[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.
