director, Ohio Department of Administrative Services. Michael Miller, Prosecuting Attorney, and Jeffrey L. Glasgow, for appellee Thomas J. Enright, Franklin County Clerk of Courts.
The judgment of the court of appeals denying relator's request for a writ of mandamus because of mootness is affirmed for the reasons stated in the court of appeals opinion rendered on June 13, 1991. (See Appendix for text of opinion.)
Appellant Fant is to show cause why his appeal to this court is not "frivolous" per App.R. 23, which provides:
"If a court of appeals shall determine that an appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee including attorney fees and costs."
Appellees are granted leave to submit their statement of "reasonable expenses * * * including attorney fees and costs" per App.R. 23 within thirty days of the announcement of this decision.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.
APPENDIX
Memorandum Decision
Rendered on June 13, 1991
WHITESIDE, Judge. This original action in mandamus is before the court upon the motion of respondent Thomas J. Enright, Clerk of Courts, for summary judgment and the motion of respondent William Flaherty, Director of the Department of Administrative Services, to dismiss the complaint. The motion to dismiss filed by the director relies upon matters not alleged in the complaint and, thus, does not properly present the issues sought to be raised. However, essentially, the same issue is properly raised by the motion for summary judgment filed by the clerk of courts. Relator has filed no evidentiary materials in response to the motion for summary judgment. Respondent clerk of courts has, by affidavit, indicated that he has supplied to relator the requested public records to the extent they exist. Relator apparently assumed the records would be in a different form and filed this action under the mistaken belief that he had not been provided copies of all the requested records. It, thus, appears that there is no genuine issue of material fact and that the movant respondent is entitled to summary judgment in his favor even when the evidence is construed most strongly in relator's favor. Such determination renders moot the relief sought against the respondent director, the evidence indicating that the records sought have been furnished insofar as they could be in the possession of said respondent. For the foregoing reasons, respondents' motions are sustained, and the requested writ of mandamus is denied.Writ denied.
STRAUSBAUGH and PETREE, JJ., concur.