[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Davis v. Metzger, Slip Opinion No. 2016-Ohio-1026.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-1026
        THE STATE EX REL. DAVIS, APPELLANT, v. METZGER, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
         may be cited as State ex rel. Davis v. Metzger, Slip Opinion No.
                                     2016-Ohio-1026.]
Mandamus―Public records―Attorney fees―Frivolous conduct―R.C. 2323.51―
        Respondent entitled to award of attorney fees when request for records had
        been pending only three days when mandamus action was filed and relator
        engaged in unnecessary discovery after records were provided.
    (No. 2014-2066—Submitted October 27, 2015—Decided March 16, 2016.)
     APPEAL from the Court of Appeals for Licking County, No. 11-CA-130,
                                      2014-Ohio-4555.
                                 _____________________
        Per Curiam.
        {¶ 1} Appellant, John H. Davis, filed a public-records request under R.C.
149.43, the Ohio Public Records Act (“PRA”), for the personnel files of six
employees of the West Licking Joint Fire District (“district”). Less than three
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business days after making the request, Davis filed a complaint for a writ of
mandamus in the Fifth District Court of Appeals seeking release of the records.
The requested documents were produced two hours after the suit was filed, but the
district was not aware of Davis’s complaint until the next day. The court of appeals
found that the records were produced in a reasonable amount of time and that Davis
had engaged in frivolous conduct. State ex rel. Davis v. Metzger, 5th Dist. Licking
No. 11-CA-130, 2013-Ohio-1620.          We affirmed in part, but reversed the
determination that Davis engaged in frivolous conduct and remanded the cause for
the court of appeals to hold a hearing on that issue. State ex rel. Davis v. Metzger,
139 Ohio St.3d 423, 2014-Ohio-2329, 12 N.E.3d 1178. That court held the hearing
and found that Davis engaged in frivolous conduct and awarded attorney fees. State
ex rel. Davis v. Metzger, 5th Dist. Licking No. 11-CA-130, 2014-Ohio-4555. Davis
appealed.
       {¶ 2} Because the court of appeals did not abuse its discretion, we affirm.
                                       Facts
       {¶ 3} Appellee, Terra Woolard Metzger, was the person responsible for
public records for the district. Immediately after a meeting of the West Licking
Joint Fire District Board of Trustees, at about 9:00 p.m. on Thursday, December 8,
2011, Davis submitted to Metzger requests for the personnel records of six
employees. The requests were similar and sought records regarding work
performance, disciplinary actions, and any other documents that would indicate that
the employees could not perform their jobs.
       {¶ 4} On Tuesday, December 13, 2011, at approximately 11:30 a.m., Davis
called Metzger to inquire about the status of the requests. Metzger told Davis that
the requests were being reviewed by legal counsel before release. Davis did not
raise any objection during the phone call, but filed a mandamus action in the Fifth
District Court of Appeals at 1:59 p.m. that day. The district’s counsel completed
the review of the requested records the same day, and Metzger sent the documents




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to Davis by e-mail at 3:28 p.m. that afternoon. The next day, December 14, 2011,
Metzger was served with the complaint.
       {¶ 5} Davis never informed Metzger that the response to his request was
incomplete or otherwise unacceptable. Davis also never amended his original
complaint to allege that the submitted records failed to satisfy his request.
       {¶ 6} The court of appeals held that Metzger’s production of the requested
documents less than three business days after the request was reasonable. State ex
rel. Davis v. Metzger, 5th Dist. Licking No. 11-CA-130, 2013-Ohio-1620, 2013
WL 1729353, ¶ 12. It also found that Davis had engaged in unnecessary discovery
and motion practice in the case and awarded Metzger attorney fees and costs subject
to a hearing to determine their amount and reasonableness. Id. at ¶ 22. The hearing
was continued when Davis appealed.
       {¶ 7} On appeal, we held that because the department substantially
complied with Davis’s public-records request in less than three business days, the
district’s response was reasonable, and thus the court of appeals correctly granted
summary judgment and denied the writ. 139 Ohio St.3d 423, 2014-Ohio-2329, 12
N.E.3d 1178, ¶ 7-12. However, we found that the court of appeals abused its
discretion when it failed to hold a show-cause hearing before finding that Davis had
engaged in frivolous conduct under R.C. 2323.51(A). Id. at ¶ 13-16.
       {¶ 8} On remand, the court of appeals held the required hearing and found
that frivolous conduct had occurred, but as it was on the advice of counsel, Davis
himself was not liable. Instead, the court laid the blame for the conduct on Davis’s
attorney and granted the request for attorney fees against the attorney in the amount
of $28,332.05. 2014-Ohio-4555, 2014 WL 5141649, ¶ 14. Davis appealed.
                                      Analysis
       {¶ 9} Davis asserts that the court of appeals erred in finding that he or his
attorney engaged in frivolous conduct under R.C. 2323.51. That statute defines
“frivolous conduct” as conduct that serves merely to harass or maliciously injure




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another party or conduct that is for another improper purpose, “including, but not
limited to, causing unnecessary delay or a needless increase in the cost of
litigation,” conduct that is not warranted under existing law and that “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,” and conduct that consists of allegations that “have no evidentiary
support.” R.C. 2323.51(A)(2)(a)(i), (ii), and (iii).
       {¶ 10} “We will not reverse a lower court’s decision on whether to award
sanctions under R.C. 2323.51 absent an abuse of discretion.” State ex rel. Striker
v. Cline, 130 Ohio St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19, ¶ 11, citing Ron
Scheiderer & Assoc. v. London, 81 Ohio St.3d 94, 98, 689 N.E.2d 552 (1998). To
prove abuse of discretion, the appealing party must show that the lower court’s
decision to grant attorney fees was unreasonable, arbitrary, or unconscionable.
State ex rel. Cydrus v. Ohio Pub. Emps. Retirement Sys., 127 Ohio St.3d 257, 2010-
Ohio-5570, 938 N.E.2d 1028, ¶ 28.
       {¶ 11} Davis asserts that the court of appeals’ decision granting sanctions
was wrong because the lawsuit and his attorney’s conduct in the litigation were not
frivolous. He disagrees with the court of appeals’ holding that filing a mandamus
action after only three days was unwarranted. He asserts that the decision is at odds
with State ex rel. Consumer News Servs. v. Worthington City Bd. of Edn., 97 Ohio
St.3d 58, 2002-Ohio-5311, 776 N.E.2d 82, ¶ 38-47, in which we found that a delay
of four business days was unreasonable. However, we already held that the
department’s actions in producing the records in three days were reasonable and
not analogous to the actions in Consumer News. The court of appeals did not abuse
its discretion in finding that filing the lawsuit only three days after the request was
not reasonable.
       {¶ 12} Moreover, Davis did not follow up with Metzger to let her know that
he thought some of the requested records were being improperly withheld. Nor did




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Davis amend his complaint to assert that not all records had been produced.
Instead, Davis’s attorney continued to pursue discovery in the mandamus case,
including scheduling and conducting three depositions.
       {¶ 13} The court of appeals correctly found that the continuation of
unnecessary discovery after the requested records were provided was frivolous
conduct. The court of appeals found that the actions were undertaken on advice of
counsel and therefore only Davis’s attorney is liable for frivolous conduct and
sanctions.
       {¶ 14} The court of appeals did not abuse its discretion, and we affirm.
                                                               Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, FRENCH, and
O’NEILL, JJ., concur.
       KENNEDY, J., concurs in judgment only.
                           _____________________
       The Behal Law Group, L.L.C., and John M. Gonzales, for appellant.
       Fishel, Hass, Kim, Albrecht, L.L.P., and Marc A. Fishel, for appellee.
                           _____________________




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