[Cite as State ex rel. A.F. Krainz Co., L.L.C. v. Jackson, 2012-Ohio-5072.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98104


               STATE, EX REL., A.F. KRAINZ CO., LLC
                                                    PLAINTIFF-APPELLANT

                                                       vs.

                          MAYOR FRANK G. JACKSON
                                                    DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-662854

            BEFORE:           Blackmon, A.J., Stewart, J., and Boyle, J.

            RELEASED AND JOURNALIZED:                                 November 1, 2012
ATTORNEYS FOR APPELLANT

Jeffrey J. Fanger
Justine S. Winger
Fanger & Associates LLC
Fifth Third Center
600 Superior Avenue, E., Suite 1300
Cleveland, Ohio 44114-2650

ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Interim Director of Law

Joseph F. Scott
Chief Assistant Director of Law
City of Cleveland, Law Department
601 lakeside Avenue, Room 106
Cleveland, Ohio 44114-1077
PATRICIA ANN BLACKMON, A.J.:

       {¶1} Relator-appellant, A.F. Krainz, Co., LLC (“Krainz”), appeals the trial

court’s decision granting summary judgment in favor of respondent-appellee, Mayor

Frank G. Jackson (“Mayor Jackson”). Krainz assigns 19 errors for our review.1

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

       {¶3} The instant case began on June 6, 2008, when Krainz filed a mandamus

action to compel Mayor Jackson to restore the portion of East 47th Street, between St.

Clair Avenue and Sorg Court, from a two-way street to a one-way street.               In the

complaint, Krainz’s principal place of business is located on that portion of East 47th

Street that was changed. In its complaint, Krainz alleged that the City failed to provide

proper notice to resident or business owners prior to instituting the traffic pattern change.



       {¶4} Specifically, Krainz alleged that on March 14, 2007, and April 16, 2007,

respectively, it submitted a public records request to the City requesting documentation

regarding the change in the traffic pattern on East 47th Street. Krainz also alleged that

on April 5, 2007, the City responded by supplying an interoffice memorandum that




       See appendix.
       1
indicated that Day Glo, another company located on East 47th Street, had requested the

changes to the traffic pattern.

       {¶5} In response to discovery, the City produced several emails between

individuals at Day Glo and Robert Mavec, the City’s traffic commissioner, and Jomarie

Wasik, another City employee. Krainz maintained that these emails contained relevant

information that the City should have produced pursuant to the public records request.

As a result, on March 20, 2009, Krainz filed a motion for leave to amend its complaint to

add causes of action for alleged violations of R.C. 149.351 and 149.43.

       {¶6} During the pendency of Krainz’s leave to amend its complaint, Mayor

Jackson filed a motion for summary judgment.           After receiving Krainz’s brief in

opposition, on February 24, 2010, the trial court granted summary judgment in favor of

Mayor Jackson, stating in pertinent part as follows:

       * * * To be entitled to a writ on [sic] mandamus, one must establish: 1)
       that he has a clear legal right to the relief prayed for, 2) that
       respondents are under a clear legal duty to perform the acts, and 3)
       that the moving party has no plain and adequate remedy in the
       ordinary course of the law. Goudlock v. State, Cuyahoga App. No.
       84135, 2004-Ohio-2352. Having failed to satisfy the first prong set
       forth in Goudlock, supra, relator is not entitled to a writ of mandamus.
       ***

       {¶7} The trial court never ruled on Krainz’s motion for leave to amend the

complaint to add causes of action for alleged violations of R.C. 149.351 and 149.43.

Consequently, Krainz appealed the trial court’s de facto denial of its motion for leave to

amend the complaint because of its decision granting summary judgment in favor of

Mayor Jackson.
       {¶8} In State ex rel. A.F. Krainz Co., LLC v. Jackson, 8th Dist. No. 94864,

2010-Ohio-6029, we reversed the trial court’s de facto denial of Krainz’s motion for

leave to amend its complaint. Having found that the trial court should have granted

Krainz leave to amend the complaint to add the additional causes of action, our court

declined to review the trial court’s decision granting summary judgment in favor of

Mayor Jackson. We held that for us to consider the summary judgment issue would

result in a review of only one of Krainz’s three claims and constitute piecemeal litigation.

Id.

       {¶9} On May 25, 2011, Krainz filed its amended complaint setting forth the

additional two causes of action for alleged violations of R.C. 149.351 and 149.43.

Ultimately, on November 8, 2011, Mayor Jackson filed a motion for summary judgment

on Krainz’s two additional causes of action stating in pertinent part that:

       * * * This Court has previously disposed of Count I of Relator’s
       Amended Complaint by entering judgment in favor of Respondent and
       that judgment remains undisturbed by the decision by the Eighth
       District Court of Appeals. Relator’s remaining claims both concern
       alleged violations of Ohio’s Public Records Act. Respondent’s Motion
       for Summary Judgment.

       {¶10} On December 2, 2011, Krainz filed its motions for summary judgment

stating in pertinent part as follows:

       * * * Relator set forth three Counts in its Amended Complaint. Count
       I was previously dismissed by this Court in favor of Respondent.
       Count II and III allege Respondent’s violations of Ohio Public Records
       law. Relator is entitled to summary judgment on Counts II and III,
       based on the Ohio Revised Code, applicable case law, and the
       underlying public policy of Ohio’s Public Records Act. Relator State
       Ex Rel. A.F. Krainz Co. LLC’s Motion for Summary Judgment. * * *
       {¶11} On February 17, 2012, the trial court granted summary judgment in favor

of Mayor Jackson on Counts II and III of Krainz’s Amended Complaint.

                                    Summary Judgment

       {¶12} Preliminarily, and as previously stated, Krainz has assigned 19 errors for

our review.    Although all concern the merit of the trial court’s decision granting

summary judgment in Mayor Jackson’s favor, we find several assigned errors to be

repetitive in nature.   In addition, a number of assigned errors advance arguments not

raised in Krainz’s cross-motion for summary judgment or in its response to Mayor

Jackson’s motion for summary judgment, and are now being raised for the first time on

appeal. As an appellate court, we do not consider arguments that the trial court did not

address.   Roush v. Butera, 8th Dist. No. 97463, 2012-Ohio-2506, citing Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 1992-Ohio-95, 604 N.E.2d 138. We, therefore, will

not consider issues raised for the first time on appeal. Id.

       {¶13} Based on the foregoing, we will address the appropriate errors together with

a focus on the central issues raised by Krainz in its cross-appeal and in its response to

Mayor Jackson’s motion for summary judgment.

       {¶14} We review an appeal from summary judgment under a de novo standard of

review.    Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio

Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th
Dist.1997).   Accordingly, we afford no deference to the trial court’s decision and

independently review the record to determine whether summary judgment is appropriate.

      {¶15} Under Civ.R. 56, summary judgment is appropriate when, (1) no genuine

issue as to any material fact exists, (2) the party moving for summary judgment is entitled

to judgment as a matter of law, and (3) when viewing the evidence most strongly in favor

of the nonmoving party, reasonable minds can reach only one conclusion that is adverse

to the nonmoving party.

      {¶16} The moving party carries an initial burden of setting forth specific facts

that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio

St.3d 280, 292-293, 662 N.E.2d 264 (1996).       If the movant fails to meet this burden,

summary judgment is not appropriate; if the movant does meet this burden, summary

judgment will be appropriate only if the nonmovant fails to establish the existence of a

genuine issue of material fact. Id. at 293.

      {¶17}    Pertinent to the instant action, 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, such as appeal. Additionally, although mandamus may be

used to compel a court to exercise judgment or to discharge a function, it may not control

judicial discretion, even if that discretion is grossly abused. State ex rel. McGrath v.

Calabrese, 8th Dist. No. 97082, 2011-Ohio-4833. See also Ney v. Niehaus, 33 Ohio

St.3d 118, 515 N.E.2d 914 (1987); State ex rel. Keenan v. Calabrese, 69 Ohio St.3d 176,
631 N.E.2d 119 (1994); State ex rel. Daggett v. Gessaman, 34 Ohio St.2d 55, 295 N.E.2d

659 (1973); and State ex rel. Pressley v. Industrial Comm. of Ohio, 11 Ohio St.2d 141,

228 N.E.2d 631 (1967).

       {¶18}   In the instant case, the gravamen of Krainz’s complaint is the City’s

alleged failure to properly respond to the public records request, entitle it to court costs,

attorney fees, and statutory damages pursuant to the public records law.

       {¶19}   Ohio’s Public Records Act reflects the policy that “open government

serves the public interest and our democratic system.” State ex rel. Dann v. Taft, 109 Ohio

St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472. R.C. 149.43 must also be liberally construed

in favor of broad access to public records, with any doubt resolved in favor of disclosure.

State ex rel. Bardwell v. Cuyahoga Cty Bd. of Commrs., 8th Dist. No. 93058,

2009-Ohio-5573, citing State ex rel. Natl. Broadcasting Co. v. Cleveland, 82 Ohio

App.3d 202, 611 N.E.2d 838 (8th Dist.1992). See also State ex rel. Physicians Commt. for

Responsible Medicine v. Ohio State Univ. Bd. Of Trustees, 108 Ohio St.3d 288,

2006-Ohio-903, 843 N.E.2d 174; State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75

Ohio St.3d 374, 1996-Ohio-214, 662 N.E.2d 334.

       {¶20} Under the applicable test,

       “[a] court may award attorney fees pursuant to R.C. 149.43 where, (1)
       a person makes a proper request for public records pursuant to R.C.
       149.43,(2) the custodian of the public records fails to comply with the
       person’s request, (3) the requesting person files a mandamus action
       pursuant to R.C. 149.43 to obtain copies of the records, and (4) the
       person receives the requested records only after the mandamus action
       is filed, thereby rendering the claim for a writ of mandamus moot.”
       State ex rel. Cincinnati Enquirer v. Ronan, 127 Ohio St.3d 236,
       2010-Ohio-5680, 938 N.E.2d 347, quoting State ex rel. Pennington v.
       Gundler, 75 Ohio St.3d 171, 1996-Ohio-161, 661 N.E.2d 1049, syllabus;
       see also State ex rel. Laborers Internatl. Union of N. Am. Loc. Union No.
       500 v. Summerville, 122 Ohio St.3d 1234, 2009-Ohio-4090, 913 N.E.2d
       452.

       {¶21} A review of the record shows that after Krainz discovered that the City had

changed the aforementioned portion of East 47th Street from a one-way street to a

two-way street, Krainz sent a letter on February 19, 2007, to Cleveland City Councilman,

Joe Cimperman, detailing its concerns. On March 14, 2007, Krainz followed up with a

letter to the City’s Public Records Administrator requesting documentation regarding the

change in traffic pattern.

       {¶22} On April 5, 2007, the City responded to Krainz’s request by sending inter

alia, an interoffice memorandum dated March 19, 2007, detailing the reasons for the

changed traffic pattern. The City’s response also included Traffic Sign Orders Nos. 729,

730, 731, which revealed that Day Glo Corporation had requested the change in the traffic

pattern.

       {¶23} On April 16, 2007, Krainz sent another letter to the City’s Public Records

Administrator complaining of a perceived deficiency in the records the City produced.

On December 7, 2007, the City supplemented its earlier response by providing five

photographs of the street and adjacent buildings. Thereafter, and as previously stated, on

June 20, 2008, Krainz instituted the instant action by filing a mandamus action to compel

Mayor Jackson to restore that portion of East 47th Street back to a one-way traffic

pattern.
       {¶24}     Subsequently, Krainz engaged in discovery, filed written discovery

requests, issued subpoenas, and deposed several of the City’s employees. On January 2,

2009, the City forwarded responses to Krainz’s written discovery request. The response

included emails between the City’s personnel and Day Glo Corporation. On March 4,

2009, in response to subpoenas, Krainz obtained corresponding emails from Day Glo

Corporation.

       {¶25} On March 20, 2009, Krainz sought leave to amend its complaint to include

 causes of action for alleged violations of R.C. 149.351 and 149.43. The procedural

history that followed Krainz seeking leave to amend the complaint, which has brought us

to this juncture, has been discussed above and need not be recapped. However, we must

point out that the record shows that Krainz abandoned Count I of its amended complaint

that originally sought an order restoring the traffic pattern on the subject portion of East

47th Street.2 As previously noted, the trial court found that Krainz had not established

that it had a clear right to have the traffic pattern restored to a one-way street. Thus, this

appeal deals solely with Counts II and III of Krainz’s Amended Complaint

       {¶26} In granting summary judgment in Mayor Jackson’s favor, the trial court

stated in pertinent part as follows:

       A review of the relevant case law and the record before the court

       reveals that respondent properly responded to relator’s original

       request. Moreover, a review of the record itself indicates that relator

       2
        We note that the trial court ruled on that motion.   We declined to deal with it in Krainz I.
      did not file the instant action in order to obtain copies of the requested

      records. Although relator places great emphasis on the absence of the

      “UC Map” there is no indication that this “map,” if it physically

      existed, is in respondent’s possession, or that it relates to anything

      other than the mere placement of signage. Instead, and as it relates to

      any outside e-mails, relator was able to obtain all records through a

      third party. Finally, the Court finds that relator has not been able to

      demonstrate that it was an “aggrieved person.”

      {¶27} A review of the procedural time-line detailed above indicates that Krainz

was in possession of the records it sought to compel when it amended its complaint on

May 25, 2011, to include causes of action for alleged violations of R.C. 149.351 and

149.43. Because Krainz was in possession of the records it sought to compel in filing the

mandamus action, Krainz has not satisfied the test outlined in Pennington supra. As

such, they were not entitled to court costs, attorney fees, and statutory damages pursuant

to R.C. 149.43(C). Mandamus will not compel the performance of an act that has

already been performed.     State ex rel. Watson v. Moore, 10th Dist. No. 11AP-3,

2011-Ohio-6386, citing     State ex rel. Fontanella v. Kontos, 117 Ohio St.3d 514,

2008-Ohio-1431, 885 N.E.2d 220 ¶ 6.

      {¶28}    Nonetheless, Krainz maintains that the City failed to produce all the

requested documents. In support of this contention and its claim that the City bore the

burden of proving that all documents had been produced, Krainz relies on State ex rel.
Simonsen v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 08AP-21, 2008-Ohio-6825.

However, the instant case is distinguishable from Simonsen.         The court in Simonsen

found that respondent did not state that they had provided relator with all documents

responsive to relator’s request. Therefore, there was no way of knowing whether

respondent’s response was complete.

       {¶29} Unlike the present case, Krainz identified the records, specifically emails

between the City and Day Glo and the “U.C. Map,” as the documents covered under the

mandamus action. As to the emails, there is no dispute that Krainz obtained those

records before filing the instant action, both from Day Glo and the City. Thus, there is

no issue regarding the responsiveness of the City’s production.

       {¶30} Nevertheless, at oral argument, Krainz suggested that there might be other

emails that were on the City’s old computer server that the City failed to produce. We

find no support for this assertion. Jo Marie Wasik, the Director of Public Service for the

City, testified in her deposition regarding the alleged emails, as follows:

       Q.     Do you have any other E-mails that have not been produced regarding
              East 47th Street?

       A.     Not that I know of. Wasik Depo. 49.

       ***

       Q.     Do you know what your department’s protocols are with respect to
              backing up your computers at work?

       A.     Yes.

       Q.     What are your protocols?
A.    I believe you should back them up. I believe you should archive your
      E-mails.

Q.    Do you do that?

A.    Yes. I do archive E-mails.

Q.    Where are they kept?

A.    On my computer.

Q.    On your desk top?

A.    Yes. Wasik Depo. 51.

***

Q.    Did you review your E-Mails with respect to this case?
A.    Yes; I did.

Q.    How did you go about reviewing your E-mails?

A.    I looked in the archives.

Q.    How did you search the archives?

A.    By date, by subject, by to, by from.

Q.    Did you ask the IT - - I don’t know. * * * Did you ask them for
      help reviewing your archives?

A.     Yes; I did.

Q.    Did they assist you in reviewing your archives?

A.    Yes.

Q.    How did they assist you in reviewing your archives?

A.    They logged into my computer and searched places that I
      didn’t know were there, but they didn’t find anything more than what
      I had. Wasik Depo. 52-53.
       {¶31} The above excerpt indicates that Wasik followed the proper protocol with

respect to email correspondence between the City and Day Glo.             The emails were

archived, and when the record request was received, Wasik searched the archives by date,

by subject, by to, as well as by from, so that she could respond to Krainz’s request.

Further, Wasik enlisted the assistance of the information technology department, who

conducted an even more exhaustive search, but found nothing that had not already been

turned over to Krainz.

       {¶32} Here, given that Krainz had already obtained emails from Day Glo and had

also received emails from the City, which mirrored the very emails they had received

from Day Glo, their present assertion that other emails exist is without merit.

       {¶33} Now, turning our attention to the document referred to as the “U.C. Map,”

we also find Krainz’s contention without merit.     In the action below, Mamie Lemons, a

traffic sign marking technician with the City, testified about the U.C. Map, as follows, in

her deposition:

       Q.     Can you do the same thing and explain what these instructions are?

       A.     * * * [A]nd then at the bottom under special instructions, a U.C. Map
              attached whereas before we dig, we have to have a U.C. clearance to
              make sure we don’t hit any wires or any pipes underneath the ground.

       ***

              Mr. Fanger: * * * Let the record reflect that the map has not been
              produced.

              Mr. Hajjar: I will look for the map that’s the map for the underground
              detail.
       A.     Yes. Just gives us clearance to dig.

       Q.     It should have been attached to this traffic sign order; is that correct?

       A.     Sometimes we get it attached. As long as someone calls and they state
              that it’s clear, we are able to dig. We just get permission to dig.

              Mr. Hajjar: If the map was attached, I’ll get it for you.

       ***

       Q.     Okay. And the purpose of the U.C. Map is for the utilities?
       A.     Yes.

       Q.     So you don’t hit a pipe or an electrical line or something like that?

       A.     Correct. Lemons Depo. 15-16.

       {¶34} The City’s Commissioner for Traffic Engineering, Robert Mavec, also

testified about the U.C. Map. Mavec confirmed that the U.C. Map is a utility check that

is done before digging begins when signs are be placed. Mavec testified that the U.C.

Map represented the locations of the various utility lines that are buried underground and

the physical locations on the ground are usually painted. Mavec stated that U.C. Map is

a generic term that is used in the field and an actual map might not always be produced.

       {¶35} It is clear from the deposition testimony of Lemons and Mavec that the

U.C. Map had no bearing on the City’s decision to change the traffic pattern on that

portion of East 47th Street. Instead, the U.C. Map determined where the signs would be

placed and prevented the crew, who would ultimately complete the work order, from

accidentally cutting any buried lines.
       {¶36} Additionally, they testified that it was possible that a U.C. Map was not

physically sketched and attached to the work order. Mavec testified that sometimes the

crew doing the utility checks simply place flags in the ground or spray paint the grass

with bright colors to mark the locations of the buried utility lines. Thus, based on the

testimony of Lemon and Mavec, an actual document may not even have been created and

is, therefore, nonexistent.

       {¶37} If the record did not exist when Krainz made its request, then they could

not have made the record available. “The Public Records Act does not compel the

respondent to create a new document to satisfy the relator’s demands.” State ex rel.

Sprague v. Wellington, 7th Dist. No. 11 MA 112, 2012-Ohio-1698, quoting State ex rel.

Fant v. Mengel, 62 Ohio St.3d 455, 584 N.E.2d 664 (1992).

       {¶38} Further, given that the purported U.C. Map had no bearing on the City’s

decision to change the street’s traffic pattern, but only impacted sign placements, it was

not fatal to Krainz’s record request that the City was unable to produce the same. Thus,

the City produced all the documents that impacted its decision to change the traffic

pattern. As such, the City produced the documents that were responsive to Krainz’s

request, which specifically dealt with the City’s decision to change the traffic pattern on

the subject portion of East 47th Street.     Further, and as previously stated, the City

complied with the request prior to Krainz filing the mandamus action.

       {¶39} Nonetheless, Krainz argues that if the records were produced, then the

City’s response was untimely.
       {¶40} However, with regard to Krainz’s request for statutory damages, Krainz

has the burden to demonstrate that the City’s response to its public records request was

unreasonably delayed. State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160,

2005-Ohio-4384, 833 N.E.2d 274. Further, a review of R.C. 149.43(B)(1) reveals that

the state of Ohio has not set a required time period for a public office to respond to a

request for copies of public records. The only requirement is that the copy be made

available in a reasonable period of time. Id.

       {¶41} Here, Krainz’s mandamus complaint was tailored to the request for records

they contended had not been made available, and as previously discussed, such records

were provided before they filed this action. Thus, Krainz’s present assertion is moot. See

generally State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379, 700 N.E.2d 12 (1998); State

ex rel. Warren v. Warner, 84 Ohio St.3d 432, 704 N.E.2d 1228 (1999).

       {¶42} Although Krainz broadly alleges a 235 day delay in the City’s response to

their request, the record reveals that on April 5, 2007, less than three weeks after Krainz’s

request, the City responded by sending inter alia, an interoffice memorandum dated

March 19, 2007, detailing the reasons for the changed traffic pattern. As previously

noted, the City’s response also included Traffic Sign Orders Nos. 729, 730, 731, which

revealed that Day Glo Corporation had requested the change in the traffic pattern.

       {¶43} Later, in response to discovery, the City produced several emails between

individuals at Day Glo and the City; given that Krainz submitted the public records

request on March 14, 2007, and the City began responding by April, 5, 2007, we find
Krainz’s allegation of a 235 day delay, a mischaracterization. As such, we find no merit

in Krainz’s claim relating to the timeliness of the City’s provision of these records.

       {¶44} Finally, Krainz argues that it should not have had to obtain the emails from

Day Glo Corporation.      As previously discussed, the record is clear that Krainz had

obtained all the records that dealt with the City’s decision to change the traffic pattern on

the subject portion of East 47th Street from the city. Krainz received these records

before it filed the mandamus action. As such, we find this argument without merit.

       {¶45} We conclude there are no genuine issues of material fact. The record

indicates the City had provided all the documents that were responsive to Krainz’s public

records request.   We further conclude that the U.C. Map that has been so focal to

Krainz’s claim that the City did not fully respond to its request, was immaterial to the

City’s decision to change the traffic pattern on that portion of East 47th Street. As such,

the trial court properly granted summary judgment in Mayor Jackson’s favor.

Accordingly, we overrule Krainz’s assigned errors.

       {¶46} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

MELODY J. STEWART, J., and
MARY J. BOYLE, J., CONCUR




                             APPENDIX

Assignments of Error
I.     The court abused its discretion when it ruled by summary judgment that
       respondent properly responded to relator’s proper public records request
       pursuant to R.C. 149.43 due to the fact that whether or not respondent fully
       responded to the public records request is a question of fact in dispute as
       evidence existed that additional emails may exist.

II.    The trial court abused its discretion when it ruled by summary judgment that
       respondent properly responded to relator’s proper public records request
       when respondent responded 235 days after the request was made pursuant to
       R.C. 149.43.

III.   The trial court abused its discretion when it ruled by summary judgment that
       there were no material issues of fact despite citing in its decision that there
       were issues of fact as to whether or not certain documents existed and or were
       in possession of the respondent, which by definition is a question of fact.

IV.    The court abused its discretion when it ruled by summary judgment that
       there were no issues of fact despite issues raised in relator’s brief as to
       whether or not respondent had possession or additional emails not yet
       produced, the existence of which is a question of fact.

V.     The court abused its discretion when it ruled by summary judgment due to
       the fact that the court in its own decision references a dispute of fact
       regarding whether or not a map exists and whether or not said may is in
       respondent’s possession.

VI.    The court abused its discretion when it ruled by summary judgment that
       relator did not file the instant action in order to obtain copies of the requested
       records.

VII.   The court abused its discretion when it ruled by summary judgment that
       relator did not file the instant action in order to obtain copies of the requested
       records as the identification of possible records due to subpoena of a third
       party does not absolve the public entity from having to locate the records so
       that a determination can be made as to whether there are relevant records not
       produced.

VIII. The court abused its discretion when it ruled by summary judgment as there
      is an open issues of fact regarding why the respondent has been unable to
      locate emails that clearly existed, that were not timely produced and that
      clearly were public records for which the respondent was required to
      maintain.
IX.   The court abused its discretion when it ruled by summary judgment that
      relator was able to obtain all records through a third party as it
      predetermines that all records have been obtained which is a question of fact.

X.    The court abused its discretion when it ruled by summary judgment that a
      governmental entity has properly complied with Ohio’s Public Records Law
      despite the fact that the governmental entity failed to maintain and or
      produce records that it clearly had in its possession at one point in time, that
      it did not produce records timely pursuant to a proper public records request,
      that said existence of said records only became known to the respondent upon
      the proffering of a subpoena upon a third party, and that the governmental
      entity has been unable to locate or explain as to the records unavailability.
      The court’s decision effectively absolves the governmental entity of its
      obligation to maintain records and to produce said records upon request.
      The court’s ruling substantially undermines the public policy and purpose of
      Ohio’s Public Records Law by permitting a governmental entity to avoid
      maintain and or producing records if the records are able to be produced
      pursuant to a subpoena upon a third party. The court’s ruling creates a new
      standard in Ohio whereby a party that requests a public record (and thereby
      learns through litigation that the governmental entity did not properly
      produce there record by subpoenaing a third party which provides knowledge
      of the existence of the non-produced record) is precluded from a finding that
      the governmental entity violated Ohio’s Public Records Law due to the
      production of the documents by the third party. The court’s determination
      would effectively eliminate the need for any governmental entity to maintain
      any record that was produced to a third party.

XI.   The trial court abused its discretion when it ruled by summary judgment that
      a party upon learning that public records existed that had not been properly
      produced, that timely seeks to amend its complaint to add an action in
      mandamus to obtain said records and for damages caused as a result of the
      failure to timely produce said records, is foreclosed from relief due to the fact
      that the amended action in mandamus was filed after knowledge of the fact
      that the records had not been produced by the government entity. It is an
      abuse of discretion and contrary to Ohio public policy for a trial court to
      determine by summary judgment that receipt of records from a third party
      that prove a governmental entity has not properly complied with a public
      records request extinguishes a party’s right to seek relief and attorney fees by
      mandamus action for the governmental entity’s failure to produce the records
      upon the proffering of the public records request.
XII.   The trial court abused its discretion by using the date of the amending of the
       complaint as the date for purposes of determining when the person initiated
       the action for purposes of the Ex Rel Pennington v. Gundler (1996), 75 Ohio
       St.3d 171 standard when the court should have used the date of the
       commencement of the initial action not the date of the amended complaint to
       determine whether the person received the requested records after the action
       was filed.

XIII. The trial court abused its discretion by determining by summary judgment
      that relator did not file the instant action in order to obtain copies of the
      requested records.

XIV. The court abused its discretion when it ruled by summary judgment that
     relator was able to obtain all records through a third party as it
     predetermines that all records have been obtained which is a question of fact.

XV.    The court abused its discretion when it ruled by summary judgment that
       relator was able to obtain all records through a third party as said
       determination requires a factual determination that all records have in fact
       been obtained which is in dispute.

XVI. The court abused its discretion when it ruled by summary judgment that the
     relator is not an aggrieved person despite the fact that the relator was clearly
     harmed by the improper presumed destruction and disposal of emails by the
     city.

XVII. The court abused its discretion when it ruled by summary
      judgment and failed to examine in an evidentiary hearing the city’s inability
      to produce emails and other documents properly requested pursuant to the
      relator’s public records request.

XVIII. The court abused its discretion when it ruled by summary         judgment
      and failed to examine in an evidentiary hearing the city’s response time of 235
      days in responding to a public records request despite case law that has held
      the city liable for a delay of 29 days.

XIX. The court abused its discretion when it ruled by summary judgment and
     determined that the city had properly responded to the public records request
     without addressing the sufficiency and clarity of the relator’s public records
     request.
