
    Mathna v. Secretary of State. 
    (No. 85-05614
    Decided January 30, 1987.)
    Court of Claims of Ohio.
    
      Roy Nichols, for plaintiff Woodrow W. Mathna.
    
      Anthony J. Celebrezze, Jr., attorney general, and Mary Kirchner, for defendant Secretary of State.
   Stern, J.

Plaintiff in his complaint seeks a judgment of this court reimbursing him for attorney fees he incurred in bringing an action in mandamus seeking to require the Secretary of State to reverse an order. In the order, the Secretary of State held that an election for filling the office of Mayor for the city of Lorain in which the then duly elected mayor died during his elected term of office would not be held, for the remainder of the decedent’s unexpired term as mayor. At first the Secretary of State ordered that an election be held for a successor to the deceased mayor. The state official then reversed himself, and ordered as indicated in the complaint that no election could be held. The Supreme Court of Ohio denied plaintiffs request for a writ of mandamus requiring the Secretary of State to order that the election be held. See Chevalier v. Brown (1985), 17 Ohio St. 3d 61, 17 OBR 64, 477 N.E. 2d 623.

In this action the plaintiff seeks judgment for payment of attorney fees incurred in representing him to seek an order from the Supreme Court to proceed with a mayoral election. The Supreme Court denied the request for a writ of mandamus.

The plaintiff has filed a Civ. R. 56 motion for summary judgment stating that there are no genuine issues in dispute as to any material fact; defendant has filed a counter-motion for summary judgment also asserting there are no genuine issues as to any material fact. In a review of the pleadings filed in this cause it is apparent that there are no issues as to any material fact in dispute.

Any allowance of attorney fees to be made to a litigant’s counsel in litigation against a state agency, if allowed to be paid from the public treasury, must be authorized by statute; there is no legislative action, statutory or otherwise, to sanction such an expenditure. Therefore, such payment of attorney fees cannot be made. Grandle v. Rhodes (1959), 169 Ohio St. 77, 79, 8 O.O. 2d 40, 41, 157 N.E. 2d 336, 338.

The general rule in Ohio is that, absent a statutory provision allowing attorney fees as costs, the prevailing party is not entitled to an award of attorney fees unless the party against whom the fees are taxed was found to have acted in bad faith. State, ex rel. Crockett, v. Robinson (1981), 67 Ohio St. 2d 363, 369, 21 O.O. 3d 228, 232, 423 N.E. 2d 1099, 1103. That case cites for authority Sorin v. Bd. of Edn. (1976), 46 Ohio St. 2d 177, 75 O.O. 2d 224, 347 N.E. 2d 527; State, ex rel. Grosser, v. Boy (1976), 46 Ohio St. 2d 184, 75 O.O. 2d 228, 347 N.E. 2d 539. In the instant case, moreover, plaintiff is not the prevailing party in the mandamus proceedings held before the Supreme Court.

Following the above-cited cases in the case of Drake v. Menczer (1980), 67 Ohio App. 2d 122, 123, 21 O.O. 3d 429, 430, 425 N.E. 2d 961, 962, the court held that where a statute permits a court to award attorney fees, the statute specifically provides for such payment to be taxed as costs. The purposes for which attorney fees may be awarded are one, such order acts as an additional sanction against a person who violates a law, and two, such award serves as encouragement to the private bar to provide representation to individuals who normally could not afford to hire an attorney. Plaintiff’s complaint and his motion for summary judgment provide no statutory authority authorizing the payment of attorney fees. In fact, the file shows that plaintiff did not prevail in seeking a writ of mandamus in the case before the Supreme Court of Ohio.

In State, ex rel. Kabatek, v. Stackhouse (1983), 6 Ohio St. 3d 55, 6 OBR 73, 451 N.E. 2d 248, the plaintiff sued a public official and an award of attorney fees was requested. The court ruled that while a public official is charged with acting in bad faith by engaging in dilatory conduct, designed to prolong litigation and delay the award of back pay, such conduct does not indicate such bad faith on the part of a litigant as to justify an award of attorney fees.

More recently the Supreme Court of Ohio ruled in the case of Ohio Edison Co. v. Franklin Paper Co. (1985), 18 Ohio St. 3d 15, 18 OBR 13, 479 N.E. 2d 843, that, generally, parties cannot be allowed reimbursement for their litigation expenses, including attorney fees, in the absence of a statute providing for their allowance.

Finally, on July 8,1985, this court in case No. 76-0572 issued an order in this cause denying plaintiffs request for attorney fees (incurred in this action) based upon Drain v. Kosydar (July 31, 1979), Franklin App. No. 79AP-78, unreported.

Plaintiffs motion for summary judgment is overruled and defendant’s motion for summary judgment is sustained. Complaint dismissed.

Complaint dismissed.

Stern, J., retired, of the Supreme Court of Ohio, sitting by assignment in the Court of Claims.  