Opinion
No. 92-722
Submitted July 8, 1992 —
Decided September 2, 1992.
APPEAL from the Court of Appeals for Franklin County, No. 91AP-580.
On May 20, 1991, appellant, Jerome Blair Freeman, filed a complaint for a peremptory writ of mandamus in the Court of Appeals for Franklin County, alleging that appellee, Reginald Wilkinson, Director of the Department of Rehabilitation and Correction, was illegally detaining him. The complaint stated that appellant was granted "final release" on parole in 1977, but was illegally returned to appellee's custody in 1978. Appellant claimed a right to release under R.C. 2949.12, 5145.01, and 5145.02, and also sought damages of $500 under R.C. 2725.24. Thereafter, appellant filed numerous motions before the court, including a motion for attorney fees.
The court of appeals assigned the case to a referee, who, on July 15, 1991, granted appellee's motion to file instanter a motion to dismiss pursuant to Civ.R. 12(B)(6). On November 13, 1991, the referee issued her report, which found that the statutes cited by appellant afforded no basis for relief and recommended that appellee's motion to dismiss be granted. On February 27, 1992, the court of appeals issued a memorandum decision adopting the referee's report and holding additionally that, as a pro se litigant, appellant was not entitled to attorney fees under R.C. 2323.51. On March 6, 1992, the court issued its final entry of dismissal.
The cause is before the court upon an appeal as of right.
Jerome Blair Freeman, pro se. Lee I. Fisher, Attorney General, and Joshua T. Cox, for appellee.
On appeal, appellant does not attack the judgment directly but raises four procedural issues. For the following reasons, we reject appellant's claims.
Appellant first argues that the court of appeals violated Civ.R. 54(B) by deciding fewer than all his claims without an express finding that there is no just cause for delay. However, the record indicates that the court decided all his claims. Therefore, appellant's first proposition of law is without merit.
Next, appellant argues that he should have been granted a peremptory writ of mandamus since there was no answer filed. However, the court of appeals allowed appellee's motion to file his motion to dismiss instanter, and the defense of failure to state a claim on which relief may be granted may be presented by motion under Civ.R. 12(B). Therefore, appellant's second proposition of law is rejected.
Next, appellant argues that the court erred by not giving proper notice when it converted appellee's motion to dismiss into a motion for summary judgment. However, the record indicates that the court made no such conversion. Therefore, appellant's third proposition of law is without merit.
Finally, appellant argues that the court of appeals erred by not holding a separate hearing on his motion for attorney fees, as required by R.C. 2323.51. However, the court of appeals held, inter alia, and we affirm, that R.C. 2323.51 provides for attorney fees, not compensation for pro se litigants. A separate hearing to make that determination would have been pointless. Accordingly, appellant's fourth proposition of law is not well taken.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.