Gardner v. Hiram

[Cite as Gardner v. Hiram, 2026-Ohio-4337.] IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY SCOTT GARDNER, CASE NO. 2026-P-0048 Relator, Original Action for Writ of Mandamus - vs - VILLAGE OF HIRAM, OHIO, et al., Respondents. PER CURIAM OPINION AND JUDGMENT ENTRY Decided: November 2, 2026 Judgment: Complaint dismissed Scott Gardner, pro se, 645 Howe Avenue, No. 1152, Cuyahoga Falls, OH 44221 (Relator). Luke F. McConville and Michael E. Cicero, Nicola, Gudbranson & Cooper, L.L.C., Terminal Tower, Suite 2900, 50 Public Square, Cleveland, OH 44113 (For Respondents). PER CURIAM. {¶1} Pending before this court is relator, Scott Gardner’s, complaint in mandamus. Respondents, the Village of Hiram, Sue Ellen Steffens, Anne Haynam, and Chief Clements, have filed a motion to dismiss. For the following reasons, we grant respondents’ motion and dismiss Gardner’s complaint. Basis for Petition and Motion to Dismiss {¶2} On June 9, 2026, Gardner filed his complaint in mandamus. Therein, he contends that he requested public records from the respondents, primarily various documents relating to Hiram Councilman Chris Perme, and the responses to his requests were deficient, contradictory, and failed to adequately explain the reasons for withholding certain records. {¶3} Respondents filed a July 13, 2026 motion to dismiss, arguing that Gardner’s pending complaint in the Ohio Court of Claims precluded him from also pursuing a mandamus action. The record demonstrates that Gardner filed a public records request complaint in the Court of Claims on May 12, 2026, the matter was referred to mediation, and it remained pending at the time Gardner instituted this mandamus action. Gardner’s July 14, 2026 memorandum in opposition, and pertinent records, indicate that he filed a notice of voluntary dismissal in the Court of Claims on July 9, 2026, and the matter is no longer pending. {¶4} Respondents filed a July 21, 2026 reply, arguing that the mandamus action is void ab initio since it was filed when the Court of Claims action was already pending. They also argue that Gardner failed to perfect service of a pre-suit complaint upon respondents in violation of R.C. 149.43(C)(1), and to file an affirmation pursuant to R.C. 149.43(C)(2), both of which warrant dismissal. {¶5} Gardner was granted leave to file an August 24, 2026 sur-reply. He contends that the mandamus action is not void since he voluntarily dismissed the Court of Claims case. He argues that he complied with the affirmation requirement and the requirement for service of a pre-suit complaint, noting that he transmitted a pre-suit demand to respondents via certified mail, although the mail was never claimed. {¶6} We will first address pre-suit service as it is dispositive of this matter. Lack of Compliance with R.C. 149.43(C)(1) {¶7} R.C. 149.43(B) sets forth requirements for public records to be provided when requested. Pursuant to R.C. 149.43(C)(1), “[i]f a person allegedly is aggrieved by PAGE 2 OF 7 Case No. 2026-P-0048 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 . . . the person allegedly aggrieved may serve pursuant to Rule 4 of the Ohio Rules of Civil Procedure a complaint, on a form prescribed by the clerk of the court of claims, to the public office or person responsible for public records allegedly responsible for the alleged failure.” After such service, the public official has three business days to cure the failure. Id. This section “gives public offices an opportunity to cure alleged violations before litigation begins.” State ex rel. Ames v. Concord Twp. Bd. of Trustees, 2026-Ohio-107, ¶ 28 (11th Dist.). After that period expires, the aggrieved person may file a complaint with the Court of Claims or commence an action in mandamus. R.C. 149.43(C)(1)(a) and (b). {¶8} A relator must comply with the requirements of R.C. 149.43(C)(1) before filing a mandamus action. See Ames at ¶ 29 (“[t]he statute thus requires a requester to complete several steps before filing a mandamus action”); State ex rel. Janigian v. Boston Twp. Hall Commt., Inc., 2026-Ohio-3428, ¶ 2 (9th Dist.) (“[b]efore a person can file a complaint for a writ of mandamus to compel the release of public records, the person must send a ‘complaint’ to the public office and allow that office three business days to cure or otherwise address the alleged failure”). {¶9} The following facts were alleged in Gardner’s complaint for mandamus: on April 28, 2026, he sent the statutory demand “via email to all three Respondents” and simultaneously via certified mail addressed to the Rosser Municipal Building in Hiram, the Village of Hiram’s “official address.” The certified mail was accepted by USPS on April 30 and was “out for delivery” on May 2. Hiram did not retrieve it, the carrier documented a final delivery attempt on May 7, and the certified mail was returned to Gardner. PAGE 3 OF 7 Case No. 2026-P-0048 Gardner’s sur-reply contends that he then “re-transmitted the identical demand by certified mail on July 21, 2026.” These facts do not satisfy the requirements of R.C. 149.43(C)(1). {¶10} The pre-suit service provision requires that service be made “pursuant to Rule 4 of the Ohio Rules of Civil Procedure.” Civil Rule 4 governs service of process and how service must be accomplished. Civ.R. 4.1 outlines these methods of service and has been applied in determining whether a party complied with R.C. 149.43(C)(1). Ames at ¶ 32. Pursuant to Civ.R. 4.1, service can be achieved through United States certified or express mail or through a commercial carrier service with a signed receipt, as well as through a process server. Civ.R. 4.1(A)(1)(a) provides: Evidenced by return receipt signed by any person accepting delivery, service of any process accepting delivery shall be by United States certified or express mail unless otherwise permitted by these rules. The clerk shall deliver a copy of the process and complaint or other document to be served to the United States Postal Service for mailing at the address set forth in the caption or at the address set forth in written instructions furnished to the clerk as certified or express mail return receipt requested . . . {¶11} Although an attempt at service through certified mail was made, it was not adequate to comply with Civ.R. 4.1. Civ.R. 4.1(A)(1)(a) provides that service by certified mail is “[e]videnced by return receipt signed by any person accepting delivery.” Gardner concedes that Hiram did not accept the delivery, as it did not retrieve or claim the certified mail prior to initiation of the mandamus claim. “Civ.R. 4.6 . . . provides the next step a plaintiff is required to take to have a complaint served on a defendant when certified mail is unclaimed.” In re W.A.G., 2017-Ohio-2997, ¶ 17 (7th Dist.); Colville v. Messenger, 2026-Ohio-2661, ¶ 14 (11th Dist.) (“[w]here service by certified mail was attempted but returned unclaimed, Civ.R. 4.6(D) permits service to be made by ordinary mail”). PAGE 4 OF 7 Case No. 2026-P-0048 Pursuant to Civ.R. 4.6(D), when a piece of certified mail is unclaimed, “[i]f the . . . serving party, after notification by the clerk, files with the clerk a written request for ordinary mail service, the clerk shall send by United States ordinary mail a copy of the . . . document to be served to the defendant . . . The mailing shall be evidenced by a certificate of mailing which shall be completed and filed by the clerk.” Compliance with Civ.R. 4.6 does not occur where “[t]he record indicates there was no attempt of service by regular mail [and] there is no indication on the record Appellee directed the clerk of court to attempt service by regular mail.” W.A.G. at ¶ 21. {¶12} Gardner concedes that service was not timely completed via certified mail and does not allege that he followed the procedure under Civ.R. 4.6 after Hiram failed to claim the certified mail. While he notes that he successfully served the complaint via certified mail on July 21, after the mandamus action had already been initiated, this does not establish that the requirements of Civ.R. 4 were satisfied prior to filing a mandamus action as required by law. Sending a copy by certified mail after the mandamus action was initiated does not satisfy the requirement of R.C. 149.43(C)(1) for pre-suit service. {¶13} To the extent that Gardner asserts that he served all three respondents via email, this is not a permissible method of service. “Email is not among the methods of service authorized by Civil Rule 4” and thus does not comply with the service requirements of R.C. 149.43(C)(1). Ames at ¶ 34-35. {¶14} Gardner next contends that dismissal of this action is unwarranted because the respondents are clearly aware of the subject matter of this litigation and have been corresponding with him via email. {¶15} Awareness of the matters subject to the mandamus claim or receipt of the document through methods other than proper service do not cure the failure to comply PAGE 5 OF 7 Case No. 2026-P-0048 with the service requirements under Civ.R. 4. As this court has held, “[a]ctual notice does not cure defective service where the statute expressly requires service pursuant to Civ.R. 4. The General Assembly did not condition the pre-filing requirement on whether the public office subjectively received or reviewed the complaint.” Id. at ¶ 36. {¶16} Finally, Gardner contends that dismissal of this action will result in unnecessary delay. However, this court and others have held that dismissal is required where there is noncompliance with R.C. 149.43(C)(1). As this court explained in Ames, R.C. 149.43(C)(1) imposes “mandatory prerequisites, each of which must be satisfied before a mandamus action may proceed” and where the relator “fail[s] to satisfy a statutory condition precedent to maintaining a mandamus action, his petition for writ of mandamus must be dismissed.” Id. at ¶ 37-38. Also State ex rel. Claypool v. Cty. of Geauga, 2025-Ohio-5863, ¶ 16 (11th Dist.) (the court “must dismiss the mandamus action” due to the relator’s failure to comply with prefiling requirements); Boston Twp., 2026-Ohio-3428, at ¶ 3 (9th Dist.) (where the “complaint that [relator] provided to respondents was not on the form prescribed by the Court of Claims, and he did not serve it pursuant to Civ.R. 4 . . . his complaint must be dismissed”). {¶17} Accordingly, respondents’ motion to dismiss is granted and the complaint in mandamus is dismissed. JOHN J. EKLUND, J., ROBERT J. PATTON, J., SCOTT LYNCH, J., concur. PAGE 6 OF 7 Case No. 2026-P-0048  JUDGMENT ENTRY For the reasons stated in the Per Curiam Opinion of this court, respondents’ motion to dismiss is granted and relator’s complaint in mandamus is dismissed. Costs to be taxed against relator. JUDGE JOHN J. EKLUND, concurs JUDGE ROBERT J. PATTON, concurs JUDGE SCOTT LYNCH, concurs THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure. PAGE 7 OF 7 Case No. 2026-P-0048