State ex rel. Kenneth W. Short Iii v. Daniel W. Taylor, Case
| Decision Date | 08 July 1999 |
| Docket Number | 99-LW-3092,75912 |
| Parties | STATE OF OHIO, EX REL. KENNETH W. SHORT III, Relator v. DANIEL W. TAYLOR, Respondent CASE |
| Court | Ohio Court of Appeals |
PETITION FOR WRIT OF MANDAMUS
For Relator: KENNETH W. SHORT III, Pro Se, No A-343-985, Lorain Correctional Institution, 2075 S Avon-Belden Road, Grafton, Ohio 44044.
For Respondent: DANIEL W. TAYLOR, Esq., 2200 Illuminating Bldg., 55 Public Square, Cleveland, Ohio 44113.
JAMES M. PORTER, A.J.
On January 26, 1999, the relator, Kenneth Short, commenced this mandamus action against the respondent, Daniel Taylor, who was Mr. Short's attorney in the underlying cases State of Ohio v. Kenneth Short, Cuyahoga County Common Pleas Court Case No. CR-343001 and State of Ohio v. Kenneth Short (Dec. 28, 1998), Cuyahoga App. No. 73618, unreported, to compel Mr. Taylor to send him various records relating to those cases. On February 18, 1999, Mr. Taylor moved to dismiss, and Mr. Short never filed any further responses or pleadings. Sua sponte, for the following reasons this court grants the motion to dismiss.
Mr. Short alleges that he has repeatedly requested Mr. Taylor to send him certain records relating to the underlying cases, but Mr. Taylor has refused. Mr. Short alleges that he needs these records to pursue postconviction and appeal remedies. He states that he attached a list of the requested records as Exhibit A; however, there is no Exhibit A attached to the complaint. He further maintains that Mr. Taylor has a duty to send him the records pursuant to DR-2110(A)(2).
In his motion to dismiss Mr. Taylor admits that he was Mr. Short's attorney in the underlying cases and states that he has sent Mr. Short all the records in his possession: (1) all copies of trial transcripts, (2) copies of all appellant briefs, and (3) copies of the records of the Cuyahoga County Coroners Office. He states that "[t]here are no other documents within the possession and/or control of the Defendant-Respondent." He also states that he is at a complete loss to appropriately address the merits of Mr. Short's claim, because no Exhibit A, the list of requested records, was attached to his copy of the mandamus complaint.
The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal. duty to perform the requested relief; and (3) there must be no adequate remedy at law. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Moreover, mandamus is an extraordinary remedy which is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 364 N.E.2d 1; State ex rel Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland Board of Education (1993), 87 Ohio App.3d 43, 621 N.E.2d 850; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32 Ohio Law Abs. 308. Additionally, in mandamus a relator must plead specific facts in order to withstand a motion to dismiss. State ex rel. Iacovone v. Kaminiski (1998), 81 Ohio St.3d 189, 690 N.E.2d 4; State ex rel. Clark v. Lile (1997), 80 Ohio St.3d 220, 685 N.E.2d 535; State ex rel. Dehler v. Sutula (1995), 74 Ohio St.3d 33, 656 N.E.2d 332; State ex rel. Fain v. Summit County Adult Probation Department: (1995), 71 Ohio St.3d 658, 646 N.E.2d 1113; and State ex rel. Hickman v. Capots (1989), 45 Ohio St.3d 324, 544 N.E.2d...
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