State ex rel. Verhovec v. Marietta , 2013 Ohio 5415 ( 2013 )

[Cite as State ex rel. Verhovec v. Marietta, 2013-Ohio-5415.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO EX REL. :
DOROTHY VERHOVEC, :
:
Relator-Appellant, :
: Case No. 12CA32
vs. :
: DECISION AND
THE CITY OF MARIETTA, et al., : JUDGMENT ENTRY
:
Respondents-Appellees. : RELEASED 12/04/2013
APPEARANCES:
William E. Walker, Jr., Massillon, Ohio, for Appellant.
C. Craig Woods, Squire Sanders (US) LLP, and Greta M. Kearns, Greta Kearns Law LLC,
Columbus, Ohio, for Appellees.
Hoover, J.
{¶ 1} This appeal arises from the Washington County Common Pleas Court judgment
entry awarding summary judgment in favor of respondents-appellees, the City of Marietta, Joe
Matthews, and Walter Brothers1, on relator-appellant, Dorothy Verhovec’s petition for
mandamus relief and civil forfeiture award under the Ohio Public Records Act. Appellant raises
five assignments of error challenging the conclusion reached by the trial court in awarding
summary judgment to appellees. Because four of the assignments of error are meritless, and
because the remaining assignment of error constitutes harmless error, we affirm the judgment of
the trial court.
1
Respondents-appellees the City of Marietta, Joe Matthews (Mayor of Marietta), and Walter Brothers (President of
Marietta City Council) are hereinafter collectively referred to as the “appellees.”
Washington App. No. 12CA32 2
I.
FACTS
A. The Public Record Requests
{¶ 2} On August 21, 2010, appellant made a written public record request to Cathy
Coppernol, the former Clerk of Council for the Marietta City Council. The request sought access
to: (1) city council meeting minutes for each proceeding from January 1, 1990 to August 21,
2010; (2) draft meeting minutes that were handwritten by the Clerks of Council at each council
meeting during the same time frame; and (3) any audio and video recordings made of those same
meetings. This was the first of many public record requests made by appellant, and her husband,
Edward Verhovec, to the City of Marietta. From August 21, 2010 to April 28, 2011, the
Verhovecs made the following requests to the City of Marietta: (1) the aforementioned request
for council meeting minutes, handwritten meeting notes, and audio/video recordings of council
meetings; (2) a telephone request for the council minutes of the July 15, 1999 and August 5,
1999 council meetings and cable television survey results mentioned in the July 15, 1999
minutes; (3) a request for the Records Commission meeting minutes and rules from January 1,
1985 to January 7, 2011; (4) a second request for Records Commission meeting minutes; (5) a
request for access to and copies of an Ohio Municipal League Letter addressed to the Marietta
City Council dated June 1998 as well as letters sent or received between the council and the Ohio
Municipal League between 1990 and February 15, 2011; (6) a second request for the June 1998
Ohio Municipal League Letter; (7) a request for access to and copies of all newsletters and
bulletins sent to Marietta from the Ohio Municipal League from January 1, 1990 to April 15,
2011, as well as all documentation related to the membership and cancellation of the city’s
Washington App. No. 12CA32 3
subscription to the Ohio Municipal League bulletins and newsletters; and (8) a request for access
to cable television survey data, including 3,285 cable survey cards with each card containing five
questions, and the 16,424 separate responses and/or non-responses to each of the five questions
contained on the cable survey cards.
B. The Cushion Contracts
{¶ 3} The request at issue in the case sub judice – the August 21, 2010, request for the
city council meeting minutes, handwritten draft minutes, and audio and video recordings of
council meetings – was born out of an agreement between Edward Verhovec and Cleveland
attorney Paul Cushion. Mr. Verhovec testified at his deposition that he received a letter, out of
the blue, from Cushion asking if he would be interested in obtaining public records for him from
different cities throughout Ohio. Mr. Verhovec subsequently entered into two contracts with
Cushion to obtain from various cities either access to or copies of certain public records in
exchange for payment of $1,000.00 to $4,000.00 per city. In particular, the contract to obtain the
Marietta City Council documents and recordings entitled Mr. Verhovec to $1,000.00 upon
successful completion. Attorney Cushion also provided Mr. Verhovec with form letters to
request documents related to city council proceedings from Marietta, Uhrichsville, and
Dennison; and red light camera images from Trotwood and Dayton.
{¶ 4} Appellant initially testified at her deposition that she had “no idea” why she signed
the letter requesting the city council documents and recordings from Marietta. Later in her
deposition, however, appellant testified that she signed the letter to help her husband because he
was ill. Appellant supposedly did not know and did not ask her husband why he wanted the
Washington App. No. 12CA32 4
records. Appellant also testified that she signed other public record request letters to help her
husband but she had no idea why he was seeking the records.
C. The City’s Response to the August 21, 2010 Request
{¶ 5} Appellees provided appellant with access to all the requested records that were in
the city’s possession; but admittedly, certain audiocassettes containing council meetings had
been reused and the handwritten notes of the council meetings were not retained by the city.
D. The Lawsuit
{¶ 6} Following inspection of the records by appellant and her husband, appellant filed
this lawsuit seeking both a writ of mandamus compelling appellees to provide access to all the
requested records, and a civil forfeiture claim for every record that had been lost or destroyed.
E. Edward Verhovecs’ Other Lawsuits
{¶ 7} In discovery it was revealed that the Verhovecs have made numerous other public
record requests and have filed many other lawsuits in the state seeking civil forfeiture awards.
For instance, Edward Verhovec testified at deposition that, in addition to the records sought from
the City of Marietta, he had sought public records from the following six Ohio cities: Trotwood,
Northwood, Springfield, Hamilton, South Euclid, and Dayton. Mr. Verhovec has also filed
lawsuits against Northwood, Springfield, Trotwood, and Dayton in connection to those requests.
In each of those cases, Mr. Verhovec has been represented by attorney Walker.
{¶ 8} Mr. Verhovec also brought a mandamus and civil forfeiture lawsuit against the
City of Marietta in relation to his request for the cable survey cards and responses. The claims in
that case were also dismissed by the trial court. That case is now the subject of a separate appeal
Washington App. No. 12CA32 5
in this court. See State of Ohio ex rel. Edward Verhovec, et al. v. The City of Marietta, et al., 4th
Dist. Washington Nos. 11CA29, 12CA52, 12CA53, 13CA1, and 13CA2.
F. Evidence of a State-Wide Scheme
{¶ 9} Appellees also presented evidence to the trial court suggesting that the Verhovecs’
lawsuits are part of a larger, state-wide scheme involving several individuals seeking “windfall
forfeiture awards” in connection to public record requests. For instance, the appellees note that
attorney Cushion is the named plaintiff in his own public records case in which he is represented
by the Verhovecs’ counsel, William E. Walker, Jr. See State ex rel. Cushion v. Massillon, 5th
Dist. Stark No. 2010CA00199, 2011-Ohio-4749. The appellees have also identified a similar
contract between attorney Cushion and Timothy Rhodes, pertaining to red light traffic photo
enforcement records from the City of Chillicothe. Mr. Rhodes testified at deposition that he was
also solicited out of the blue by attorney Cushion to obtain those records. The Rhodes-Cushion
contract ultimately resulted in Rhodes filing a mandamus and civil forfeiture lawsuit against
Chillicothe. Notably, attorney Walker represented Rhodes in the Chillicothe lawsuit.2 Rhodes
was also the relator in the Supreme Court of Ohio public records case, Rhodes v. New
Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, in which he was
represented by attorney Walker.
{¶ 10} Edward Verhovec also testified at deposition that he solicited his nephew, James
Verhovec, to send public record requests and to file lawsuits seeking civil forfeiture. Letters that
are virtually identical to the request at issue in the instant case, that were prepared by Edward
Verhovec, but signed by James Verhovec, were sent to the city of Uhrichsville and the village of
2
The Chillicothe litigation recently came on appeal to this court. See State ex rel. Rhodes v. Chillicothe, 4th Dist.
Ross No. 12CA3333, 2013-Ohio-1858.
Washington App. No. 12CA32 6
Dennison.3 Those requests eventually resulted in lawsuits, filed by attorney Walker, that are
almost identical to this case. See State of Ohio ex rel. James Verhovec v. The Village of
Dennison, et al., Tuscarawas County Common Pleas Court, No. 2011CV060708, and State of
Ohio ex rel. James Verhovec v. The City of Uhrichsville, et al., Tuscarawas County Common
Pleas Court, No.2011CV060707.
{¶ 11} Appellees have also identified numerous other lawsuits in the State of Ohio in
which attorney Walker has represented individuals seeking civil forfeiture claims related to
public records requests. See State ex rel. Davila v. Bellefontaine, 3rd Dist. Logan No. 8-11-01,
2011-Ohio-4890; State ex rel. Bell v. London, 12th Dist. Madison Nos. CA2010-11-027,
CA2010-11-029, 2011-Ohio-3914; State ex rel. Davila v. Bucyrus, 194 Ohio App.3d 325, 2011-
Ohio-1731, 956 N.E.2d 332 (3rd Dist.); State ex rel. Davila v. East Liverpool, 7th Dist.
Columbiana No. 10CO16, 2011-Ohio-1347.
G. The Trial Court’s Summary Judgment Decisions and Judgment Entry
{¶ 12} In two separate decisions, the trial court granted summary judgment in favor of
the appellees on each of appellant’s claims. On June 13, 2012, the trial court granted summary
judgment on appellant’s mandamus claim, noting that appellant’s mandamus claim failed as a
matter of law because the appellees’ had produced all of the requested documents that it
possessed and because appellant had failed to provide evidence that additional records exists.
{¶ 13} The trial court issued a second decision awarding appellees summary judgment
on appellant’s civil forfeiture claim on June 29, 2012. In that decision, the trial court determined
that (1) all the meeting minutes and video recordings that ever existed had been provided by
3
Edward Verhovec was to be paid $1,000.00 per city under his contract with Cushion, if he were able to obtain
access to or copies of the council documents and recordings from Marietta, Uhrichsville, and Dennison.
Washington App. No. 12CA32 7
appellees; (2) the handwritten meeting notes taken by the Clerks of Council during council
meetings were not public records and thus could not support a forfeiture award; (3) appellant had
failed to introduce evidence of which audio recordings of council meetings had not been
provided in either cassette or VHS format; and (4) appellant was not “aggrieved” for purposes of
a forfeiture claim because “the sole purpose of the requests is not to obtain the records but to
obtain forfeiture for their wrongful destruction.” The trial court based the fourth finding on the
evidence of the alleged state-wide scheme involving Edward Verhovec, attorney Walker,
attorney Cushion, and others. Specifically, the trial court noted the peculiar Cushion contracts,
the connection between the parties, the nearly identical requests, the “lack of payment or rational
action” under the Cushion contracts, and the filing of the similar lawsuits throughout the state by
attorney Walker.
{¶ 14} On July 17, 2012, the trial court issued its final judgment entry dismissing all of
appellant’s claims.4
II.
ASSIGNMENTS OF ERROR
{¶ 15} Appellant raises five assignments of error for our review.
First Assignment of Error:
4
After the filing of the final judgment entry, appellees moved for an award of fees and sanctions under R.C. 2323.51
and Civ.R. 11. While the motion for sanctions remained pending, appellant filed an original action in this court
seeking a writ of prohibition to prevent the trial court from applying R.C. 2323.51 (See State ex rel. Dorothy
Verhovec v. Washington County Common Pleas Court, et al., 4th District Washington No. 12CA44). We dismissed
appellant’s original action on December 17, 2012, and appellant has appealed that dismissal to the Ohio Supreme
Court. Meanwhile, the trial court granted appellees’ motion for sanctions under R.C. 2323.51 and Civ.R. 11, and
appellant has appealed that decision in a separate appeal. See State of Ohio ex rel. Edward Verhovec, et al. v. The
City of Marietta, et al., 4th Dist. Washington Nos. 11CA29, 12CA52, 12CA53, 13CA1, and 13CA2 (consolidated).
Washington App. No. 12CA32 8
THE TRIAL COURT ERRED TO RELATOR’S PREJUDICE WHEN IT
FOUND THAT CITY COUNCIL’S ORIGINAL MEETING MINUTES – THAT
WERE STATUTORILY REQUIRED TO BE TAKEN AT ALL COUNCIL
MEETINGS - WERE NOT PUBLIC RECORDS AND THEREFORE NOT
SUBJECT TO THE PUBLIC RECORDS ACT.
Second Assignment of Error:
THE TRIAL COURT ERRED TO RELATOR’S PREJUDICE BY ENTERING
SUMMARY JUDGMENT BASED UPON AFFIDAVITS THAT THE CITY
USED TO CONTRADICT THEIR CIV. R. 30(B)(5) DESIGNEE’S
DEPOSITION TESTIMONY BECAUSE THE CITY WAS OBLIGATED TO
PREPARE THEIR DESIGNEE TO GIVE BINDING DEPOSITION
TESTIMONY.
Third Assignment of Error:
THE TRIAL COURT ERRED TO APPELLANT’S PREJUDICE WHEN IT
FOUND THAT APPELLANT COULD NOT OBTAIN JUDICIAL RELIEF
UNDER THE PUBLIC RECORDS ACT BECAUSE OF HOW APPELLANT
INTENDED TO USE THE RECORDS AFTER SHE OBTAINED THEM.
Fourth Assignment of Error:
THE TRIAL COURT ERRED TO APPELLANT’S PREJUDICE WHEN IT
GRANTED SUMMARY JUDGMENT BY FINDING THAT CERTAIN VHS
TAPES WERE AN ADEQUATE PUBLIC RECORDS SUBSTITUTE FOR
AUDIO RECORDINGS EVEN WHEN THERE WAS EVIDENCE THAT THE
VHS TAPES MAY NOT HAVE CONTAINED ALL OF THE REQUESTED
RECORDINGS.
Fifth Assignment of Error:
THE TRIAL COURT ERRED TO APPELLANT’S PREJUDICE WHEN IT
DENIED APPELLANT PUBLIC RECORDS RELIEF BY MAKING A
FINDING THAT WAS BASED UPON THE STACKING OF ONE
INFERENCE UPON ANOTHER WITHOUT ANY SEPARATE EVIDENCE
SHOWING THE REQUEST WAS MADE FOR AN IMPROPER PURPOSE.
III.
THE STANDARD OF REVIEW
Washington App. No. 12CA32 9
{¶ 16} All of appellant’s assignments of error challenge the trial court’s decision to grant
summary judgment in favor of appellees on her mandamus and forfeiture claims. We review the
trial court’s decision on a motion for summary judgment de novo. Smith v. McBride, 130 Ohio
St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. Accordingly, we afford no deference to the
trial court’s decision and independently review the record and the inferences that can be drawn
from it to determine whether summary judgment is appropriate. Harter v. Chillicothe Long-
Term Care, Inc., 4th Dist. Ross No. 11CA3277, 2012-Ohio-2464, ¶ 12; Grimes v. Grimes, 4th
Dist. Washington No. 08CA35, 2009-Ohio-3126, ¶ 16.
{¶ 17} Summary judgment is appropriate only when the following have been
established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is
entitled to judgment as a matter of law; and (3) that reasonable minds can come to only one
conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); DIRECTV,
Inc. v. Levin, 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 15. In ruling on a motion
for summary judgment, the court must construe the record and all inferences therefrom in the
nonmoving party’s favor. Civ.R. 56(C). The party moving for summary judgment bears the
initial burden to demonstrate that no genuine issues of material fact exist and that they are
entitled to judgment in their favor as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 293,
662 N.E.2d 264 (1996). Once that burden is met, the nonmoving party then has a reciprocal
burden to set forth specific facts to show that there is a genuine issue for trial. Id.IV.
LAW & ANALYSIS
Washington App. No. 12CA32 10
{¶ 18} Under the Ohio Public Records Act, public offices are required to make public
records available in response to a request from any person. R.C. 149.43(B)(1); see also State ex
rel. Rhodes v. Chillicothe, 2013-Ohio-1858 at ¶ 39. If the public office fails to make public
records available upon request, and the requesting party “allegedly is aggrieved by the failure of
a public office” to “promptly prepare a public record and to make it available to the person,” then
the requester may file a mandamus action seeking an order to compel the public office to make
the records available. R.C. 149.43(C)(1). In addition, where the public office has destroyed or
improperly disposed of public records, an “aggrieved” person can file an action for civil
forfeiture and seek an award of damages. R.C. 149.351(B).
A. Whether Handwritten Clerk of Council Notes are Public Records
{¶ 19} In her first assignment of error, appellant contends that the trial court erred when
it found that the handwritten notes taken by the Marietta Clerk of Council at council meetings
were not public records subject to the Ohio Public Records Act.
{¶ 20} Appellant’s first assignment of error pertains to the trial court’s June 29, 2012
decision, in which the court granted appellees’ summary judgment on appellant’s forfeiture
claim. In that decision, the trial court found that the handwritten notes were not public records,
but rather they were personal notes taken solely for the Clerk of Council’s convenience. The
trial court concluded that because the handwritten notes were not public records, the appellees
failure to preserve them could not support appellant’s forfeiture claim as a matter of law.
{¶ 21} In order to recover damages under the civil forfeiture statute, the following must
be met: (1) the requesting party must request public records; (2) the public office must be
obligated to honor the request; (3) the office must have disposed of the records in violation of
Washington App. No. 12CA32 11
R.C. 149.351(A); and (4) the requesting party must be aggrieved by the improper disposition.
State ex rel. Rhodes v. Chillicothe, supra at ¶ 44, fn. 6, citing Rhodes v. New Philadelphia, 129
Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, at ¶ 16.
{¶ 22} A “public record” is any record that is kept by any public office. R.C.
149.43(A)(1). The Act defines “record” as “any document, device, or item, regardless of
physical form or characteristic, including an electronic record as defined in section 1306.01 of
the Revised Code, created or received by or coming under the jurisdiction of any public office of
the state or its political subdivisions, which serves to document the organization, functions,
policies, decisions, procedures, operations, or other activities of the office.” R.C. 149.011(G).
{¶ 23} A document may constitute a “record” for purposes of R.C. 149.43 even if it is
not in its final form if it documents the organization, policies, functions, decisions, procedures,
operations, or other activities of a public office. State ex rel. Calvary v. Upper Arlington, 89
Ohio St.3d 229, 232, 729 N.E.2d 1182 (2000); Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-
1244, 846 N.E.2d 811, ¶ 20.
{¶ 24} “[A]ny record that a government actor uses to document the organization,
policies, functions, decisions, procedures, operations, or other activities of a public office can be
classified reasonably as a record.” Kish at ¶ 20, citing State ex rel. Mothers Against Drunk
Drivers v. Gosser, 20 Ohio St.3d 30, 33, 485 N.E.2d 706 (1985); see also State ex rel. McCaffrey
v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶
33 (Calendars used, at least occasionally, to make work-related entries like hearing dates and
deadlines for briefs are records for purposes of R.C. 149.011(G)).
Washington App. No. 12CA32 12
{¶ 25} Generally a public official’s personal notes made for his or her own convenience
are not public records. State ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-
4884, 814 N.E.2d 1218, ¶ 17; State ex rel. Steffen v. Kraft, 67 Ohio St.3d 439, 439, 619 N.E.2d
688 (1993). However, audit drafts, working papers, and notes related to an audit of a public
office are public records that are subject to disclosure under R.C. 149.43. State ex rel. Gannett
Satellite Information Network, Inc. v. Petro, 80 Ohio St.3d 261, 264, 685 N.E.2d 1223 (1997).
{¶ 26} There is no duty pursuant to R.C. 149.43 to provide access to drafts of minutes
that were presented to a board that are identical to the official minutes. State ex rel. Doe v.
Register, 12th Dist. Clermont No. CA2008-08-081, 2009-Ohio-2448, ¶ 28.
{¶ 27} The documents at issue in this first assignment of error, referred to as the original
meeting minutes by appellant in her brief, are essentially the handwritten notes that were taken
by the Clerk of Council during each council meeting between January 1, 1990 and August 21,
2010. There were four Clerks of Council in the City of Marietta between January 1, 1990 and
August 21, 2010, including: Vickie Todd f/k/a/ Dye (May 19, 1986-May 2, 1997), Ila Cox (April
29, 1997-May 8, 1998), Bonnie Duff (June 1, 1998-August 24, 2001), and Cathy Coppernoll
(August 27, 2011-June 26, 2011). Generally speaking, each of these clerks took handwritten
notes at each regularly scheduled council meeting. The clerks would use the notes as a
“roadmap” or “cheat sheet” to aid in their preparation of the official minutes, which they typed
following the meeting.
{¶ 28} The official typed version of the council minutes for each council meeting were
approved at the following meeting. In the early 1990s, the clerk typed the official minutes into
Washington App. No. 12CA32 13
the permanent minutes book containing the official record. However, as technology advanced
the minutes were typed on a computer.
{¶ 29} Once the typed minutes were approved and became official at the next meeting,
the handwritten notes were discarded. Only four sets of handwritten notes from council
meetings responsive to appellant’s request were located by appellees. Those handwritten notes
have been provided to appellant.
{¶ 30} Upon consideration of the above-cited case law, and the particular facts of this
case, we conclude that the handwritten notes of the clerks are public records under the Act. The
clerks used the notes in their official capacity to aid in their preparation of the official minutes.
They were not merely personal notes taken solely for their convenience as suggested by the trial
court. Rather, the notes were created to document the organization, functions, polices, decisions,
procedures, operations, and other council activities. Moreover, the handwritten notes are not
identical to the official typed meeting minutes.
{¶ 31} Nonetheless, while the trial court erred in determining that the handwritten notes
were not public records, appellant must still be an “aggrieved” party to recover forfeiture
damages. For the reasons stated more fully below, we find that appellant is not an “aggrieved”
party for the purposes of civil forfeiture relief. Thus, appellant was not prejudiced by the trial
court’s errant determination that the handwritten notes were not public records. Accordingly,
appellant’s first assignment of error is harmless error that we may disregard. Civ.R. 61.
B. Whether the City of Marietta’s Summary Judgment Affidavits
Contradicted the Deposition Testimony of the City’s Former Law
Director Thus Creating A Factual Dispute Rendering Summary Judgment Inappropriate
Washington App. No. 12CA32 14
{¶ 32} Appellant’s second assignment of error relates to the trial court’s dismissal of her
mandamus claim. In awarding summary judgment in favor of the appellees on the mandamus
claim, the trial court determined that appellees had produced all of the requested documents that
it possessed. Appellant now contends, in her second assignment of error, that there is a conflict
between the deposition testimony of the City’s former law director, Roland Riggs III, and the
affidavits of the current Clerk of Council, Theresa Taylor, that creates a factual dispute as to
whether the appellees actually provided appellant with all the requested documents in its
possession.
{¶ 33} It is well founded that one does not have a legal duty to provide records that are
not in his or her possession or control. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-
Ohio-2878, 950 N.E.2d 952, ¶ 28, citing State ex rel. Vitoratos v. Gross, 24 Ohio St.2d 22, 23,
262 N.E.2d 864 (1970), and State ex rel. Bradley v. Shannon, 24 Ohio St.2d 115, 116, 265
N.E.2d 260 (1970). Moreover, there is no duty to create or provide access to nonexistent
records. State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-Ohio-609, 861 N.E.2d 530, ¶
15, citing State ex rel. Ohio Patrolmen’s Benevolent Assn. v. Mentor, 89 Ohio St.3d 440, 448,
732 N.E.2d 969 (2000).
{¶ 34} A mandamus claim is rendered moot when a relator has received all of the
requested public records or has been given access to all of the records. State ex rel. Cranford,
103 Ohio St.3d 196, at ¶ 23, citing State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite
Info. Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 8;
Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 13. Likewise, the
Act does not impose a duty to create records that no longer exist. State ex rel. Toledo Blade Co.
Washington App. No. 12CA32 15
v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 373, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 27.
Therefore, a record that no longer exists cannot be obtained by mandamus. Id.{¶ 35} In the case sub judice, Mr. Riggs, the city’s former law director, testified as the
city’s Civ.R. 30(B)(5) designee. Civ.R. 30(B)(5) requires an organization’s representative to be
prepared to testify not only to matters known personally to the deponent, but also on subjects that
the organization should reasonably know.
{¶ 36} At the Civ.R. 30(B)(5) deposition, Riggs was asked the following:
Q. Okay. Do you know – well, I’m going to ask you in your own personal. Have
you ever seen any of the handwritten notes thrown away?
***
A. No, I have not.
***
Q. The handwritten notes, do you know if they still exist or not? Do you have
personal knowledge of whether they still exist or not?
***
Q. From the time frame 19 – I believe January 1, 1990, to August 2010.
A. No. I don’t have personal knowledge of that.
{¶ 37} Later, appellees’ presented the affidavit and supplemental affidavit of Theresa
Taylor. Taylor is the current Clerk of Council for the Marietta City Council. Taylor stated in her
Washington App. No. 12CA32 16
affidavits that she had diligently searched for any handwritten notes responsive to appellant’s
request, and had only been able to locate handwritten notes related to four separate council
meetings.5 Taylor further stated that no other handwritten notes responsive to appellant’s request
were in the possession of the appellees.
{¶ 38} Even more, appellant deposed all of the Clerks of Council, whose combined
tenure spanned the entire period covered by appellant’s request. Each clerk testified that they
discarded their handwritten notes.
{¶ 39} In short, we fail to see any contradiction between the Riggs deposition, the Taylor
affidavit, and the depositions of the clerks. Riggs simply testified that he did not know whether
the handwritten notes still existed. He did not affirmatively say that they did still exist. This
fact, coupled with the former clerks’ testimony that they discarded the handwritten notes, and
Taylor’s affidavits stating that the notes could not be located after a diligent search, indicates that
the appellees have provided all of the records in its possession. The trial court certainly did not
err in concluding that no factual issues existed which would preclude summary judgment of the
mandamus claim.
{¶ 40} Appellant also contends that as the city’s Civ.R. 30(B)(5) representative, the
appellees were bound by Riggs’ testimony and could not later produce the Taylor affidavits
which “proffer[ed] a new or different version” of the facts. Appellant argues that in order to
avoid this consequence, the trial court improperly stripped Riggs of his representative capacity,
and instead considered his testimony as if he were deposed personally. This argument fails for
several reasons. First, the Taylor affidavits did not contradict Riggs’ testimony. Rather, the
affidavits served to supplement his testimony. Second, even if we were to assume, arguendo,
5
Those handwritten notes have been provided to appellant.
Washington App. No. 12CA32 17
that the trial court erred by “stripping” Riggs of his representative status, such error was invited
by appellant when appellant’s counsel specifically asked Riggs to limit his answers to his
personal knowledge. “Under the invited-error doctrine, a party may not take advantage of an
error that the party invited or induced the trial court to make.” Fifth Third Mtge., Co. v. Rankin,
4th Dist. Pickaway No. 11CA18, 2012-Ohio-2804, ¶ 16, citing State ex rel. Fowler v. Smith, 68
Ohio St.3d 357, 359, 626 N.E.2d 950 (1994).
{¶ 41} Accordingly, appellant’s second assignment of error is overruled.
C. Whether Appellant’s Intended Use of the Requested Records Precluded Relief Under the
Public Records Act
{¶ 42} For her third assignment of error, appellant contends that the trial court erred in
awarding summary judgment because it considered her intentions for requesting the records.
{¶ 43} In the context of a mandamus claim, the requester’s motive is indeed irrelevant.
See New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, at ¶ 20 (“[A]
public office is obligated to honor a records request by ‘any person’ and that a person does not
have to explain his or her reasons for wanting to inspect and copy a public record in order to
validity request the record.”); see also R.C. 149.43(B)(4) (prohibiting public office from
conditioning availability of records by requiring disclosure of the requestor’s identity or
purpose).
{¶ 44} In this case, however, appellant’s mandamus claim was dismissed on summary
judgment because the trial court determined that appellees fully complied with appellant’s record
request by providing all of the responsive records in its possession. Nowhere in the trial court’s
Washington App. No. 12CA32 18
mandamus decision is appellant’s intended purpose discussed. Accordingly, appellant’s third
assignment of error is overruled as it pertains to the mandamus claim.
{¶ 45} While “any person” may make a public records request under R.C. 149.43(B), the
Ohio Supreme Court has rejected the notion that “any person” can recover forfeiture under R.C.
149.351. State ex rel. Rhodes v. Chillicothe, 2013-Ohio-1858, at ¶ 43, citing New Philadelphia
at ¶¶ 20, 23. “We cannot ignore the General Assembly’s use of the term ‘aggrieved,’ and we
conclude that the General Assembly did not intend to impose forfeiture when it can be proved
that the requester’s legal rights were not infringed, because the requester’s only intent was to
prove the nonexistence of the records.” New Philadelphia at ¶ 23. Put another way, a person is
aggrieved, and thus entitled to forfeiture if he “made a request with the goal of accessing the
public records.” Id. at ¶ 24. “If the goal is to seek a forfeiture, then the requester is not
aggrieved.” Id.
{¶ 46} It follows that in the instant case, appellant’s intent is relevant in determining
whether she was “aggrieved” for the purposes of her civil forfeiture claim. Appellant testified at
her deposition that she signed the records request for her husband, because her husband had
health issues that could have prevented him from inspecting the records. Edward Verhovec
testified at his deposition that he wrote the letter requesting the records at issue because he
wished to collect under his contract with attorney Cushion.
{¶ 47} The trial court ultimately determined that appellant was not “aggrieved” because
“the sole purpose of the requests is not to obtain the records but to obtain forfeiture for their
wrongful destruction.” This determination was based, in part, on Edward Verhovec’s pecuniary
interest under the Cushion contract, as well as the evidence of Edward’s numerous other lawsuits
Washington App. No. 12CA32 19
filed throughout the state seeking forfeiture damages. Appellant argues that the trial court should
not have considered the motives of her husband in deciding whether she was “aggrieved.”
{¶ 48} The trial court concluded that is was proper to consider Edward Verhovec’s
motives because he was the real party in interest; not the appellant. In Ohio, “[e]very action
shall be prosecuted in the name of the real party in interest.” Civ.R. 17(A). A “real party in
interest” is the “ ‘one who has a real interest in the subject matter of the litigation . . . one who is
directly benefited or injured by the outcome of the case.’ ” Shealy v. Campbell, 20 Ohio St.3d
23, 24, 485 N.E.2d 701 (1985), quoting West Clermont Edn. Assn. v. West Clermont Bd. of Edn.,
67 Ohio App.2d 160, 162, 426 N.E.2d 512 (1st Dist.1980).
{¶ 49} We agree with the trial court’s determination that Edward Verhovec, and not the
appellant, was the real party in interest. Mr. Verhovec was a party to the contract with attorney
Cushion. Mr. Verhovec wrote the letter requesting the documents at issue. The outcome of the
requests would either directly benefit or directly injure Mr. Verhovec, not appellant. The
appellant admittedly had no personal interests in the requested information. She had no idea why
her husband wanted the records. She merely signed the forms provided by her husband.
{¶ 50} Accordingly, it was not improper for the trial court to consider the motives of the
Verhovecs in awarding summary judgment to appellees on the forfeiture claim. Appellant’s
third assignment of error is overruled.
D. Whether the VHS Tapes Were an Adequate Substitute for the Audiocassette Recordings
{¶ 51} For her fourth assignment of error, appellant contends that there are genuine
issues of fact as to whether the VHS tapes of council meetings were an adequate substitute for
the audiocassette recordings. Specifically, appellant argues that there is an issue of fact
Washington App. No. 12CA32 20
concerning the sound quality of the VHS tapes. Appellant further contends that such issue of
fact necessitates reversal of the trial court’s summary judgment award on her mandamus claim so
that a show cause hearing can be conducted.
{¶ 52} The city first started making audio recordings of council meetings in 1997. From
1997 to 2008, the meetings were recorded on audiocassettes. However, during that time period
the audiocassettes were reused, essentially erasing the earlier recordings. In 2008, the Clerk of
Council began archiving and labeling the audiocassettes, and they were no longer reused. The
trial court held that for purposes of the civil forfeiture claim, appellant was not “aggrieved” by
the City’s reuse of the audiocassettes because council meetings during that time were also
recorded on VHS tapes, which contained an audio recording.
{¶ 53} Now on appeal, appellant contends that summary judgment on her mandamus
claim must be reversed because there is an issue of fact regarding whether the audio contained on
the VHS tapes are actually audible. Specifically, appellant testified at deposition that she could
not hear the audio on many of the VHS tapes and that she did not know if the problem was with
the tapes, or with the television set that she used to view the tapes.
{¶ 54} It is apparent that appellant has confused the trial court’s reasoning to dismiss the
forfeiture claim, with its reasoning to dismiss the mandamus claim. The trial court found that the
VHS tapes were an adequate substitute for the purposes of the forfeiture claim. That ruling had
nothing to do with appellant’s mandamus claim. Rather, the trial court predicated its summary
judgment award on the mandamus claim on the fact that appellees provided appellant with access
to all of the audio and video recordings in its possession. Accordingly, appellant’s fourth
assignment of error is overruled.
Washington App. No. 12CA32 21
E. Whether There Exists Evidence to Support a Finding that Appellant is Not an
“Aggrieved” Person, and Thus Not Entitled to Forfeiture Awards
{¶ 55} Forfeiture is inappropriate when the requestor is not “aggrieved” by the improper
disposition of records – i.e. when it can be proved that the requester’s only intent was to prove
the nonexistence of the records. New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951
N.E.2d 782, at ¶ 23. For her fifth and final assignment of error, appellant contends that the trial
court erred when it allegedly stacked inference upon inference without any evidence to support
its conclusion that she was not “aggrieved” for purposes of civil forfeiture.
{¶ 56} The trial court determined that appellant was not “aggrieved” because “the sole
purpose of [her] requests [were] not to obtain the records but to obtain forfeiture for their
wrongful destruction.” The trial court based its finding on “the [Cushion] contracts, the evidence
of connection, the identical types of requests, the identical forms used, the numerous suits, the
lack of payment or rational action under the Cushion contracts, [and] the filing of this suit, even
though the terms of the Cushion contract [had] been fulfilled * * *.”
{¶ 57} A trier of fact may not draw an inference based entirely upon another inference.
Rather an inference must rest upon a fact supported by evidence. State v. Cowans, 87 Ohio St.3d
68, 78, 717 N.E.2d 298 (1999); Estate of Holley v. Am. Family Life Assur. Co. of Columbus, 4th
Dist. Pickaway No.04CA5, 2005-Ohio-2281, ¶¶ 25-29.
{¶ 58} We have independently reviewed the record, and after construing the evidence in
the light most favorable to appellant, we similarly conclude that appellant was not “aggrieved”
and thus is not entitled to civil forfeiture damages. Despite appellant’s arguments, appellees
were able to establish through competent and credible evidence that the Verhovecs feigned their
Washington App. No. 12CA32 22
intent to access the public records through the guise of the Cushion contract when their actual
intent was to seek forfeiture awards.
{¶ 59} As mentioned above, we recently decided a case in which Timothy Rhodes,
represented by attorney Walker, and pursuant to a contract with attorney Cushion, sought red
light traffic images from the City of Chillicothe. State ex rel. Rhodes v. Chillicothe, supra. Like
the appellant in this case, Rhodes filed an action for mandamus and civil forfeiture damages
against the City of Chillicothe for the improper destruction of public records. In that case, we
held that Rhodes was not an “aggrieved” party because he “did not have an interest in accessing
the records[,]” but rather, he “simply sought payment, either under his contract with Mr.
Cushion, or in the form of forfeiture.” Id. at ¶ 44.
{¶ 60} Like Rhodes, all of the evidence in the instant case indicates an intent to cash-in
on the civil forfeiture statute. For instance, the only explanation offered by the Verhovecs for
requesting the records is Mr. Verhovec's contracts with attorney Cushion. Yet, Mr. Verhovec
testified that he has never been paid under any of the Cushion contracts, and that he was unsure
of what exactly needed to be produced in order to collect payment under the contracts.
Moreover, Mr. Verhovec has filed numerous other lawsuits throughout the state seeking
forfeiture damages. Absent the Cushion contracts, no logical explanation for these lawsuits
exists. The Verhovecs’ are not historians. They have never resided in the city of Marietta. In
fact, Mr. Verhovec had never even heard of the Public Records Act prior to entering his contract
with Cushion. Mr. Verhovec is also behind the lawsuits filed by his nephew, James Verhovec,
against the village of Dennison and the City of Uhrichsville. Those lawsuits also seek significant
forfeiture damages. We also cannot ignore the connections between Walker, the Verhovecs’
counsel, and attorney Cushion, the contracting agent of the Cushion contracts. Attorney Walker
Washington App. No. 12CA32 23
represented attorney Cushion in his very own civil forfeiture lawsuit. Attorney Walker also
represented Timothy Rhodes in the Chillicothe lawsuit, in which Rhodes allegedly sought the
records to fulfill his contract with Cushion. Finally, Walker represented James Verhovec in his
lawsuits against Uhrichsville and Dennison.
{¶ 61} This lawsuit, the James Verhovec lawsuits, and the Timothy Rhodes Chillicothe
lawsuit were all allegedly commenced so that the parties could retrieve the necessary documents
required under the Cushion contracts. Both Rhodes and Edward Verhovec were allegedly
contacted "out of the blue" by attorney Cushion; and while the Verhovecs’ deny having a
relationship with Rhodes both the Verhovecs’ and Rhodes are represented by attorney Walker.
Moreover, Walker has represented Cushion in Cushion’s very own public records lawsuit.
Based on the foregoing evidence, the trial court’s conclusion that the appellant's true intent was
to prove the nonexistence of the records so that the Verhovecs could collect the forfeiture awards
is reasonable; and, it is a conclusion that we share with the trial court.6
{¶ 62} Moreover, the Verhovecs have disclaimed any interest in the records themselves,
other than Mr. Verhovec’s purported interest in collecting under the Cushion contract, and did
not even bother to listen to the audio records that were provided by the city. These actions
provide additional evidence that strongly indicates that the Verhovecs did not actually want the
requested records, but instead, merely wanted proof that they did not exist and that the records
had been destroyed or disposed of in violation of the civil forfeiture provision.
6
At least one other Ohio court has alluded to a similar scheme involving Rhodes, and others. Represented by
attorney Walker, and nicknamed the “Public Records Police,” the Twelfth District Court of Appeals noted that the
group “sought to become some of the highest paid ‘police’ in Ohio” through their forfeiture actions. State ex rel.
Bell v. London, 2011-Ohio-3914 at ¶ 42 (“Bell, Davila, and Rhodes refer to themselves as the ‘public records
police,’ and relying on the civil forfeiture provision in R.C. 149.351(B)(2) * * * have sought to become some of the
highest paid ‘police’ in Ohio.”).
Washington App. No. 12CA32 24
{¶ 63} In sum, we conclude that the appellant had no interest in the requested records
other than to build a case for forfeiture. This conclusion is based upon the competent credible
evidence in the record demonstrating a contrived and concerted effort amongst the Verhovecs,
attorney Walker, attorney Cushion, and others, to take advantage of the civil forfeiture statute for
purely pecuniary gain. In light of the foregoing, the trial court properly concluded that appellant
was not an “aggrieved” person for purposes of R.C. 149.351(B), and thus was not entitled to a
civil forfeiture award. Appellant’s fifth assignment of error is overruled.
V.
CONCLUSION
{¶ 64} For the foregoing reasons, appellant’s second, third, fourth, and fifth assignments
of error are overruled. In regards to appellant’s first assignment of error, we hold that the trial
court did error in determining that the handwritten Clerk of Council notes were not public
records. However, in light of our other findings, particularly our finding that appellant was not
“aggrieved,” such error was harmless. Accordingly, the judgment entry of the trial court is
affirmed.
JUDGMENT AFFIRMED.
Washington App. No. 12CA32 25
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein
taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington
County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion as to Assignments of Error II, III, IV, and V.
Concurs in Judgment Only as to Assignment of Error I.
McFarland, P.J.: Concurs in Judgment Only.
For the Court
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.