State ex rel. Stevenson v. King

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Stevenson v. King, Slip Opinion No. 2022-Ohio-3093.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2022-OHIO-3093THE STATE EX REL. STEVENSON, APPELLEE, v. KING, MAYOR, ET AL.,
APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Stevenson v. King, Slip Opinion No.
2022-Ohio-3093.]
Mandamus—Public Records Act, R.C. 149.43—Attorney fees—Petition seeking to
compel the East Cleveland mayor and finance director to produce records
to the city-council president related to funds received and spent by the city
under the Coronavirus Aid, Relief, and Economic Security Act, 15 U.S.C.
9001 et seq. (“the CARES Act”) was correctly granted because the mayor
and finance director failed to present sufficient evidence to support their
claim that no written records existed pertaining to the application for and
award of CARES Act grant money and because they failed to authenticate
the evidence submitted in support of their claim that records pertaining to
the appropriation and expenditure of CARES Act money had already been
shared with the city council through regular financial reports—Attorney
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fees were improperly awarded for pro se litigant who failed to demonstrate
the existence of an attorney-client relationship between the attorney who
was awarded fees and herself individually or the city council.
(No. 2021-1138—Submitted June 14, 2022—Decided September 7, 2022.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 110221,
2021-Ohio-1093.
__________________
Per Curiam.
{¶ 1} Appellee, Korean Stevenson, brought a mandamus action in the
Eighth District Court of Appeals seeking to compel appellants, East Cleveland
Mayor Brandon King and East Cleveland Finance Director Charles Iyahen, to
produce records related to certain public expenditures. The court of appeals denied
two of Stevenson’s claims for relief but granted a third, issuing a writ of mandamus
directing King and Iyahen to produce documents in response to a public-records
request. In a subsequent order, the court of appeals ordered King and Iyahen to pay
attorney fees.
{¶ 2} The matter is now before this court on King and Iyahen’s appeal of
right. We affirm the Eighth District’s judgment granting a writ of mandamus, but
we reverse the court of appeals’ judgment granting an award of attorney fees.
I. Background
{¶ 3} Stevenson is president of the East Cleveland City Council (“the city
council”). She was elected to the position in September 2020.
{¶ 4} In March 2020, in response to the COVID-19 pandemic, the United
States Congress passed the Coronavirus Aid, Relief, and Economic Security Act,
15 U.S.C. 9001 et seq. (“the CARES Act”). East Cleveland received funds from
the CARES Act. According to Stevenson, she learned in November 2020 that King
was spending money without authorization from the city council and that King’s
expenditures included CARES Act funds that had not been appropriated by the city
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council. Stevenson requested documentation from King showing how certain funds
had been spent.
{¶ 5} On November 6, 2020, the city council approved Resolution 39-20,
authorizing it to retain the law firm McDonald Humphrey, L.L.C., as special
counsel and approving a budget of $50,000 to pay the firm. Three days later, King
vetoed the resolution.
{¶ 6} On November 18, 2020, Jonathan M. McDonald, an attorney with
McDonald Humphrey, sent a letter to Iyahen stating:
As you are aware, the East Cleveland City Council has
engaged the attorneys at McDonald Humphrey, LLC and the
undersigned lawyer as special legal counsel. In that regard, we have
been tasked with facilitating the production of documents
concerning financial records related to federal funds (i.e., money)
sent to the City of East Cleveland by and through the enactment of
the federal Coronavirus Aid, Relief and Economic Security
(CARES) Act.
It is our understanding that the Finance Department is in
possession of those documents. As such, we are requesting all
documents including, but not limited to, award letters, grant
applications, executed contracts, disbursement receipts, and
financial reports which outline where, when, and how the money has
been disbursed to date.
(Footnotes omitted.) On the same day, East Cleveland’s law director advised
Iyahen that McDonald Humphrey was not retained by the city council because the
mayor had vetoed the resolution that would have allowed the firm to be retained.
“Nevertheless,” the law director wrote, “Mr. McDonald is certainly welcome to
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submit a public records request as a private citizen as long as he understands he has
not been retained by the East Cleveland City Council; and will not be reimbursed
for his efforts.”
{¶ 7} On January 11, 2021, Stevenson filed a complaint for a writ of
mandamus in the Eighth District against King and Iyahen. Stevenson asked for
three forms of relief: (1) a writ compelling King and Iyahen to allocate and provide
the city council with $50,000 to pay for the services of special counsel, (2) a writ
compelling King and Iyahen to submit all contracts and expenditures for amounts
in excess of $2,500 to the city council for approval,1 and (3) a writ compelling King
and Iyahen to produce any and all financial documents relating to CARES Act
money, including financial reports showing where, when, and how the money has
been disbursed.
{¶ 8} King and Iyahen filed a motion to dismiss. The motion included 9
exhibits, totaling more than 100 pages. The motion did not include an affidavit
authenticating the exhibits. The court of appeals sua sponte converted the motion
to dismiss to a motion for summary judgment and then held the motion in abeyance
pending discovery. King and Iyahen filed a counterclaim, alleging that Stevenson
was preventing the city council from appropriating funds by refusing to schedule
regular council meetings. They demanded a writ of mandamus compelling
Stevenson to put a permanent appropriations ordinance on the city council’s
agenda.
{¶ 9} Stevenson filed a brief in opposition to the motion for summary
judgment, with affidavits, as well as a cross-motion for summary judgment on her
1. Section 72 of the East Cleveland City Charter requires the mayor to seek the city council’s
approval before making any contract or purchase in excess of $2,500. American Legal Publishing,
Charter of the City of East Cleveland, Section 72, available at
https://codelibrary.amlegal.com/codes/eastcleveland/latest/eastcleveland_oh/0-0-0-382 (accessed
Aug. 18, 2022) [https://perma.cc/9MFT-AVNM]; see also The City of East Cleveland, Ohio, City
Charter & Codified Ordinances, at https://eastcleveland.org/government/city_charter___codified
_ordinances/index.php (accessed Aug. 18, 2022) [https://perma.cc/7P4L-UYNY].
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own claims and a motion to dismiss the counterclaim. King and Iyahen filed an
omnibus response to the motions, which included hundreds of pages of exhibits,
but again, they did not provide an affidavit authenticating their exhibits.
{¶ 10} On March 29, 2021, the court of appeals issued a decision and
judgment entry disposing of the motions. 2021-Ohio-1093. The court granted
Stevenson’s motion to dismiss the counterclaim for a writ of mandamus compelling
her to schedule items on the city council’s agenda. Id. at ¶ 74. With respect to the
cross-motions for summary judgment, the court ruled in favor of King and Iyahen
as to counts one and two of Stevenson’s complaint (i.e., the counts seeking to
compel the mayor to allocate $50,000 to pay for special counsel and to submit all
contracts and expenditures in excess of $2,500 to the city council for approval),
denying the request for a writ of mandamus. Id. at ¶ 26, 37. But the court granted
summary judgment in favor of Stevenson on count three, “granting a writ of
mandamus directing Iyahen to produce records responsive to the records request
submitted to him on November 18, 2020.” Id. at ¶ 58.2 In addition, the court
awarded Stevenson court costs and attorney fees and ordered briefing to establish
the amount of the attorney fees. Id. at ¶ 62.
{¶ 11} On July 30, 2021, the court of appeals awarded attorney fees to
Stevenson in the amount of $7,996.86. King and Iyahen appealed, challenging the
Eighth District’s judgment granting a writ of mandamus on the public-records claim
and awarding attorney fees to Stevenson.
II. Legal analysis
A. Standard of review
{¶ 12} To be entitled to a writ of mandamus, a party must establish by clear
and convincing evidence (1) a clear legal right to the requested relief, (2) a clear
2. Although the court issued the writ of mandamus against both King and Iyahen, the court directed
Iyahen specifically to respond to the public-records request because the request was submitted to
him and he is the custodian of the records being sought.
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legal duty on the part of the respondent to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Love v. O’Donnell, 150 Ohio
St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3. We review de novo a court of
appeals’ grant of summary judgment in a mandamus action. State ex rel. Ames v.
Portage Cty. Bd. of Commrs., 165 Ohio St.3d 292, 2021-Ohio-2374, 178 N.E.3d
492, ¶ 11. Likewise, we review de novo a court of appeals’ determination regarding
attorney fees. State ex rel. Armatas v. Plain Twp. Bd. of Trustees, 163 Ohio St.3d
304, 2021-Ohio-1176, 170 N.E.3d 19, ¶ 12.
B. The decision to grant a writ of mandamus
{¶ 13} In their motion to dismiss, King and Iyahen argued that, as of the
date of the public-records request, there were no contracts or receipts relating to
CARES Act funds, “as can be seen from Respondent Iyahen’s Financial responses
to same as well as his regular reports.” The motion referred to the month-to-date
and year-to-date fund reports and the combined expenditures ledger for the period
ending December 31, 2020, which were attached as exhibits, as proof of this
assertion. As for the requested financial records showing CARES Act
disbursements, King and Iyahen argued that “the disbursement[s] of CARES ACT
monies are fully set forth in the financial reports that are regularly submitted to
Council.”
{¶ 14} In their omnibus motion, King and Iyahen renewed their claim that
records concerning grant applications and award letters did not exist. But this time,
they argued that applications and contracts did not exist because
[t]he City did not have to contract with itself to put the CARES ACT
money in the General Fund for its First Responders payroll, Hazard
Pay and purchase of PPE equipment. For the latter, masks, hand
sanitizer, glass partitions, etc., were procured by City personnel and
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the invoices for same were paid as they arrived with no pre-existing
“contract.”
King and Iyahen also suggested that complying with the public-records request for
financial records was unnecessary because the stated reason for seeking the records
was to ferret out any misappropriation of CARES Act funds and there were no
inappropriate expenditures to find. They stated:
The CARES Act FAQS disseminated by the state’s Office of Budget
and Management, which was shared with Council, set forth specific
guidelines as to how the money could be spent. It was unequivocally
spent in that manner.
King and Iyahen again claimed that the information sought through the public-
records request had already been shared with the city council, and they referred the
court to the exhibits submitted with their converted motion for summary judgment.
{¶ 15} The Eighth District granted summary judgment in favor of
Stevenson, finding that a proper public-records request had been sent to Iyahen and
that Iyahen had not responded to that request. 2021-Ohio-1093 at ¶ 42. It
explained: “This is all the court is left with to determine the action because King
and Iyahen have not provided this court with any evidence that can properly be
considered on summary judgment.” Id. at ¶ 43. The court admonished King and
Iyahen for failing to authenticate the exhibits even after the court had issued two
separate journal entries reminding the parties that exhibits must be authenticated
and after Stevenson had argued that their exhibits were unauthenticated. Id. at
¶ 44. The Eighth District specifically rejected the suggestion that responsive
records do not exist, because King and Iyahen had conceded that grants were
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awarded but they presented no evidence that the grants were awarded based on
anything other than written applications. Id. at ¶ 50-51.
{¶ 16} On appeal to this court, King and Iyahen claim that McDonald seeks
“nonexistent” records through the public-records request. In response to the Eighth
District’s finding that their exhibits were unauthenticated, King and Iyahen argue
that their exhibits were self-authenticating.
{¶ 17} King and Iyahen claim that the “CARES Act fund records provided
to Stevenson were indeed authenticated” pursuant to Evid.R. 901(A). That rule
provides that authentication requires “evidence sufficient to support a finding that
the matter in question is what its proponent claims.” Id. But King and Iyahen do
not identify what evidence allegedly authenticated the exhibits that were attached
to their converted motion for summary judgment.
{¶ 18} Alternatively, in their merit brief, King and Iyahen quote Evid.R.
902(2) for the proposition that “ ‘[e]xtrinsic evidence of authenticity * * * is not
required with respect to * * * [d]omestic public records not under seal.’ ” However,
King and Iyahen truncate the quote by omitting crucial phrases. Evid.R. 902(2)
provides that public records lacking a seal but purporting to bear the signature of a
government officer or employee in his or her official capacity are self-
authenticating “if a public officer having a seal and having official duties in the
district or political subdivision of the officer or employer certifies under seal that
the signer has the official capacity and that the signature is genuine.” King and
Iyahen do not assert that their exhibits fall into this category, and we will not review
the exhibits to determine whether they contain signatures, because “[i]t is not the
role of this court to ‘search the record or formulate arguments on behalf of the
parties.’ ” State ex rel. McKenney v. Jones, __ Ohio St.3d __, 2022-Ohio-583, __
N.E.3d __, ¶ 28, quoting State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-
4034, 19 N.E.3d 900, ¶ 19. And even if the exhibits attached to the motions do
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contain official signatures, King and Iyahen have not identified the Evid.R. 902
certification of those signatures.
{¶ 19} King and Iyahen also argue that a select number of documents
attached as exhibits to their counterclaim were properly authenticated. The
counterclaim contains affidavits from both King and Iyahen “verify[ing] that the
exhibits attached to [their] Complaint and Petition for a Writ of Mandamus, are true
and accurate copies of the original[s] to the best of [their] personal knowledge.”
According to King and Iyahen’s merit brief, these affidavits serve to make the East
Cleveland Permanent Appropriations record and the proposed East Cleveland
Fiscal Recovery Plan self-authenticating under Evid.R. 902. But Evid.R. 902 is
inapplicable to these documents because they are unsigned.
{¶ 20} Finally, King and Iyahen argue that the public-records request “kept
shifting” throughout the case “because this action was instituted for nefarious
purposes.”3 As the Eighth District observed, neither King nor Iyahen objected to
the original request as being vague or overbroad, although they made that argument
later in a motion for a more definite statement. 2021-Ohio-1093 at ¶ 57.
{¶ 21} In their merit brief, King and Iyahen argue that the Eighth District
should have granted the motion for a more definite statement because the CARES
Act information “had already been disseminated to [the city council] in the ordinary
course of financial reporting” and because “much of the information [Stevenson]
claimed she wanted still did not exist.” Those two affirmative defenses—that King
and Iyahen had fully complied with the request and that the request sought
nonexistent documents—have nothing to do with a purported need for clarification
of the request.
3. Stevenson’s motive for seeking the records is irrelevant. See Rhodes v. New Philadelphia, 129
Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 20; R.C. 149.43(B)(4). It follows logically
that her motive for filing suit to compel release of the requested records is equally irrelevant.
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{¶ 22} For these reasons, we affirm the judgment of the Eighth District
granting a writ of mandamus for the production of public records.
C. The award of attorney fees
{¶ 23} If a court renders a judgment ordering a public official to comply
with the Public Records Act, R.C. 149.43, the court may award reasonable attorney
fees to the requester. R.C. 149.43(C)(3)(b); State ex rel. Summers v. Fox, 164 Ohio
St.3d 583, 2021-Ohio-2061, 174 N.E.3d 747, ¶ 13. In this appeal, King and Iyahen
do not challenge the reasonableness of the hours expended or the rates charged by
the McDonald Humphrey law firm. The sole issue on appeal is whether there is an
attorney-client relationship between Stevenson and McDonald Humphrey.
{¶ 24} Attorney fees are not recoverable under the Public Records Act when
there is no evidence that the requester “either paid or was obligated to pay” its
attorney. State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous.
Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 45. For example, a
corporation cannot recover attorney fees when it is represented by its salaried, in-
house counsel, absent evidence of a fee agreement or the actual payment of fees to
counsel in addition to payment of his or her regular salary and work benefits. State
ex rel. Beacon Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-
6557, 819 N.E.2d 1087, ¶ 62, superseded by statute on other grounds as explained
in State ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 378, 2014-Ohio-539, 7 N.E.3d
1146, ¶ 13. Likewise, a prevailing party cannot recover attorney fees under the
Public Records Act without evidence of a fee agreement when he or she is
represented by his or her spouse. See State ex rel. Besser v. Ohio State Univ., 87
Ohio St.3d 535, 542, 721 N.E.2d 1044 (2000).
{¶ 25} In her motion for attorney fees, Stevenson submitted timesheets
showing the hours that attorneys with McDonald Humphrey spent on the case. The
motion also included affidavits from McDonald and another attorney attesting to
the accuracy and reasonableness of the billing records. But in his affidavit,
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McDonald does not aver the existence of an attorney-client relationship or a fee
agreement between himself and Stevenson or between himself and the city council.
{¶ 26} In its journal entry and opinion dated July 30, 2021, the Eighth
District held that the record supported the existence of an attorney-client
relationship because King and Iyahen attached to their memorandum opposing fees
“an engagement letter executed by Stevenson facially establishing an attorney-
client relationship.” That letter, dated November 5, 2020, purports to establish an
attorney-client relationship between McDonald Humphrey and the city council.
Stevenson signed the agreement in her capacity as the city council’s president on
November 8, two days after the city council passed Resolution 39-20 approving the
retention of the McDonald Humphrey law firm on its behalf. But on November 9,
Mayor King vetoed that resolution.
{¶ 27} The East Cleveland City Charter, Section 113(E), authorizes the
mayor to veto any resolution and ordinance. American Legal Publishing, Charter
of the City of East Cleveland, Section 113(E), available at
https://codelibrary.amlegal.com/codes/eastcleveland/latest/eastcleveland_oh/0-0-
0-520 (accessed Aug. 18, 2022) [https://perma.cc/P7VD-2Z5X]; see also The City
of East Cleveland, Ohio, City Charter & Codified Ordinances, at
https://eastcleveland.org/government/city_charter___codified_ordinances/index.p
hp (accessed Aug. 18, 2022) [https://perma.cc/7P4L-UYNY]. If the mayor vetoes
a measure, the city council may override the veto with a vote of four-fifths of its
members approving the measure on reconsideration. Id. Stevenson has not alleged
that the city council overrode the veto, nor has she explained how the city council
might have had authority to retain McDonald Humphrey despite the veto.
{¶ 28} McDonald Humphrey was not retained by the city, as a matter of
law. There is no evidence that the firm was retained by Stevenson individually. At
times in this litigation, King and Iyahen have taken the position that because
Stevenson did not enter into an agreement retaining the services of McDonald
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Humphrey in her individual capacity, the public-records request from attorney
McDonald is void. There is no authority for the proposition that the lack of a
retainer agreement would excuse King and Iyahen from their obligations under the
Public Records Act. Absent an attorney-client relationship between McDonald
Humphrey and either Stevenson in her individual capacity or the city council, the
public-records request would have been made by attorney McDonald on his own
behalf, and Stevenson as a pro se litigant is not entitled to attorney fees. See State
ex rel. Ullmann v. Klein, 160 Ohio St.3d 457, 2020-Ohio-2974, 158 N.E.3d 580,
¶ 15.
{¶ 29} For these reasons, we reverse the award of attorney fees.
III. Conclusion
{¶ 30} We affirm the Eighth District Court of Appeals’ judgment granting a
writ of mandamus, and we reverse the court of appeals’ judgment granting an award
of attorney fees.
Judgment affirmed in part
and reversed in part.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Willa M. Hemmons, East Cleveland Director of Law, and Heather
McCollough, Assistant Director of Law, for appellants.
_________________
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