RWEV. E r r` ORIGI` AL SUP ^^^^ A, 3 CLERK OF COURT 3EME C URT OF OHIO JAN CLERK OF COURT SUPREME i:uur1 0F OHIO

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1 ORIGI` AL IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel Edward Verhovec, Relator/Appellant vs. WASHINGTON COUNTY COMMON PLEAS COURT On Appeal from the Washington GENERAL DIVISION County Court of Appeals, Fourth Appellate District and Court of Appeals HONORABLE SUSAN E. BOYER, Case No. 12 CA 43 Respondents/Appellees. NOTICE OF APPEAL William E. Walker, Jr. ( ) Alison L. Cauthorn ( ) (Counsel of Record) 'Assistant Washington County Prosecutor 124 North Avenue, NE 205 Putnam Street Massillon, Ohio Marietta, Ohio [Fax] williamwalker@gmx.com Counsel for Appellees Counsel for Appellanf Washington County Common Pleas Court State of Ohio ex rez. And Edward Verhovec Hon. Susan E. Boyer, Judge RWEV E r r` JAN CLERK OF COURT SUPREME i:uur1 0F OHIO I SUP ^^^^ A, 3 CLERK OF COURT 3EME C URT OF OHIO

2 Notice of Appeal of Appellant State of Ohio, ex rel. Edward Verhovec Appellant, State of Ohio, ex Nel. Edward Verhovec hereby gives notice of appeal to the Supreme Court of Ohio from the judgment of the Washington County Court of Appeals, Fourth Appellate District, entered in Court of Appeals case No. 12 CA 43 on December 17, This case involves an appeal of right as it originated in the court of appeals. By : Respectfully submitted, Wi iam Walker, Jr COUNSEL FOR APPELLANT STATE OF OHIO ex rel. EDWARD VERHOVEC CERTIFICATE OF SERVICE I certify that a copy of this Notice of Appeal was sent by ordinary U.S. mail to counsel for appellees Alison L. Cauthorn, Assistant Washington County Prosecutor 205 Putnam Street, Marietta, Ohio on January 25, Willi W er, r COUNSEL FOR APPELLANT STATE OF OHIO ex rel. EDWARD VERHOVEC

3 FOURTH DISTRI' COURT QF APP& :..::... _ t.^'i'.. r,^t I^.1_... State of Ohio, ex rel. Edward Verhovec, : _ Va.L^IU VI L^lvfs! V 1 n! ff g; -,G! IN THE COURT OF APPEALS OF OHIO ,.,...., FOURTH APPELLATE DISTRICT - E:r:v ^ ^^; ^. ^;: 1NASHIfV^TON COUNTY Relator, : Case No. 12CA43 u _. Washington County Common Pleas Court, et al., Respondents. DECISION AND JUDGMENT ENTRY APPEARANCES: William E. Walker, Jr.. Massillon, Ohio, for Relator. -, - - James E. Schneider, Washington County Prosecutor, and Alison L. Cauthom, Washington County Assistant Prosecutor, f~flarietta, Ohio, for Respondents. ABELE, P.J., Relator Edward Verhovec filed a complaint for a writ of prohibition seeking an order preventing the Respondents Washington County Common Pleas Court and Judge Susan E. Boyer from ruling on a motion for sanctions for frivolous conduct under R.C Respondentsfiled a motion to dismiss the complaint under Civ. R. 12(B). Verhovec filed his response to the motion to dismiss. A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guemsey Cty. Bd of Commrs., 65.Ohio St.3d 545, 605 N.E.2d 378 (1992). When a party files a motion to dismiss for failure to state a claim, all the factual auegations of the complaint

4 WashingtonApp. No.12CA43 2 must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party. However, while the factual allegations of the complaint are taken as true, the same cannot be said about unsupported conclusions. Unsupported conclusions of a complaint are not considered admitted, and are not sufficient to withstand a motion to dismiss. State ex r+el. Hickman v. Capots, 45 Ohio St.3d 324, 544 N.E.2d 639 (1989). In order for a court to grant a motion to dismiss for failure to state a claim, it must appear beyond doubt that the plaintiff can prove no set of facts in support of his ctaim which would entitie him to relief." O`Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753, 755 (1975). Here, Verhovec filed a complaint for a writ of prohibition in which he alleges that he made a public records request upon the City of Marietta and Marietta failed to respond. Verhovec then filed a mandamus action against the Marietta under R.C (C)(1) and R.C Shortly thereafter, Marietta provided Verhovec access to the public records and the trial court dismissed Verhovec's mandamus action. Verhovec appealed and this court, in an earlier proceeding, remanded the case so the trir! cm-irt c4l!id rule on VerhoVer's motion for cogts and attnmay fees aeeociated,,yith the public records mandamus action. After the case was remanded, Marietta filed a motion seeking sanctions against Vefiovec for frivolous conduct pursuant to R.C The trial court held a hearing on the ctuestion of attorney fees and sanctions. However, before the trial court oould issue a ruling, Verhovec filed this complaint for writ of prohibition. He seeks to prevent the trial court and Judge Boyer from issuing a ruling on Marietta's motion for sanctions.

5 Washington App. No. 12CA43 3 To warrant a writ of prohibition, the relator must establish three elements: (1) the court or officer against whom the writ is sought is about to exercise judicial or quasijudicial power, (2) the exercise of that power is clearly unauthorized by law, and (3) denial of the writ will cause injury for which there is no adequate remedy in the ordinary course of law. McAuley v. Smith, 82 Ohio St.3d 393, 395, 696 N.E.2d 572 (1998); State ex rel Rogers v. Marshall, 4th Dist. No. 05CA3004, 2008-Ohio Both sides agree that the first element has been established. Washington County Common Pleas Court and Judge Boyer are about to exercise judicial or quasi-judicial power. Judge Boyer has held a fiearing on the City of Marietta's motion for sanctions and would have issued a ruling. However, the parties dispute whether Verhovec has stated a claim under the remaining two elements. As to the second element, Verhovec alleges that the trial court and Judge Boyer do not have jurisdiction to address the merits of Marietta's sanction motion under R.C , because that statutory provision applies only to "civil actions" and a mandamus action is not a "civil action." Verhovec is wrong for two reasons. First, a marndarolls acifion ic aciyil action. St?te ex!'+81 Sni!kn v. Court nf Appeals, 27 ah!o St. 3d 13, 501 N.E.2d 625 (1986)("A proceeding for a writ of mandamus is a civil action"); State ex rel. Wilson v. Preston, 173 Ohio S#. 203, 208, 181 N.E.2d 31 (1962)("an action for a writ of mandamus is a civil action"); State ex rel. Karmasu v. Tate, 83 Ohio App.3d 199, 206 (41h Dist. 1992)("Allandamus is a civil action"). The frivolous conduct statute, R.C , states that it is applicable to certain conduct, including the conduct of "filing of a civil action... or the taking of any other action in connection with a civil

6 Washington App. No.12CA43 4 action...." Thus, that statutory provision can be employed to request sanctions for frivolous conduct occurring within the context of a civil action seeking a writ of mandamus. State ex rel. SfrrkerV. Cline, 130 Ohio St.3d 214, 2011-Ohio-5350, 957 N.E.2d 214 ( uphokiing the lower court's award of sanctions for frivolous conduct under R.C in a mandamus action brought to compel public records under R.C ). Second, even if the mandamus action were not a civil action, the trial court and Judge Boyer have subject-matter jurisdiction over the mandamus action and the corresponding authoritity to determine whether R.C is applicable to it or not. Making determinations about the applicability of statutes and the appropriateness of sanctions are precisely the types of legal powers within the purview of the triaf court and Judge Boyer. If the trial court makes an incorrect legal conclusion about the applicability of R.C to the mandamus action, either side has the remedy of appeal. Page v. Riley, 85 Ohio St.3d 621, 1999-Ohio 290, 710 N.E.2d 690 ("absent a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own S^;ri^di^.iQn, and a part.y challenging the rourt's jurisdiction has an adequate remedy at!aw by appeal"). Although we take all of Verhovec's factual allegations of his complaint as true, we do not have to assume the same conceming his unsupported conclusions. Here, Verhovec's complaint fails to state a claim for a writ of prohibition as to the second element conceming the unauthorized power of the trial court. His conclusion that the Washington County Common Pleas Court and Judge Boyer lack jurisdiction is wholly

7 WashingtonApp. No. 12CA43 5 unsupported by all applicable law. Finally, Verhovec has also failed to adequately state a claim as to the third element,-that the denial of a writ will cause injury for which no other adequate remedy in the ordinary course of law exist. He again makes unsupported conclusions that he has no adequate remedy and will suffer irreparable injury. However, if after the trial court issues an order, Verhovec believes that the trial court failed to correctly apply the law to the facts conceming the applicability of R.C to mandamus actions brought under R.C , he may appeal. State ex r+ej. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19 (an appellate court reviews the lower court's decision to award sanctions under an abuse of discretion standard). Verhovec cannot seek a writ of prohibition to prevent a court having general authority over the case from reaching a legally incorrect result or enforcing an erroneous judgment. State ex rel Rogers v Marshall, V' Dist. No. 05CA3004, 2008-Ohio Assuming all the factual allegations as true, this court finds that Verhovec's complaint for a writ of prohibition fails to state a claim for which relief may be granted. He has made oniv t,nst,pportpd conrlucionc as to the ^N_ashington County Coatnron Pleas Court and Judge Boyer's authority under the law and to the inadequacy of his legal remedies. We find both of his unsupported conclusions to be wholly unsupported by the law and legally incorrect. We find that the Respondents' motion to dismiss should be granted. Relator's complaint for writ of prohibition is hereby DISMISSED. The clerk shall serve a copy of this order on all counsel of record and

8 w ^... ^.. ^... ^ ^^. ^....^ ^ ^. ^ ^ ^ WashingtonApp. No.12CA43 6 unrepresented parties at their last known addresses by ordinary mait. PETITION DISMISSED. COSTS TO RELATOR. SO ORDERED. Ktine, J. & McFarland, J.: Concur. FO COURT et Abele P.