[Cite as State ex rel. Infinity Secs., Inc. v. Froment, 2020-Ohio-5090.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Infinity Securities, Inc., : 

 

 Relator, : 

 

v. : No. 19AP-197 

 

Jillian Froment, in her official capacity : 

as the Superintendent of the (REGULAR CALENDAR) 

Ohio Department of Insurance, : 

 

 Respondent. : 

 

 

D E C I S I O N 

Rendered on October 29, 2020 

 

On brief: Graff & McGovern, LPA, and John A. Izzo, for 

relator. Argued: John A. Izzo.

On brief: Dave Yost, Attorney General, Crystal R. Richie, for 

respondent. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

LUPER SCHUSTER, J. 

{¶ 1} Relator, Infinity Securities, Inc., initiated this original action requesting that 

this court issue a writ of mandamus ordering respondent, Jillian Froment, Superintendent 

of the Ohio Department of Insurance, to issue an order in the pending administrative 

proceedings before the department relative to relator's permit application. 

{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53 

and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the 

appended decision, including findings of fact and conclusions of law. The magistrate 

determined that the parties agreed the action has become moot through resumption of the 
No. 19AP-197 2 

administrative proceedings before respondent. Thus, the magistrate recommends this 

court grant respondent's motion to dismiss and deny relator's motion for fees. 

{¶ 3} Relator has filed objections to the magistrate's decision. Through its 

objections, relator argues that the magistrate erred in denying its motion for fees. 

Specifically, relator argues that even though the magistrate correctly determined the 

request for the writ of mandamus was moot, the magistrate nonetheless erred when it 

determined that relator was not a "prevailing party" within the meaning of R.C. 2335.39. 

{¶ 4} Relator sought its award of fees under R.C. 2335.39(B)(1), which provides 

that in a civil action in which the state is a party, a "prevailing eligible party is entitled, upon 

filing a motion in accordance with this division, to compensation for fees incurred by that 

party in connection with the action or appeal." Pursuant to R.C. 2335.39, a "[p]revailing 

eligible party" is "an eligible party that prevails in an action or appeal involving the state." 

R.C. 2335.39(A)(5). The magistrate determined that relator did not satisfy the definition 

of "prevailing eligible party" because relator did not prevail in the present action by 

obtaining its requested writ of mandamus. 

{¶ 5} Here, the parties agree that the request for the writ is moot. Though relator 

asks us to consider it a "prevailing party" on the basis that it likely would have prevailed 

had respondent waited to take action and instead let this court consider the merits of the 

petition for a writ of mandamus, relator cites no legal authority supporting that position. 

Additionally, while relator argues it should be considered a "prevailing party" since it 

obtained the relief it requested, we note that the statutory definition of "prevailing eligible 

party" requires the party to prevail "in an action..." (Emphasis added.) R.C. 2335.39(A)(5). 

Relator did not prevail in the action, rather it received the decision it requested before the 

action terminated. Accepting relator's argument would require this court to ignore the 

statutory definition of "prevailing eligible party," which we decline to do. Instead, we agree 

with the magistrate that when the request for the writ of mandamus is moot, the "matter 

lacks a 'prevailing party,' the presence of which would raise the question of attorney fee 

recovery." State ex rel. Gallucci v. Brown, 10th Dist. No. 91AP-453, 1991 Ohio App. LEXIS 

4569 (Sept. 26, 1991). Therefore, we overrule relator's objections to the magistrate's 

decision. 
No. 19AP-197 3 

{¶ 6} After examination of the magistrate's decision, an independent review of the 

record pursuant to Civ.R. 53, and due consideration of relator's objections, we overrule 

relator's objections and adopt the magistrate's findings of fact and conclusions of law. 

Accordingly, we grant respondent's motion to dismiss the complaint and deny relator's 

motion for fees. 

Objections overruled; motion for fees denied; case dismissed. 

BROWN and BEATTY BLUNT, JJ., concur. 

 
No. 19AP-197 4 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Infinity Securities, Inc., : 

 

 Relator, : 

 

v. : No. 19AP-197 

 

Jillian Froment, in her official capacity as : (REGULAR CALENDAR) 

the Superintendent of the Ohio Department 

of Insurance, : 

 

 Respondent. : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on April 9, 2020

 

Graff & McGovern, LPA, and John A. Izzo, for relator. 

Dave Yost, Attorney General, Crystal R. Richie, for 

respondent. 

 

IN MANDAMUS ON RESPONDENT'S 

MOTION TO DISMISS AND MOTION FOR FEES 

{¶ 7} Relator in this original action, Infinity Securities, Inc., sought a writ of 

mandamus ordering respondent, Jillian Froment, Superintendent of the Ohio 

Department of Insurance, to issue an order in pending administrative proceedings before 

the department. Respondent has moved to dismiss this action as moot, a posture that 

relator does not dispute except for relator's pending motion for fees. 

Findings of Fact: 

{¶ 8} 1. Relator initiated this original action with a complaint in mandamus filed 

April 5, 2019. 
No. 19AP-197 5 

{¶ 9} 2. The complaint avers that relator is an independent investment advisor 

based in Oakland, California, with 52 branch offices across the United States. On or about 

November 2, 2016, relator applied for a license to conduct business as an insurance agent 

in Ohio. 

{¶ 10} 3. The Ohio Department of Insurance is a state agency created pursuant to 

R.C. 3901.01 whose powers are defined in the ensuing provisions. 

{¶ 11} 4. Respondent is charged with issuing and renewing insurance licenses 

pursuant to Title 39 of the Ohio Revised Code. Under R.C. 3905.14(B)(1), respondent may 

refuse a license if the applicant has provided incorrect, misleading, incomplete, or 

materially untrue information in the application. 

{¶ 12} 5. Respondent's main offices are in Franklin County, Ohio. Jurisdiction 

and venue over this original action lie with the court pursuant to Section 3(B)(1), Article 

IV, Ohio Constitution, and R.C. 2731.02. 

{¶ 13} 6. Relator's complaint concedes that a clerical error on its application with 

the department led to the omission of necessary information regarding an administrative 

action previously considered by the Alabama Division of Securities in 2012. 

{¶ 14} 7. Relator's complaint states that the department and relator could not 

agree on the steps necessary to resolve the application error. Respondent proposed a 

consent order involving a civil penalty and administrative costs. Relator declined on the 

basis that accepting a civil penalty would create repercussions with other state regulators, 

which relator felt was unwarranted for an inadvertent mistake. 

{¶ 15} 8. Relator's complaint avers that relator requested that respondent initiate 

formal charges so that an impartial hearing examiner, pursuant to respondent's 

administrative adjudication process, could examine the matter. 

{¶ 16} 9. Attached to relator's complaint is a copy of the resulting hearing officer's 

report and recommendation. This report "recommends that no formal violation be cited 

since it appears that there was an honest mistake made on the application. Infinity 

Securities can be assessed administrative costs for the mistake." (Report and 

Recommendation, at 6.) 
No. 19AP-197 6 

{¶ 17} 10. Relator filed objections to the hearing officer's report and 

recommendation raising only procedural points. Relator complained that the hearing 

officer erred in refusing to take judicial notice of evidence and apply R.C. 119.14, and 

further erred in declining to consider that Ohio Governor's Executive Order 2011-01K 

applied to the matter. Relator did not object to the hearing officer's conclusions and 

recommendation. 

{¶ 18} 11. The stipulated record of administrative proceedings in this matter has 

not yet been filed, but neither party disputes the accuracy and relevance of the documents 

from the administrative proceedings that were attached to relator's complaint and the 

parties' subsequent pleadings. 

{¶ 19} 12. Relator's complaint further avers that, one year after the hearing 

officer's report and recommendation issued, respondent has held no further proceedings, 

nor rendered an order resolving the permit application. Relator has been unable to 

conduct business in Ohio in the interim. Relator's complaint avers that relator received 

assurances from counsel for respondent on August 30, 2018 that an order would be 

forthcoming. As of the filing of this mandamus action, no such order had been issued by 

respondent. 

{¶ 20} 13. In the absence of an answer to the complaint, relator moved for default 

judgment on May 24, 2019. 

{¶ 21} 14. Respondent moved for an extension of time in which to answer on 

May 30, 2019. 

{¶ 22} 15. The magistrate denied relator's motion for default judgment on May 31, 

2019, and in the same order granted respondent until June 6, 2019 to file an answer. 

{¶ 23} 16. Respondent filed an answer on June 6, 2019, which did not contest the 

substance and chronology presented in relator's complaint. 

{¶ 24} 17. On June 18, 2019, respondent filed a motion to dismiss the complaint 

as moot, asserting that respondent had issued an order on June 7, 2019 that resumed 

administrative proceedings in the matter and rendered the present mandamus action 

moot. 
No. 19AP-197 7 

{¶ 25} 18. The administrative order issued by respondent on June 6, 2019 

approves in part and modifies in part the hearing officer's report and recommendation. 

"[T]he recommendation is modified to reflect that Infinity submitted incorrect, 

misleading, and/or materially untrue information in its license application and in 

violation of R.C. 3905.14(B)(1). * * * The hearing officer further recommended that 

Infinity 'can be assessed administrative costs[.]' This recommendation is affirmed and 

approved. Accordingly, Infinity is hereby assessed administrative costs in the total 

amount of eight hundred seventy-six dollars and 21 cents ($876.21), to be paid in full 

within (30) days of the effective date of this order. Upon timely and total payment of the 

administrative costs, the license application of Infinity will be approved." (June 6, 2019 

Order, at 3.) 

{¶ 26} 19. Relator filed on June 20, 2019 a memorandum in opposition to the 

motion to dismiss combined with a motion for an award of fees for attorney fees and costs 

incurred in filing and prosecuting this mandamus action. 

{¶ 27} 20. Relator's motion for fees seeks $1,878 in fees and costs pursuant to 

R.C. 2335.39(B)(1). Attached to the motion is an itemized fee statement describing the 

time expended by counsel for relator in this mandamus action billed at $275 per hour, for 

a total of 7.1 hours worked. The total attorney time billed amounts to $1,775, to which 

relator has added $103 in filing fees. 

{¶ 28} 21. Respondent filed a memorandum in opposition on July 9, 2019, 

asserting that relator is not entitled to fees under R.C. 2335.39, and that moreover, the 

hourly rate applied in the fee statement is three times that allowed by law. 

{¶ 29} 22. Relator filed a reply memorandum on July 11, 2019. 

Discussion and Conclusions of Law: 

{¶ 30} Relator seeks an award of fees under Ohio's Equal Access to Justice Act, 

R.C. 2335.39(B)(1), providing in pertinent part as follows: 

Except as provided in divisions (B)(2) and (F) of this section, in 

a civil action, or appeal of a judgment in a civil action, to which 

the state is a party, or in an appeal of an adjudication order of 

an agency pursuant to section 119.12 of the Revised Code, the 

prevailing eligible party is entitled, upon filing a motion in 

accordance with this division, to compensation for fees 

incurred by that party in connection with the action or appeal. 
No. 19AP-197 8 

Compensation, when payable to a prevailing eligible party 

under this section, is in addition to any other costs and 

expenses that may be awarded to that party by the court 

pursuant to law or rule. 

R.C. 2335.39(B)(1) thus applies in favor of "prevailing parties" in a civil action or appeal 

to which the state is party. 

{¶ 31} Because the parties agree that, apart from the present fee issue, the action 

has become moot through resumption of the administrative proceedings before 

respondent, relator is not a "prevailing party" because relator did not prevail in the 

present action by obtaining a writ. State ex rel. Gallucci v. Brown, 10th Dist. No. 91AP453 (Sept. 26, 1991) ("Because the question is moot, this matter lacks a 'prevailing party,' 

the presence of which would raise the question of attorney fee recovery.") While relator 

doubtless would take the position that the mandamus action has achieved the desired 

effect by stimulating respondent's issuance of the June 6, 2019 administrative order, that 

does not make relator a prevailing party as required by R.C. 2335.39(B)(1). Moreover, 

this court has at least questioned whether this statute applies to mandamus actions before 

this court, where an award of fees is recoverable as damages under R.C. 2731.11 or made 

under specific statutes relating to various types of action, such as R.C. 149.43(C) for public 

records actions. See generally, Gallucci; but see, Arcenio v. Youngstown State Univ., 7th 

Dist. No. 14 MA 0163, 2016-Ohio-4812 (proposing broader interpretation of terms "civil 

action" and "initiated by the state.") The magistrate further notes that, while this is not 

pertinent to the question of whether relator prevailed in the present action, relator was 

not the prevailing party in administrative proceedings either, since the final order finds a 

sanctionable deficiency in relator's license application. 

{¶ 32} In summary, the magistrate agrees with the parties that this mandamus 

action has become moot. Respondent's motion to dismiss for failure to state a claim is 

granted based upon lack of a justiciable controversy. Relator's motion for fees is denied. 

 

 /S/ MAGISTRATE 

 MARTIN L. DAVIS 
No. 19AP-197 9 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as 

error on appeal the court's adoption of any factual finding or 

legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), 

unless the party timely and specifically objects to that factual 

finding or legal conclusion as required by Civ.R. 53(D)(3)(b).