The opinion
Harsha, Judge,
concurring in judgment only.
Appellants’ first assignment of error asserts that the trial court erred when it determined that R.C. 5123.351 creates a mandatory duty on the director of ODMRDD to provide funding on demand whenever local funding sources are insufficient. I am not persuaded that the trial court held that such a mandatory duty exists “whenever local funding sources are insufficient.” R.C. 5123.351(G), (H), and (I) afford the director some discretion in determining whether programs are “necessary” or “urgently needed.” A close review of the trial court’s findings of fact indicates that it expressly determined that the director had “abused his discretion in failing to take any action whatsoever to provide additional funds” to MRDD. Therefore, the trial court did not erroneously fail to recognize the director’s statutory discretion. Moreover, the trial court’s finding of an abuse of discretion was supported by the director’s admission that he had made no determination whether it was necessary to give additional state funds to MRDD. The failure to exercise his discretion undoubtedly constituted an abuse of discretion. See,
e.g., Wolfe v. Wolfe
(Nov. 22, 1989), Pickaway App. No. 88CA18, unreported, 1989 WL 145455 .
Furthermore, there was sufficient evidence before the trial court for it to determine that the funds requested by MRDD were both “necessary” and “urgently needed.” Finally, appellants failed to establish that MRDD could not be funded without taking money from other mental retardation offices and rendering them unable to perform their statutory duties.
State ex rel. Weaver v. Lake Cty. Bd. of Commrs.
(1991), 62 Ohio St.3d 204, 207 , 580 N.E.2d 1090, 1093-1094 .
*605
Since mandamus is properly based in this case on appellants’ violation of state law,
ie.,
abuse of discretion, I would overrule appellants’ second assignment of error solely on the basis that it is moot pursuant to App.R. 12(A)(1)(c).