[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Grendell v. Geauga Cty. Bd. of Commrs., Slip Opinion No. 2022-Ohio-2833.]

 

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2022-OHIO-2833

THE STATE EX REL. GRENDELL, JUDGE, v. GEAUGA COUNTY BOARD OF 

COMMISSIONERS ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Grendell v. Geauga Cty. Bd. of Commrs., Slip 

Opinion No. 2022-Ohio-2833.]

Mandamus—Writ sought to order county board of commissioners to approve 

judge’s application for appointment of counsel to bring a mandamus action 

to secure payment of court expenses—Once expenses were paid, relief in 

mandamus action would not affect the outcome—Mandamus will not lie to 

compel a vain act—Cause dismissed as moot.

(No. 2021-1159—Submitted June 14, 2022—Decided August 17, 2022.)

IN MANDAMUS.

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Per Curiam.

{¶ 1} In this original action, relator, Timothy J. Grendell, judge of the 

Geauga County Court of Common Pleas, Probate and Juvenile Divisions, seeks a 

writ of mandamus against respondents, the Geauga County Board of 
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Commissioners and Geauga County Prosecutor James R. Flaiz (collectively, “the 

county”), ordering the county to proceed under R.C. 305.14 with the submission 

and approval of his application for appointment of counsel. He also has filed a 

motion for a peremptory writ of mandamus and a motion to strike the county’s 

notice of mootness. We earlier granted an alternative writ, see 166 Ohio St.3d 

1403, 2022-Ohio-461, 181 N.E.3d 1187, but we now dismiss this case as moot, 

deny the motion for a peremptory writ as moot, and deny the motion to strike.

I. BACKGROUND

{¶ 2} This case stems from a dispute between Judge Grendell and Charles 

E. Walder, Geauga County Auditor, over unpaid expenses (“new expenses”) 

authorized by Judge Grendell totaling $19,858.36. This is not the first time that an 

expense dispute between them has arisen. In State ex rel. Grendell v. Walder, 166

Ohio St.3d 533, 2022-Ohio-204, 188 N.E.3d 152, ¶ 1 (“Grendell I”), we granted a 

writ of mandamus ordering Walder to issue warrants on the county treasurer to pay 

previous expenses that Judge Grendell had authorized.

{¶ 3} After Judge Grendell failed to secure payment for the new expenses, 

he submitted an application to the county requesting the appointment of attorney 

Stephen Funk—Judge Grendell’s appointed counsel in Grendell I—to commence

another mandamus action against Walder to secure that payment. It is undisputed 

that the county has not processed the application or responded to Judge Grendell’s 

follow-up emails urging it to do so.

{¶ 4} Although Ohio law generally provides that the county prosecutor shall 

represent a county official in a matter connected with the official’s duties, see R.C. 

309.09(A), Judge Grendell sought the appointment of Funk because he thought that 

Flaiz’s representation would be inadequate. Judge Grendell cites a laundry list of 

instances in which he and Flaiz have not gotten along and believes there is “no 

doubt that Flaiz is incapable of providing unbiased legal advice to the [probate and 

juvenile] court.” Flaiz recused himself from Grendell I, concluding that a conflict 
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would have arisen had he attempted to represent one county official (Judge 

Grendell) against another (Walder).

{¶ 5} After Judge Grendell filed his complaint in this case, we announced 

our decision in Grendell I, prompting Judge Grendell to file a motion for a 

peremptory writ in this case asserting that the decision in Grendell I had removed

any justification for the county’s refusal to approve his application. The county 

then filed a notice of mootness, stating that in light of Grendell I, Walder had 

authorized payment of the new expenses. The county attached to its notice copies 

of three checks and an affidavit attesting that Walder had authorized payment. 

Judge Grendell asks this court to strike the county’s notice.

II. ANALYSIS

A. Motion to strike

{¶ 6} Judge Grendell says that the county’s notice of mootness should be 

stricken because it is not authorized by this court’s rules. Rather than filing a notice, 

Judge Grendell says that the county should have filed a motion under S.Ct.Prac.R. 

4.01(A)(1), which provides that “[u]nless otherwise addressed by these rules, an 

application for an order or other relief shall be made by filing a motion for the order 

or relief.”

{¶ 7} We deny Judge Grendell’s motion as futile because the county’s 

evidence and merit brief contain the same materials and arguments that are in its 

notice. Thus, even if we were to strike the notice, we still would have to grapple 

with the materials and arguments contained within it by way of the county’s 

evidence and merit brief.

B. Mootness

{¶ 8} The county argues that this case is moot because Judge Grendell 

already has accomplished what he had hoped to gain from the appointment of Funk 

as his counsel: Walder’s authorization of payment for the new expenses.
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{¶ 9} “[I]t is the duty of every judicial tribunal to decide actual 

controversies” and withhold advice upon moot questions. Fortner v. Thomas, 22 

Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). When an actual controversy ceases to 

exist, “this court must dismiss the case as moot.” M.R. v. Niesen, __ Ohio St.3d __, 

2022-Ohio-1130, __ N.E.3d __, ¶ 7. “Mandamus will not issue to compel a vain 

act.” State ex rel. Burkons v. Beachwood, __ Ohio St.3d __, 2022-Ohio-748, __ 

N.E.3d __, ¶ 14. “An act is in vain when the underlying dispute has become moot, 

such that relief in the pending lawsuit would not affect the outcome.” Id.

{¶ 10} It is true, as Judge Grendell says, that he brought this action to obtain 

a writ of mandamus ordering the county to approve his application seeking Funk’s 

appointment, not to obtain a writ of mandamus ordering Walder to authorize 

payment of the new expenses. Even so, Judge Grendell’s objective in bringing this 

action has been effectively achieved: Judge Grendell sought Funk’s appointment to 

commence a mandamus action to secure payment of the new expenses and it is 

undisputed that Walder has now authorized payment of those expenses. See State 

ex rel. Sawyer v. Cendroski, 118 Ohio St.3d 50, 2008-Ohio-1771, 885 N.E.2d 938, 

¶ 8 (dismissing appeal as moot because, “[i]n effect, the objective of [the relator’s] 

mandamus claim has now been achieved”). Given Walder’s authorization, a writ 

of mandamus ordering the county to approve Judge Grendell’s application for 

appointment of counsel would be in vain, for even if Funk were appointed, there 

would be nothing for him to litigate.

{¶ 11} We are unpersuaded by Judge Grendell’s counterarguments. First, 

he argues that the mere fact that Walder authorized payment is not decisive,

because, he says, he wrote his complaint in such a way so as to capture other 

appointment-application disputes that might arise after the complaint’s filing. We 

disagree. Judge Grendell states in his complaint that this action arises from a 

dispute between himself and Walder over unpaid expenses, that the unpaid 

expenses totaling $19,858.36 “l[ie] at the heart” of this original action, and that he 
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submitted an application to the county seeking the appointment of Funk to secure 

payment of those expenses. Judge Grendell’s prayer for relief reinforces these 

statements: it requests that the county be ordered to proceed with his application 

seeking Funk’s appointment. And contrary to what Judge Grendell argues,

Burkons, does not stand for the proposition that he may enlarge the scope of his 

requested relief based on new facts; rather, it observed that in “ ‘extraordinary-writ 

cases, courts are not limited to the facts at the time a proceeding is commenced, but 

should consider facts at the time it determines whether to grant the writ.’ ” Id. at 

¶ 15, quoting State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio4798, 874 N.E.2d 516, ¶ 11.

{¶ 12} Second, Judge Grendell says that the mootness doctrine does not 

apply here because this case is one of those “exceptional” few that are “capable of 

repetition, yet evading review.” State ex rel. Calvary v. Upper Arlington, 89 Ohio 

St.3d 229, 231, 729 N.E.2d 1182 (2000). To meet the requirements of this 

exception, Judge Grendell must show that “(1) the challenged action is too short in 

its duration to be fully litigated before its cessation or expiration, and (2) there is a 

reasonable expectation that the same complaining party will be subject to the same 

action again.” Id.

{¶ 13} Judge Grendell cannot meet the first prong of the test because, were 

the county to fail to process one of his future appointment applications, he would 

have time to seek judicial review. See Burkons at ¶ 17 (determining that the 

mootness exception did not apply). Indeed, when disputes have arisen between 

public officials over the processing (or not) of appointment applications, courts 

have had sufficient time to review them. See State ex rel. Hillyer v. Tuscarawas 

Cty. Bd. of Commrs., 70 Ohio St.3d 94, 97-98, 637 N.E.2d 311 (1994); State ex rel. 

Stamps v. Montgomery Cty. Automatic Data Processing Bd., 42 Ohio St.3d 164, 

166-167, 538 N.E.2d 105 (1989); State ex rel. Corrigan v. Seminatore, 66 Ohio 

St.2d 459, 463-464, 423 N.E.2d 105 (1981).
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{¶ 14} Our decision in State ex rel. Cincinnati Enquirer v. Heath, 121 Ohio 

St.3d 165, 2009-Ohio-590, 902 N.E.2d 976, which Judge Grendell relies on, is not 

to the contrary. There, we concluded that a newspaper company’s receipt of records 

it had requested that were related to a sealed criminal case did not moot its 

mandamus claim. But we reached that conclusion by analogizing the situation to 

one involving an order closing a courtroom in a criminal case, an order that often 

evades review because it “ ‘usually expires’ ” before the onset of appellate review. 

Id. at ¶ 12, quoting State ex rel. Beacon Journal Publishing Co. v. Donaldson, 63 

Ohio St.3d 173, 175, 586 N.E.2d 101 (1992). Nothing about the appointmentapplication process resembles a courtroom-closure order.

{¶ 15} Next, Judge Grendell points to Walder’s “power of the purse,” 

saying that Walder authorized payment of the new expenses “solely to derail this 

Court’s review” and that he could frustrate judicial review of a future action like 

this one by simply doing the same. Judge Grendell further says that given the 

friction between himself and Walder, disputes like this are bound to arise again.

{¶ 16} To begin, it is not obvious how Judge Grendell would incur an injury 

if Walder were to pay an expense that Judge Grendell might seek reimbursement 

for in the future. In any event, the larger problem with Judge Grendell’s argument 

is that it ignores the effect of Grendell I. After Judge Grendell filed this action, we

decided Grendell I, in which we clarified the scope of an auditor’s duty to authorize 

payment for court-ordered expenditures and granted a writ of mandamus ordering 

Walder to authorize payment for expenses that Judge Grendell had determined were 

properly incurred. Seventeen days after Grendell I was handed down, Walder 

authorized payment of the new expenses. This sequence of events undercuts Judge 

Grendell’s speculation that Walder strategically authorized payment here for no 

other reason than to frustrate this court’s review. A more sensible explanation is 

that, as the county says, Walder authorized payment in obedience to the order. And 

now that Grendell I has been decided, it is hard to see how, as Judge Grendell 
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claims, a dispute like this one would be “likely”—not just theoretically possible—

to repeat itself.

{¶ 17} Last, Judge Grendell points to what he describes as actual 

recurrences of the dispute under consideration. In February 2022, after the 

announcement of Grendell I, Walder issued a press release characterizing the 

decision as a “blank check” for judges and implying that the expenses sought by 

Judge Grendell in that case were a “wasteful abuse” of taxpayer money. In response 

to Grendell I, Walder created a page on his website titled “Public Transparency” 

that lists the expenses he has paid to Grendell under protest. The website displays 

documents containing what Judge Grendell describes as sensitive information, 

namely, the home addresses of visitation supervisors and business owners who 

provide services to the Geauga County courts. Concerned that Walder’s actions 

were creating a public spectacle and endangering vendors’ private information, 

Judge Grendell emailed the county with a request for the appointment of counsel to 

“advise [him] as to how best to protect the Court’s reputation in the community, 

maintain public confidence in the Court amidst the barrage of public disparagement 

from the County Auditor, administer justice fairly and efficiently, and protect the 

safety of [the] Court’s vendors.” Flaiz told Judge Grendell that he would not 

participate in an application for appointment of counsel because he saw no need for 

one.

{¶ 18} Although the facts described in the preceding paragraph and this case 

both share a core feature—that is, a refusal on the part of county officials to appoint 

counsel for Judge Grendell—Judge Grendell fails to persuasively show that those 

facts present the “same action” featured here. Calvary, 89 Ohio St.3d at 231, 729 

N.E.2d 1182. Whereas this case originates from a payment dispute between Judge 

Grendell and Walder, those “same unique circumstances,” Smith v. Leis, 111 Ohio 

St.3d 493, 2006-Ohio-6113, 857 N.E.2d 138, ¶ 15, are not present in the preceding 

paragraph, see id. (concluding that the same-action prong was unmet).
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{¶ 19} Judge Grendell’s passing reference in his reply brief to a pending 

prohibition action brought against him by Flaiz on behalf of the county 

commissioners similarly fails. Even if it were proper for this court to take judicial 

notice of that action, as Judge Grendell says it would be, Judge Grendell has not 

presented sufficient information about that action to enable this court to conclude 

that it is the same action as presented here.

{¶ 20} At bottom, Judge Grendell must do more than point to a contentious 

relationship with county officials to meet the requirements of the mootness 

exception. It follows that we must dismiss this case as moot and deny as moot 

Judge Grendell’s motion for a peremptory writ.

III. CONCLUSION

{¶ 21} We deny Judge Grendell’s motion to strike, dismiss this case as 

moot, and deny as moot his motion for a peremptory writ.

Cause dismissed.

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART, 

and BRUNNER, JJ., concur.

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Flowers & Grube, Paul W. Flowers, Louis E. Grube, and Melissa A. Ghrist, 

for relator.

Mazanec, Raskin, & Ryder Co., L.P.A., and Frank H. Scialdone, for 

respondents.

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