[Cite as State ex rel. Miller v. Ohio Dept. of Edn., 2016-Ohio-8534.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Mark Miller, : 

 Relator, : 

 

v. : No. 15AP-1168 

 

Ohio Department of Education, : (REGULAR CALENDAR) 

 

 Respondent. : 

 

D E C I S I O N 

Rendered on December 30, 2016

 

On brief: Finney Law Firm LLC, Christopher P. Finney, 

and Brian C. Shrive, and The Law Firm of Curt C. Hartman, 

and Curt C. Hartman, for relator. 

On brief: Michael DeWine, Attorney General, Brodi J. 

Conover, and Todd R. Marti, for respondent.

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

KLATT, J. 

{¶ 1} Relator, Mark Miller, commenced this original action in mandamus seeking 

an order compelling respondent, Ohio Department of Education, to produce the public 

records relator requested by letter dated November 6, 2015 pursuant to the Public 

Records Act, R.C. 149.43. Relator also requested that this court award him statutory 

damages, attorney fees, and court costs. 

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of 

Appeals, we referred this matter to a magistrate. Subsequent to our referral, respondent 

filed a motion to dismiss supported by an affidavit. Respondent asserted that after relator 
No. 15AP-1168 2 

filed this mandamus action, respondent produced to relator the documents relator 

requested. Therefore, respondent argued that this mandamus action is moot. 

{¶ 3} The magistrate converted respondent's motion to dismiss into a motion for 

summary judgment and allowed relator an opportunity to respond. Relator filed a 

memorandum with supporting affidavit opposing respondent's motion for summary 

judgment. Relator conceded that respondent produced the documents responsive to his 

request, thereby rendering his mandamus action moot. However, relator argued that he 

was entitled to statutory damages, attorney fees, and court costs. Accordingly, relator also 

filed a cross-motion for partial summary judgment, in which he sought statutory damages 

in the amount of $500 and attorney fees. Following further briefing by both parties, the 

magistrate issued a decision, including findings of fact and conclusions of law, which is 

appended hereto. 

{¶ 4} The magistrate found that relator was not entitled to an award of attorney 

fees based on the holding in State ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 367, 2014-

Ohio-538. The magistrate further held that relator was entitled to statutory damages in 

the amount of $300. The magistrate's decision did not address the issue of court costs, 

other than to note that relator did not seek court costs as part of his motion for partial 

summary judgment. Therefore, the magistrate has recommended that we grant in part 

and deny in part respondent's motion for summary judgment, and that we grant in part 

and deny in part relator's partial motion for summary judgment. 

{¶ 5} Relator and respondent have filed objections to the magistrate's decision. 

We first address respondent's objection. 

{¶ 6} In its sole objection, respondent contends that the magistrate erred by 

awarding relator statutory damages. Respondent argues that it complied with the 

requirements of the Public Records Act by producing the requested public records within 

a reasonable time. Therefore, respondent argues that the magistrate erred when he 

awarded relator statutory damages. We disagree. 

{¶ 7} It is undisputed that it took respondent 61 days to produce the documents 

responsive to relator's pubic records request. Respondent did not produce the requested 

public records until after relator filed this mandamus action. R.C. 149.43(B)(1) states that 

all public records responsive to a public records request shall be promptly prepared and 
No. 15AP-1168 3 

made available for inspection. In determining whether a public office has complied with 

R.C. 149.43(B)(1) 's requirement that the requested public records be promptly prepared, 

we apply a reasonableness test. State ex rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 53 

(1998). That determination depends largely on the particular facts of each case. 

{¶ 8} Here, the limited number of documents sought by relator in his public 

records request were clearly identified and should not have been difficult to locate, review, 

and produce. Nevertheless, it is undisputed that it took respondent 61 days to produce 

the documents responsive to relator's request. Moreover, the production did not occur 

until after relator filed this mandamus action. Although respondent argues that relator's 

records request was "processed" shortly after it was received, the only specific justification 

for the 61-day delay in producing the documents was the occurrence of three federal 

holidays (Thanksgiving, Christmas Day, and New Years Day). No other justification was 

alleged, although respondent does argue that time was needed to conduct a legal review of 

the responsive records. Given the limited number of responsive records, we agree with 

the magistrate that respondent failed to provide a factual justification for the 61-day delay 

in producing the requested documents. For these reasons, we overrule respondent's 

objection. 

{¶ 9} Relator has also filed objections to the magistrate's decision. In his first 

objection, relator contends the magistrate erred by awarding relator only $300 in 

statutory damages. We agree. 

{¶ 10} R.C. 149.43(C)(2) provides for the calculation of statutory damages as 

follows: 

The amount of statutory damages shall be fixed at one 

hundred dollars for each business day during which the public 

office or person responsible for the requested public records 

failed to comply with an obligation in accordance with 

division (B) of this section, beginning with the day on which 

the requester files a mandamus action to recover statutory 

damages, up to a maximum of one thousand dollars. 

{¶ 11} Here, it is undisputed that relator filed his mandamus action on 

Wednesday, December 30, 2015, and that respondent produced the records on 

Wednesday, January 6, 2016. The $100 per business day calculation of statutory 

damages begins with the day on which the requester files a mandamus action to recover 
No. 15AP-1168 4 

damages, up to a maximum of $1,000. Thus, the magistrate should have counted days 

beginning with December 30, 2015. Counting business days beginning with Wednesday, 

December 30, 2015 and ending Tuesday, January 4, 2016, results in the number 4. 

{¶ 12} Relator argues that the magistrate should have counted the day that 

respondent produced the documents (Wednesday, January 6, 2016, or at least a fractional 

portion thereof), in making his calculation. We disagree. Counting the day that the 

documents were produced is not consistent with the language of R.C. 149.43(C)(1). 

{¶ 13} Because the magistrate should have awarded statutory damages based on 4 

business days, thereby resulting in a statutory damage award of $400, we sustain in part 

relator's first objection, but overrule the remaining aspects of this objection. 

{¶ 14} In his second objection, relator contends the magistrate erred by failing to 

award attorney fees. We disagree. 

{¶ 15} As noted by the magistrate, attorney fees cannot be awarded when a 

mandamus complaint is disposed of on grounds of mootness, because there is no 

"judgment that orders the public office or the person responsible for the pubic record to 

comply with division (B)" of the act. R.C. 149.43(C)(2)(c); DiFranco (attorney fees award 

not permitted when all responsive documents are produced before any court order is 

issued). We recognize that relator has cited several cases from the Supreme Court of Ohio 

that contain language suggesting that attorney fees can still be awarded even though 

mandamus relief is denied based on mootness. However, none of these cases address the 

statutory language that the DiFranco court found dispositive. In addition, DiFranco

involved very similar facts to those presented in the case at bar and DiFranco directly 

addresses whether attorney fees can be awarded under these circumstances. For these 

reasons, we are compelled to follow DiFranco and overrule relator's second objection. 

{¶ 16} In its third objection, relator contends the magistrate erred when he failed 

to award relator court costs. Again, we disagree. 

{¶ 17} R.C. 149.43(C)(2) authorizes an award of court costs if the court issues a 

writ of mandamus. Here, because the public records have been produced, the parties 

concede that the request for a writ of mandamus is moot. Therefore, no writ of 

mandamus has been granted and court costs are not authorized. 
No. 15AP-1168 5 

{¶ 18} Relator's reliance on the prevailing party rule in Civ.R. 53(D) to support an 

award of court costs is misplaced. Because there is an express statutory provision 

authorizing court costs in R.C. 149.43(C)(2), the prevailing party rule set forth in Civ.R. 

54(D) does not apply. ("Except when express provision therefor is made * * * in a statute 

* * * costs shall be allowed to the prevailing party.") For these reasons, we overrule 

relator's third objection. 

{¶ 19} Following an independent review of this matter, we find that the magistrate 

has properly determined the facts and applied the appropriate law, except for his 

miscalculation of the number of days to apply in determining statutory damages. For the 

reasons noted above, we modify the statutory damage award to $400. With this 

modification, we accept the magistrate's decision as our own, including the findings of 

fact and conclusions of law contained therein. In accordance with the magistrate's 

decision, we grant in part and deny in part respondent's converted motion for summary 

judgment, and grant in part and deny in part relator's cross-motion for partial summary 

judgment. 

Objections sustained in part and overruled in part; 

respondent's motion for summary judgment 

 granted in part and denied in part; 

 relator's motion for summary judgment granted 

in part and denied in part.

BROWN and SADLER, JJ., concur. 

 

 
No. 15AP-1168 6 

APPENDIX

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Mark Miller, : 

 Relator, : 

 

v. : No. 15AP-1168 

 

Ohio Department of Education, : (REGULAR CALENDAR) 

 

 Respondent. : 

 

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

Rendered on June 30, 2016

 

Finney Law Firm LLC, Christopher P. Finney, and Brian C. 

Shrive, and The Law Firm of Curt C. Hartman, and Curt C. 

Hartman, for relator. 

Michael DeWine, Attorney General, Brodi J. Conover, and

Todd R. Marti, for respondent.

 

IN MANDAMUS 

 ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT 

 ON RELATOR'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT 

{¶ 20} In this original action, relator, Mark Miller, requests a writ of mandamus 

ordering respondent, Ohio Department of Education, to produce the public records 

relator requested by letter dated November 6, 2015, pursuant to the Public Records Act, 

R.C. 149.43. Also, relator requests that this court award statutory damages, attorney's 

fees, and court costs. 

Findings of Fact: 

{¶ 21} 1. On December 30, 2015, relator filed this R.C. 149.43 mandamus action 

against respondent. In his complaint, relator alleges that, on November 6, 2015, by 
No. 15AP-1168 7 

certified mail, he sent to respondent a letter requesting the following public records as 

described in the letter: 

[One] A copy of the notice of the March 2008 meeting of the 

State Board of Education; 

[Two] A copy of the notice of the February 2008 meeting of 

the State Board of Education; 

[Three] A copy of the filing of all rules adopted at the March 

2008 or February 2008 meeting of the State Board of 

Education, including the rule number of each such rule; 

[Four] Any notice received by the Ohio Department of 

Education from the director of the legislative service 

commission or the director's designee giving the Ohio 

Department of Education notice that any ruled [sic] adopted 

at the February 2008 or March 2008 meeting was not in 

compliance with the rules of the legislative service 

commission. 

{¶ 22} 2. According to the complaint, respondent received the letter on 

November 10, 2015 as indicated by the return-receipt of the United States Postal Service. 

{¶ 23} 3. According to the complaint, as of its filing, respondent had not produced 

the public records as requested. 

{¶ 24} 4. According to the complaint, as of its filing, respondent had not offered an 

explanation as to why the requested records had not been produced. 

{¶ 25} 5. On February 2, 2016, respondent filed a motion to dismiss. In support, 

respondent submitted the affidavit of Immy Singh, executed February 1, 2016. The Singh 

affidavit avers: 

[Two] I currently serve as Assistant Legal Counsel in the 

Office of Legal Counsel for the Ohio Department of 

Education. 

[Three] As part of my duties as Assistant Legal Counsel, I am 

part of the team that processes public records requests for 

the Department of Education. 

[Four] I processed the November 6, 2015 public records 

request sent to the Department of Education by Brian Shrive, 

of Finney Law Firm, LLC, on behalf of Mark Miller by 
No. 15AP-1168 8 

gathering the responsive records and conducting legal review 

of the responsive records. 

[Five] The November 6, 2015 public records request 

submitted by Mr. Shrive on behalf of Mr. Miller requested: 

a. A copy of the notice of the March 2008 meeting of the 

State Board of Education; 

b. A copy of the notice of the February 2008 meeting of the 

State Board of Education; 

c. A copy of the filing of all rules adopted at the March 2008 

or February 2008 meeting of the State Board of Education; 

including the rule number of each rule; and, 

d. Any notice received by the Ohio Department of Education 

from the director of the legislative service commission or the 

director's designee giving the Ohio Department of Education 

notice that any ruled [sic] adopted at the February 2008 or 

March 2008 meeting was not in compliance with the rules of 

the legislative service commission. 

* * * 

[Six] On November 6, 2015—the same day that the 

Department of Education received the public records 

request—my administrative assistant, Cher Bump, sent an 

acknowledgment e-mail to Mr. Shrive indicating that the 

Department of Education had received the public records 

request, that it would locate any responsive records, and that 

it would provide those records in a reasonable period of 

time. * * * 

[Seven] Mr. Shrive, Mr. Christopher Finney, and Mr. Curt 

Hartman, on behalf of Mr. Miller, filed a complaint in 

mandamus against the Department of Education on 

December 30, 2015. 

[Eight] On January 6, 2016, I sent all responsive records to 

Mr. Shrive to fulfill the November 6, 2015 public records 

request. This included the records sought in the first three 

parts of the public records request. The Department of 

Education did not have any records responsive to the fourth 

part of the public records request. * * * 
No. 15AP-1168 9 

[Nine] There are no other records responsive to Relator's 

November 6, 2015 public records request. 

{¶ 26} 6. On February 6, 2016, the magistrate converted respondent's motion to 

dismiss to one for summary judgment. The magistrate also issued notice that the motion 

for summary judgment is set for submission to the magistrate on February 26, 2016. 

{¶ 27} 7. On February 24, 2016, relator filed a memorandum opposing 

respondent's motion for summary judgment. In support, relator submitted the affidavit 

of Brian C. Shrive, executed February 24, 2016. The Shrive affidavit avers: 

[One] I am one of the attorneys for the Relator in this matter, 

Mark Miller. 

[Two] I am over the age of eighteen and have personal 

knowledge of the matters set forth herein. 

[Three] Attached hereto as Exhibit A is a public records 

request I sent to P.R. Casey and Immy Singh, the then Chief 

Legal Counsel and Assistant Legal Counsel for the Ohio 

Department of Education on November 6, 2015 (the 

"Request"). 

[Four] The Request was sent via certified mail, and a signed 

receipt by the Ohio Department of Education was 

subsequently returned. 

[Five] Records responsive to the Request were not produced 

until January 6, 2016. 

{¶ 28} 8. Also on February 24, 2016, relator filed a cross-motion for partial 

summary judgment. Relator moved for a statutory damages award of $500 and recovery 

of attorney's fees. Relator did not seek summary judgment for court costs. Relator did 

not move for a writ ordering respondent to produce the requested records presumably 

because the requested public records had been produced. 

{¶ 29} 9. On March 2, 2016, respondent filed a reply in support of its motion for 

summary judgment. Respondent also responded to relator's cross-motion for summary 

judgment. 

{¶ 30} 10. On March 9, 2016, relator filed a reply in support of his motion for 

partial summary judgment. 

 
No. 15AP-1168 10 

Conclusions of Law: 

The Requested Writ of Mandamus

{¶ 31} A request for a writ of mandamus for production of public records under 

R.C. 149.43 is rendered moot when the public records are produced during the pendency 

of the mandamus action. State ex rel. Cincinnati Enquirer v. Ronan, 124 Ohio St.3d 17, 

18, 2009-Ohio-5947 ("Ronan I"), citing State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. 

of Commrs., 120 Ohio St.3d 373, 2008-Ohio-6258. 

{¶ 32} Here, relator concedes that his request for the writ was rendered moot by 

respondent's production of all the requested records that were available for production 

after the filing of this mandamus action. However, relator seeks an award of statutory 

damages and attorney's fees notwithstanding that the request for a writ is now moot. 

Attorney's Fees

{¶ 33} Effective September 29, 2007, R.C. 149.43(C) was amended to add 

paragraphs (2)(a) and (b). Effective September 29, 2007 and currently, R.C. 149.43(C)(2) 

provides: 

(a) If the court issues a writ of mandamus that orders the 

public office or the person responsible for the public record 

to comply with division (B) of this section and determines 

that the circumstances described in division (C)(1) of this 

section exist, the court shall determine and award to the 

relator all court costs. 

(b) If the court renders a judgment that orders the public 

office or the person responsible for the public record to 

comply with division (B) of this section, the court may award 

reasonable attorney’s fees subject to reduction as described 

in division (C)(2)(c) of this section. The court shall award 

reasonable attorney’s fees, subject to reduction as described 

in division (C)(2)(c) of this section when either of the 

following applies. 

{¶ 34} In State ex rel. DiFranco v. City of S. Euclid, 138 Ohio St.3d 367, 2014-

Ohio-538, the Supreme Court of Ohio had occasion to interpret R.C. 149.43(C)(2)(b): 

After the 2007 amendments, R.C. 149.43(C)(2)(b) begins by 

stating: "If the court renders a judgment that orders the 

public office or the person responsible for the public record 

to comply with division (B) of this section, the court may 

award reasonable attorney fees * * *." (Emphasis added.) The 
No. 15AP-1168 11 

very next sentence sets forth the criteria under which the 

court "shall award reasonable attorney fees." (Emphasis 

added.) DiFranco claims entitlement to attorney fees under 

the second sentence, but she can qualify to receive an award 

of fees only if her case satisfies the condition set forth at the 

beginning of R.C. 149.43(C)(2)(b): that the court have issued 

a judgment that compels compliance with the public-records 

law. 

The parties do not argue this point, but it is nonetheless 

dispositive of the attorney-fees claim. Although it might be 

contended that the "if" clause applies only to the first 

sentence, we think the correct reading requires us to apply 

the initial condition to both sentences, given that the General 

Assembly chose to put both sentences in the same statutory 

compartment. Accordingly, we hold that neither 

discretionary nor mandatory attorney fees may be awarded 

under R.C. 149.43(C)(2)(b) unless the court has issued a 

judgment that orders compliance with the public-records 

law. 

In the present case, there is no such judgment. Indeed, the 

final judgment of the court of appeals disposed of the writ 

complaint on grounds of mootness, given that the documents 

had already been tendered to the relator. 

Id. at 374-75. 

{¶ 35} Based on DiFranco, relator is clearly not entitled to an award of attorney's 

fees. Relator concedes this as so. However, relator disagrees with the holding of 

DiFranco based upon four earlier cases that he cites. Those cases are Ronan I, State ex 

rel. Cincinnati Enquirer v. Heath, 121 Ohio St.3d 165, 2009-Ohio-590; State ex rel. 

Laborers Internatl. Union, Loc. Union No. 500 v. Summerville, 122 Ohio St.3d 1234, 

2009-Ohio-4090; State ex rel. Hardin v. Aey, 123 Ohio St.3d 1469, 2009-Ohio-5704; 

State ex rel. Cincinnati Enquirer v. Ronan, 127 Ohio St.3d 236, 2010-Ohio-5680 ("Ronan 

II"). 

{¶ 36} All the cases relator cites, i.e., Ronan I, Heath, Summerville, Hardin, and 

Ronan II, predate DiFranco. 

 In Summerville, the Supreme Court of Ohio states: 

In so holding, however, we reject respondent's contention 

that the 2007 amendment to R.C. 149.43 precludes attorney-
No. 15AP-1168 12 

fee awards in public-records mandamus cases that have been 

rendered moot by the post-filing disclosure of the requested 

records. 

Summerville at 1235. 

 

{¶ 37} It can be noted that the above-quoted language of Summerville was treated 

as dicta in the concurring and dissenting opinion of Justice Kennedy in DiFranco. In any 

event, it is clear that the Supreme Court of Ohio's decision in DiFranco is the law on the 

issue that the court directly decided regarding the interpretation to be given to R.C. 

149.43(C)(2)(b). 

{¶ 38} Accordingly, relator is not entitled to an award of attorney's fees. 

Statutory Damages 

{¶ 39} R.C. 149.43(B)(1) provides: 

Upon request * * *, all public records responsive to the 

request shall be promptly prepared and made available for 

inspection to any person at all reasonable times during 

regular business hours. * * * upon request, a public office or 

person responsible for public records shall make copies of 

the requested public record available at cost and within a 

reasonable period of time. 

{¶ 40} R.C. 149.43(C)(1) provides: 

If a person allegedly is aggrieved by the failure of a public 

office or the person responsible for public records to 

promptly prepare a public record and to make it available to 

the person for inspection in accordance with division (B) of 

this section or by any other failure of a public office or the 

person responsible for public records to comply with an 

obligation in accordance with division (B) of this section, the 

person allegedly aggrieved may commence a mandamus 

action to obtain a judgment that orders the public office or 

the person responsible for the public record to comply with 

division (B) of this section, that awards court costs and 

reasonable attorney’s fees to the person that instituted the 

mandamus action, and, if applicable, that includes an order 

fixing statutory damages under division (C)(1) of this section. 

{¶ 41} The word "promptly" is not defined in R.C. 149.43 or any other applicable 

statute. Therefore, it must be accorded its usual, normal, or customary meaning. State ex 

rel. Wadd v. City of Cleveland, 81 Ohio St.3d 50, 53 (1998). 
No. 15AP-1168 13 

{¶ 42} In determining whether a public office has complied with R.C. 149.43(B)(1) 

's requirement that responsive public records shall be promptly prepared, the courts use a 

reasonableness test. Id. The determination depends largely on the facts of each case. Id. 

{¶ 43} Here, it is undisputed that respondent received relator's request for public 

records on November 6, 2015 and that the records were not produced until January 6, 

2016. As relator points out, the public records were produced 61 days after the request 

was received and seven days after this mandamus action was filed. 

{¶ 44} No explanation for the 61-day delay has been given by respondent by way of 

affidavit. In her affidavit, Ms. Singh avers only that she "processed" the public records 

request on November 6, 2015, which is the date that the request was received by 

respondent. The affidavit of Brian Shrive undisputedly avers that the records were 

produced on January 6, 2016. Again, respondent offers no explanation for the delay by 

way of an affidavit. 

{¶ 45} However, in its reply in support of its converted motion for summary 

judgment, respondent's counsel offers the following explanation for the delay: 

The Ohio Department of Education received Relator's public 

records request on November 6, 2015. The Department of 

Education responded to Relator the same day they had 

received the request and would begin processing the public 

records request as it would any other request the 

Department received. It should also be noted that three 

federal holidays (Thanksgiving, Christmas Day, and New 

Years' Day) all shortly followed Relator's public records 

request. On January 6, 2016, the Department of Education 

fulfilled its obligation under the Public Records Act by 

producing all responsive records to Relator. 

(Emphasis sic.) (Mar. 2, 2016 Respondent's Reply at 11-12.) 

{¶ 46} As relator appropriately points out here, his public records request did not 

seek a voluminous number of records. Respondent does not dispute relator's 

characterization of his public records request. 

{¶ 47} Given the above scenario, this magistrate is not persuaded that the three 

federal holidays that fell within the 61-day period of delay can justify the delay in the 

absence of additional information that respondent has failed to submit. 
No. 15AP-1168 14 

{¶ 48} In the magistrate's view, respondent has failed to offer a factual justification 

for the delay and, thus, this court should grant a statutory damages award. 

{¶ 49} R.C. 149.43(C)(1) provides: 

If a requestor transmits a written request by hand delivery or 

certified mail to inspect or receive copies of any public record 

in a manner that fairly describes the public record or class of 

public records to the public office or person responsible for 

the requested public records, except as otherwise provided in 

this section, the requestor shall be entitled to recover the 

amount of statutory damages set forth in this division if a 

court determines that the public office or the person 

responsible for public records failed to comply with an 

obligation in accordance with division (B) of this section. 

The amount of statutory damages shall be fixed at one 

hundred dollars for each business day during which the 

public office or person responsible for the requested public 

records failed to comply with an obligation in accordance 

with division (B) of this section, beginning with the day on 

which the requester files a mandamus action to recover 

statutory damages, up to a maximum of one thousand 

dollars. 

{¶ 50} Given that this mandamus action was filed on Wednesday, 

December 30, 2015, and the records were produced on Wednesday, January 6, 2016, 

three business days fell between the date of filing this action and the date the records were 

produced. That is, an award of statutory damages is appropriate for the business days of 

Thursday, December 31, 2015, Monday, January 4, 2016, and Tuesday, January 5, 2016. 

Thus, the magistrate recommends to the court that an award of statutory damages in the 

amount of $300 be entered against respondent. 

{¶ 51} The magistrate notes that, in his memorandum in opposition to 

respondent's motion for summary judgment, relator contends that he is entitled to a 

statutory damages award of $500. That is, relator claims 5 business days at $100 per day. 

However, Friday, January 1, 2016, Saturday, January 2, 2016, and Sunday, January 3, 

2016 were not business days. Also, it is inappropriate to claim January 6, 2016, the date 

the records were produced, as a business day for which a statutory award can be based. 
No. 15AP-1168 15 

{¶ 52} Thus, it is the magistrate's decision that this court enter judgment in this 

action that awards to relator an R.C. 149.43 statutory damages award in the amount of 

$300. 

{¶ 53} Accordingly, it is the magistrate's decision that this court grant in part and 

deny in part respondent's converted motion for summary judgment. 

{¶ 54} It is further the magistrate's decision that this court grant in part and deny 

in part relator's cross-motion for partial summary judgment. 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 

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).