State ex rel. Verhovec v. City of Marietta
| Decision Date | 04 December 2013 |
| Docket Number | Case No. 12CA52,Case No. 12CA53,Case No. 13CA2,Case No. 13CA1,Case No. 11CA29 |
| Parties | STATE OF OHIO EX REL. EDWARD VERHOVEC, Relator-Appellant, STATE OF OHIO EX REL. DOROTHY VERHOVEC, Relator-Appellant, v. THE CITY OF MARIETTA, et al., Respondents-Appellees. |
| Court | Ohio Court of Appeals |
DECISION AND
JUDGMENT ENTRY
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.
{¶ 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 reliefunder 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.
{¶ 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.
{¶ 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 andrecordings. 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."
{¶ 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.
{¶ 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.
{¶ 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.
{¶ 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 contractbetween 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...
To continue reading
Request your trial