[Cite as Johns v. Allen, 2013-Ohio-2045.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


ELISE JOHNS,                                    :       PER CURIAM OPINION

                 Relator,                       :
                                                        CASE NO. 2013-T-0007
        - vs -                                  :

KAREN INFANTE ALLEN, et al.,                    :

                 Respondents.                   :


Original Action for Writ of Mandamus.

Judgment: Petition dismissed.


Elise Johns, pro se, 1932 Stepney Street, Niles, Ohio 44406 (Relator).

Dennis Watkins, Trumbull County Prosecutor, LuWayne Annos, Assistant Prosecutor,
and Lynn B. Griffith, III, Assistant Prosecutor, Administration Building, Fourth Floor,
160 High Street, N.W., Warren, OH 44481 (For Respondents).


PER CURIAM.

        {¶1}     This action in mandamus is presently before this court on the Motion for

Dismissal or in the Alternative Motion for Summary Judgment of respondents, Trumbull

County Clerk of Courts Karen Infante Allen, Trumbull County Prosecuting Attorney

Dennis Watkins, and Trumbull County Assistant Prosecuting Attorney Diane Barber. As

the basis for this Motion, respondents maintain that the Petition of relator, Elise Johns,

fails to state a claim upon which a writ can be granted because her request for public

records is moot.         For the following reasons, respondents’ Motion has merit and,

accordingly, relator’s Petition is dismissed.
       {¶2}    In relator’s Petition for Writ of Mandamus, filed February 4, 2013, she

requested that respondents be ordered to provide certain public records to her. These

records include various documents related to Trumbull County Court Case Nos. 95-CR-

696 and 96-CR-599, State v. Cioffi. Relator argues that she requested these items

pursuant to R.C. 149.43, the Ohio Public Records Act, but her request was denied by

respondents.

       {¶3}    In moving to dismiss relator’s claim, respondents have raised several

arguments. They assert that the claim is moot, since respondents have agreed to

provide all available records to relator. In support, respondents attached a letter they

assert has been mailed to relator, dated February 21, 2013, which stated that the public

records were available for the relator to view and copy at the courthouse.

       {¶4}    Relator did not file a response to the Motion to Dismiss.

       {¶5}    As an initial matter, respondents emphasize that relator failed to properly

caption her petition and this is grounds for dismissal. “The failure to caption an original

action properly constitutes sufficient grounds for dismissing the petition.”        (Citation

omitted.) Snype v. Enlow, 11th Dist. No. 2011-P-0096, 2012-Ohio-1272, ¶ 4; see also

Allen v. Court of Common Pleas of Allen Cty., 173 Ohio St. 226, 227, 181 N.E.2d 270

(1962). R.C. 2731.04 states, in part, that an “[a]pplication for the writ of mandamus

must be by petition, in the name of the state on the relation of the person applying, and

verified by affidavit.” The caption of relator’s Petition in this case does not indicate that

the request is made in the name of the state on the relation of Johns. Instead, the

petition was filed by Johns in her individual capacity.

       {¶6}    However, even if relator had properly captioned her petition, respondents

would still be entitled to judgment as a matter of law.

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       {¶7}   “A motion to dismiss for failure to state a claim upon which relief can be

granted is procedural in nature and tests the sufficiency of the complaint.” Huffman v.

Willoughby, 11th Dist. No. 2007-L-040, 2007-Ohio-7120, ¶ 16, citing State ex rel.

Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378

(1992). Under Civ.R. 12(B)(6), “the factual allegations and all reasonable inferences in

a complaint must be accepted as true and viewed in a light most favorable to the

plaintiff. In order to dismiss a complaint under Civ.R. 12 or to enter judgment on the

pleadings, a court must be convinced, based solely on the allegations in the complaint,

that the plaintiff can prove no set of facts entitling him to recovery.” (Citation omitted.)

State ex rel. Simeone v. Niles, 11th Dist. No. 2008-T-0059, 2008-Ohio-7000, ¶ 18.

       {¶8}   In the present matter, relator has asserted in her Petition that she has not

received the records she requested. Since this is a motion to dismiss pursuant to Civ.R.

12(B)(6), this court must rely on the factual allegations in the Petition and accept these

allegations as true.

       {¶9}   Mandamus is a writ issued to a public officer to perform an act “which the

law specially enjoins as a duty resulting from an office.” R.C. 2731.01. “For a writ of

mandamus to issue, the relator must establish a clear legal right to the relief prayed for;

the respondent must have a clear legal duty to perform the act; and the relator must

have no plain and adequate remedy in the ordinary course of the law.” State ex rel.

Widmer v. Mohney, 11th Dist. No. 2007-G-2776, 2008-Ohio-1028, ¶ 31, citing State ex

rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79, 80, 526 N.E.2d 786

(1988).

       {¶10} This court has found that, although it would usually be inappropriate to

consider evidentiary materials in ruling on a motion to dismiss under Civ.R. 12(B)(6),

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such materials can be reviewed when the basis of the dismissal motion is mootness.

State ex rel. Robinson v. McKay, 11th Dist. No. 2001-T-0125, 2002 Ohio App. LEXIS

587, *3 (Feb. 15, 2002). Respondent alleges that the present action is moot, such that

it would be appropriate to consider the evidentiary materials attached to the Motion to

Dismiss. In support of its assertion that the action is moot, respondent attached the

February 21, 2013 letter, stating that the materials requested by relator were either

available for review at the courthouse or were not part of the record because they were

privileged.

       {¶11} In the present matter, we find that dismissal of the Petition against

respondent Allen is warranted.        There is an adequate remedy at law through

respondent’s agreement to provide all available documents to relator. The letter sent to

relator specifically stated that she could come to the courthouse to review the case file

and would be allowed to make copies of the documents in the file.            Under R.C.

149.43(B)(1), “making the records ‘available for inspection to any person at all

reasonable times during regular business hours’” fulfills the requirement of complying

with a public records request.    (Citation omitted.) Strothers v. Norton, 131 Ohio St.3d

359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 21. This is what respondents have done, as

indicated by the letter from Allen.

       {¶12} Since respondent Allen has agreed to provide access to the documents in

the court file and did not deny relator’s request as to these items, relator’s request is

moot. State ex rel. Gannett Satellite Information Network v. Shirey, 78 Ohio St.3d 400,

401, 678 N.E.2d 557 (1997) (“provision of the requested records to the relator in a

mandamus action brought under R.C. 149.43 renders the mandamus claim moot”);

State ex rel. Cincinnati Enquirer v. Ronan, 124 Ohio St.3d 17, 2009-Ohio-5947, 918

                                            4
N.E.2d 515, ¶ 4 (the mandamus complaint was moot because the respondent produced

the requested records after the mandamus action was filed); State ex rel. Darling v.

Lake Cty., 11th Dist. No. 2012-L-079, 2013-Ohio-1291, ¶ 27 (since respondent is willing

to make the requested document available to relator, “her mandamus action is

essentially seeking performance of an obligation that either does not exist or has

already been met, thereby rendering it moot”).

       {¶13} We emphasize that relator, who filed no responsive pleading to the Motion

to Dismiss, did not deny the assertion that she was sent the letter and was provided

access to the documents she requested through access to the court file. She also

attached Allen’s letter to a subsequent filing, a response letter she wrote to Allen,

acknowledging that she received the letter. Relator’s failure to deny the assertions that

she was able to view the records at any time and her acknowledgment that she

received the letter informing her of this makes her unable to deny that the material is

being provided to her. See Darling at ¶ 23 (“In her responsive pleadings, relator has

never denied or otherwise challenged the assertions contained in this notice.

Therefore, it is not refuted that a significant amount of material has been made available

to relator that, for whatever reason, she simply refuses to pick up. This puts relator in a

position where she is unable to deny that the material has been provided to her.”).

       {¶14} Further, relator has not been denied access because she has not

attempted to obtain the documents that respondents have agreed to make available.

Relator has made no assertion that this compliance by the respondents does not meet

her needs, that certain documents are not being made available, or that respondents’

action is insufficient to fulfill their statutory duty. The only response to the letter was a




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March 4, 2013 letter filed by her, asking for the documents to be prepared for her pick

up and requesting information related to the time and place of pick up.

       {¶15} In regards to the other respondents, Watkins and Barber, they argue that

they were never given a public records request and, therefore, they cannot be said to

have denied such a request. A document attached to relator’s Petition, a photocopy of

certified mail that was returned to relator, showed that delivery was attempted but the

mail carrier was unable to forward the request. Relator concedes that this letter was

undelivered. Further, relator asserts that she attempted to serve the respondents but

does not affirmatively allege that such service was completed. Since relator has failed

to allege that respondents Watkins and Barber actually received a public records

request, we find that they had no duty to prepare or make available public records being

sought by relator. See State v. Bush, 11th Dist. No. 2001-T-0042, 2001 Ohio App.

LEXIS 4511, *3 (Oct. 5, 2001) (a person seeking access to public records under R.C.

149.43 must make a proper request before seeking recourse through a mandamus

action).

       {¶16} For the foregoing reasons, the dismissal of relator’s Petition is justified

under Civ.R. 12(B)(6) because she has failed to state a viable claim for any requested

relief and the matter is moot. Respondents’ Motion to Dismiss is granted. It is the order

and judgment of this court that relator’s Petition for Writ of Mandamus is hereby

dismissed in its entirety.


TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., THOMAS R. WRIGHT, J.,
concur.




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