State ex rel. Verhovec v. Marietta , 2013 Ohio 5414 ( 2013 )

[Cite as State ex rel. Verhovec v. Marietta, 2013-Ohio-5414.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO EX REL. :
EDWARD VERHOVEC, :
:
Relator-Appellant, :
:
STATE OF OHIO EX REL. :
DOROTHY VERHOVEC, : Case Nos. 11CA29,
: 12CA52, 12CA53,
Relator-Appellant, : 13CA1, 13CA2
:
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 Appellants.
C. Craig Woods, Squire Sanders (US) LLP, and Greta M. Kearns, Greta Kearns Law LLC,
Columbus, Ohio, for Appellees.
Hoover, J.
{¶ 1} These consolidated appeals arise from two underlying lawsuits filed in the
Washington County Common Pleas Court: one filed by relator-appellant Edward Verhovec
against the City of Marietta and city officials in their official capacity (Washington County C.P.
No. 11OT197); and the other filed by relator-appellant Dorothy Verhovec, Edward Verhovec’s
wife, against the City of Marietta and city officials in their official capacity (Washington County
C.P. No. 11OT202).1 Both lawsuits asserted claims for mandamus and civil forfeiture relief
1
The City of Marietta and the named city officials will hereinafter be collectively referred to as “the City.”
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 2
under Ohio’s Public Records Act. The Verhovecs were, and continue to be represented by
appellant, William E. Walker, Jr., in their respective lawsuits against the City.
{¶ 2} The trial court awarded the City summary judgment relief on the claims asserted
by Dorothy Verhovec. That decision is the subject of a separate appeal before this court. See
State ex rel. Dorothy Verhovec v. The City of Marietta, et al., 4th Dist. Washington No. 12CA32.
The trial court also granted the City’s motion for judgment on the pleadings as to the claims
asserted by Edward Verhovec. Following the dismissal of his claims, Edward Verhovec filed a
motion for statutory damages, court costs, and attorney’s fees. The City likewise filed a motion
for sanctions and fees against the Verhovecs and attorney Walker in both lawsuits, contending
that the lawsuits were frivolous. After permitting the parties to brief the issues, and after holding
a joint hearing on the dueling motions, the trial court denied Edward Verhovec’s motion for
damages, court costs, and attorney’s fees, but awarded sanctions against the Verhovecs and
appellant Walker on the City’s motion.
{¶ 3} At issue on appeal, is the trial court’s judgment in favor of the City on appellant
Edward Verhovec’s motion for statutory damages, court costs, and attorney fees. Also at issue,
is the trial court’s award of sanctions against the Verhovecs and appellant Walker. For the
reasons set forth below, we affirm the judgment of the trial court.
I.
FACTS
A. The Public Record Requests
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 3
{¶ 4} On August 21, 2010, Dorothy Verhovec 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 Dorothy
Verhovec, and her husband, Edward Verhovec, to the City.2 On April 18, 2011, Edward
Verhovec requested access to cable television survey data from a survey conducted by the City
in 1999. The request sought access to 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. The August 21, 2010 request and the April 18, 2011 request
formed the basis of the Verhovecs’ lawsuits against the City.
B. The Cushion Contracts
{¶ 5} At least some of the public record requests made by the Verhovecs to the City
were purportedly inspired by an agreement between Edward Verhovec and Cleveland attorney
Paul Cushion. Mr. Verhovec testified at 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, Mr. Verhovec was to be paid $1,000.00 under the
Cushion contract if he were to successfully obtain Marietta City Council documents and
2
For a complete list of the public record requests made by the Verhovecs, see our decision and judgment entry in
Case No. 12CA32.
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 4
recordings. Attorney Cushion also provided Mr. Verhovec with form letters to aid his request
for city council documents from Marietta, Uhrichsville, and Dennison; and red light camera
images from Trotwood and Dayton.
{¶ 6} Dorothy Verhovec initially testified at her deposition that she had “no idea” why
she signed the letter requesting the city council documents and recordings from the City. Later
in her deposition, however, Mrs. Verhovec testified that she signed the letter to help her husband
because he was ill. Mrs. Verhovec supposedly did not know and did not ask her husband why he
wanted the records. Mrs. Verhovec 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.
{¶ 7} Mr. Verhovec testified at deposition that he wrote the letter, ultimately signed by
his wife, requesting the city council documents and recordings. Mr. Verhovec authored the
request with the purported intention of being compensated under his contract with attorney
Cushion. Mr. Verhovec further testified at deposition that, with respect to the cable television
survey cards, he had no interest in the records other than he “hoped to interest Mr. Cushion in
those.”
C. The City’s Response to the August 21, 2010 Request and April 18, 2011 Request
{¶ 8} The City provided Dorothy Verhovec with access to all the requested records that
were in its 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.
{¶ 9} On July 1, 2011, the City made the cable television survey cards and responses
available to Edward Verhovec for inspection. However, Mr. Verhovec had already filed his
mandamus and civil forfeiture lawsuit four days earlier, on June 27, 2011.
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 5
D. The Lawsuits
{¶ 10} Following inspection of the city council records by the Verhovecs, Dorothy
Verhovec filed her lawsuit seeking both a writ of mandamus compelling the City to provide
access to all the requested records, and a civil forfeiture claim for every record that had been lost
or destroyed. As mentioned above, Edward Verhovec filed his lawsuit seeking mandamus and
civil forfeiture just four days prior to the City providing access to all of the requested cable
television survey cards and responses.
E. Edward Verhovec’s Other Lawsuits
{¶ 11} In discovery it was revealed that Edward Verhovec has made numerous other
public record requests and has 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 appellant Walker.
F. Evidence of a State-Wide Scheme
{¶ 12} The City 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 City notes that
attorney Cushion is the named plaintiff in his own public records case in which he is represented
by the Verhovecs’ counsel, appellant Walker. See State ex rel. Cushion v. Massillon, 5th Dist.
Stark No. 2010CA00199, 2011-Ohio-4749. The City has also identified a similar contract
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 6
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, Walker represented Rhodes in the Chillicothe lawsuit.3 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 Walker.
{¶ 13} Edward Verhovec also testified at deposition that he solicited his nephew, James
Verhovec, to send public record requests and to file lawsuits seeking mandamus and civil
forfeiture relief. Letters that are virtually identical to the request made by Dorothy Verhovec in
her August 21, 2010 letter, that were prepared by Edward Verhovec, but signed by James
Verhovec, were sent to the city of Uhrichsville and the village of Dennison.4 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.
{¶ 14} The City has also identified numerous other lawsuits in the State of Ohio in
which 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
3
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.
4
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. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 7
N.E.2d 332 (3rd Dist.); State ex rel. Davila v. East Liverpool, 7th Dist. Columbiana No.
10CO16, 2011-Ohio-1347.
G. The Disposition of the Underlying Claims
{¶ 15} The trial court granted the City summary judgment on Dorothy Verhovec’s
mandamus and forfeiture claims, finding, inter alia, that the City had produced all of the records
in its possession and that Dorothy was not “aggrieved.” That decision is on appeal to this court in
Case No. 12CA32. The trial court also granted the City judgment on the pleadings on Edward
Verhovec’s mandamus and forfeiture claims, finding that the claims were moot because the City
had produced all of the requested records (the cable television survey cards and responses).
H. Edward Verhovec’s Motion for Statutory Damages, Court Costs, and Attorney’s Fees
{¶ 16} Following the disposition of his underlying claims, Edward Verhovec filed a
motion seeking statutory damages, court costs, and attorney’s fees.
I. The City’s Request for Sanctions
{¶ 17} Also following the disposition of the underlying lawsuits, the City moved for an
award of fees and sanctions under R.C. 2323.51 and Civ.R. 11 on the grounds that the lawsuits
were frivolous and brought in bad faith. The Verhovecs’ each subsequently 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. Edward Verhovec v. Washington County Common Pleas Court, et al.,
4th Dist. Washington No. 12CA43, and State ex rel. Dorothy Verhovec v. Washington County
Common Pleas Court, et al., 4th Dist. Washington No. 12CA44). We dismissed the Verhovecs’
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 8
original actions on December 17, 2012, and they have both appealed those dismissals to the Ohio
Supreme Court.
J. The Trial Court’s December 12, 2012 Decision
{¶ 18} On September 10, 2012, the trial court held a joint hearing on both Edward
Verhovec’s motion for statutory damages, court costs, and attorney’s fees; and on the City’s
motion for sanctions. On December 12, 2012, the trial court issued a decision, which among
other things, denied Edward’s motion, and granted the City’s motion for sanctions. The trial
court found the Verhovecs’ lawsuits were frivolous and warranted sanctions under both R.C.
2323.51 and Civil Rule 11:
Their objective is to prove the destruction or loss of the documents so that they
can collect forfeiture payments and attorney fees under the Public Record Law.
The Court finds that such action constitutes frivolous conduct which warrants the
award of attorney fees and costs. The Court finds that such conduct violates Civil
Rule 11.
[December 12, 2012 Decision at 18.]
{¶ 19} To that end, the trial court issued sanctions of $32,974.51 in Edward’s case, and
$274,033.49 as sanctions in Dorothy’s case, to reimburse the City’s costs and attorney’s fees
incurred in defending the lawsuits. The trial court issued the sanctions jointly against the
Verhovecs and appellant Walker under R.C. 2323.51, and individually against appellant Walker
under Civil Rule 11.
K. The Consolidated Appeals
{¶ 20} The two underlying lawsuits have resulted in five appeals which we have
consolidated; as well as the separate appeal in Case No. 12CA32.
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 9
{¶ 21} In September 2011, the trial court issued a decision awarding judgment on the
pleadings in favor of the City on Edward’s mandamus and forfeiture claims because his claims
had been rendered moot by the City’s production of all the requested records. Before the trial
court journalized its decision, Edward moved the court for an award of statutory damages, court
costs, and attorney’s fees pursuant to R.C. 149.43(C)(1). Without ruling on Edward’s motion,
the trial court journalized its Entry of Dismissal. Edward subsequently appealed from the Entry
of Dismissal (Case No. 11CA29). On appeal, we remanded the case so that the trial court could
dispose of Edward’s remaining claims of statutory damages, court costs, and attorney’s fees.
Edward moved for summary judgment on those remaining claims in July 2012.
{¶ 22} In June and July 2012, the trial court granted summary judgment in favor of the
City on Dorothy’s mandamus and forfeiture claims. Dorothy has appealed that decision (Case
No. 12CA32).
{¶ 23} In August 2012, the City moved for fees and sanctions under R.C. 2323.51 and
Civil Rule 11 in both of the underlying lawsuits. The trial court subsequently consolidated the
lawsuits and held an evidentiary hearing on September 10, 2012.
{¶ 24} On November 13, 2012, the trial court issued a decision granting the City’s
motion for sanctions under R.C. 2323.51 and Civ.R. 11 and denying Edward’s motion for
statutory damages, court costs, and attorney’s fees. The decision also disposed of all other
pending motions. On December 12, 2012, appellants filed appeals from that decision, even
though the trial court had yet to journalize its decision (Case Nos. 12CA52, 12CA53).
{¶ 25} Also on December 12, 2012, the trial court issued an amended decision that was
identical to its November 13, 2012 decision, except that it made relatively minor revisions in the
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 10
fee award calculations. The trial court entered its final judgment on December 19, 2012. The
appellants filed appeals from the final judgment on January 11, 2013 (Case Nos. 13CA1,
13CA2).
{¶ 26} Meanwhile, we returned Edward’s appeal on the statutory damages issues (Case
No. 11CA29) to our active docket by Magistrate’s Order dated December 18, 2012.
{¶ 27} As aforementioned, the appeal of Edward’s statutory damages issues (Case No.
11CA29), the two pre-mature appeals based on the un-journalized November 13, 2012 decision
(Case Nos. 12CA52, 12CA53), and the two appeals based on the December 2012 decision and
judgment entry (Case Nos. 13CA1, 13CA2) were consolidated.
II.
ASSIGNMENTS OF ERROR
{¶ 28} In Case Nos. 12CA52, 12CA53, 13CA1, and 13CA2, appellants Dorothy
Verhovec, Edward Verhovec, and William E. Walker, Jr., raise eight assignments of error for our
review.
First Assignment of Error:
THE TRIAL COURT ERRED TO THE APPELLANTS’ PREJUDICE WHEN IT
MADE AN EX POST FACTO APPLICATION OF R.C. 149.351(C) TO
CREATE LIABILITY RETROSPECTIVELY BASED ON THE SUBJECTIVE
INTENT OF APPELLANTS IN VIOLATION OF R.C. 1.48 AND OHIO
CONSTITUTITION SECTION 28, ARTICLE II.
Second Assignment of Error:
THE TRIAL COURT ERRED TO APPELLANTS’ PREJUDICE AND ABUSED
ITS DISCRETION WHEN IT FOUND THAT APPELLANTS ACTED
FRIVOLOUSLY WHEN THAT FINDING WAS NOT SUPPORTED BY ANY
COMPETENT, CREDIBLE EVIDENCE BUT WAS INSTEAD BASED UPON
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 11
AN INFERENCE DRAWN SOLELY FROM ANOTHER INFERENCE IN
VIOLATION OF EVID.R. 702.
Third Assignment of Error:
THE TRIAL COURT ERRED TO APPELLANTS’ PREJUDICE AND ABUSED
ITS DISCRETION WHEN IT ALLOWED APPELLEES TO PRESENT
CHARACTER AND “OTHER ACTS” EVIDENCE OVER OBJECTION, AND
USED THAT EVIDENCE TO SUPPORT ITS FINDINGS THAT
PETITIONERS ACTED IN CONFORMANCE TO CHARACTER, IN
VIOLATION OF EVID.R. 404.
Fourth Assignment of Error:
THE TRIAL COURT ERRED TO APPELLANTS’ PREJUDICE AND ABUSED
ITS DISCRETION WHEN IT FOUND THAT APPELLANTS WERE A R.C.
2323.51 PARTY SUBJECT TO SANCTIONS; EVEN THOUGH THE STATE
IS THE REAL PARTY IN INTEREST; BECAUSE R.C. 2731.04 REQUIRES
MANDAMUS ACTIONS TO BE MADE IN THE NAME OF THE STATE;
AND THE CIV.R. 17(A) COMMANDS THAT EVERY ACTION SHALL BE
PROSECUTED IN THE NAME OF THE REAL PARTY IN INTEREST.
Fifth Assignment of Error:
THE TRIAL COURT ERRED TO APPELLANTS’ PREJUDICE WHEN IT
ADJUDICATED A R.C. 2323.51 MOTION FOR SANCTIONS AND FOUND
EACH OF THEM LIABLE WITHOUT HAVING SUBJECT MATTER
JURISDICTION; BECAUSE THE UNDERLYING MATTER WAS NOT AN
ORDINARY PROCEEDING BUT A SPECIAL PROCEEDING AND AS SUCH
WAS NOT ONE OF THE CLASS OF CASES THAT THE TRIAL COURT
COULD HEAR, IN VIOLATION OF SECTION 4(B), ARTICLE IV, OF THE
OHIO CONSTITUTION.
Sixth Assignment of Error:
THE TRIAL COURT ERRED TO APPELLANTS’ PREJUDICE AND ABUSED
ITS DISCRETION WHEN IT OVERRULED EDWARD’S MOTION TO
STRIKE APPELLEES’ R.C. 2323.51 MOTION FOR SANCTIONS AGAINST
EDWARD WHEN APPELLEES’ MOTION FAILED TO SATISFY THE
JURISDICTIONAL TIME REQUIREMENT BY NOT BEING FILED WITHIN
30 DAYS AFTER FINAL JUDGMENT, IN VIOLATION OF R.C.
2323.51(B)(1).
Seventh Assignment of Error:
THE TRIAL COURT ERRED TO APPELLANTS’ PREJUDICE AND ABUSED
ITS DISCRETION WHEN IT FOUND THAT R.C. 2323.51 SANCTIONS
WERE APPROPRIATE BECAUSE THAT FINDING WAS NOT SUPPORTED
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 12
BY COMPETENT, CREDIBLE EVIDENCE GOING TO ALL THE
ESSENTIAL ELEMENTS OF THE CASE BECAUSE APPELLEES FAILED
TO SHOW THAT THEY PROVIDED ACCESS TO ALL THE REQUESTED
RECORDS AND THEY FAILED TO SHOW THAT THEY HAD NOT
UNLAWFULLY DESTROYED THOSE RECORDS.
Eighth Assignment of Error:
THE TRIAL COURT ERRED TO WALKER’S PREJUDICE AND ABUSED
ITS DISCRETION WHEN IT IMPOSED SANCTIONS FOR FRIVOLOUS
CONDUCT WHEN APPELLEES FAILED TO DEMONSTRATE WHAT
CONDUCT CAUSED WHICH EXPENSES; IN VIOLATION OF R.C.
2323.51(B)(5).
{¶ 29} As it pertains to Case No. 11CA29, Edward Verhovec raises two assignments of
error for our review.
First Assignment of Error:
THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT GRANTING
SUMMARY JUDGMENT TO RELATOR/APPELLANT AFTER REMAND.
Second Assignment of Error:
THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION IN DENYING RELATOR/APPELLANT’S R.C. 149.43(C)(1)
MOTION FOR DAMAGES, COSTS AND ATTORNEY FEES BECAUSE R.C.
149.43(C)(2)(b)(i) REQUIRED THE COURT TO MAKE THAT AWARD.
III.
LAW & ANALYSIS
A. Edward Verhovec’s Motion for Statutory Damages, Court Costs, and
Attorney’s Fees
{¶ 30} We first consider Edward Verhovec’s two assignments of error pertaining to the
trial court’s denial of his motion for statutory damages, court costs, and attorney’s fees in case
number 11OT197. Because the two assignments of error are interrelated – in that they both
argue that the trial court erred as a matter of law – we consider them together.
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 13
{¶ 31} R.C. 149.43(B)(1) provides, in relevant part, that “[u]pon request and subject to
division (B)(8) of this section, all public records responsive to the request shall be promptly
prepared and made available for inspection to any person at all reasonable times during regular
business hours.” If the public office fails to make the public records promptly available, 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).
{¶ 32} 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 v.
Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, 814 N.E.2d 1218, ¶ 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. “However, the production of requested documents does not,
according to the Public Records Act, moot a claim for statutory damages, court costs, and
attorney fees.” State ex rel. Hartkemeyer v. Fairfield Twp., 12th Dist. Butler No. CA2012-04-
080, 2012-Ohio-5842, ¶ 12, citing State ex rel. Cincinnati Enquirer v. Heath, 121 Ohio St.3d
165, 2009-Ohio-590, 902 N.E.2d 976, ¶ 18.
{¶ 33} A claim for statutory damages, court costs, and attorney’s fees under the Public
Records Act is grounded in R.C. 149.43(C), which provides that:
(C)(1) If a person allegedly is aggrieved by 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 or by any other failure of a public office or the person responsible for
public records to comply with an obligation in accordance with division (B) of
this section, the person allegedly aggrieved may commence a mandamus action to
obtain a judgment that orders the public office or the person responsible for the
public record to comply with division (B) of this section, that awards court costs
and reasonable attorney’s fees to the person that instituted the mandamus action,
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 14
and, if applicable, that includes an order fixing statutory damages under division
(C)(1) of this section. The mandamus action may be commenced in the court of
common pleas of the county in which division (B) of this section allegedly was
not complied with, in the supreme court pursuant to its original jurisdiction under
Section 2 of Article IV, Ohio Constitution, or in the court of appeals for the
appellate district in which division (B) of this section allegedly was not complied
with pursuant to its original jurisdiction under Section 3 of Article IV, Ohio
Constitution.
If a requestor transmits a written request by hand delivery or certified mail to
inspect or receive copies of any public record in a manner that fairly describes the
public record or class of public records to the public office or person responsible
for the requested public records, except as otherwise provided in this section, the
requestor shall be entitled to recover the amount of statutory damages set forth in
this division if a court determines that the public office or the person responsible
for public records failed to comply with an obligation in accordance with division
(B) of this section.
The amount of statutory damages shall be fixed at one hundred dollars for each
business day during which the public office or person responsible for the
requested public records failed to comply with an obligation in accordance with
division (B) of this section, beginning with the day on which the requester files a
mandamus action to recover statutory damages, up to a maximum of one thousand
dollars. The award of statutory damages shall not be construed as a penalty, but
as compensation for injury arising from lost use of the requested information.
The existence of this injury shall be conclusively presumed. The award of
statutory damages shall be in addition to all other remedies authorized by this
section.
The court may reduce an award of statutory damages or not award statutory
damages if the court determines both of the following:
(a) That, based on the ordinary application of statutory law and case law as it
existed at the time of the conduct or threatened conduct of the public office or
person responsible for the requested public records that allegedly constitutes a
failure to comply with an obligation in accordance with division (B) of this
section and that was the basis of the mandamus action, a well-informed public
office or person responsible for the requested public records reasonably would
believe that the conduct or threatened conduct of the public office or person
responsible for the requested public records did not constitute a failure to comply
with an obligation in accordance with division (B) of this section;
(b) That a well-informed public office or person responsible for the requested
public records reasonably would believe that the conduct or threatened conduct of
the public office or person responsible for the requested public records would
serve the public policy that underlies the authority that is asserted as permitting
that conduct or threatened conduct.
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 15
(2)(a) If the court issues a writ of mandamus that orders the public office or the
person responsible for the public record to comply with division (B) or this
section and determines that the circumstances described in division (C)(1) of this
section exists, the court shall determine and award to the relator all court costs.
(b) If the court renders a judgment that orders the public office or the person
responsible for the public record to comply with division (B) of this section, the
court may award reasonable attorney’s fees subject to reduction as described in
division (C)(2)(c) of this section. The court shall award reasonable attorney’s
fees, subject to reduction as described in division (C)(2)(c) of this section when
either of the following applies:
(i) The public office or the person responsible for the public records failed to
respond affirmatively or negatively to the public records request in accordance
with the time allowed under division (B) of this section.
(ii) The public office or the person responsible for the public records promised to
permit the relator to inspect or receive copies of the public records requested
within a specified period of time but failed to fulfill that promise within the
specified period of time.
(c) Court costs and reasonable attorney’s fees awarded under this section shall be
construed as remedial and not punitive. Reasonable attorney’s fees shall include
reasonable fees incurred to produce proof of the reasonableness and amount of the
fees and to otherwise litigate entitlement to the fees. The court may reduce an
award of attorney’s fees to the relator or not award attorney’s fees to the relator if
the court determines both of the following:
(i) That, based on the ordinary application of statutory law and case law as it
existed at the time of the conduct or threatened conduct of the public office or
person responsible for the requested public records that allegedly constitutes a
failure to comply with an obligation in accordance with division (B) of this
section and that was the basis of the mandamus action, a well-informed public
office or person responsible for the requested public records reasonably would
believe that the conduct or threatened conduct of the public office or person
responsible for the requested public records did not constitute a failure to comply
with an obligation in accordance with division (B) of this section;
(ii) That a well-informed public office or person responsible for the requested
public records reasonably would believe that the conduct or threatened conduct of
the public office or person responsible for the requested public records as
described in division (C)(2)(c)(i) of this section would serve the public policy that
underlies the authority that is asserted as permitting that conduct or threatened
conduct.
{¶ 34} Furthermore, “[t]he Supreme Court of Ohio has established that the award of
attorney fees is dependent upon an aggrieved party demonstrating that the release of the
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 16
requested public records provides a public benefit that is greater than the benefit to the
requester.” Hartkemeyer at ¶ 30, citing State ex rel. Dawson v. Bloom-Carroll Local School
Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 34, and State ex rel. Beacon
Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087. A
relator is not entitled to an award of statutory damages or attorney fees if the only benefit
claimed by the relator is that the Public Records Act be enforced against the respondents. State
ex rel. DiFranco v. S. Euclid, 8th Dist. Cuyahoga No. 97713, 2012-Ohio-4339, ¶ 9-10. A denial
of statutory damages, costs, and attorney’s fees is reviewed for an abuse of discretion. State ex
rel. Patton v. Rhodes, 129 Ohio St.3d 182, 2011-Ohio-3093, 950 N.E.2d 965, ¶ 12.
{¶ 35} In the case sub judice, Edward Verhovec made his written public record request
to the City for the cable television survey cards and responses on April 18, 2011. The City did
not immediately respond to Mr. Verhovec’s request, so on June 27, 2011, he commenced the
instant action for mandamus and civil forfeiture relief.
{¶ 36} Four days after the lawsuit was filed, on July 1, 2011, the City responded to the
request and notified Mr. Verhovec that the records were available for inspection. Shortly
thereafter, Edward Verhovec moved for statutory damages, court costs, and attorney’s fees.
{¶ 37} Meanwhile, at all times relevant to this matter, the City had a public records
policy that required it to acknowledge, in writing, all public record requests within three business
days following the public office’s receipt of the request. It is undisputed that the City did not
comply with its policy, and did not acknowledge receipt of the request in writing.
{¶ 38} Edward Verhovec first contends that the City’s failure to comply with its public
records policy -requiring the public office to acknowledge a records request within three
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 17
business days – was tantamount to the City’s failure to promptly provide access to the requested
records as required by R.C. 149.43(B)(1). Appellant concludes that the trial court erred in not
awarding him summary judgment, because as a matter of law, he was entitled to statutory
damages, court costs, and attorney’s fees under R.C. 149.43(C)(1)-(2).
{¶ 39} Edward’s first argument fails, however, because in order to recover damages,
costs, or fees under the Public Records Act, one must first prove a violation of the Act.
Strothers, 131 Ohio St.3d 359, 2012-Ohio-1007, 965 N.E.2d 282, at ¶ 21 (“An award of statutory
damages under R.C. 149.43(C)(1) is premised on a violation of R.C. 149.43(B).”). Simply put,
before one may recover damages, costs, or fees, he must demonstrate that the respondent did not
act promptly in responding to the request.
{¶ 40} Here, Edward leaps to the conclusion that because the City failed to adhere to its
acknowledgement policy, than it also failed to act promptly; and thus, he was entitled to
damages, costs, and fees as a matter of law. Edward’s analysis, however, plainly contradicts
established case law, which consistently has held that the determination of whether a public
office or person responsible for public records has acted promptly is dependent upon the facts
and circumstances of the case. Strothers at ¶ 21 (finding 45 day delay reasonable); State ex rel.
McCray v. Ohio Dept. of Commerce, 10th Dist. Franklin No. 11AP-1055, 2012-Ohio-2997, ¶ 3
(finding 60 day delay reasonable); State ex rel. Patton, 129 Ohio St.3d 182, 2011-Ohio-3093,
950 N.E.2d 965, at ¶ 20 (finding 56 day delay reasonable). Thus, the proper inquiry is whether
the trial court, after conducting an evidentiary hearing, abused its discretion in concluding that
the City “promptly” responded to the request – an inquiry which appellant does not make on
appeal.
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 18
{¶ 41} Thus, when viewed in the proper context, the factual issue of whether the City
promptly responded to the request precluded summary judgment relief. Moreover, Edward’s
argument that the City’s noncompliance with its acknowledgment policy resulted in a statutory
breach under the Act is also without merit and does not provide a basis to recover under
summary judgment.5
{¶ 42} Edward next argues that the trial court improperly determined that he was not
entitled to damages, costs, or attorney’s fees because he was not “aggrieved.” While the trial
court decision did discuss the aggrievement issue; the trial court’s analysis of that issue formed
the basis for its decision to issue sanctions under R.C. 2323.51 and Civ.R. 11. The trial court
never ruled, as appellant suggests, that it declined to award damages, costs, or fees on the basis
that Edward was not “aggrieved.” Rather, the trial court’s decision not to award damages, costs,
and fees was based on the fact that the City promptly made the records available under the
unique facts and circumstances of the case; and on its decision to exercise its discretion under the
Act not to award the relief requested.6 Edward’s aggreivement argument is simply misplaced.
{¶ 43} Based on the foregoing, it cannot be said that the trial court abused its discretion
in denying Edward’s motion for statutory damages, court costs, and attorney’s fees.
Accordingly, Edward’s first and second assignments of error are overruled.
B. The Judgment Imposing Sanctions Under R.C. 2323.51 and Civ.R. 11
5
Edward argued that R.C. 149.43(B)(7) imposed a statutory duty on the City to comply with its acknowledgment
policy. That provision, however, simply requires public offices to comply with internal policies regarding the
transmission of records “by United States mail or by any other means of delivery or transmission pursuant to this
division.” The provision does not create a statutory duty for public offices to comply with any other policies
pertaining to public records.
6
See R.C. 149.43(C)(1) and (2), supra, granting the court discretion to decrease or decline an award of damages and
fees even where a public office has violated the Act.
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 19
{¶ 44} The remaining assignments of error raised by appellants Edward Verhovec,
Dorothy Verhovec, and William E. Walker, Jr., pertain to the trial court’s award of attorney’s
fees and costs as sanctions under R.C. 2323.51 and Civ.R. 11.
{¶ 45} R.C. 2323.51 governs the award of attorney’s fees as a sanction for frivolous
conduct. R.C. 2323.51(A)(2) defines “frivolous conduct” to mean:
(a) Conduct of [a] * * * party to a civil action, * * * or of the * * * party’s counsel
of record that satisfies any of the following:
(i) It obviously serves merely to harass or maliciously injure another party to the
civil action or appeal or is for another improper purpose, including, but not
limited to, causing unnecessary delay or a needless increase in the cost of
litigation.
(ii) It is not warranted under existing law, cannot be supported by a good faith
argument for an extension, modification, or reversal of existing law, or cannot be
supported by a good faith argument for the establishment of new law.
(iii) The conduct consists of allegations or other factual contentions that have no
evidentiary support or, if specifically so identified, are not likely to have
evidentiary support after a reasonable opportunity for further investigation or
discovery.
(iv) The conduct consists of denials or factual contentions that are not warranted
by the evidence or, if specifically so identified, are not reasonably based on a lack
of information or belief.
{¶ 46} R.C. 2323.51(B) authorizes a trial court to award attorney’s fees to any party
adversely affected by frivolous conduct; however, section (B)(1) specifies that a party make a
motion for such award “not more than thirty days after the entry of final judgment in a civil
action or appeal.”
{¶ 47} “Courts must carefully apply R.C. 2323.51 ‘so that legitimate claims are not
chilled.’ ” Burchett v. Larkin, 192 Ohio App.3d 418, 2011-Ohio-684, 949 N.E.2d 516, ¶ 20 (4th
Dist.), quoting Hickman v. Murray, 2nd Dist. Montgomery No. CA15030, 1996 WL 125916, * 5
(Mar. 22, 1996). As we noted in Burchett, the Hickman court explained that:
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 20
A party is not frivolous merely because a claim is not well-grounded in fact.
Richmond Glass & Aluminum Corp. v. Wynn (Sept. 5, 1991), Columbiana App.
No. 90-C-46, [1991 WL 172902, at *2]. Furthermore, the statute was not
intended to punish mere misjudgment or tactical error. Turowski v. Johnson
(1991), 70 Ohio App.3d 118, 123 [590 N.E.2d 434], quoting Stephens v.
Crestview Cadillac (1989), 62[64] Ohio App.3d 129, 134 [580 N.E.2d 842].
Instead, the statute was designed to chill egregious, overzealous, unjustifiable, and
frivolous action. Turowski v. Johnson (1990), 68 Ohio App.3d 704, 706 [589
N.E.2d 462].
Whether a claim is warranted under existing law is an objective consideration.
Lewis v. Celina Fin. Corp (1995), 101 Ohio App.3d 464, 473 [655 N.E.2d 1333],
citing Ceol v. Zion Indust. Inc. (1992), 81 Ohio App.3d 286, 291 [610 N.E.2d
1076]. The test, we find, is whether no reasonable lawyer would have brought the
action in light of the existing law. In other words, a claim is frivolous if it is
absolutely clear under the existing law that no reasonable lawyer could argue the
claim.
Burchett at ¶ 20, quoting Hickman at * 5.
{¶ 48} We have held that the question of whether conduct is frivolous is a question of
law that an appellate court independently reviews. Burchett at ¶ 22. However, if a reviewing
court finds that the trial court’s frivolous conduct finding is substantiated, the decision to award
attorney’s fees as a sanction for that conduct rests within the trial court’s sound discretion. Id.“Consequently, we will not reverse a trial court’s decision to award attorney fees for frivolous
conduct under R.C. 2323.51 absent an abuse of that discretion.” Id., citing Riley v. Langer, 95
Ohio App.3d 151, 159, 642 N.E.2d 1 (1st Dist.1994), overruled on other grounds in Riston v.
Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857, ¶ 22, fn. 16 (1st Dist.); see also
Blackburn v. Lauder, 4th Dist. Lawrence No. 96CA5, 1996 WL 666658, * 3 (Nov. 12, 1996) (“A
decision to impose sanctions pursuant to this statute rests with the sound discretion of the trial
court and will not be reversed on appeal absent an abuse of that discretion.”). An abuse of
discretion implies an unreasonable, arbitrary, or unconscionable attitude on the part of the trial
court. Franklin Cty. Sheriff’s Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 506, 589
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 21
N.E.2d 24 (1992); Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d
120, 122, 573 N.E.2d 622 (1991).
{¶ 49} Civ.R. 11 provides that for pleadings, motions, and other documents signed by
attorneys representing parties in a case, the signature of an attorney “constitutes a certificate by
the attorney * * * that the attorney * * * has read the document; that to the best of the attorney’s
* * * knowledge, information, and belief there is good ground to support it; and that it is not
interposed for delay.” The rule further provides that “[f]or a willful violation of this rule, an
attorney * * *, upon motion of a party or upon the court’s own motion, may be subjected to
appropriate action, including an award to the opposing party of expenses and reasonable attorney
fees incurred in bringing any motion under this rule.”
{¶ 50} “Civ.R. 11 employs a subjective bad-faith standard to invoke sanctions by
requiring that any violation must be willful.” State ex rel. Dreamer v. Mason, 115 Ohio St.3d
190, 2007-Ohio-4789, 874 N.E.2d 510, ¶ 19, citing Riston at ¶ 9, and Ransom v. Ransom, 12th
Dist. Warren No. 2006-03-031, 2007-Ohio-457, ¶ 25. Thus, “[a]ny violation must be willful;
negligence is insufficient to invoke Civ.R. 11 sanctions.” Oakley v. Nolan, 4th Dist. Athens No.
06CA36, 2007-Ohio-4794, ¶ 13.
{¶ 51} “The United States Supreme Court has observed that the purpose of Fed.R.Civ.P.
11, which is analogous to Civ.R. 11, is to curb abuse of the judicial system because ‘[b]aseless
filing puts the machinery of justice in motion, burdening courts and individuals alike with
needless expense and delay.’ Cooter & Gell v. Hartmarx Corp. (1990), 496 U.S. 384, 398, 110
S.Ct. 2447, 110 L.Ed.2d 359 (1990). The court noted that the specter of Rule 11 sanctions
encourages civil litigants to ‘ “stop, think and investigate more carefully before serving and
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 22
filing papers.” ’ Id., quoting Amendments to Federal Rules of Civil Procedure (1983), 97 F.R.D.
165, 192 (March 9, 1982 letter from Judge Walter Mansfield, Chairman, Advisory Committee on
Civil Rules).” Moss v. Bush, 105 Ohio St.3d 458, 2005-Ohio-2419, 828 N.E.2d 994, ¶ 21.
{¶ 52} “We will not reverse a court’s decision on a Civ.R. 11 motion for sanctions
absent an abuse of discretion. State ex rel. Fant v. Sykes (1987), 29 Ohio St.3d 65, 29 OBR 446,
505 N.E.2d 966. An abuse of discretion occurs when a decision is unreasonable, arbitrary, or
unconscionable. State ex rel. Worrell v. Ohio Police & Fire Pension Fund, 122 Ohio St.3d 116,
2006-Ohio-6513, 858 N.E.2d 380, ¶ 10.” Mason at ¶ 18.
{¶ 53} For their first assignment of error, appellants’ contend that the trial court erred by
making a retrospective and ex post facto application of R.C. 149.351(C) to support its finding
that the appellants acted frivolously.
{¶ 54} R.C. 1.48 provides that “[a] statute is presumed to be prospective in its operation
unless expressly made retrospective.” Section 28, Article II of the Ohio Constitution provides,
inter alia, that “[t]he General Assembly shall have no power to pass retroactive laws * * *.”
{¶ 55} R.C. 149.351(C) became effective on September 29, 2011, after the Verhovec
lawsuits had been filed in the trial court. R.C. 149.351(C)(2) provides:
In a civil action under division (B) of this section, if clear and convincing
evidence shows that the request for a record was a pretext to create potential
liability under this section, the court may award reasonable attorney’s fees to any
defendant or defendants in the action.
{¶ 56} Here, appellants’ first assignment of error fails for the simple fact that the trial
court did not rely upon R.C. 149.351(C)(2) when it awarded sanctions. Rather, the sanctions
were clearly awarded under the frivolous conduct statute, R.C. 2323.51, and Civ.R. 11.
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 23
Accordingly, there is no basis to support the appellants’ contention that the trial court
retrospectively applied R.C. 149.351(C)(2). Appellants’ first assignment of error is overruled.
{¶ 57} For their second assignment of error, appellants’ contend that the trial court erred
when it allegedly stacked inference upon inference to support its conclusion that they engaged in
frivolous conduct.7
{¶ 58} The trial court determined that appellants acted frivolously because “[t]heir
objective is to prove the destruction or loss of the documents so that they can collect forfeiture
payments and attorney fees under the Public Records Law. The Court finds that such action
constitutes frivolous conduct which warrants the award of attorney fees and costs.”
{¶ 59} 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.
{¶ 60} The Ohio Supreme Court has cautioned courts about the application of the rule
against stacking inferences:
At this juncture, we take the opportunity to remark that the rule forbidding the
stacking of an inference upon an inference is disfavored by scholars and many
courts. If such a rule were uniformly enforced, ‘ * * * hardly a single trial could
be adequately prosecuted.’ 1A Wigmore, Evidence (Tillers Rev.1983) 1106,
1111, Section 41. See, also, United States v. Eustace (C.A. 2, 1970), 423 F.2d
569, 571. ‘Today most students of the problem of inference recognize that any
single vision about the world or conclusion of fact rests on a multitude of
inferences, premises, and beliefs, on a large complex of assumptions, and on a
7 Appellants’ specifically contend that the trial court abused its discretion in making the frivolous finding because
the finding was not supported by competent, credible evidence; but instead, was based upon the stacking of one
inference upon another. To the extent that appellants are challenging the frivolous finding under R.C. 2323.51, the
question of whether conduct is frivolous is a question of law that an appellate court independently reviews. See ¶
48, supra.
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 24
body of implicit or explicit principles by which the human organism perceives,
organizes, structures, and understands experience; thus it is generally conceded
that it is meaningless to denounce multistaged or cascaded inferences.’
(Emphasis sic.) Wigmore, supra, at 1112, fn. 3, Section 41. The rule is now
rejected in most federal circuit courts. See Louisell & Mueller, Federal Evidence
(1977) 646, 666, Section 94 (referring to the rule as ‘spurious’). Even those
courts that have preserved the rule have commented that it is too frequently
misunderstood, or misused as a convenient means of excluding evidence regarded
as too remote, speculative or uncertain to be of probative value. See Hurt, supra,
164 Ohio St. at 331-332, 130 N.E. 820; Orey v. Mut. Life Ins. Co. (1939), 215 Ind.
305, 309-310, 19 N.E.2d 547, 548-549. * * * We therefore caution the bench and
bar against resorting to this rule too readily and without a sufficient awareness of
its pitfalls.
Motorists Mut. Ins. Co. v. Hamilton Twp. Trustees, 28 Ohio St.3d 13, 17, 502 N.E.2d 204(1986).
{¶ 61} We have reviewed the record, and we independently conclude that the appellants’
conduct was frivolous. Despite appellants’ arguments, the City was able to put forth sufficient
evidence that the Verhovecs, and appellant Walker, feigned their intent to access the public
records through the guise of the Cushion contract when their actual intent was to seek forfeiture
awards. Such conduct is frivolous because the lawsuits were brought for an “improper purpose,”
and because the Verhovecs were not “aggrieved” persons for purposes of civil forfeiture
damages as that term was defined by the Ohio Supreme Court in State ex rel. Rhodes v. New
Philadelphia.
{¶ 62} All of the evidence in the instant case indicates that the appellants are involved in
an intricate scheme to take advantage of the Public Records Act, specifically the civil forfeiture
provision, by seeking to prove the improper destruction of voluminous and archaic public
records. The only explanation offered by the appellants to rebut this conclusion, is that the
records were sought by Edward Verhovec to fulfill his contracts with attorney Cushion. Yet, Mr.
Verhovec testified that he was unsure of what exactly needed to be produced in order to collect
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 25
payment under the contracts. Moreover, it is undisputed that the cable television survey cards
and responses were not required to be produced for any Cushion contract. Mr. Verhovec tried to
explain that he sought the cable television records because he thought they may interest Mr.
Cushion. Yet, even after learning that Cushion was not interested in the records he still pursued
his lawsuit for civil forfeiture damages; and after he verified that all the survey cards were
present, he no longer had any interest in the cards. Mr. Verhovec has also filed numerous other
lawsuits throughout the state seeking forfeiture damages. Absent the Cushion contracts, there
are no logical explanations for these lawsuits. The Verhovecs are not historians. They have
never resided in the City of Marietta. Mr. Verhovec had not even heard of the Public Records
Act prior to being contacted by attorney Cushion “out of the blue.” Mr. Verhovec is also the
driving force behind the lawsuits filed by his nephew, James Verhovec, against the Village of
Dennison and the City of Uhrichville. Those lawsuits also seek significant forfeiture damages.
We also cannot ignore the connections between Walker and Cushion. Walker represented
Cushion in Cushion’s very own civil forfeiture lawsuit. Walker also represented Timothy
Rhodes in the Chillicothe lawsuit, in which Rhodes allegedly sought the records to fulfill his
contract with Cushion. Finally, Walker represents James Verhovec in his lawsuits against
Uhrichsville and Dennison.
{¶ 63} The lawsuits at issue in this case, 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 Walker.
Moreover, Walker has represented Cushion in Cushion’s very own public records lawsuit.
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 26
Appellants would have us believe that this is a matter of coincidence; but we cannot ignore the
connections. Based on the foregoing evidence, the trial court’s conclusion that the appellants’
true intent was to prove the nonexistence of the records so that they could collect the forfeiture
awards is reasonable; and, it is a conclusion that we share with the trial court.8 As such, there is
no doubt that the lawsuits were frivolous, as the law defines that term.
{¶ 64} In sum, we conclude that the appellants have no interest in the requested records
other than to build a case for forfeiture and reimbursement of attorney’s fees. To the extent that
our conclusion rests on any inferences, they are reasonable inferences that are supported by the
record. In light of the foregoing, the trial court correctly concluded that the appellants acted
frivolously by pursuing litigation for such an improper purpose.
{¶ 65} Appellants also contend that it is improper to consider their motives for
requesting the records when determining whether their conduct is frivolous. 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). However, both of the lawsuits also
sought civil forfeiture damages. While “any person” may make a public records request under
R.C. 149.43(B), the Supreme Court of Ohio has rejected the notion that “any person” can recover
8
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. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 27
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.
{¶ 66} Thus, it is proper to consider the appellants’ motives, because their motivations
are relevant in determining whether they are actually aggrieved for purposes of civil forfeiture
relief, or rather, as in here, the lawsuits were brought for the improper purpose of proving the
nonexistence of the records.
{¶ 67} Based on the foregoing, appellant’s second assignment of error is overruled.
{¶ 68} For their third assignment of error, appellants’ contend that the trial court violated
Evid.R. 404(B) by considering improper “character evidence” and “other acts” evidence in
making its frivolous conduct finding.
{¶ 69} Evid.R. 404(B) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
{¶ 70} “[T]he decision to admit Evid.R. 404(B) prior acts evidence rests in the trial
court’s sound discretion and that decision should not be reversed absent an abuse of discretion.”
State v. Hairston, 4th Dist. Scioto No. 06CA3089, 2007-Ohio-3707, ¶ 38; see also State v. Bey,
85 Ohio St.3d 487, 490, 709 N.E.2d 484 (1999).
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 28
{¶ 71} Appellants’ argue that “Evid. R. 404(B) justifies the preclusion of character
evidence and ‘other acts’ evidence in this case.” However, they make no effort to identify which
evidence was allegedly improper under the rule. Thus, it is impossible for us to determine
whether the trial court abused its discretion. Moreover, it is not our duty to make an argument
for the appellant. In re A.Z., 4th Dist. Meigs No. 11CA3, 2011-Ohio-6739, ¶ 18; State v.
Nguyen, 4th Dist. Athens No. 12CA14, 2013-Ohio-3170, ¶ 37; App.R. 16(A)(7). Accordingly,
we reject appellants’ argument and overrule their third assignment of error.
{¶ 72} For their fourth assignment of error, appellants’ contend that they are immune
from sanctions under R.C. 2323.51 because they are not purportedly the real party interest.
Instead, they contend that the State of Ohio is the real party in interest because the Verhovecs
brought their actions in mandamus.
{¶ 73} R.C. 2323.51(B)(4) provides that: “An award made pursuant to division (B)(1) of
this section may be made against a party, the party’s counsel of record, or both.” Appellants
contend that since the lawsuits were required to be brought in the name of the state on relation of
the petitioner, the state, and not the petitioner, is the party for purposes of R.C. 2323.51.
{¶ 74} Appellants, however, completely ignore existing case law from the Ohio Supreme
Court, which upheld sanctions under R.C. 2323.51 against a party that brought a mandamus
action to compel public records under R.C. 149.43. See State ex rel. Striker v. Cline, 130 Ohio
St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19. Furthermore, appellants have not cited a single case
in support of the proposition that a requestor bringing a mandamus action under the Public
Records Act is immune from sanctions under R.C. 2323.51.
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 29
{¶ 75} Rather, the case law cited by appellants’ supports the proposition that where the
object of a mandamus action is to enforce a public right, the state is regarded as the real party in
interest. But here, in addition to their mandamus actions, appellants sought civil forfeiture
awards, statutory damages, attorney’s fees, and costs. The intended purpose of the lawsuits was
to line the appellants’ pockets to the detriment of the City; not to serve a broader public interest
of the state.
{¶ 76} Accordingly, appellants’ argument that they are immune from sanctions for their
frivolous conduct simply because their claims sound in mandamus is without merit. Their fourth
assignment of error is overruled.
{¶ 77} For their fifth assignment of error, appellants’ contend that the trial court lacked
subject matter jurisdiction to award sanctions under R.C. 2323.51 because that statute applies
only to “civil actions” and a mandamus action is not a “civil action.”
{¶ 78} The Verhovecs made nearly identical arguments to this court in their prohibition
actions (Case Nos. 12CA43, 12CA44). In those cases, we expressly rejected the argument, and
instead we held that a mandamus action under the Public Records Act is a “civil action” for
purposes of R.C. 2323.51:
* * * Verhovec alleges that the trial court and Judge Boyer do not have
jurisdiction to address the merits of Marietta’s sanction motion under R.C.
2323.51, because that statutory provision applies only to “civil actions” and a
mandamus action is not a “civil action.” Verhovec is wrong for two reasons.
First, a mandamus action is a civil action. State ex rel. Spirko v. Court of
Appeals, 27 Ohio St.3d 13, 501 N.E.2d 625 (1986)(“A proceeding for a writ of
mandamus is a civil action”); State ex rel. Wilson v. Preston, 173 Ohio St. 203,
208, 181 N.E.2d 31 (1962)(“an action for a writ of mandamus is a civil action”);
State ex rel. Karmasu v. Tate, 83 Ohio App.3d 199, 206 (4th Dist.
1992)(“Mandamus is a civil action”). The frivolous conduct statute, R.C.
2323.51, states that it is applicable to certain conduct, including the conduct of
“filing of a civil action … or the taking of any other action in connection with a
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 30
civil action. …” Thus, that statutory provision can be employed to request
sanctions for frivolous conduct occurring within the context of a civil action
seeking a writ of mandamus. State ex rel. Striker v. Cline, 130 Ohio St.3d 214,
2011-Ohio-5350, 957 N.E.2d 214 (upholding the lower court’s award of sanctions
for frivolous conduct under R.C. 2323.51 in a mandamus action brought to
compel public records under R.C. 149.43).
State ex rel. Edward Verhovec v. Washington County Common Pleas Court, et al., 4th Dist.
Washington No. 12CA43, Dec. 17, 2012 Decision and Judgment Entry at 3-4; State ex rel.
Dorothy Verhovec v. Washington County Common Pleas Court, et al., 4th Dist. Washington No.
12CA44, Dec. 17, 2012 Decision and Judgment Entry at 3-4.
{¶ 79} Appellants have not identified any authority that would call into question our
earlier decisions. Thus, for the reasons stated in Case Nos. 12CA43 and 12CA44, we overrule
appellants’ fifth assignment of error.
{¶ 80} For their sixth assignment of error, appellants’ contend that the trial court erred to
Edward and Walker’s prejudice when it failed to dismiss the City’s motion for sanctions in case
No. 11OT197, because the motion was purportedly untimely.
{¶ 81} R.C. 2323.51(B)(1) permits a party to file a motion for sanctions “at any time not
more than thirty days after the entry of final judgment.” Appellants argue that the City was
required to file its motion within 30 days of the trial court’s September 26, 2011 order, which
granted the City’s motion for judgment on the pleadings. That order, however, was not a “final
judgment.”
{¶ 82} The time period for filing a frivolous conduct claim under R.C. 2323.51 runs
from the entry of the “final appealable order.” Soler v. Evans, St. Clair & Kelsey, 94 Ohio St.3d
432, 436, 763 N.E.2d 1169 (2002). An order must meet the requirements of R.C. 2505.02 to
constitute a final, appealable order. Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86,
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 31
88, 541 N.E.2d 64 (1989). Under R.C. 2505.02(B)(1), an order is a final order if it “affects a
substantial right in an action that in effect determines the action and prevents a judgment[.]” To
determine the action and prevent a judgment, the order “must dispose of the whole merits of the
cause or some separate and distinct branch thereof and leave nothing for the determination of the
court.” Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v. Professionals Guild of
Ohio, 46 Ohio St.3d 147, 153, 545 N.E.2d 1260 (1989).
{¶ 83} Additionally, if the case involves multiple parties or multiple claims, the court’s
order must meet the requirements of Civ.R. 54(B) to qualify as a final, appealable order. See
Chef Italiano Corp. at 88. Under Civ.R. 54(B), “[w]hen more than one claim for relief is
presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and
whether arising out of the same or separate transactions, or when multiple parties are involved,
the court may enter final judgment as to one or more but fewer than all of the claims or parties
only upon an express determination that there is no just reason for delay.” Absent the mandatory
language that “there is no just reason for delay,” an order that does not dispose of all claims is
subject to modification and is not final and appealable. Noble v. Colwell, 44 Ohio St.3d 92, 96,
540 N.E.2d 1381 (1989); see Civ.R. 54(B). The purpose of Civ.R. 54(B) is “ ‘to make a
reasonable accommodation of the policy against piecemeal appeals with the possible injustice
sometimes created by the delay of appeals[,]’ * * * as well as to insure that parties to such
actions may know when an order or decree has become final for purposes of appeal * * *.”
Pokorny v. Tilby Dev. Co., 52 Ohio St.2d 183, 186, 370 N.E.2d 738 (1977), quoting Alexander v.
Buckeye Pipe Line Co., 49 Ohio St.2d 158, 160, 359 N.E.2d 702 (1977).
{¶ 84} Here, the September 26, 2011 Order was not a “final order” under R.C. 2505.02
because it did not dispose of Edward’s motion for statutory damages, costs, and attorney’s fees.
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 32
See Case No. 11CA29 (Dec. 16, 2011 Magistrate’s Order). Furthermore, the September 26,
2011 Order did not satisfy the requirements of Civ.R. 54, because it disposed of fewer than all of
the claims and it did not certify that there were no just reason for delay. Thus, the September 26,
2011 Order was not a “final appealable order,” and it did not trigger the 30-day deadline under
R.C. 2323.51.
{¶ 85} Appellants’ argument that the September 26, 2011 order was labeled a “final
appealable order,” is also without merit. A trial court’s labeling of an entry as a “final
appealable order,” is not dispositive of the issue. In re Murray, 52 Ohio St.3d 155, 157, 556
N.E.2d 1169 (1990) (“Generally, the question of whether an order is final and appealable turns
on the effect which the order has on the pending action rather than the name attached to it, or its
general nature.”).
{¶ 86} The City filed its motion for sanctions against Edward Verhovec and attorney
Walker in Case No. 11OT197 on August 16, 2012. The trial court did not enter final judgment
in that case until December 17, 2012. The City’s motion was clearly filed within the statutory
deadline. Accordingly, we overrule appellants’ sixth assignment of error.
{¶ 87} For their seventh assignment of error, appellants’ contend that the trial court erred
in finding the lawsuits frivolous under R.C. 2323.51 and Civ.R. 11, because such a finding was
not supported by “competent, credible evidence.”
{¶ 88} We have already concluded, in response to appellants’ second assignment of
error, that the appellants’ conduct was frivolous. We noted that our conclusion was supported by
sufficient evidence in the record, and was not the result of speculation or inference stacking. We
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 33
defer to our analysis above, and hold that there is adequate evidence to support a finding of
frivolousness under R.C. 2323.51 and Civ.R. 11.
{¶ 89} Appellants’ further contend that their mandamus claims were legitimate, and thus
not frivolous, because (1) the City did not respond to Edward’s request until four days after the
filing of suit; and (2) the City did not provide Dorothy with all of the requested records.
However, appellants’ lawsuits also contained a claim for civil forfeiture, and it is clear that they
had no interest in the records other than to prove their destruction so that they could collect
forfeiture awards and attorney’s fees. The mandamus claims were simply a prerequisite to
obtaining forfeiture awards for the allegedly destroyed records.
{¶ 90} In sum, there is sufficient 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. Appellant’s seventh
assignment of error is overruled.
{¶ 91} For their eighth and final assignment of error, appellants’ contend that the trial
court erred by failing to segregate out the specific fees that were attributable to the appellants’
frivolous conduct. In their own words: “ * * * Appellees failed to show what conduct caused
which expenses. * * * Therefore, it cannot be determined which expenses were reasonably
incurred by what frivolous conduct.”
{¶ 92} Appellants’ argument focuses on the fact that the City did not identify which
attorney’s fees were attributable to the mandamus claims, and which fees were attributable to the
defense of the forfeiture claims. Essentially, appellants’ argument is premised on the notion that
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 34
the mandamus claims were not frivolous, and thus, the City is not entitled to reimbursement of
the cost to defend those claims (see assignment of error seven).
{¶ 93} As noted above, a trial court’s award of attorney’s fees as sanctions under R.C.
2323.51, is reviewed for an abuse of discretion. Similarly, an award of attorney’s fees under
Civ.R. 11 is reviewed under the abuse of discretion standard of review.
{¶ 94} Here, the trial court found that the lawsuits were frivolous in their entirety.
Because the trial court determined that the lawsuits were entirely frivolous, it was not necessary
to determine which fees were attributable to the defense of the mandamus claims, and which fees
were attributable to the forfeiture claims. Accordingly, it cannot be said that the trial court
abused its discretion. Appellants’ eighth assignment of error is overruled.
IV.
CONCLUSION
{¶ 95} For the foregoing reasons, appellant Edward Verhovec’s two assignments of error
pertaining to the denial of his motion for statutory damages, court costs, and attorney’s fees are
overruled. Likewise, appellants’ joint assignments of error relating to the imposition of sanctions
against them for frivolous conduct are also overruled. Accordingly, the judgment of the trial
court is affirmed.
JUDGMENT AFFIRMED.
Washington App. Nos. 11CA29, 12CA52, 12CA53, 13CA1, 13CA2 35
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellants 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.
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.