[Cite as State ex rel. Davis v. Metzger, 2014-Ohio-4555.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO, ex rel.                              :       JUDGES:
JOHN H. DAVIS                                       :       Hon. William B. Hoffman, P.J.
                                                    :       Hon. Sheila G. Farmer, J.
    Relator                                         :       Hon. John W. Wise, J.
                                                    :
-vs-                                                :       Case No. 11-CA-130
                                                    :
TERRA WOOLARD METZGER                               :
                                                    :
    Respondent                                      :       OPINION




CHARACTER OF PROCEEDING:                                    Writ - Request for Attorney Fees




JUDGMENT:                                                   Granted




DATE OF JUDGMENT:                                           October 9, 2014




APPEARANCES:

For Relator                                                 For Respondent

JOHN M. GONZALES                                            MARC A. FISHEL
501 South High Street                                       400 South Fifth Street
Columbus, OH 43215                                          Suite 200
                                                            Columbus, OH 43215
Licking County App. Case No. 11-CA-130                                              2

Farmer, J.

       {¶1}   Relator in this case is John H. Davis, husband of Peggy Davis, and

Respondent is Terra Woolard Metzger.

       {¶2}   This matter came before this court on Respondent's request for attorney

fees pursuant to R.C. 2323.51(A) which defines frivolous conduct in relevant part as

follows:



              (2) "Frivolous conduct" means either of the following:

               (a) Conduct of an inmate or other party to a civil action, of an
       inmate who has filed an appeal of the type described in division (A)(1)(b)
       of this section, or of the inmate's or other party's counsel of record that
       satisfies any of the following:

              (i) It obviously serves merely to harass or maliciously injure another
       party to the civil action or appeal or is for another improper purpose,
       including, but not limited to, causing unnecessary delay or a needless
       increase in the cost of litigation.

              (ii) It is not warranted under existing law, cannot be supported by a
       good faith argument for an extension, modification, or reversal of existing
       law, or cannot be supported by a good faith argument for the
       establishment of new law.

               (iii) The conduct consists of allegations or other factual contentions
       that have no evidentiary support or, if specifically so identified, are not
       likely to have evidentiary support after a reasonable opportunity for further
       investigation or discovery.

             (iv) The conduct consists of denials or factual contentions that are
       not warranted by the evidence or, if specifically so identified, are not
       reasonably based on a lack of information or belief.


       {¶3}   In our April 17, 2013 dismissal of the writ of mandamus action, we found

the request for the public records pursuant to R.C. 149.34(B) was complied with within a

reasonable amount of time (less than three business days). The Supreme Court of
Licking County App. Case No. 11-CA-130                                             3


Ohio affirmed our decision, finding that a time lapse of less than three business days to

comply was reasonable holding, "In short, Davis cannot complain that less than three

business days is an unreasonable amount of time to produce the personnel records of

six employees." State ex rel. Davis v. Metzger, 139 Ohio St.3d 423, 2014-Ohio-2329, ¶

12.

      {¶4}   Despite Relator's extensive arguments to the contrary, this case is no

longer about the lag time between request and response, nor is it about claimed

deficiencies in the response as Relator did not pursue any claimed deficiencies.

      {¶5}   This case is about the continuation of unnecessary discovery in the

mandamus action, when the items requested were supplied. The salient times are set

forth in our opinion, State ex rel. Davis v. Metzger, 5th Dist. Licking No. 11-CA-130,

2013-Ohio-1620, ¶ 2-3, as follows:



             On Thursday, December 8, 2011, at approximately 9:00 p.m.,

      Relator served Respondent with a public records request for personnel

      records for six employees of the West Licking Joint Fire District

      (hereinafter "WLJFD"). Respondent is the Human Resources Technician

      for the fire district. As to these six employees, each request sought to

      "secure any and all records" that would support the employee's work

      performance, any disciplinary actions in his or her file, and any other

      document "that would give us any indication that he is unable to perform

      the job at hand." The records request stated that Relator would like the

      records emailed to him.
Licking County App. Case No. 11-CA-130                                             4


             The WLJFD was closed on Saturday, December 10, and Sunday,

      December 11, 2011. On Tuesday, December 13, 2011, at approximately

      11:30 a.m., Relator telephoned Respondent to ask about the status of his

      public records request. She advised Relator that the requests were being

      reviewed by counsel for the WLJFD before they would be released. At

      1:59 p.m. that afternoon, Relator filed the instant complaint in mandamus.

      The records were provided to him at 3:46 p.m. the same afternoon.



      {¶6}   The testimony presented at the hearing by Relator and his wife provided

insight regarding the reasons for waiting less than three business days for filing the

mandamus action. Mrs. Davis opined that when she was employed by WLJFD, the

records were readily available and would have been provided within twenty-four hours.

Both Mr. and Mrs. Davis pointed to Exhibit 1 to prove such response was reasonable.

Exhibit 1 was a "trial balloon" launched by the Davises to see how soon Respondent

could respond. Relator confirmed he believed three days was too long and called his

attorney to initiate a response. Relator argued the filing of the mandamus action was a

result of advice received by his attorney.       These suspicions were predicated on

discovery issues the Davises experienced in a civil lawsuit relative to Mrs. Davis's

termination of employment by WLJFD.

      {¶7}   Both Mr. and Mrs. Davis believe the responses given were incomplete.

Their attorney, Wesley Fortune, readily admitted the public records request was a way

of achieving discovery in Mrs. Davis's lawsuit for wrongful termination. Attorney Fortune

justified initiating the complaint under three days based upon the holding in State ex rel.
Licking County App. Case No. 11-CA-130                                             5

Consumer News Services v. Worthington City Bd. of Education, 97 Ohio St.3d 59,

wherein the Supreme Court of Ohio found a five days delay was unreasonable. He was

further motivated by past practices involving the WLJFD. He believed it could have

been fulfilled in two hours and the delay for review by counsel was not appropriate.

       {¶8}   In contrast to the instant case, the request made in the Consumer News

case was very simple (the names and addresses for treasurer candidates). Here, the

request was for any and all records that would show the employee's work performance,

any disciplinary action, and any documents that would give any indication that the

employee was unable to perform a job. This request included six different employees.

When the request was supplied, it included fifty-two pages of documents.

       {¶9}   To support the less than three business days filing sub judice with the very

limited fact pattern of the Consumer News case is not reasonable.

       {¶10} The other reasons propounded by Attorney Fortune were cloaked in a

conspiracy theory that is prevalent in his attitude.

       {¶11} After the request was complied with by Respondent, Relator engaged in

discovery, including seven hours of deposition of the Chief, three and one-half hours of

deposition of the Board President, and seven hours of deposition of Respondent.

       {¶12} After the discovery cut-off, Relator pursued other discovery and summary

judgment matters without notice to Respondent's attorney-of-record.            All of the

discovery was done after compliance with the public records request and without any

amendment to the mandamus action citing to a failure of a complete response.

       {¶13} We find the less than three business days request was not warranted

under existing law and cannot be supported by a good faith argument to expand or
Licking County App. Case No. 11-CA-130                                           6


establish new law.     The conduct of some seventeen hours of deposition in the

mandamus action without an amendment to the action claiming incomplete response

was not likely to have evidentiary support.

      {¶14} We conclude all of the actions were on the advice of counsel and

therefore Relator is not liable for frivolous conduct and sanctions. However, it is well

established by the evidence that the actions of Attorney Fortune were frivolous and

warrants the finding of sanctions. We therefore grant the request for attorney fees and

order Attorney Fortune to pay Respondent $28,332.05 in attorney fees.

By: Farmer, J.

Wise, J. concurs.

Hoffman, P.J. concurs in judgment only.




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