Voluntary dismissal of action. Request for fees and costs denied because dismissal of the action prevented relator from being a prevailing party who could be entitled to attorney fees and costs.

[Cite as State ex rel. Fields v. Skeldon, 2003-Ohio-5678.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio, ex rel. Patrick Fields Court of Appeals No. L-03-1175

Relator

v.

Thomas Skeldon, Lucas County Dog Warden DECISION AND JUDGMENT ENTRY

Respondent Decided: October 22, 2003

* * * * *

Stephen D. Hartman and Kimberly A. Donovan, for relator.

* * * * *

HANDWORK, P.J.

This matter is before the court upon the motion of relator, Patrick Fields, to voluntarily withdraw his petition for a writ of mandamus.

Relator explains that he is withdrawing his petition because he has been informed that he was indicted with a felony for failing to properly confine his dog which would justify the holding of his dog by the dog warden for purposes of trial. Relator's motion to dismiss this action is hereby granted.

Relator also requests that he be awarded attorney fees and costs because, he alleges, respondents acted in bad faith by refusing to release the dog before relator had

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been charged. Therefore, he argues, it was respondent's action that led to relator's filing of this action.

While it is true that a prevailing party can be awarded attorney fees if the opposing party acted in bad faith, Pegan v. Crawmer (1997), 79 Ohio St. 3d 155, 156, relator was not the prevailing party in this action. The action has been voluntarily dismissed. Therefore, we find that there is no basis for awarding fees to relator.

Relator's request for fees is denied.

This original action is hereby ordered dismissed at relator's cost.

ORIGINAL ACTION DISMISSED.

Peter M. Handwork, P.J.

____________________

JUDGE Mark L. Pietrykowski, J.

____________________

Judith Ann Lanzinger, J.

JUDGE CONCUR.

____________________

JUDGE

2.

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