[Cite as State ex rel. Ulery v. Capper,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO, ex rel., JEFFREY S. ULERY,

Relator,

v.

JUDGE THOMAS CAPPER, et al.,

Respondents.

Appellate Case No. 2010-CA-97

DECISION AND FINAL JUDGMENT ENTRY January 12 , 2012

PER CURIAM:

{¶ 1} This matter is before the court on Respondents’ motion for summary

judgment, with combined memorandum in support of motion and memorandum in

opposition to Relator’s motion for summary judgment, filed October 28, 2011, and

Relator’s motion for summary judgment, with combined memorandum in support of

motion and memorandum in opposition to Respondents’ motion for summary judgment,

filed November 28, 2011.

{¶ 2} This action began on September 29, 2010, when Relator, Jeffrey S. Ulery,

filed a petition for a writ of mandamus. Ulery sought an order from this Court

compelling Respondents, Judge Thomas Capper of the Clark County Common Pleas

Court, Domestic Relations Division; Ronald E. Vincent, the Clark County Clerk of

Courts; and Clark County Registered Court Reporters, to provide Ulery with instructions 2

on how to obtain transcripts of proceedings in Clark County Common Pleas Court,

Domestic Relations Division, Case No. 08-DR-437, including the proper way to make

financial arrangements. Ulery argued that he needed these transcripts to effectively

pursue his appeal, Clark App. No. 09-CA-12.

{¶ 3} On January 26, 2011, Respondents filed an answer, asserting therein that

Ulery had been notified regarding the costs and procedure for obtaining the subject

transcripts by letter dated January 25, 2011. This Court granted summary judgment in

favor of Respondents on this issue on March 24, 2011. At that time, the court delayed

its ruling on a separate issue regarding statutory damages under R.C. 149.43(C)(1).

{¶ 4} Ulery moved for leave to amend his petition on April 11, 2011, which this

Court permitted. Under Count One of the amended petition, Ulery alleges that he is

entitled to statutory damages in the amount of $3000.00 for Respondents’ failure to

provide transcripts of hearings held June 5, 2008, August 15, 2008, and January 6,

2009 in case no. 08-DR-437. We note that Ulery had received a copy of the January

6, 2009 hearing transcript by the time he filed his amended petition, but he argues that

it was not provided within a “reasonable time” under R.C. 149.43. He also claims that

he requested audiotape backups of each hearing on March 11, 2011.

{¶ 5} Under Count Two, Ulery alleges that he is entitled to damages for the

destruction of public records, pursuant to R.C. 149.351, on account of Respondents’

failure to provide the transcripts requested. He further seeks reasonable attorney fees.

{¶ 6} To be entitled to a writ of mandamus, Ulery must demonstrate “ ‘(1) that

he has a clear legal right to the relief prayed for, (2) that respondents are under a clear

legal duty to perform the acts, and (3) that [Ulery] has no plain and adequate remedy in 3

the ordinary course of the law.’ ” State ex rel. Berger v. McMonagle,

(1983), quoting State ex rel. Harris v. Rhodes,

(1978); State ex

rel. Heller v. Miller,

(1980), paragraph one of the syllabus; State ex rel.

Westchester v. Bacon,

(1980), paragraph one of the syllabus.

{¶ 7} The parties have moved for summary judgment. “Summary judgment

pursuant to Civ.R. 56 should be granted only if no genuine issue of fact exists, the

moving party is entitled to judgment as a matter of law, and reasonable minds can

come to but one conclusion, which conclusion is adverse to the nonmoving party.

When considering a motion for summary judgment, the evidence must be construed in

favor of the nonmoving party.” State ex rel. Shelly Materials v. Clark Cty. Bd. of

Commrs., 2nd Dist. Clark No. 2003-CA-72,

, quoting Wheelbarger

v. Dayton Bd. of Edn., 2nd Dist. Montgomery No. 20272,

.

R.C. 149.351

{¶ 8} In his motion for summary judgment, with combined memorandum in

support of motion and memorandum in opposition to Respondents’ motion for summary

judgment, filed November 28, 2011, Ulery states that he is no longer pursuing his claim

under Count Two of the petition for damages pursuant to R.C. 149.351. He further

asserts that he no longer seeks attorney fees under R.C. 149.43(C) or 149.351.

Nevertheless, this Court finds Ulery’s claims under R.C. 149.351 to be without merit.

That section states specifically that any person aggrieved by the destruction of a public

record may commence an action for injunctive relief or to recover a forfeiture in the

amount of one thousand dollars for each violation, including attorney fees, in the court 4

of common pleas of the county in which the violation occurred. R.C. 149.351(B).

Ulery’s claims for attorney fees and damages are not properly before this Court via the

present mandamus action. Accordingly, Respondents are entitled to judgment.

R.C. 149.43

{¶ 9} Ulery claims he is entitled to damages under R.C. 143.49(C) in the

amount of $3000.00 because Respondents failed to provide transcripts of hearings held

June 5, 2008, August 15, 2008, and January 6, 2009 in Clark County Common Pleas

Court, Domestic Relations Division, Case No. 08-DR-437 within a “reasonable time”

from his purported public records request. He also seeks $300.00 in court costs.

{¶ 10} R.C. 149.43(C)(1) states:

“If a person allegedly is aggrieved by the failure of a public office or

the person responsible for public records to promptly prepare a public

record and to make it available to the person for inspection in accordance

with division (B) of this section or by any other failure of a public office or

the person responsible for public records to comply with an obligation in

accordance with division (B) of this section, the person allegedly

aggrieved may commence a mandamus action to obtain a judgment that

orders the public office or the person responsible for the public record to

comply with division (B) of this section, that awards court costs and

reasonable attorney's fees to the person that instituted the mandamus

action, and, if applicable, that includes an order fixing statutory damages

under division (C)(1) of this section. The mandamus action may be

commenced in the court of common pleas of the county in which division 5

(B) of this section allegedly was not complied with, in the supreme court

pursuant to its original jurisdiction under Section 2 of Article IV, Ohio

Constitution, or in the court of appeals for the appellate district in which

division (B) of this section allegedly was not complied with pursuant to its

original jurisdiction under Section 3 of Article IV, Ohio Constitution.

“If a requestor transmits a written request by hand delivery or

certified mail to inspect or receive copies of any public record in a manner

that fairly describes the public record or class of public records to the

public office or person responsible for the requested public records,

except as otherwise provided in this section, the requestor shall be

entitled to recover the amount of statutory damages set forth in this

division if a court determines that the public office or the person

responsible for public records failed to comply with an obligation in

accordance with division (B) of this section.

“The amount of statutory damages shall be fixed at one hundred

dollars for each business day during which the public office or person

responsible for the requested public records failed to comply with an

obligation in accordance with division (B) of this section, beginning with

the day on which the requester files a mandamus action to recover

statutory damages, up to a maximum of one thousand dollars. The

award of statutory damages shall not be construed as a penalty, but as

compensation for injury arising from lost use of the requested information.

The existence of this injury shall be conclusively presumed. The award 6

of statutory damages shall be in addition to all other remedies authorized

by this section.”

{¶ 11} A court of common pleas is authorized by R.C. 2301.18 and 2301.19 to

appoint shorthand reporters, who are charged by R.C. 2301.20 to “take accurate

shorthand notes of the oral testimony or other oral proceedings.” R.C. 2301.22

provides that the “shorthand reporter shall receive such compensation as the court of

common pleas making the appointment fixes.” If a party to the litigation or the court

seeks “transcripts of any portion of such notes in longhand, the shorthand reporter

reporting the case shall make full and accurate transcripts of the notes for the use of

such court or party.” R.C. 2301.23. Compensation for that task that the court has

established pursuant to R.C. 2301.23 “shall be paid forthwith by the party for whose

benefit the transcript is made.” R.C. 2301.24.

{¶ 12} The evidence shows that Ulery requested preparation of transcripts of the

proceedings in case no. 08-DR-437 in order to procure the record for appeal in Clark

App. No. 09-CA-12. See App.R. 9(B) (“It is the obligation of the appellant to ensure

that the proceedings the appellant considers necessary for inclusion in the record * * *

are transcribed in a form that meets the specifications of App.R. 9(B)(6)”). By letter

dated January 25, 2011, Respondents informed Ulery regarding the costs and

procedure for obtaining these transcripts. As to Ulery’s claim for a writ of mandamus

ordering Respondents to provide this information, we granted judgment in favor of

Respondents on March 24, 2011. Transcripts which have been prepared pursuant to

R.C. 2301.23 are public records for purposes of R.C. 149.43. See 2002 Ohio

Atty.Gen.Ops. No. 2002-014. However, R.C. 149.43 cannot apply to transcripts not 7

prepared, because no such “public records” then exist. State ex rel. Moore v. Brown,

2nd Dist. Montgomery No. 16831,

(Dec. 19, 1997).

{¶ 13} The evidence further shows that Respondents received a “Request for

Transcripts of Proceedings,” accompanied by a check in the amount of $375.00, from

Ulery on March 9, 2011. A copy of the January 6, 2009 transcript was mailed to Ulery

on March 9, 2011. A copy of the June 5, 2008 transcript was mailed to Ulery on April

13, 2011. No transcript of the scheduled August 15, 2008 proceedings exists as the

objection hearing on that date did not take place on the record.

{¶ 14} The mandamus action authorized by R.C. 149.43(C)(1) is for the failure of

a public office or officer to comply with R.C. 149.43(B). That section provides that

“upon request, a person responsible for public records shall make copies available at

cost, within a reasonable period of time.” Following receipt of Ulery’s payment on

March 9, 2011, a copy of one transcript was mailed to Ulery on that same date. The

other copy was mailed to Ulery a little more than one month later. Ulery does not claim

that he was prejudiced by any delay those mailings involved. Reasonable minds could

only find that Respondents did not fail to comply with R.C. 149.43(C)(1). Therefore,

Ulery is not entitled to mandamus relief or damages pursuant to that section.

{¶ 15} Ulery made another public records request on March 31, 2011 when he

ordered the audiotape backups of the hearings held on June 5, 2008, August 15, 2008,

and January 6, 2009. When a party seeks a copy of an audiotape of court

proceedings, he or she is entitled to that copy under R.C. 149.43(B). State ex rel.

Slagle v. Rogers,

,

, ¶ 17. The evidence shows that

on April 13, 2011, CD’s containing the copies of the audio recordings of hearings held 8

on June 5, 2008, July 14, 2008, and January 6, 2009 were mailed to Ulery by

Respondent Judge Capper. No audiotape recording exists from the hearing on August

15, 2008. Again, reasonable minds could only find that Ulery’s requests were granted

within a reasonable time.

{¶ 16} For the reasons stated above, Respondents’ motion for summary

judgment, with combined memorandum in support of motion and memorandum in

opposition to Relator’s motion for summary judgment, filed October 28, 2011, is

GRANTED. Relator’s motion for summary judgment, with combined memorandum in

support of motion and memorandum in opposition to Respondents’ motion for summary

judgment, filed November 28, 2011, is OVERRULED. The petition for a writ of

mandamus is DENIED.

SO ORDERED.

THOMAS J. GRADY, Presiding Judge

MARY E. DONOVAN, Judge

JEFFREY E. FROELICH, Judge

To The Clerk: Within three (3) days of entering this judgment on the journal, you are directed to serve on all parties not in default for failure to appear notice of the judgment and the date of its entry upon the journal, pursuant to Civ.R. 58(B). 9

THOMAS J. GRADY, Presiding Judge

Copies mailed to:

Andrew Pickering 50 E. Columbia Street P.O. Box 1608 Springfield, Ohio 45501 CA3/JN

Jeffrey Ulery, #596-154 P.O. Box 5500 Chillicothe, Ohio 45601