State ex rel. Dunlap v. Sarko

• Decision Date: 16 January 2013
• Docket Number: No. 2012–0369.,2012–0369.
• Citation: 135 Ohio St.3d 171,985 N.E.2d 450
• Parties: The STATE ex rel. DUNLAP v. SARKO et al.
• Court: Ohio Supreme Court

135 Ohio St.3d 171

985 N.E.2d 450

The STATE ex rel. DUNLAP

v.SARKO et al.

No. 2012–0369.

Supreme Court of Ohio.

Submitted Jan. 9, 2013.

Decided Jan. 16, 2013.

Fortune Law Limited and Wesley T. Fortune, for relator.

Poling Law, Paul–Michael La Fayette, and Doug Holthus, for respondents.

PER CURIAM.

[Ohio St.3d 171]{¶ 1} This is an original action in which relator, Scott Dunlap, requests a writ of mandamus against respondents, Violet Township Zoning Inspector Kelly Sarko, Violet Township Director of Operations William Yaple, Violet Township Fiscal Officer Chris Smith, Violet Township Trustees Terry Dunlap Sr., Harry [Ohio St.3d 172]Myers Jr., and Gary Weltlich, Violet Township Fire Department Office Manager Kristi Huskey, and attorney William L. Loveland. He requests the writ to compel respondents to (1) make certain requested records available for inspection and copying without further delay, (2) prepare, file, and maintain full and accurate records of proceedings, accounts, and transactions of the board of township trustees and to conduct all meetings in public, except for properly called executive sessions, (3) execute and uphold their affirmative statutory duties, and (4) comply with the prohibition against the destruction and damage of records. He also requests that he be awarded costs, including reasonable attorney fees.

Analysis

Scope of Argument

{¶ 2} Relator's filings, including his amended complaint, evidence, and briefs, border on the incomprehensible. Relator's numerous public-records requests apparently stemmed from his unsuccessful application for zoning variances and his complaint to the township concerning Violet Township Trustee Terry Dunlap Sr.'s use of his property, which is near relator's property, for shooting firearms and for concealed-weapons-permit training. But relator's filings are unclear. For example, although he specifies eight propositions of law in the table of contents of his merit brief, he includes an argument on only the first of these eight propositions. Relator also includes a heading labeled “conclusion” at the end of his brief, but he does not include any accompanying text.

{¶ 3} We will not address the propositions and claims for which relator does not present any argument. See State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 26 (court will not address public-records claim in mandamus case when relator did not include an argument related to that claim in his merit brief); State ex rel. Ohio Gen. Assembly v. Brunner, 114 Ohio St.3d 386, 2007-Ohio-3780, 872 N.E.2d 912, ¶ 26, fn. 4 (court need not address claim for writ of mandamus that was raised in complaint but was not specifically argued in merit brief).

{¶ 4} Instead, in his merit brief, relator expressly restricts the scope of this mandamus action to his May 18 and October 17, 2011 public-records requests: “At issue in this case, are the Relator's May 18 and October 17, 2011 public records requests.” In his May 18, 2011 request sent by certified mail to Violet Township Fiscal Assistant Rochelle Menningen, relator requested “copies of any and all invoices from Loveland & Brosius LLC from October 1, 2010 through May 17, 2011 and copies of the office appointment calendars of Bill Yaple and Kelly Sarko for the same time period.” In his October 17, 2011 request, which was also addressed to Menningen, relator requested “copies of any and all agendas, meeting notes/minutes (both hand written and those recorded via a [Ohio St.3d 173]word processing program), from all parties in attendance, and the stated purpose of the meeting” for a meeting held at Violet Township Trustee Terry Dunlap Sr.'s residence and attended by township attorney Loveland, Township Zoning Inspector Sarko, and Township Director of Operations Yaple. In the request, relator also requested a copy of the “detailed invoice of this meeting from Violet Township attorney: Loveland Brosius, LLC.”

{¶ 5} Consequently, we consider relator's claim in the limited context of these requests.

Prior Mandamus Cases

{¶ 6} On November 18, 2011, relator filed an action in the Court of Appeals for Fairfield County for a writ of mandamus to compel Violet Township Fiscal Officer Smith and his assistant, Menningen, to provide him with copies of the records requested by him in his May 18 and October 17, 2011 records requests. On September 12, 2012, the court of appeals denied the writ based on its holding that the township officials had provided relator with the requested records and that the redacted portions of the attorney billing invoices were protected by attorney-client privilege. State ex rel. Dunlap v. Smith, 5th Dist. No. 11–CA–60, 2012-Ohio-4239, 2012 WL 4078920.

{¶ 7} On February 21, 2012, relator filed a second mandamus action in the Court of Appeals for Fairfield County, this time naming the Violet Township Board of Trustees, Violet Township Fiscal Officer Smith, and the individual township trustees as respondents. In their motion to remand in the present case, respondents noted that relator's second court of appeals case requests relief similar to that requested here. As of the date that briefing was completed in the mandamus case before this court, relator's second court of appeals mandamus case remained pending.

Jurisdictional–Priority Rule

{¶ 8} “Under Section 2(B)(1)(b), Article IV of the Ohio Constitution, the Supreme Court of Ohio has original jurisdiction in mandamus actions * * *.” State ex rel. Wilke v. Hamilton Cty. Bd. of Commrs., 90 Ohio St.3d 55, 59, 734 N.E.2d 811 (2000); see also R.C. 2731.02 (“The writ of mandamus may be allowed by the supreme court, the court of appeals, or the court of common pleas * * * ”).

{¶ 9} Under the jurisdictional-priority rule, however, “ ‘[a]s between [state] courts of concurrent jurisdiction, the tribunal whose power is first invoked by the institution of proper proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and to settle the rights of the parties.’ ” [Ohio St.3d 174]State ex rel. Racing Guild of Ohio v. Morgan, 17 Ohio St.3d 54, 56, 476 N.E.2d 1060 (1985), quoting State ex rel. Phillips v. Polcar, 50 Ohio St.2d 279, 364 N.E.2d 33 (1977), syllabus.

{¶ 10} To be sure, it is a condition of the jurisdictional-priority rule that the claims and parties be the same in both cases, so “[i]f the second case is not for the same cause of action, nor between the same parties, the former suit...