State ex rel. Ames v. Baker

• Decision Date: 24 January 2022
• Docket Number: 2021-P-0046
• Citation: 2022 Ohio 171
• Court: Ohio Court of Appeals
• Parties: STATE OF OHIO ex rel. BRIAN M. AMES, Relator, v. BAKER, DUBLIKAR, BECK, WILEY & MATHEWS, et al., Respondents.

2022-Ohio-171

STATE OF OHIO ex rel. BRIAN M. AMES, Relator,
v.
BAKER, DUBLIKAR, BECK, WILEY & MATHEWS, et al., Respondents.

No. 2021-P-0046

Court of Appeals of Ohio, Eleventh District, Portage

January 24, 2022

Original Action for Writ of Mandamus

Judgment: Amended petition dismissed

Brian M. Ames, pro se, (Relator)

James F. Mathews and Andrea K. Ziarko, Baker, Dublikar, Beck, Wiley & Mathews, (For Respondent Baker, Dublikar, Beck, Wiley & Mathews).

Robert J. Gehring and Saba Nishat Alam, Buechner, Haffer, Meyers & Koenig Co., LPA, (For Respondent Ohio Township Association Risk Management Authority).

Donald Patrick Kasson and Thomas Neil Spyker, Reminger Co., LPA, (For Respondent Public Entity Risk Services of Ohio).

OPINION

PER CURIAM

{¶1} Relator, Brian M. Ames ("Mr. Ames"), requests a writ of mandamus ordering respondents, Baker, Dublikar, Beck, Wiley & Mathews ("Baker Dublikar"), Public Entity

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Risk Services of Ohio ("PERSO"), and Ohio Township Association Risk Management Authority ("OTARMA") (collectively, "respondents"), to provide unredacted copies of invoices for legal services rendered by Baker Dublikar on behalf of its client, Rootstown Township ("Rootstown"). Mr. Ames asserts the invoices are public records subject to disclosure without redaction. Mr. Ames also seeks an award of statutory damages in the amount of $1, 000, attorney fees, and costs.

{¶2} A review of Mr. Ames's complaint reveals he has been provided with the legal invoices he sought, which were properly redacted per the attorney-client privilege exception. Furthermore, Mr. Ames cannot establish claims for statutory damages, attorney fees, and/or costs. Since Mr. Ames cannot establish any claim upon which relief may be granted, respondents' motions to dismiss are granted.

Substantive and Procedural Facts

{¶3} Since 2017, Mr. Ames has been involved in several cases against Rootstown in which he alleged violations of R.C. 121.22, the Open Meetings Act. Some of those cases are still pending.

{¶4} In his petition for a writ of mandamus against respondents, Mr. Ames alleges that he submitted a public record request pursuant to R.C. 149.43 to one Rootstown trustee and a Baker Dublikar attorney for invoices for the legal services the law firm provided to Rootstown that related to those cases (three cases and six appeals - four in the Eleventh District Court of Appeals and two before the Supreme Court of Ohio). He argues that because Baker Dublikar sent the invoices to PERSO, a third-party, and never sent them to Rootstown or OTARMA, the attorney-client privilege does not apply and the invoices should not have been redacted.

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{¶5} OTARMA is a self-insurance pool that provides Ohio townships with an alternative to traditional property and casualty insurance, including Rootstown in Portage County. A self-insurance pool is a not-for-profit association of members who join together for the purpose of sharing losses and spreading risks. OTARMA contracts with PERSO to administer insurance claims made against townships that are members of OTARMA. The billing records requested by Mr. Ames were issued by Baker Dublikar to PERSO and related to the Ames-Rootstown litigation.

{¶6} Baker Dublikar provided the requested invoices with the narrative portions of the bills "redacted as provided by law." The law firm asserted attorney-client privilege and provided Mr. Ames with the nonexempt portions of the bills, i.e., the general title of the matter being handled, the dates the services were performed, and the hours, rate, and money charged for the services.

{¶7} Mr. Ames sent a second public records request to Baker Dublikar, which, in turn, sent a reply stating, "We have responded to your public records request for copies of the invoices for legal services provided to the Rootstown Township Board of Trustees, to the extent required under Ohio law. We are ethically unable to provide copies without redacting all privileged communications, without an express waiver from [Rootstown], which we do not have."

{¶8} After filing his original petition with this court, Mr. Ames sent a third public records request "to counsel for each respondent." Mr. Ames did not attach a copy of that request to his later-filed amended petition, nor did he reference it in his attached "Affidavit of Verity." OTARMA asserts Mr. Ames never submitted a public records request to it until after OTARMA filed its motion to dismiss the original petition on the basis that no records

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had ever been requested by Mr. Ames. PERSO asserts the petition fails to allege that Mr. Ames made a request of PERSO - only to PERSO's counsel.

{¶9} Mr. Ames then filed an amended petition, requesting an order requiring respondents to "promptly prepare the public records requested and provide unredacted copies to him as required by R.C. 149.43(B)." More specifically, he contends that the invoices at issue are public records under the "quasi-agency test" and that the attorney-client privilege is limited to discussions in executive sessions held pursuant to R.C. 121.22(G)(3) and (G)(5). Mr. Ames also requests statutory damages, attorney fees, and costs.

{¶10} Respondents each filed a motion to dismiss in response to the amended petition. Respondents argue the redacted, narrative portions of the legal invoices fall under the protection of the attorney-client privilege since they are descriptions of legal services between a lawyer and a client. In addition, respondents assert they are not public entities required to comply with public records requests pursuant to R.C. 149.43. Finally, OTARMA and PERSO contend Mr. Ames's action is moot since he was provided with the redacted legal invoices he requested.

The Elements of a Mandamus Action

{¶11} "Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." R.C. 2731.01. The basic purpose of a writ of mandamus is to require a public official to complete a specific act which he has a legal obligation to perform. State ex rel. Cunningham v. Lucci, 11th Dist. Lake No...