COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70705 RALPH C. HUGHES, ET UX., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION CITY OF NORTH OLMSTED, ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 23, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 281235 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Dennis J. Niermann Frank R. Krajenke, Jr. KRAMER & NIERMANN 3214 Prospect Avenue, East Cleveland, Ohio 44115-2600 For defendants-appellees: Michael R. Gareau GAREAU & DUBELKO CO., L.P.A. 23823 Lorain Road Suite 200 North Olmsted, Ohio 44070 -2- NAHRA, P.J.: Ralph Hughes and Sharon Hughes, appellants, brought an action against appellees: the City of North Olmsted; Ernest J. Gundy, Safety Director; Carolyn Kassler, Safety Director; and Dennis Sefcek, the Chief of Police, pursuant to state public record laws. In the summer of 1993, appellants were the subject of an investigation by the City of North Olmsted Police Department. In August, 1993, the file of the investigation was destroyed. In December, 1994, appellants brought their action pursuant to R.C. 149.351, which provides for a forfeiture against a public entity for the improper destruction of public records. Appellees moved for summary judgment claiming that appellants' action pursuant to R.C. 149.351 was barred by the one-year statute of limitation for actions pursuant to a statute for a forfeiture as set forth in R.C. 2305.11(A). Appellants argued that their action did not accrue until they had received actual notice in June, 1994 that the file was destroyed. In its order granting summary judgment to appellees, the court found that in August, 1993, the file was destroyed and that Ralph Hughes knew or should have known the file was to be destroyed. The court held that the action was brought 14 months after the cause of action accrued and was untimely. The court noted that regardless of whether the cause of action accrued upon the destruction of the file or whether it accrued based upon application of a discovery rule, both methods required a finding that the cause of action -3- accrued in August, 1993, over one year before appellants brought their complaint. I. Appellants have listed five assignments of error. Appellants' first, second and third assignments of error are interrelated and will be addressed concurrently. They state: I. THE LOWER COURT ERRED WHEN IT APPLIED A "CONSTRUCTIVE KNOWLEDGE OF FACTS" LEGAL STANDARD AS THE TRIGGER TO START THE STATUTE OF LIMITATIONS RUNNING FOR A VIOLATION OF OHIO PUBLIC RECORDS LAWS. II. THE LOWER COURT ERRED WHEN IT LEGITIMIZED A "CLOSED" MEETING BY GIVING ITS ACTIONS LEGAL EFFECT CONTRARY TO THE EXPRESS MANDATE OF THE OHIO GENERAL ASSEMBLY WHICH WILL ALLOW FOR FUTURE ABUSE INCAPABLE OF REVIEW. III. THE LOWER COURT ERRED WHEN IT DID NOT FIND AN EXACT DATE OF DESTRUCTION BASED ON CORROBORATED EVIDENCE AS THE TRIGGER TO START THE STATUTE OF LIMITATIONS RUNNING FOR A VIOLATION OF OHIO PUBLIC RECORDS LAWS. In their first and second assignments of error, appellants argue that the court erred by finding that the test for determining when the cause of action pursuant to R.C. 149.351 accrues is that point in time when appellants knew, or should have known, that the public records were destroyed. Appellants argue that the public is entitled to actual notice of destruction of public records pursuant to statute and therefore the one-year statute of limitations begins to run only after actual notice is given to the public. Appellants ask this court to find that the only event which would trigger the statute of limitations for an action pursuant to R.C. 149.351 is the actual public notification of destruction of records which occurs through the interrelationship of statutes that require -4- specific procedures and also that meetings of public bodies charged with the destruction of documents be held open to the public. Appellees were granted summary judgment on the grounds that the applicable statute of limitation had run on its action pursuant to R.C. 149.351. Civ.R. 56(C) states in part that: Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action show 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. A grant of summary judgment is reviewed de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1158. A party is entitled to summary judgment where the court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274. In this case, we assume, in the light most favorable to appellants, that the records of the investigation were in fact public records subject to the procedures set forth in R.C. 149.38 through R.C. 149.42 for destruction. Additionally, we assume that appellants were aggrieved by the destruction of the records of the investigation as required by R.C. 149.351. -5- The unlawful maintenance of public records is prohibited by R.C. 149.351, which states in part that: (B) Any person who is aggrieved by the removal, destruction, mutilation, or transfer of, or by other damage to or disposition of such a record, may commence either or both of the following in the court of common pleas of the county in which division (A) of this section allegedly was violated or is threatened to be violated: (1) A civil action for injunctive relief to compel compliance with division (A) of this section, and to obtain an award of the reasonable attorney's fees incurred by the person in the civil action; (2) A civil action to recover a forfeiture in the amount of one thousand dollars for each violation, and to obtain an award of the reasonable attorney's fees incurred by the person in the civil action. In August, 1993, during a meeting between appellee Sefcek and Ralph Hughes, Sefcek told Hughes that he would destroy the file of 1 the investigation of appellants . At that time, appellants could have brought an action pursuant to R.C. 149.351(B)(1) for injunctive relief to compel Sefcek to properly maintain the records. However, appellants waited until December, 1994, to file an action pursuant to R.C. 149.351(B)(2); 16 months after they were told the records would be destroyed. As R.C. 149.351(B)(2) provides for a forfeiture, the statute of limitations applicable is one year as set forth in R.C. 2305.11(A). The filing of an action after the expiration of the statute of limitations is a bar to the action. R.C. 2305.03. 1 Although the record does not indicate that Sharon Hughes was in fact aware of Sefcek's intent to destroy the records, appellants do not argue she was not. Therefore, we must assume, as did the parties and the court below, that she was aware of Sefcek's intent to destroy the records in August, 1993. -6- Generally, the statute of limitations for violations of a statute accrues when the statute is violated. Squire v. Guardian Trust Co. (1947), 79 Ohio App. 371, 72 N.E.2d 137. However, a discovery rule, which provides that an action accrues "when a plaintiff discovers or, in the exercise of reasonable care, should have discovered the complained of injury," has been both judicially adopted and legislatively incorporated into the law of the state for other types of actions which are denominated in R.C. 2305.11(A). See Investors REIT One v. Jacobs (1989), 46 Ohio St.3d 176, 179 -181. (Discussion of judicial and legislative application of discovery rule to different actions.) In the case sub judice, it is not necessary to determine whether or not the discovery rule should be applied to determine when a cause of action accrues pursuant to 149.351(B)(2). The court below applied two separate methods to determine when appellants' cause of action accrued. It found that the file was destroyed in August, 1993. If the general rule applicable to causes of action based upon statutory violations applied, then appellants' action was untimely. It also found that if it applied the discovery rule to determine when the cause of action accrued, then appellants knew or should have known that the records were to be destroyed in August, 1993, and that their action was untimely. We agree with the trial court that appellants' action was untimely brought regardless of whether the action accrued upon the destruction of the file or upon application of the discovery rule because both events occurred in August, 1993. -7- Appellants argue that the discovery rule is not the correct rule to apply. They argue that the one-year statute of limitations only begins to run upon actual notice of a violation of R.C. 149.351, rather than what they term to be "constructive notice" that a violation was to occur. However, appellants cite to no binding authority for this proposition, nor do they cite to any analogous situations which apply an abbreviated discovery rule. In light of the narrow application of the discovery rule, we cannot, without express legislative or judicial authority, create law where none exists. Accordingly, we reject appellants' arguments to this effect. Appellants also argue that the court erred by not determining the exact date of destruction and that its finding that the file was destroyed was erroneous because it was based upon uncorroborated evidence. If the discovery rule is applicable to determine when the cause of action accrued, it is not the exact date of destruction which triggered the statute of limitations, rather it is the notice to Hughes that the records were to be destroyed which triggered the statute of limitations. When applying the discovery rule, it is important to note that it is the discovery of facts, not of legal theories or rights, that serves to trigger the statute of limitations. Lynch v. Dial Finance Company (1995), 101 Ohio App.3d 742, 747, 656 N.E.2d 714, 718. Appellants were aware in August, 1993, that the file was to be destroyed. The fact of this notice given by Sefcek to Hughes was such that a reasonable person should have known that R.C. -8- 149.351 was to be violated and was sufficient to trigger the statute of limitations. Assuming, arguendo, it is necessary to establish the date of destruction of the record of the investigation, the court relied on uncontested evidence that Sefcek told Hughes that the documents were to be destroyed and upon the affidavit of Sefcek stating that he destroyed the record within 5 days after declaring his intent to do so. Appellants argue this evidence is insufficient because in June, 1994, when they were informed that the records had in fact been destroyed, the notice to them did not contain an exact date of destruction. Appellants must demonstrate by the means enumerated in Civ.R. 56(C) that the documents were destroyed at a later date. Appellants have failed to so demonstrate. The evidence presented upon appellees' motion for summary judgment is sufficient to support the court's finding that the records were destroyed in August, 1993, and appellants have not demonstrated that the date was later. Accordingly, appellants' first, second, and third assignments of error are overruled. II. Appellants' fourth assignment of error states: IV. THE LOWER COURT ERRED WHEN IT FAILED TO DISTINGUISH BETWEEN A RECORDS REQUEST ACTION AN A RECORDS RETENTION ACTION, THEREBY HOLDING THE APPELLANTS TO ONE STATUTE OF LIMITATIONS WHEN THERE ARE ACTUALLY TWO. -9- In this assignment of error, appellants argue that the court improperly granted summary judgment to appellees because it only applied the one year statute of limitations to appellants' claim under R.C. 149.351, ignoring a separate claim set forth under R.C. 149.43. The court did not err in applying the one year statute of limitations, regardless of whether a claim was set forth pursuant to R.C. 149.43. Revised Code section 149.43 provides in part that: (C) If a person allegedly is aggrieved by the failure of a governmental unit to promptly prepare a public record and to make it available to the person for inspection *** [that person] may commence a mandamus action to obtain a judgment that orders the governmental unit or the person responsible for the public record to comply with division (B) of this section and that awards reasonable attorney's fees to the person that instituted the mandamus action. *** R.C. 2731.04 states in pertinent part that an "[a]pplication for the writ of mandamus must be by petition, in the name of the state on the relation of the person applying, and verified by affidavit." Appellants did not file a petition for a writ of mandamus as required by R.C. 149.43. Additionally, a mandamus action may only be made in accordance with R.C. 2731.04. Myles v. Wyatt (1991), 62 Ohio St.3d 191, 580 N.E.2d 1080. (Mandamus action must be made in accordance with R.C. 2731.04, not by motion.) Accordingly, no action pursuant to R.C. 149.43 was properly before the court. Moreover, appellants were informed that the file had been destroyed. As the file cannot now be made available for inspection -10- and copying as required by R.C. 149.43, a court cannot issue a writ of mandamus. State ex rel. Ingerson v. Berry (1863), 14 Ohio St. 315, 323. (A writ of mandamus is "designed only as a remedy to prevent the failure of justice, ... and the law does not require the performance of things which are either impossible or useless.") Appellants' fourth assignment of error is overruled. III. Appellants' remaining assignment of error states: V. THE LOWER COURT ERRED WHEN IT FAILED TO USE FEDERAL LAW AS AN AID IN UNDERSTANDING THE STATUTORY STRUCTURE. Appellants argue that the court erred by not adopting requirements of the federal Freedom of Information Act. Federal requirements not expressed within the Revised Code will not be given effect. See, e.g., State ex rel. Thomas v. Ohio State University (1994), 71 Ohio St.3d 245, 247-48, 643 N.E.2d 126, 129. (Rejecting argument to incorporate Federal Freedom of Information Act exemption to R.C. 149.43 because exemption not expressly incorporated in Ohio statute.) Appellants' fifth assignment of error is overruled. Judgment affirmed. -11- It is ordered that appellees recover of appellants their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas 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. KARPINSKI, J., and PATTON, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .