[Cite as State ex rel. Dunlap v. Sarko, 135 Ohio St.3d 171, 2013-Ohio-67.] 

THE STATE EX REL. DUNLAP v. SARKO ET AL. 

[Cite as State ex rel. Dunlap v. Sarko, 135 Ohio St.3d 171, 2013-Ohio-67.] 

Mandamus—Jurisdictional-priority rule—Under the jurisdictional-priority rule 

we lack jurisdiction to resolve relator’s mandamus claim—Cause 

dismissed. 

(No. 2012-0369—Submitted January 9, 2013—Decided January 16, 2013.) 

IN MANDAMUS. 

__________________ 

Per Curiam.

{¶ 1} This is an original action in which relator, Scott Dunlap, requests a 

writ of mandamus against respondents, Violet Township Zoning Inspector Kelly 

Sarko, Violet Township Director of Operations William Yaple, Violet Township 

Fiscal Officer Chris Smith, Violet Township Trustees Terry Dunlap Sr., Harry 

Myers Jr., and Gary Weltlich, Violet Township Fire Department Office Manager 

Kristi Huskey, and attorney William L. Loveland. He requests the writ to compel 

respondents to (1) make certain requested records available for inspection and 

copying without further delay, (2) prepare, file, and maintain full and accurate 

records of proceedings, accounts, and transactions of the board of township 

trustees and to conduct all meetings in public, except for properly called executive 

sessions, (3) execute and uphold their affirmative statutory duties, and (4) comply 

with the prohibition against the destruction and damage of records. He also 

requests that he be awarded costs, including reasonable attorney fees. 

Analysis

Scope of Argument

{¶ 2} Relator’s filings, including his amended complaint, evidence, and 

briefs, border on the incomprehensible. Relator’s numerous public-records 

requests apparently stemmed from his unsuccessful application for zoning 
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variances and his complaint to the township concerning Violet Township Trustee 

Terry Dunlap Sr.’s use of his property, which is near relator’s property, for 

shooting firearms and for concealed-weapons-permit training. But relator’s 

filings are unclear. For example, although he specifies eight propositions of law 

in the table of contents of his merit brief, he includes an argument on only the first 

of these eight propositions. Relator also includes a heading labeled “conclusion” 

at the end of his brief, but he does not include any accompanying text. 

{¶ 3} We will not address the propositions and claims for which relator 

does not present any argument. See State ex rel. Glasgow v. Jones, 119 Ohio 

St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 26 (court will not address publicrecords claim in mandamus case when relator did not include an argument related 

to that claim in his merit brief); State ex rel. Ohio Gen. Assembly v. Brunner, 114 

Ohio St.3d 386, 2007-Ohio-3780, 872 N.E.2d 912, ¶ 26, fn. 4 (court need not 

address claim for writ of mandamus that was raised in complaint but was not 

specifically argued in merit brief). 

{¶ 4} Instead, in his merit brief, relator expressly restricts the scope of 

this mandamus action to his May 18 and October 17, 2011 public-records 

requests: “At issue in this case, are the Relator’s May 18 and October 17, 2011 

public records requests.” In his May 18, 2011 request sent by certified mail to 

Violet Township Fiscal Assistant Rochelle Menningen, relator requested “copies 

of any and all invoices from Loveland & Brosius LLC from October 1, 2010 

through May 17, 2011 and copies of the office appointment calendars of Bill 

Yaple and Kelly Sarko for the same time period.” In his October 17, 2011 

request, which was also addressed to Menningen, relator requested “copies of any 

and all agendas, meeting notes/minutes (both hand written and those recorded via 

a word processing program), from all parties in attendance, and the stated purpose 

of the meeting” for a meeting held at Violet Township Trustee Terry Dunlap Sr.’s 

residence and attended by township attorney Loveland, Township Zoning 
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Inspector Sarko, and Township Director of Operations Yaple. In the request, 

relator also requested a copy of the “detailed invoice of this meeting from Violet 

Township attorney: Loveland Brosius, LLC.” 

{¶ 5} Consequently, we consider relator’s claim in the limited context of 

these requests. 

Prior Mandamus Cases 

{¶ 6} On November 18, 2011, relator filed an action in the Court of 

Appeals for Fairfield County for a writ of mandamus to compel Violet Township 

Fiscal Officer Smith and his assistant, Menningen, to provide him with copies of 

the records requested by him in his May 18 and October 17, 2011 records 

requests. On September 12, 2012, the court of appeals denied the writ based on 

its holding that the township officials had provided relator with the requested 

records and that the redacted portions of the attorney billing invoices were 

protected by attorney-client privilege. State ex rel. Dunlap v. Smith, 5th Dist. No. 

11-CA-60, 2012-Ohio-4239. 

{¶ 7} On February 21, 2012, relator filed a second mandamus action in 

the Court of Appeals for Fairfield County, this time naming the Violet Township 

Board of Trustees, Violet Township Fiscal Officer Smith, and the individual 

township trustees as respondents. In their motion to remand in the present case, 

respondents noted that relator’s second court of appeals case requests relief 

similar to that requested here. As of the date that briefing was completed in the 

mandamus case before this court, relator’s second court of appeals mandamus 

case remained pending. 

Jurisdictional-Priority Rule

{¶ 8} “Under Section 2(B)(1)(b), Article IV of the Ohio Constitution, the 

Supreme Court of Ohio has original jurisdiction in mandamus actions * * *.” 

State ex rel. Wilke v. Hamilton Cty. Bd. of Commrs., 90 Ohio St.3d 55, 59, 734 

N.E.2d 811 (2000); see also R.C. 2731.02 (“The writ of mandamus may be 
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allowed by the supreme court, the court of appeals, or the court of common pleas 

* * *”). 

{¶ 9} Under the jurisdictional-priority rule, however, “ ‘[a]s between 

[state] courts of concurrent jurisdiction, the tribunal whose power is first invoked 

by the institution of proper proceedings acquires jurisdiction, to the exclusion of 

all other tribunals, to adjudicate upon the whole issue and to settle the rights of the 

parties.’ ” State ex rel. Racing Guild of Ohio v. Morgan, 17 Ohio St.3d 54, 56, 

476 N.E.2d 1060 (1985), quoting State ex rel. Phillips v. Polcar, 50 Ohio St.2d 

279, 364 N.E.2d 33 (1977), syllabus. 

{¶ 10} To be sure, it is a condition of the jurisdictional-priority rule that 

the claims and parties be the same in both cases, so “[i]f the second case is not for 

the same cause of action, nor between the same parties, the former suit will not 

prevent the latter.” See State ex rel. Judson v. Spahr, 33 Ohio St.3d 111, 113, 515 

N.E.2d 911 (1987). 

{¶ 11} Nevertheless, we have also recognized that the jurisdictionalpriority rule can apply even when the causes of action and relief requested are not 

exactly the same, as long as the actions present part of the same “whole issue.” 

State ex rel. Otten v. Henderson, 129 Ohio St.3d 453, 2011-Ohio-4082, 953 

N.E.2d 809, ¶ 29; State ex rel. Sellers v. Gerken, 72 Ohio St.3d 115, 117, 647 

N.E.2d 807 (1995). 

{¶ 12} Here, relator instituted multiple public-records mandamus actions 

in multiple courts—the court of appeals and this court—against essentially the 

same parties—Violet Township officials and the township entity responsible for 

responding to his May 18 and October 17, 2011 records requests. These 

duplicative mandamus cases manifestly present part of the same “whole issue.” 

Relators should not be permitted to file concurrent mandamus actions in multiple 

courts to obtain the extraordinary relief they could obtain in a single mandamus 

action in one court. This is exactly the type of behavior that the jurisdictional-
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priority rule was intended to prohibit so as to promote judicial economy and to 

avoid inconsistent results. 

{¶ 13} Therefore, based on the jurisdictional-priority rule, relator’s 

previously filed court of appeals mandamus cases prevent this court from 

exercising original jurisdiction in mandamus over relator’s claims here. And 

although respondents do not raise this contention, it is axiomatic that “[s]ubjectmatter jurisdiction cannot be waived and is properly raised by this court sua 

sponte.” State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, 

¶ 11. 

Pending Motions

{¶ 14} We deny relator’s pending motions to supplement the record and to 

submit additional evidence, for the issuance of peremptory or other writs, for 

leave to file a second amended complaint, and to file a supplemental merit brief. 

Justice does not require our giving relator an opportunity to raise additional 

claims in a case that should never have been instituted here once he chose the 

Fifth District Court of Appeals to initially raise claims based on the same issue. 

{¶ 15} We also deny relator’s motion requesting oral argument, because 

the parties’ briefs are sufficient for the court to resolve this case. 

Conclusion

{¶ 16} Because under the jurisdictional-priority rule we lack jurisdiction 

to resolve relator’s mandamus claim, the cause is dismissed. 

Cause dismissed. 

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur. 

__________________ 

 Fortune Law Limited and Wesley T. Fortune, for relator. 

 Poling Law, Paul-Michael La Fayette, and Doug Holthus, for respondents. 

_______________________