COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 76150 STATE EX REL. LINDA JACKSON : ORIGINAL ACTION : Relator : : vs. : JOURNAL ENTRY : CITY OF CLEVELAND : AND : Respondent : OPINION : : DATE OF JOURNALIZATION : JULY 7, 1999 : CHARACTER OF PROCEEDINGS : WRIT OF MANDAMUS : : JUDGMENT : WRIT DENIED APPEARANCES: For Relator: KENNETH A. BIRNE, ESQ. THOMAS M. HORWITZ, ESQ. Peltz & Birne 1880 Midland Building 101 Prospect Avenue, West Cleveland, OH 44115 For Respondent: CORNELL P. CARTER, ESQ. Director of Law MICHELLE A. MACECEVIC, ESQ. Chief Assistant Director of Law WILLIAM L. MILLER, ESQ. Assistant Director of law 601 Lakeside Avenue, Room 106 Cleveland, OH 44114 -2- JOHN T. PATTON, J. Relator avers that she has requested that respondent provide her copies of records regarding all open Accountant I positions with Respondent's Finance Department from November 1, 1997 to the date upon which Respondent received Relator's request. Complaint, par. 3. Relator further avers that, between the January 20, 1999 receipt of her request and the March 17, 1999 commencement of this action in mandamus, respondent had not responded to her request for copies. Relator requests that this court compel respondent to make available copies of the requested records. Respondent filed a motion to dismiss. Respondent's counsel stated that attached to the motion to dismiss were copies of all the requested records. By entry dated June 24, 1999, we converted the motion to dismiss to a motion for summary judgment because the motion presented matters outside the pleading. See Civ. R. 12(B), 56. We granted respondent's motion and held that relator's action in mandamus was moot. Relator filed a motion for relief from judgment noting that this court had not considered her brief in opposition to respondent's motion and arguing--as she had in her brief in opposition to respondent's motion--that she was entitled to attorney fees. Relator specifically stated, however, that she was not requesting this court to modify its holding that her claim in mandamus is moot. Rather she indicated that she was merely -3- requesting that this court permit her to recover attorney fees. By separate entry, we have granted relator's motion for relief from judgment. We reiterate our holding, therefore, that this action is now moot. We also hold that relator is entitled to attorney fees. Relator, in her brief in opposition to respondent's motion to dismiss, asserted her position that she was entitled to attorney fees. Respondent has not presented any evidence or argument to the contrary. The standard for granting attorney fees is well- established: Under State ex rel. Pennington v. Gundler (1996), 75 Ohio St.3d 171, 661 N.E.2d 1049, syllabus, A court may award attorney fees pursuant to R.C. 149.43 where (1) a person makes a proper request for public 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 public records only after the mandamus action is filed, thereby rendering the claim for a writ of mandamus moot. State ex rel. Russell v. Thomas (1999), 85 Ohio St.3d 83, 85, 706 N.E.2d 1251. Respondent has not disputed the propriety of relator's request for records regarding all open Accountant I positions with Respondent's Finance Department during a prescribed time period. Likewise, respondent has not disputed relator's assertion that her request had been denied prior to the filing of this action. As a consequence, attorney fees are appropriate in this action. Accordingly, respondent's motion to dismiss--which has been converted to a motion for summary judgment--is granted. -4- Additionally, we award attorney fees to relator and order her counsel to submit a bill and documentation in support of attorney fees in accordance with DR 2-106-(B) within ten days of this entry. Respondent may respond within ten days of the filing by relator's counsel. Respondent to pay costs. Judgment accordingly. JAMES M. PORTER, A.J. TERRENCE O'DONNELL, J. CONCUR. .