Case No. 2012-1893

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OuprenYe Courtof tYje otate of ®bio

STATE OF OHIO ex rel. EMILIE DiFRANCO,

Relator-Appellant,

V.

CITY OF SOUTH EUCLID, OHIO, et al.,

Respondents-Appellees.

APPEAL OF RIGHT FROM THE EIGHTH DISTRICT COURT OF APPEALS

CUYAHOGA COUNTY, OHIO

CASE No. CA-12-097823

REPLY BRIEF OF APPELLANT EMILIE DiFRANCO

Curt C. Hartman (0064242)THE LAW FIRM OF CURT C. HARTMAN

3749 Fox Point CourtAmelia, OH 45102(513) 752-8800hartmanlawfirm@fuse.net

Michael P. Lograsso (0058557)Director of Law, City of South Euclid1349 South Green RoadSouth Euclid, OH 44121(216) 381-0400

Christopher P. Finney (0038998)FINNEY, STAGNARO, SABA & PATTERSON

Co., LPA2623 Erie AvenueCincinnati, Ohio 45208(513) 533-2980cfinney@fssp-1aw.com

Counsel for AppellantEmilie DiFranco

Counsel for AppelleesCity of South Euclid, Ohio,and Keith A. Benjamin

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CLEAK4FOOURTSUPREME COURT 0FOUII

TABLE OF CONTENTS

Table of Contents . .......................................................................................................................

....................................................................................................................Table of Authorities

REPLY BRIEF .................................................................................................................. 1

Proposition of Law No. l .............................................................................................. 2In an appeal of an action seeking an extraordinary writ, an appellate court hasplenary authority to consider the appeal as if the original action had been filedin that court and, thus, a reviewing court may independently determineentitlement to an award of attorney fees under the Public Records Act,especially when such an award is mandatory as a matter of law.

Proposition of Law No. 2 .............................................................................................. 2Ascertainment of whether an award of attorney fees under the Public Recordsis mandatory or discretionary is purely a legal question.

Proposition of Law No. 3 .............................................................................................. 3When one of the two instances requiring an attorney-fee award as setforth in the Public Records Act exists, a court is obligated to awardattorney fees.

Proposition of Law No. 4 .............................................................................................. 3Pursuant to the Public Records Act, an award of attorney fees is mandatorywhen the public office or the person responsible for the public records either:(i) failed to respond affirmatively or negatively to the public records requestpromptly or within a reasonable period of time, or (ii) promised to permit theinspection or to provide copies of the requested public records requested withina specified period of time but failed to fulfill that promise within that specified

period of time.

Proposition of Law No. 5 .............................................................................................. 10Consideration of whether a public benefit or the public interest exists so as tomerit an award of attorney fees pursuant to the Public Records Act is pertinentand relevant only when an award of fees is discretionary and not when such anaward is mandatory.

Proposition of Law No. 9 .............................................................................................. 10Even when an award of attorney fees under the Public Records Act isdiscretionary and not mandatory, an award of attorney fees is notdependent upon whether the release of the public records provides apublic benefit that is greater than the benefit that inures to the requestor.

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Proposition of Law No. 6 .............................................................................................. 10A denial of due process occurs when a court rules sua sponte on whether apublic benefit exists so as to entitle a relator to a discretionary award ofattorney fees pursuant to the Public Records Act when neither party raised orbriefed the issue and a court fails to provide notice and an opportunity to beheard on the issue.

Proposition of Law No. 7 ............................................................................................As an award of attorney fees as mandated by statute are taxed as costs and arenot determined as part of the resolution of the merits of a case, e.g., at trial,resolution of the costs to which a prevailing party is entitled is to be resolvedfollowing disposition of the case-in-chief, absent earlier and prior notice andan opportunity to be heard.

Proposition of Law No. 8 ..........................................................................................A denial of due process occurs when a court disposes of a case throughsummary judgment based upon an issue relating to the assessment of costs thatwas not raised by either party nor briefed by either party as doing so fails toprovide the parties notice and an opportunity to be heard on the issue, as wellas the presentment of evidence on the cost issue.

III. CONCLUSION

Certificate of Service

10

10

..............................................................:................................................ 15

............................................................................................................. 16

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TABLE OF AUTHORITIES

Case CitationsBayer v. American Ship Bldg. Co., 79 Ohio App. 450, 72 N.E.2d 394 (1946) .................. 6

Bozsik v. Grabenstetter, 2004-Ohio-6750 ......:................................................................... 2

Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership, 78 Ohio App.3d 340,604 N.E.2d 808 (1992) ........................................................................................................ 3

Christe v. GMSMgt. Co., Inc., 2000-Ohio-351, 88 Ohio St.3d 376,........................................................................................................726 N.E.2d 497 (2000) 14

Illinois Controls, Inc. v. Langham, 70 Ohio St.3d 512, 526, 639 N.E.2d 771 (1994) ........ 12

Katz v. Dept. of Liquor Control of Ohio, 166 Ohio St. 229 (1957) .................................... 5

Miller v. Liston, 2002-Ohio-362 ......................................................................................... 14

North Park Retirement Community Ctr., Inc. v. Sovran Cos., Ltd., 2011-Ohio-5179 ........ 2

Rhodes v. City of New Philadelphia, 129 Ohio St.3d 304, 951 N.E.2d 782,2011-Ohio-3279 .................................................................................................................. 4

State ex rel. Beacon Journal Pub. Co. v. Andrews, 48 Ohio St.2d 283, 9358 N.E.2d 565 (1976) ........................................................................................................

State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 234, 729 N.E.2d 1182,2000-Ohio-142 : .................................................................................................................... 15

State ex rel. Castrilla v. Hansley, 2003-Ohio-5228 ............................................................ 12

State ex rel. Cincinnati Post v. Schweikert, 38 Ohio St.3d 170,527 N.E.2d 1230 (1988) ..................................................................................................... 8

State ex rel. Consumer News Serv., Inc. v. Worthington City Bd. of Ed., 97 Ohio St.3d58, 776 N.E.2d 82, 2002-Ohio-5311 ................................................................................... 15

State ex rel. Laborers Internatl. Union of N. Am. Loc. Union No. 500 v. Summerville,122 Ohio St.3d 1234, 913 N.E.2d 452, 2009-Ohio-4090 ................................................... 6

State ex rel. Pennington v. Gundler, 75 Ohio St.3d 171, 661 N.E.2d 1049,1996-Ohio-161 .................................................................................................................... 6-7

State ex rel. Shelly Materials, Inc. v. Clark Cty. Bd. of Comm'rs, 115 Ohio St.3d 337,875 N.E.2d 59, 2007-Ohio-5022 ........................................................................................ 14

State v. Peagler, 76 Ohio St.3d 496, 668 N.E.2d 489, 1996-Ohio-73 ................................ 14

iii

Statutory ProvisionsR.C. 149.351 ....................................................................................................................... 4

R.C. 149.43 / Public Records Act ..................................................................................... passim

R.C. 149.43(B)(1) ............................................................................................................... 7

R.C. 149.43(C) ..................................................................................:................................. 5

R.C. 149.43(C)(1) ............................................................................................................... 4

R.C. 149.43(C)(2)(c)(i) ....................................................................................................... 8

R.C. 149.43(C)(2)(c)(ii) ...................................................................................................... 8

Civil Rules of Procedure

Ohio R. Civ. P. 8(A) ........................................................................................................... 12

Ohio R. Civ. P. 8(E)(1) .......................................:............................................................... 12

iv

REPLY BRIEF

Despite all the sound and fury posited by the Appellees in their effort to divert this Court

onto irrelevant tangents, the essential and material facts concerning the Appellees' failure to

timely respond affirmatively or negatively to the underlying public records request, as well as the

resulting mandamus action, are not in dispute:

• Relator Emilie DiFranco transmitted via e-mail a public records request to theRespondents City of South Euclid and its clerk of council, Keith Benjamin, on July 20,2011;

• Ms. DiFranco's public records request was received by Mr. Benjamin on or before July25, 2011;

• due to some undescribed and unidentified "breakdown in communication" within theoperations of the City of South Euclid, Ms. DiFranco's public records request went"unanswered" for over 5 months;

• having received no response from the Appellees concerning the public records request forover 5 months, Ms. DiFranco commenced this public records mandamus action onJanuary 11, 2012;

• on January 13, 2012, i.e., after the commencement of this action and after the complaintin this action had been served, Appellees finally transmitted to Ms. DiFranco copies ofthe public records that she requested on July 20, 2011;

In light of these undisputed facts and pursuant to the explicit provisions of the Public Records

Act, Ms. DiFranco was entitled, as a matter of law, to a mandatory award of attorney fees. And,

thus, the court of appeals erred when it summarily denied such an award in violation of the

explicit language and mandate within the Public Records Act.

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Proposition of Law No. 1:In an appeal of an action seeking an extraordinary writ, an appellatecourt has plenary authority to consider the appeal as if the original actionhad been filed in that court and, thus, a reviewing court mayindependently determine entitlement to an award of attorney fees underthe Public Records Act, especially when such an award is mandatory as amatter of law.

Proposition of Law No. 2:Ascertainment of whether an award of attorney fees under the PublicRecords is mandatory or discretionary is purely a legal question.

Appellees fail to appreciate or recognize that a basic and fundamental aspect of appellate

jurisprudence is the ascertainment of the appropriate standard of review; instead, Appellees

believe that such a determination is irrelevant. (Appellees' Brief, at 5-6.) For the critical and

first step in any appellate review of an issue is the resolution of the legal issue of whether the

matter involves something that is mandatory versus something that is discretionary. For in

circumstances when something is mandatory, there is no discretion for a trial court to exercise.

See North Park Retirement Community Ctr., Inc. v. Sovran Cos., Ltd., 2011-Ohio-5179 ¶ 7

("[t]he abuse of discretion standard of review has no application in the context of the court

deciding to stay proceedings pending the outcome of arbitration because a stay in such

circumstances is mandatory, not discretionary"); Bozsik v. Grabenstetter, 2004-Ohio-6750 ¶11

("because dismissal of a civil action on the grounds set forth in subsection (A) is discretionary,

rather than mandatory, this Court finds that the appropriate standard of review of a dismissal

pursuant to R.C. 2969.24 is whether the trial court abused its discretion by dismissing appellant's

civil action").

Appellees have failed to appreciate or acknowledge that the question of whether

something is mandatory versus discretion is a question of law which, in turn, dictates the

standard of review on appeal. Furthermore, Appellees have offered nothing of substance to

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refute the conclusion that the General Assembly, as part of the 2007 amendments to the Public

Records Act, provided the for the mandatory award of attorney fees in certain instances (one of

which is present in this case). (See Appellant's Brief, at 7-9.) Thus, before this Court can review

the denial of an award of attorney fees, the initial determination must be made of whether such

awards are mandatory or discretionary. For "where a [lower] court's order is based on an

erroneous standard or a misconstruction of the law, it is not appropriate for a reviewing court to

use an abuse of discretion standard. In determining a pure question of law, an appellate court

may properly substitute its judgment for that of the [lower] court, since an important function of

appellate courts is to resolve disputed propositions of law." Castlebrook, Ltd. v. Dayton

Properties Ltd. Partnership, 78 Ohio App.3d 340, 346, 604 N.E.2d 808, 811 (1992).

Proposition of Law No. 3:When one of the two instances requiring an attorney-fee award as setforth in the Public Records Act exists, a court is obligated to award

attorney fees.

Proposition of Law No. 4:Pursuant to the Public Records Act, an award of attorney fees ismandatory when the public office or the person responsible for thepublic records either: (i) failed to respond affirmatively or negativelyto the public records request promptly or within a reasonable periodof time, or (ii) promised to permit the inspection or to provide copiesof the requested public records requested within a specified period oftime but failed to fulfill that promise within that specified period oftime.

Whereas the court of appeals improperly impose an extra-statutory requirement that

necessitated a weighing and balancing of benefits before mandatory attorney fees could be

awarded (see Appellant's Brief at 12-14), the Appellees now attempt to add yet another extra-

statutory requirement. Specifically, Appellees claim (for the first time in this case) that a person

must also demonstrate and prove that they were actually "aggrieved" by the failure of the public

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office or person responsible for the public records to provide the responsive records within a

reasonable time. (Appellees' Brief, at 4-7.) The entire premise of the Appellees' new-found

argument is a selective misreading of R.C. 149.43, compounded by a misguided effort to

bootstrap into this case this Court's decision in Rhodes v. City of New Philadelphia, 129 Ohio

St.3d 304, 951 N.E.2d 782, 2011-Ohio-3279, which dealt with the requirement in R.C. 149.351

that one actually be "aggrieved" before he or she could bring an action for the improper removal,

destruction, etc., of a record.

Appellees' sole statutory reliance is not upon the division of R.C. 149.43 which

specifically addresses the mandatory award of attorney fees but, instead, is upon that division

which simply authorizes the bringing of a mandamus action. Specifically, R.C. 149.43(C)(1)

authorizes the bringing of a mandamus action by any person who "allegedly is aggrieved" by the

failure of a public office or person responsible for public records to comply with an obligation

under R.C. 149.43(B). Thus, the explicit statutory language cited to by the Appellees simply

addresses who can bring an action authorized by R.C. 149.43, not what is necessary before

attorney fees can be awarded. For the explicit statutory language cited to by the Appellees

authorizes the bringing of such an action by any one "allegedly aggrieved," not simply

"aggrieved" as Appellees argue.l

1 In contrast, R.C. 149.351, the statute at issue in Rhodes simply provided that one

"aggrieved" by the removal, destruction, etc., of records could bring an action. The requirementtherein did not use the phrase that such person simply be "allegedly aggrieved". Furthermore,the General Assembly amended R.C. 149.351(C) so as to specifically provide "[t]hecommencement of a civil action under R.C. 149.351(B)] waives any right under this chapter todecline to divulge the purpose for requesting the record, but only to the extent needed to evaluatewhether the request was contrived as a pretext to create potential liability under this section."The General Assembly did not amend R.C. 149.43 to provide the same thing with respect toactions brought pursuant to R.C. 149.43. As the General Assembly did not impose such arequirement in R.C. 149.43, this Court should not now function as a super-legislature andamended the statute through judicial fiat.

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The General Assembly specifically set forth the following statutory requirements for a

mandatory award of attorney fees in public records cases:

The court shall award reasonable attorney's fees, subject to reduction as describedin division (C)(2)(c) of this section when either of the following applies:

(i) The public office or the person responsible for the public records failedto respond affirmatively or negatively to the public records request inaccordance with the time allowed under division (B) of this section.

(ii) The public office or the person responsible for the public recordspromised to permit the relator to inspect or receive copies of the publicrecords requested within a specified period of time but failed to fulfill thatpromise within that specified period of time.

R.C. 149.43(C)(2)(b). The General Assembly did not impose any additional requirements before

a court "shall award reasonable attorney's fees."

Furthermore, the effort of the Appellees to have this Court impose the extra-statutory

requirement that a requestor actually demonstrate, before he can recover statutory attorney fees,

that he or she was, in fact, somehow "aggrieved" by the failure of the public office or person

responsible for the public records to timely provide the responsive records within a reasonable

time would be directly contrary the dictate of the Public Records Act which explicitly declares

that the "injury arising from lost use of the requested information" is "conclusively presumed."

R.C. 149.43(C). Appellees would have this Court ignore the General Assembly's clear

declaration that a requestor denied or delayed in receiving public records is injured by the lost

use of the request information and such injury is conclusively presumed, i.e., irrebuttable

established as a matter of law. As is well-established, the role of the courts is to interpret and

apply statutes as written by the General Assembly, not to amend statutes through judicial

legislation. See Katz v. Dept. of Liquor Control of Ohio, 166 Ohio St. 229, 232 (1957)("[i]t is

not our province to guess what the Legislature intended but rather to ascertain the intent of the

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language which it did adopt"); Bayer v. American Ship Bldg. Co., 79 Ohio App. 450, 455, 72

N.E.2d 394 (1946)("amending the statute by judicial interpretation and decision" would violate

"the age old principle that the duty of courts is `jus dicere and not jus dare' `to interpret the law

and not to make law.' To enlarge the scope of the statute is exclusively the province of the

legislature").

Appellees further contend that a "condition precedent to the mandatory award of court

costs is the issuance of a writ of mandamus." (Appellees' Brief, at 9.) And in this case, even

though all responsive records were not provided to Ms. DiFranco until after the mandamus

action was filed, Appellees contend that the lack of the entry of a judgment or issuance of a writ

of mandamus precludes an award of attorney fees. (Appellees' Brief, at 9-10.) Though not

explicitly stated or argued by the Appellees, the gist of such a contention is that this Court should

overturn its well-established precedent in State ex rel. Pennington v. Gundler, 75 Ohio St.3d 171,

661 N.E.2d 1049, 1996-Ohio-161, and its progeny, including State ex rel. Laborers Internatl.

Union of N. Am. Loc. Union No. 500 v. Summerville, 122 Ohio St.3d 1234, 913 N.E.2d 452,

2009-Ohio-4090, where this Court explicitly rejected the present argument of the Respondents.

Id. ¶8 ("we reject respondent's contention that the 2007 amendment to R.C. 149.43 precludes

attorney-fee awards in public-records mandamus cases that have been rendered moot by the post-

filing disclosure of the requested records").

Under Pennington and its progeny, the production of requested public records after the

commencement of a mandamus action does not preclude the award of attorney fees, even when

such a production moots any claim for the issuance of a writ of mandamus. This Court in

Pennington set forth four factors that had to be satisfied before a court could award attorney fees

when the claim for a writ of mandamus is mooted: (1) a person makes a proper request for public

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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."

Pennington, 75 Ohio St.3d 171, 661 N.E.2d 1049 (syllabus). And these conditions have been

met in this case. Appellees have offered no reasonable justification for this Court to overturn its

well-established precedent in Pennington and its progeny.

Next, the Appellees claim (for the first time in this case) that their response did not rise to

the level of making attorney fees mandatory. (Appellees' Brief, at 11.) Specifically, Appellees

now claim that they responded to Ms. DiFranco's request in a timely manner, focusing upon Mr.

Benjamin's production once he received a copy of the lawsuit while ignoring the acknowledged

receipt of the request over 5 months early. In failing to acknowledge his receipt of the public

records request over 5 months before the mandamus action was commenced, Mr. Benjamin

attempts to divert attention away from his failure to comply with the legal duties imposed upon

him as it relates to public records. For he repeatedly attempts to justify the lack of a response by

repeated references to a "communication breakdown" that resulted in "the Finance Department

fail[ing] to follow up" to Ms. DiFranco's request. (Appellees' Brief., at 6.) But it is undisputed

that Mr. Benjamin "as Director for Community Services and Clerk of Council for the City of

South Euclid [was] responsible for the oversight, maintenance and release of the public records

at issue in this case." (Complaint ¶4; Answer ¶4 (admitting the foregoing averment).) And the

Public Record Act specifically imposes legal obligations for the production of requested records

upon, inter alios, the "person responsible" for the public records at issue. R.C.

149.43(B)(1)("upon request, a public office or person responsible for public records shall make

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copies of the requested public record available"). But "[t]he law does not require that the action

be brought against the person ultimately responsible for the records, but requires suit against a

person responsible for them." State ex rel. Cincinnati Post v. Schweikert, 38 Ohio St.3d 170,

174, 527 N.E.2d 1230 ( 1988). Regardless, though, in this instance, Appellees admitted that Mr.

Benjamin "is a`person responsible' (as that phrase is used in R.C. 149.43) for some or all of the

public records at issue in this case." Complaint ¶5; Answer ¶5 (admitting the foregoing

averment).)

As noted above, the Appellees undisputedly received the request over 5 months prior to

the filing of this mandamus action and the subsequent production of the requested records; the

Appellees' response was clearly untimely. But even more amazing with respect to the present

contention of the Appellees is that, before the court of appeals, the Appellees expressly

acknowledged that their production of responsive records to Ms. DiFranco was not done within a

reasonable period of time. As admitted by the Appellees: "In the present case[,] the public

records request of [Ms. DiFranco] was not fulfilled in a timely manner." (Respondents Motion

for Summary Judgment, filed May 11, 2012, at 3.) It is completely disingenuous for the

Appellees to claim the opposite before this Court.

Finally, the Appellees claim (for the first time in this case) that the mandatory award of

attorney fees should still be reduced pursuant to the provisions of R.C. § 149.43(C)(2)(c)(i) and

(ii).2 (Appellees' Brief, at 10-11.) Not only do the Appellees fail to sufficiently develop this

2 In making this argument, the Appellees correctly note that "the Appellate Court's opinionwas silent" with respect such a contention. (Appellees' Brief, at 11.) Of course, the opinionwas silent because the issue was never raised below. Yet the Appellees then proceed to argue(without any substantive contentions) that this Court should consider this argument for the firsttime. Apparently, the Appellees want this Court to undertake a de novo review and assessmentonly when doing so would beneficial to the Appellees. Such internal inconsistency within theAppellees' brief can be characterized as hypocritical.

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contention, but they also fail to appreciate that the specific criteria therein are objective, not

subjective, criteria. For one of the criteria by which mandatory attorney fees may be reduced is

"based on the ordinary application of statutory law and case law as it existed at the time of the

conduct or threatened conduct of the public office or person responsible for the requested public

records that allegedly constitutes a failure to comply with an obligation [under R.C. 149.43(b)]

and that was the basis of the mandamus action, a well-informed public office or person

responsible for the requested public records reasonably would believe that the conduct or

threatened conduct of the public office or person responsible for the requested public records did

not constitute a failure to comply with an obligation in accordance [with R.C. 149.43(b)]." Yet,

Appellees have cited to no statutory or case law which allows for a public office or person

responsible for public records to ignore completely a public records request for over 5 months.

In fact, as noted above, case law specifically requires a person responsible for public records "to

organize his office and employ his staff in such a way that his office will be able to make these

records available for inspection and to provide copies when requested within a reasonable time. "

Beacon Journal, 48 Ohio St.2d at 289. Appellees operated their public office with inadequate

training, inadequate supervision and inadequate procedures when it came to dealing with and

responding to public records request - for the only thing the Appellees point to for the untimely

response to Ms. DiFranco's public records request is some undescribed "communication

breakdown" within the operations of the government of the City of South Euclid. No case law

supports or ratifies such ineptness and, thus, there is no basis under the explicit statutory criteria

to reduce any mandatory attorney fee award in this case.

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Proposition of Law No. 5:Consideration of whether a public benefit or the public interest existsso as to merit an award of attorney fees pursuant to the PublicRecords Act is pertinent and relevant only when an award of fees isdiscretionary and not when such an award is mandatory.

Proposition of Law No. 9:Even when an award of attorney fees under the Public Records Act isdiscretionary and not mandatory, an award of attorney fees is notdependent upon whether the release of the public records provides apublic benefit that is greater than the benefit that inures to the

requestor.

These two propositions were adequately raised and brief in Ms. DiFranco's brief

(Appellant's Brief, at 7, 12-17) and Appellees have offered nothing to refute the analysis

contained therein. Instead, once again, all that the Appellees appear to rely upon is nothing more

than conclusory assertions, ipse dixit and the "binding precedent" of the Eighth District.

(Appellees' Brief, at 12.)

Proposition of Law No. 6:A denial of due process occurs when a court rules sua sponte on whether a

public benefit exists so as to entitle a relator to a discretionary award ofattorney fees pursuant to the Public Records Act when neither partyraised or briefed the issue and a court fails to provide notice and anopportunity to be heard on the issue.

Proposition of Law No. 7:As an award of attorney fees as mandated by statute are taxed as costsand are not determined as part of the resolution of the merits of a case,e.g., at trial, resolution of the costs to which a prevailing party is entitledis to be resolved following disposition of the case-in-chief, absent earlierand prior notice and an opportunity to be heard.

Proposition of Law No. 8:A denial of due process occurs when a court disposes of a case throughsummary judgment based upon an issue relating to the assessment ofcosts that was not raised by either party nor briefed by either party asdoing so fails to provide the parties notice and an opportunity to be heardon the issue, as well as the presentment of evidence on the cost issue.

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In their dismissive attitude towards the constitutional requirements of due process, the

Appellees fail to acknowledge, let alone address, that neither party raised or briefed, nor did the

Eighth District provide notice that it was considering, whether a public benefit existed in order to

support an award of attorney fees (which is pertinent only when the award of attorney fees is

discretionary and not mandatory so as to not even be applicable in this case). Even if pertinent to

the present inquiry concerning the awarding of attorney fees (which it was not in this case,

because the Court went significantly beyond the scope of the specific issues raised and briefed

by the parties), neither party was on notice that the court of appeals would consider the public

benefit inquiry and, thus, they were precluded the opportunity to brief the issue, as well as to

present evidence in support of such a claim. For in their brief, Appellees fail to recognize and

acknowledge that the issues that were actually presented to the court below simply concerned: (i)

whether the claim for the issuance of a writ of mandamus had, in fact, become moot and (ii)

whether the award of attorney fees were mandatory pursuant to the Public Records Act.

Instead, Appellees contend that sufficient and adequate notice consistent with the

mandates of due process was provided notwithstanding the sua sponte disposition of the issue

attorney fees as being discretionary because, according to the Appellees, "the Court of Appeals

had more than enough factual information in evidence and legal authority to rely upon in order to

render a decision granting Appellees' Motion for Summary Judgment and denying Appellant's

Motion for Partial Summary Judgment .... Appellant was fully afforded an opportunity to be

heard on all issues she raised." (Appellees' Brief, at 15.) But this latter statement, i.e., that

Appellant was purportedly afforded an opportunity to be heard on all issues raised, demonstrates

a fundamental misunderstanding and lack of appreciation of what is required by the requirements

of due process. Due process involves two basic requirements - adequate notice and the

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opportunity to be heard. State ex rel. Castrilla v. Hansley, 2003-Ohio-5228 ("unless notice and

an opportunity for a fair hearing are given to opposing parties, a trial court has no authority to

take action, sua sponte, prejudicial to the opposing party" (quoting American Gen. Fin. v.

Beemer, 73 Ohio App.3d 684, 687 (1991)). Appellees clearly fail to grasp that the issue herein

concerns the lack of adequate notice.

Furthermore, despite how the Appellees might misperceive the requirements of due

process, the issue is not whether the court of appeals had enough information from which to

render a decision but, rather, whether Ms. DiFranco was provided sufficient notice that the

statutory damages and attorney fees issues were also being considered as part of the motion for

summary judgment. But as noted above, a review of the motions before the court below

indicated that the only issued raised by the parties concerning attorney fees was whether the

attorney fee award was mandatory due. to the failure of the Appellees to respond affirmatively or

negatively to Ms. DiFranco's public records request.

But when the Eighth District disposed of the claims for attorney fees based upon an issue

neither raised nor briefed by the parties, it denied Ms. DiFranco notice and the full opportunity to

brief the issue and to present supporting evidence; thus, the Eighth District only considered sua

sponte the pleadings which, as is well established, simply needs to be "a short and plain

statement of the claim showing that the party is entitled to relief and a demand for judgment."

Ohio R. Civ. P. 8(A); see also Ohio R. Civ. P. 8(E)(1)("[e]ach averment of a pleading be simple,

concise, and direct"); Illinois Controls, Inc. v. Langham, 70 Ohio St.3d 512, 526, 639 N.E.2d

771 (1994)("[a] party is not required to 'plead the legal theory of recovery"'; furthermore, "a

pleader is not bound by any particular theory of a claim but that the facts of the claim as

developed by the proof establish the right to relief").

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Finally, as is well established, "[u]nder our common law, attorney fees are in the nature

of costs." Christe v. GMS Mgt. Co., Inc., 2000-Ohio-351, 88 Ohio St.3d 376, 378, 726 N.E.2d

497 (2000). Accordingly, this Court "[has] repeatedly held that when a statute authorizes the

awarding of attorney fees, it does so by allowing the fees to be taxed as costs rather than awarded

as damages." Id. Yet, by its sua sponte disposition of the attorney fee issue via summary

judgment and under the implication that such fees were discretionary (otherwise, the court of

appeals would not have even considered the existence vel non of a public benefit), the Eighth

District improperly disposed of the costs to be taxed as though they were part of the case-in-

chief, not an issue to be properly resolved after judgment is pronounced. Thus, disposition of an

issue relating to court costs, including attorney fees under the Public Records Act, should be

resolved following disposition of the case-in-chief, absent earlier and prior notice and an

opportunity to be heard on the issue. Thus, while Ms. DiFranco may have moved for partial

summary judgment and raised her entitlement to a mandatory award of attorney fees prior to

disposition of the claim for the writ of mandamus,3 in so moving, Ms. DiFranco provided the

City and Mr. Benjamin notice and an opportunity to be heard on the issue; yet, the City and Mr.

Benjamin did not even respond or oppose Ms. DiFranco's motion. In contrast, the Eighth

District simply went to the issue of the existence of a public benefit which, as noted above, arises

only in the instances when attorney fees awards are discretionary and not mandatory; in so doing,

the Eighth District implicitly (though erroneously) rejected the contention that the award of

attorney fees was mandatory. If this was the conclusion of the court of appeals (though the

3 And it should be noted that the only issue raised by the motion for partial summaryjudgment was the mandatory nature of the attorney fee award, not the amount of such an award.For as Ms. DiFranco noted in her motion, she simply sought "the entry of partial summaryjudgment of her entitlement to attorney fees pursuant to the Public Records Act; subsequent tothe entry of such a judgment, counsel will undertake extra-judicial efforts with opposing counselas to the amount of such fees." (Relator's Motion for Partial Summary Judgment, at 1.)

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opinion does not even directly address the mandatory versus discretionary aspect of awarding

attorney fees), then it should have simply denied the motion for partial summary judgment.

Then, in turn, Ms. DiFranco would be in a position to move for an award of discretionary

attorney fees and, at that time, submit supporting evidence and argument.

The constitutional requirements of due process clearly and directly reject the conduct of

the Eighth District in considering an issue for which neither party raised or were on notice was

being considered by the court. And this Court has rejected sua sponte consideration and

disposition of matters when appellate courts review judgments from lower courts. See State v.

Peagler, 76 Ohio St.3d 496, 499 n.2, 668 N.E.2d 489, 1996-Ohio-73 ("this court has often held

that if a reviewing court chooses to consider an issue not suggested by the parties on appeal but

implicated by evidence in the record, the court of appeals should give the parties notice of its

intention and an opportunity to brief the issue"); State ex rel. Shelly Materials, Inc. v. Clark Cty.

Bd. of Comm'rs, 115 Ohio St.3d 337, 875 N.E.2d 59, 2007-Ohio-5022 ¶55 (Pfeifer, J.,

dissenting)("[t]he problem with deciding a case on an issue that did not form the basis for either

the trial court's decision or the parties' arguments is that "[w]hile appellate courts have the power

to raise issues sua sponte, they should cease deciding cases on such issues without giving the

parties an opportunity to be heard through supplemental briefing and argument ... [because the]

failure to do so is inconsistent with the fundamental principles of due process that a party should

have notice of, and the opportunity to be heard on, the determinative issue in the case." (quoting

Milani & Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts

(2002), 69 TENN.L.REv. 245, 315)); Miller v. Liston, 2002-Ohio-362 (appellant was advised that

appellee was seeking damages, appellant was never advised that the evidentiary hearing would

include a hearing on damages. Without such notice, appellant was denied the opportunity to

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present evidence on such issue. In short, we find that appellant was denied constitutional due

process").

CONCLUSION

As noted and more fully developed in Ms. DiFranco's brief, following receipt of a public

records request from Ms. DiFranco, the City of South Euclid and its clerk of council failed to

respond affirmatively or negatively until this mandamus action was commenced 5 months later.

Consistent with both the letter and spirit of the Public Records Act, Ms. DiFranco is entitled to

an award of mandatory attorney fees. Accordingly, the judgment of the court of appeals should

be reversed and, in an exercise of this Court's plenary power in cases seeking extraordinary

writs, this Court should award Ms. DiFranco such mandatory attorney fees and, consistent with

the process and procedure of this Court, direct the submission of bills and documentation in

support of the amount of such fees. See, e.g., State ex rel. Calvary v. Upper Arlington, 89 Ohio

St.3d 229, 234, 729 N.E.2d 1182, 2000-Ohio-142; State ex rel. Consumer News Serv., Inc. v.

Worthington City Bd. of Ed., 97 Ohio St.3d 58, 776 N.E.2d 82, 2002-Ohio-5311 ¶55 ("we grant

CNS's request for attorney fees, and order it to submit a bill and documentation in support of the

request").

Chr^stop`her P. Finney (09,,38998)Fin4y, Stagnaro, Saba & Patterson LLP2623 Erie AvenueCincinnati, Ohio 45208(513) 533-2980cpf@,fssp-law.com

and

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Curt C. Hartman (0064242)The Law Firm of Curt C. Hartman3749 Fox Point CourtAmelia, Ohio 45102(513) 752-8800hartmanlawfirm@,fuse.net

Attorney for Relator-AppellantEmilie DiFranco

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing will be served, via regular, upon the following onthe 7th day of March 2013:

Michael P. LograssoLaw Director, City of South Euclid1349 South Green RoadSouth Euclid, Ohio 44121

Vincent A. FeudoMichael E. CiceroNocola, Gudbranson & Cooper LLC1400 Republic Building25 West Prospect AvenueCleveland, OH 44115

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