Opinion
No. 2010-0643.
July 21, 2010.
In Mandamus and Prohibition.
Motion and Procedural Rulings.
This cause originated upon the filing of a complaint for a writ of mandamus in an expedited election matter. On April 29, 2010, a writ was granted. State ex rel. Ohio Liberty Council v. Brunner, 125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d 410. Upon consideration of relators' motion for attorney fees pursuant to R.C. 2335.39 and costs,
It is ordered that the motion for attorney fees is denied. Relators did not indicate in the itemization attached to their motion the fees they were actually charged, they are not eligible for the reimbursement of fees that they have neither paid nor are obligated to pay their counsel, and R.C. 2335.39 is inapplicable to mandamus actions. See R.C. 2335.29(B)(1)(e); State ex rel Myles v. Brunner, 100 Ohio St.3d 1413, 2008-Ohio-6166, 897 N.E.2d 650. See also State ex rel Stacy v. Batavia Local School Dist. Bd. of Edn., 105 Ohio St.3d 476, 2005-Ohio-2974, 829 N.E.2d 298, 1178 ("Attorney fees are not recoverable as damages in a mandamus action under.C. 2731.11").
It is further ordered that the motion is denied insofar as relators request the reimbursement of litigation expenses as costs. State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 2009-Ohio-4149, 914 N.E.2d 159, ¶ 46. Relators are, however, entitled to a refund of the filing fee and security deposit as costs. See R.C. 2503.17 and S.Ct.Prac. R. 15.1 and 15.2; State ex rel Plain Dealer Publishing Co. v. Cleveland (1996), 76 Ohio St.3d 1218, 667 N.E.2d 1232.