The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ames v. Concord Twp. Bd. of Trustees, Slip Opinion No. 2025-Ohio-1027.]
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. 2025-OHIO-1027
THE STATE EX REL. AMES, APPELLANT, v. CONCORD TOWNSHIP BOARD OF
TRUSTEES, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ames v. Concord Twp. Bd. of Trustees, Slip
Opinion No. 2025-Ohio-1027.]
Mandamus—Public-records requests—R.C. 149.43—Because all records
responsive to public-records request were provided, court of appeals
correctly determined that petition for writ was moot—Upon finding that a
writ claim is moot, the correct disposition is to deny the writ—Court of
appeals’ judgment modified and judgment denying petition as moot entered.
(No. 2024-1160—Submitted January 7, 2025—Decided March 27, 2025.)
APPEAL from the Court of Appeals for Lake County,
No. 2024-L-036, 2024-Ohio-3062.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, BRUNNER, DETERS, HAWKINS, and SHANAHAN, JJ.
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Appellant, Brian M. Ames, appeals the judgment of the Eleventh
District Court of Appeals granting summary judgment to appellee, Concord
Township Board of Trustees, and dismissing his petition for a writ of mandamus
against the board. Ames asked the court of appeals to issue a writ of mandamus
ordering the board to produce certain public records. The court of appeals
determined that Ames’s petition was moot and that he was not entitled to a
statutory-damages award or an attorney-fee award and dismissed Ames’s petition.
Ames appeals only the dismissal of his petition; he does not appeal the dismissal of
his requests for statutory damages and attorney fees.
{¶ 2} We modify the Eleventh District’s judgment and instead enter
judgment denying, rather than dismissing, Ames’s petition as moot.
I. FACTS AND PROCEDURAL HISTORY
A. Facts
{¶ 3} On May 6, 2024, Ames, using the pseudonym “Lavrentiy Beria,” sent
a public-records request by email to the township fiscal officer, seeking copies of
the following records of the board:
1. the rule(s) for notification of meetings required by R.C.
121.22(F) in effect for the years 2023 and 2024.
2. the minutes for the staff meetings held in the years 2023
and 2024.
3. the current records retention schedule (RC-2).
{¶ 4} The following day, the township administrator responded to the
request by email, stating, “Attached are the records that are responsive to your
request.” The email contained 15 documents as attachments. The township
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January Term, 2025
administrator further informed “Lavrentiy Beria” that with respect to the request
for the rules for notification of meetings, “[t]he meeting schedule for the year is
established during the organizational meeting and is outlined on page 1 in the
[attached minutes]. This conforms to ORC 121.22(F).”
{¶ 5} After the township administrator sent the requested records,
“Lavrentiy Beria” replied to the township administrator by email that same day,
stating that he did not receive the “minutes for first part of 2023.” The next day,
the township administrator responded to “Lavrentiy Beria” by email, stating that he
was providing “all staff meeting minutes from 2023”; the email contained 11
documents as attachments.
B. Procedural history
{¶ 6} On May 10, 2024, Ames filed a petition for a writ of mandamus in the
Eleventh District against the board. He alleged that the board had not fully
responded to his records request. He asked the court of appeals to (1) issue a writ
of mandamus ordering the board to provide copies of the requested records and (2)
award statutory damages, court costs, and attorney fees.
{¶ 7} On May 13, the board received service of Ames’s petition and learned
that the person who had requested the public records was not “Lavrentiy Beria” but
was Ames. In his petition, Ames specifically alleged that not all of the requested
staff-meeting minutes had been provided. After the township administrator
investigated that allegation, he realized that minutes from the April 2023 staff
meeting had been inadvertently omitted from the documents he had sent to Ames
by email. On May 14, the township administrator sent an email to Ames, which
contained a copy of the April 2023 staff-meeting minutes as an attachment.
{¶ 8} The township administrator has averred that as of May 14, he, on
behalf of the board, had provided Ames with all records responsive to Ames’s
records request. On May 15, the board passed a resolution approving all staff-
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meeting minutes since January 1, 2019, and ratifying all actions taken at staff
meetings since January 1, 2019.
{¶ 9} The Eleventh District subsequently granted an alternative writ
ordering the board to respond to Ames’s petition. No. 2024-L-036 (11th Dist. May
29, 2024).
{¶ 10} On June 3, 2024, the board filed a motion to dismiss Ames’s petition
for failure to state a claim upon which relief can be granted. The board asserted
that all records responsive to Ames’s records request had been provided to Ames.
The board thus argued that Ames’s petition seeking a writ was moot.
{¶ 11} Additionally, the board argued that Ames was not entitled to awards
of statutory damages, court costs, or attorney fees. The board asserted that the
township administrator had responded to Ames’s initial email requesting public
records within approximately 24 hours. The board also claimed that after Ames
sent a reply email stating he did not receive the staff-meeting minutes for the “first
part of 2023,” the township administrator sent Ames copies of those minutes within
24 hours of learning about the inadvertent omission. The board further stated that
after it received service of Ames’s petition for a writ of mandamus and learned that
another requested record had been inadvertently omitted from its responses to
Ames’s records request, the township administrator sent Ames that requested
record within 24 hours of the board being served with the petition.
{¶ 12} The court of appeals sua sponte converted the board’s dismissal
motion to a summary-judgment motion and ordered Ames to file a response to the
board’s motion by July 2, 2024. No. 2024-L-036 (11th Dist. June 4, 2024).
{¶ 13} On July 1, Ames filed a motion for default judgment and for
summary judgment. He claimed that by converting the board’s dismissal motion
to one for summary judgment, the Eleventh District had denied the board’s
dismissal motion. Ames asserted that because the board had failed to file an
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January Term, 2025
answer, the allegations of his petition were deemed admitted. Ames thus argued
that he was entitled to a default judgment against the board.
{¶ 14} Ames also argued that the records the board produced in response to
his request for staff-meeting minutes “are not meeting minutes.” He asserted that
“[t]he so-called ‘minutes’ are nothing more than notes made to oneself. They
require personal knowledge to understand the cryptic scratchings.”
{¶ 15} On July 11, the board filed a reply brief in support of its summary-
judgment motion and a brief in opposition to Ames’s motion for default judgment
and for summary judgment. The board reiterated its argument that Ames’s petition
was moot and asserted that Ames had not produced any evidence to establish a
genuine issue of material fact about whether his petition was moot.
{¶ 16} On August 12, the court of appeals determined that the board had
provided all records responsive to Ames’s records request and that Ames’s petition
for a writ of mandamus was moot. 2024-Ohio-3062, ¶ 39-40 (11th Dist.). The
court rejected Ames’s argument that it had effectively denied the board’s dismissal
motion by converting it to a summary-judgment motion. Id. at ¶ 31-32.
{¶ 17} The court of appeals additionally rejected Ames’s argument that the
staff-meeting minutes the board had produced were not the official meeting
minutes. Id. at ¶ 33-35. The court explained that the board had submitted evidence
to establish that it had ratified all staff-meeting minutes dating to January 1, 2019.
Id. at ¶ 34. The court also disagreed with Ames’s argument that the meeting
minutes must be in a specific form, id. at ¶ 35, and rejected the idea that the board
had a duty to create a “new document to fully satisfy [Ames’s] public records
request under R.C. 149.43,” id. at ¶ 39.
{¶ 18} The court of appeals further concluded that Ames was not entitled to
a statutory-damages award or an attorney-fee award. Id. at ¶ 46. The court found
that the board had provided all records responsive to Ames’s records request within
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seven days of the request and that that response time was reasonable. Id. at
¶ 44-45.
{¶ 19} The court of appeals granted summary judgment to the board,
overruled Ames’s motion for default judgment, and dismissed Ames’s petition. Id.,
2024-Ohio-3062, at ¶ 47 (11th Dist.). The court of appeals did not discuss Ames’s
request for court costs and therefore implicitly denied the request. See State ex rel.
Ware v. Fankhauser, 2024-Ohio-5037, ¶ 28.
{¶ 20} Ames has appealed to this court as of right. In his merit brief, Ames
asserts that because the board did not file an answer to his petition, the facts alleged
in his petition should have been deemed admitted. He further argues in his first
proposition of law that “[i]f a motion to dismiss for failure to state a claim upon
which relief can be granted presents matters outside the pleading, such matters are
not excluded by the court, and the motion is treated as a motion for summary
judgment to be disposed of as provided in Rule 56, such motion is implicitly denied
as a motion to dismiss and an answer must be served.” (Boldface deleted.) Ames
asserts in his second proposition of law that “[b]efore a court may ‘convert’ a
motion to dismiss to a motion for summary judgment, there must be a predefined
procedure to be followed that results in a bona fide motion for summary judgment.”
(Boldface deleted.) He contends in his third proposition of law that “[t]he pleadings
must be closed before summary judgment may be rendered.” (Boldface deleted.)
In his fourth proposition of law, Ames argues that the board provided
“nonresponsive records” to his records request. And in his fifth proposition of law,
he asserts that the Eleventh District announced a rule of law by wrongly faulting
him for failing to send the board a follow-up email about documents that had not
been provided and instead filing a mandamus action against the board.
{¶ 21} In its merit brief, the board argues that the court of appeals did not
err by treating its dismissal motion as a summary-judgment motion or by dismissing
Ames’s petition as moot. Moreover, the board disputes Ames’s assertion that the
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January Term, 2025
staff-meeting minutes it provided to him are nonresponsive records. The board
instead insists that the staff-meeting minutes it provided are the official meeting
minutes.
II. LEGAL ANALYSIS
A. Procedural arguments
{¶ 22} Ames’s procedural arguments are without merit. Regarding the
procedure that Ames challenges—that is, when the court of appeals converted the
board’s motion to dismiss for failure to state a claim upon which relief can be
granted to a summary-judgment motion—Civ.R. 12(B) specifically authorizes it.
Civ.R. 12(B) provides:
When a motion to dismiss for failure to state a claim upon which
relief can be granted presents matters outside the pleading and such
matters are not excluded by the court, the motion shall be treated as
a motion for summary judgment and disposed of as provided in Rule
56. Provided however, that the court shall consider only such
matters outside the pleadings as are specifically enumerated in Rule
56. All parties shall be given reasonable opportunity to present all
materials made pertinent to such a motion by Rule 56.
{¶ 23} Here, the Eleventh District stated that it converted the board’s
dismissal motion to a summary-judgment motion, and it gave the parties adequate
notice. See No. 2024-L-036 (11th Dist. June 4, 2024). Therefore, Ames’s assertion
that Ohio law did not authorize the court of appeals’ action is without merit. See
generally State ex rel. The V Cos. v. Marshall, 1998-Ohio-329, ¶ 17 (recognizing
the validity of treating a motion to dismiss for failure to state a claim upon which
relief can be granted as one for summary judgment when the motion contains
matters outside of the pleadings).
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{¶ 24} Ames’s other procedural arguments also are meritless. The facts
alleged in Ames’s petition were not deemed admitted because the board did not file
an answer. Rather than filing an answer, the board filed a motion to dismiss for
failure to state a claim upon which relief can be granted, which Civ.R. 12(B)(6)
specifically authorizes. See Civ.R. 12(A) and (B); see also State ex rel. Zimmerman
v. Tompkins, 1996-Ohio-211, ¶ 8 (lead opinion) (stating that filing a dismissal
motion that court converts to summary-judgment motion “toll[s] the time to file an
answer until the summary judgment motion [is] resolved”).
{¶ 25} Furthermore, Civ.R. 12(B) states that a court that treats a motion to
dismiss for failure to state a claim upon which relief can be granted as a summary-
judgment motion must dispose of the motion as provided in Civ.R. 56. Nothing in
the record suggests that the court of appeals failed to follow Civ.R. 56. Thus,
Ames’s arguments that the court of appeals did not follow proper procedures are
without merit.
B. Writ of mandamus
{¶ 26} “Summary judgment is appropriate when an examination of all
relevant materials filed in the action reveals that ‘there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.’”
Smith v. McBride, 2011-Ohio-4674, ¶ 12, quoting Civ.R. 56(C). This court reviews
a decision granting summary judgment de novo. State ex rel. Parker v. Russo,
2019-Ohio-4420, ¶ 5.
{¶ 27} A person allegedly aggrieved by the “failure of a public office or the
person responsible for public records to comply with an obligation” under R.C.
149.43(B), may “[c]ommence a mandamus action to obtain a judgment that orders
the public office or the person responsible for the public record to comply with
[R.C. 149.43(B)], that awards court costs and reasonable attorney’s fees to the
person that instituted the mandamus action, and, if applicable, that includes an order
fixing statutory damages under [R.C. 149.43(C)(2)].” R.C. 149.43(C)(1)(b).
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January Term, 2025
{¶ 28} Further, R.C. 149.43(B)(1) obligates “a public office or person
responsible for public records,” upon request by any person, to “make copies of the
requested public record available to the requester at cost and within a reasonable
period of time.” This provision “establishes a clear legal right [for any person] to
request that identifiable public records be made available for inspection or copying”
and generally imposes on the public office or person responsible for public records
“a corresponding clear legal duty to make a requested public record available for
inspection or copying unless it falls squarely within a specific statutory exemption.”
Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 2020-Ohio-5371, ¶ 25.
{¶ 29} To be entitled to a writ of mandamus, a public-records requester
must present clear and convincing evidence that (1) the requester has a clear legal
right to compel the public office or the person responsible for the public record to
allow the requester to inspect or copy the public record and (2) the public office or
the person responsible for the public record has a clear legal duty to allow the
requester to inspect or copy the public record. See R.C. 149.43(C)(1)(b); Welsh-
Huggins at ¶ 24, citing State ex rel. Cincinnati Enquirer v. Sage, 2015-Ohio-974,
¶ 10. The public-records requester is not required to establish the absence of an
adequate remedy in the ordinary course of the law. E.g., Welsh-Huggins at ¶ 24;
State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer,
2012-Ohio-753, ¶ 25.
{¶ 30} “‘In general, providing the requested records to the relator in a
public-records mandamus case renders the mandamus claim moot.’” State ex rel.
Mobley v. LaRose, 2024-Ohio-1909, ¶ 7, quoting State ex rel. Toledo Blade Co. v.
Toledo-Lucas Cty. Port Auth., 2009-Ohio-1767, ¶ 14. Additionally, “[a]bsent
contrary evidence in the record,” averments that all responsive records have been
provided establish that the mandamus claim is moot. State ex rel. Kesterson v. Kent
State Univ., 2018-Ohio-5110, ¶ 18; see also State ex rel. Scott v. Toledo Corr. Inst.,
2024-Ohio-2694, ¶ 12.
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{¶ 31} Here, the board presented evidence establishing that it had provided
Ames with all records responsive to his records request. Ames did not respond with
any evidence to the contrary. Instead, he simply objected to the form of the staff-
meeting minutes that were provided to him and contended that the minutes were
not “official.” But whether the minutes that the board produced were “official” and
complied with the Open Meetings Act, R.C. 121.22, is not the issue in this public-
records-request case. Rather, the issue is whether the board provided Ames with
the requested records. The board presented evidence that it did, and Ames did not
produce any evidence to the contrary. Thus, he failed to establish that any genuine
issue of material fact exists regarding the mootness of his writ claim. Consequently,
the Eleventh District correctly granted the board’s summary-judgment motion and
correctly overruled Ames’s motion for default judgment and for summary
judgment.
{¶ 32} Ames’s argument that the Eleventh District announced a rule of law
that a public-records requester must follow up about a request if the requester
believes that the response is incomplete also fails because the Eleventh District did
not frame that statement as a rule of law. Instead, it simply noted that Ames could
have notified the board that he had not received an outstanding record rather than
filing a petition for a writ of mandamus. See 2024-Ohio-3062 at ¶ 45 (11th Dist.).
{¶ 33} In sum, the Eleventh District correctly determined that Ames’s
petition for a writ of mandamus was moot. However, upon finding that a writ claim
is moot, the correct disposition is to deny the writ. See State ex rel. Ames v. Baker,
Dublikar, Beck, Wiley & Mathews, 2023-Ohio-2668, ¶ 19. Here, however, the
Eleventh District dismissed Ames’s petition. 2024-Ohio-3062 at ¶ 47 (11th Dist.).
We therefore modify the Eleventh District’s judgment dismissing the petition and
instead enter judgment denying the petition as moot.
{¶ 34} Ames has not argued in this appeal that he is entitled to statutory
damages or attorney fees. We therefore do not consider those issues.
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January Term, 2025
III. CONCLUSION
{¶ 35} The Eleventh District Court of Appeals correctly determined that
Ames’s petition for a writ of mandamus was moot. However, the Eleventh District
erred by dismissing Ames’s petition rather than denying it. We therefore modify
the Eleventh District’s judgment dismissing the petition and instead enter judgment
denying the petition as moot.
Writ denied as moot.
__________________
Brian M. Ames, pro se.
Thrasher Dinsmore & Dolan, L.P.A., Brandon D. R. Dynes, and Bridey
Matheney, for appellee.
__________________
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