State ex rel. Hous. Advocates, Inc. v. Cleveland , 2012 Ohio 1187 ( 2012 )

[Cite as State ex rel. Hous. Advocates, Inc. v. Cleveland, 2012-Ohio-1187.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96243
STATE OF OHIO, EX REL.,
HOUSING ADVOCATES, INC.
RELATOR
vs.
CITY OF CLEVELAND, ET AL.
RESPONDENTS
JUDGMENT:
COMPLAINT DISMISSED
Writ of Mandamus
Motion Nos. 445414, 446192,
446193, 447833, 448114 and 453005
Order No. 451140
RELEASE DATE: March 19, 2012
ATTORNEY FOR RELATOR
Edward G. Kramer
Fair Housing Law Clinic
3214 Prospect Avenue, East
Cleveland, OH 44115
ATTORNEYS FOR RESPONDENTS
Barbara A. Langhenry
Interim Director of Law
By: Catherine Ma
City of Cleveland
601 Lakeside Avenue, Rm. 106
Cleveland, OH 44114
LARRY A. JONES, SR., J.:
{¶1} The relator, The Housing Advocates, Inc., commenced this public records
mandamus action against the respondents, the City of Cleveland; Edward Rybka, Director
of the Department of Building and Housing; and David Cooper, the Deputy Director of the
Department of Building and Housing (collectively referred to as “the City”). The relator
sought the release of three classes of records concerning 21 pieces of property in
Cleveland: (1) all correspondence between the City and any architect, contractor, or
subcontractor relating to planning, design, or construction on the properties; (2) the
building permits and/or the certificates of occupancy for any buildings on the properties;
and (3) all drawings, plans, blueprints, and other records relating to the design or
construction of buildings on the properties.
{¶2} The relator alleges that it initially made the request for 18 of the properties by
certified mail in October 2009. The City alleges that it satisfied this initial request by late
November 2009, by sending a box of records to the relator. In February 2010, the relator
sent another public records request to the City by certified mail for two additional pieces of
property. Over the next several months the relator sent hand-delivered or certified mail
public records requests for various pieces of property. Relator asserts that from October
2009, until the filing of this mandamus action on December 29, 2010, “the City failed to
produce any materials pursuant to these requests.” (May 9, 2011 Affidavit of Greg
McCleery.) On January 26, 2011, the City provided records responsive to the requests for
review and inspection. The parties now agree that the relator has received all requested
records which the City still possesses. There are no other records to be disclosed.
Accordingly, the mandamus claim for the disclosure of requested records is moot.
{¶3} Nevertheless, the issues of statutory damages and attorney’s fees remain
pending. R.C. 149.43(C)(1) provides that a relator in a public records mandamus action
shall be entitled to statutory damages if the requester submitted a written request by hand
delivery or certified mail and if the public office failed to comply with an obligation in R.C
149.43(B), including the duty to prepare promptly the requested records for inspection.
Subsection(C)(1) further provides that the amount of statutory damages shall be $100 for
each business day during which the public office failed to comply with the request
beginning with the day on which the requester filed the mandamus action up to a maximum
of $1,000.
{¶4} In the present case the relator qualifies for statutory damages. The relator
made the requests through both hand delivery and certified mail. Although the City says it
fulfilled the October 2009 request by sending a box of records, this court is not persuaded
that the request was fulfilled at that time. The City did not present any evidence, other
than its own assertion, that the requests were fulfilled. In contrast, the relator provided
McCleery’s affidavit, which stated that the City did not respond to any of the relator’s
requests. Moreover, the City provided the records on January 26, 2011, more than ten
business days from the filing of the mandamus action on December 29, 2010.
{¶5} The relator seeks $21,000 in statutory damages, $1,000 for each property for
which records were requested. In State ex rel. Dehler v. Kelly, 127 Ohio St.3d 309,
2010-Ohio-5724, 939 N.E.2d 828, ¶ 4, the Supreme Court of Ohio ruled that “R.C.
149.43(C)(1) does not permit stacking of statutory damages based on what is essentially
the same records request. No windfall is conferred by the statute.” This court finds that
the relator made essentially one records request. Accordingly, because the relator
fulfilled the requisites for statutory damages and because the City did not establish that it
timely provided the requested records, this court awards the relator $1,000 in statutory
damages.
{¶6} Pursuant to R.C. 149.43(C)(2)(b), the relator seeks $36,227.00 in attorney’s
fees for 120.5 hours of work by three lawyers. However, the Supreme Court of Ohio has
repeatedly held that in public records cases attorney fees are available only to the extent
that the relator actually paid an attorney to win the public records action. In-house
counsel or pro se representation precludes an award. In State ex rel. Beacon Journal
Publishing Co. v. City of Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087, ¶
62, the court ruled that because there was “no evidence or suggestion that the Beacon
Journal either paid or was obligated to pay its in-house counsel attorney fees in addition to
her regular salary and benefits for the work she did, * * * ‘fees’ are not recoverable in a
mandamus action under R.C. 149.43.” Similarly, in State ex rel. O’Shea & Assoc. Co.
L.P.A. v. Cuyahoga Metro. Hous. Auth., 2012-Ohio-115, the relator, a law firm, was
represented by its principal partner. The supreme court reversed an award of attorney
fees, because there was no evidence that the relator either paid or was obligated to pay its
own counsel attorney fees. Accord State ex rel. Lucas Cty. Bd. Of Commrs. v. Ohio
Environmental Protection Agency 88 Ohio St.3d 166, 724 N.E.2d 411 (2000); and State ex
rel. Besser v. Ohio State Univ., 87 Ohio St.3d 535, 721 N.E.2d 1044 (2000).
{¶7} In the present case, the evidence before the court shows that the relator did not
pay or was obligated to pay the attorneys for the work done on this case. Paragraph 10 of
Edward Kramer’s affidavit in support of attorney fees states: “Taking on this case has not
prevented taking other lucrative cases in order to focus on this matter, but each attorney
took this on a contingent fede (sic) and/or award of statutory attorney fees basis.” Indeed,
Edward Kramer is “the chief counsel in the public interest law firm of THE HOUSING
ADVOCATES, INC.” ¶ 1 of his affidavit. David Oakley was the Senior Staff Attorney
for the relator, The Housing Advocates, Inc., HAI STAFF,
http://www.housingadvocatesinc.com/sub/staff.jsp (accessed Jan. 19, 2012). David
D’Angelo was a volunteer attorney with the relator. ¶ 2 of his affidavit in support of
attorney fees. These lawyers were in-house counsel for the relator, and thus, their position
is indistinguishable from the attorneys in Beacon Journal and O’Shea. This court denies
attorney’s fees.
{¶8} Accordingly, this court grants the relator’s motion for statutory damages in the
amount of $1,000.00 and denies attorney’s fees. The court, sua sponte, dismisses this
public records mandamus action as moot, because the parties agree that all possible records
have been disclosed. Respondents to pay costs. The court directs the clerk to serve upon
all parties notice of this judgment and its date of entry upon the journal pursuant to Civ.R.
58(B).
Complaint dismissed.
LARRY A. JONES, SR., JUDGE
JAMES J. SWEENEY, P.J., and
SEAN C. GALLAGHER, J., CONCUR.