[Cite as State ex rel. Ames v. Baker, Dublikar, Beck, Wiley & Mathews,

.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO ex rel. CASE NO. 2021-P-0046 BRIAN M. AMES,

Relator, Original Action for Writ of Mandamus

-v-

BAKER, DUBLIKAR, BECK, WILEY & MATHEWS, et al.,

Respondents.

OPINION

Decided: January 30, 2023 Judgment: Petition dismissed

Brian M. Ames, pro se, 2632 Ranfield Road, Mogadore, OH 44260 (Relator).

James F. Mathews and Andrea K. Ziarko, Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street, North Canton, OH 44720 (For Respondent, Baker, Dublikar, Beck, Wiley & Mathews).

Robert J. Gehring and Saba Nishat Alam, Buechner, Haffer, Meyers & Koenig Co., LPA, 221 East Fourth Street, Suite 2300, Cincinnati, OH 45202 (For Respondent, Ohio Township Association Risk Management Authority).

Donald Patrick Kasson and Thomas Neil Spyker, Reminger Co., LPA, 200 Civic Center Drive, Suite 800, Columbus, OH 43215 (For Respondent, Public Entity Risk Services of Ohio).

MARY JANE TRAPP, J.

{¶1} In State ex rel. Ames v. Baker, Dublikar, Beck, Wiley & Mathews, --- Ohio

St. 3d ---,

, --- N.E.3d --- (“Ames II”), the Supreme Court of Ohio

determined that this court misapplied the Civ.R. 12(B)(6) standard of review. See id. at ¶ 18. According to the court, Mr. Ames alleged “[t]here is no attorney-client privileged

information reflected on the invoices.” Id. at ¶ 17. Instead of presuming the truth of his

allegation, as Civ.R. 12(B)(6) required,1 this court “concluded that the invoices contained

privileged information.” Id. Specifically, this court determined that “[a] review of the legal

invoices Baker Dublikar provided to Mr. Ames reveals * * * that the descriptions of the

legal services provided by counsel were appropriately redacted” and that “the legal

invoices * * * were properly redacted under the attorney-client privilege.” (Emphasis

added.) State ex rel. Ames v. Baker, Dublikar, Beck, Wiley & Mathews, 11th Dist. Portage

No. 2021-P-0046,

(“Ames I”). The Supreme Court reversed

and remanded for further proceedings and expressly instructed this court “to conduct an

in camera inspection of the contested invoices.” Ames II at ¶ 18.

{¶2} Upon remand from the Supreme Court of Ohio and in accordance with its

mandate, the respondents were ordered by this court to submit the unredacted copies of

the invoices for legal services the Baker, Dublikar, Beck, Wiley & Mathews law firm

(“Baker Dublikar”) provided to Rootstown that relate to the cases brought by Mr. Ames

against Rootstown, specifically, 2017CV00410, 2019CV00180, 2019CV00226,

2019PA00019, 2019PA00114, 2020PA00001, 2020PA00063, 2020-0248, and 2020-

1235, for an in camera inspection. On December 27, 2022, respondents submitted the

1. The court has also held that “unsupported conclusions of a complaint are not considered admitted * * * and are not sufficient to withstand a motion to dismiss.” State ex rel. Hickman v. Capots,

,

(1989). It is debatable whether Mr. Ames’ allegation was factual in nature. Mr. Ames has not challenged the extent of Baker’s redactions. See, e.g., State ex rel. Welden v. Ohio State Med. Bd.,

,

, ¶ 12 (10th Dist.). He is attempting to establish a new rule of law—the “[a]ttorney-client privilege does not apply to invoices for legal services provided to a public body.” Amended Petition at ¶ 52.

2

Case No. 2021-P-0046 invoices, and this court has reviewed each of the 24 invoices itemized in the “Public

Records Request-Privilege Log” submitted with the invoices.

In Camera Inspection

{¶3} Our in camera inspection of the unredacted invoices and our review of Mr.

Ames’ 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.

{¶4} In its opinion remanding this matter, the Supreme Court of Ohio reaffirmed

that “[u]nder existing caselaw, an invoice for a legal service provided to a public-office

client is a public record, with the caveat that the narrative portion of the invoice describing

the service is protected from disclosure by the attorney-client privilege.” Ames II at ¶ 15,

citing, inter alia, State ex rel. Dawson v. Bloom-Carroll Local School Dist.,

,

,

. This is because itemized bills “‘necessarily reveal

confidential information.’” Dawson at ¶ 28, quoting Hewes v. Langston,

(Miss. 2003).

{¶5} In Dawson, the court provided the rationale underlying the protection for the

narrative statements of legal services provided: “‘billing records describing the services

performed for [the attorney’s] clients and the time spent on those services, and any other

attorney-client correspondence * * * may reveal the client’s motivation for seeking legal

representation, the nature of the services provided or contemplated, strategies to be

employed in the event of litigation, and other confidential information exchanged during

3

Case No. 2021-P-0046 the course of the representation. * * * [A] demand for such documents constitutes “an

unjustified intrusion into the attorney-client relationship.”’” Id. at ¶ 28, quoting In re Horn,

(9th Cir. 1992), quoting In re Grand Jury Witness,

(9th Cir. 1982).

{¶6} “When a governmental body asserts that public records are excepted from

disclosure and such assertion is challenged, the court must make an individualized

scrutiny of the records in question. If the court finds that these records contain excepted

information, this information must be redacted and any remaining information must be

released.” State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland,

,

(1988), paragraph four of the syllabus; see also State ex rel. Natl.

Broadcasting Co., Inc. v. Cleveland,

,

(1991) (“An in

camera inspection remains the best procedure * * * [to] apply the relevant statutory

exceptions to the records”).

{¶7} The Supreme Court of Ohio has held that “the narrative portions of itemized

attorney-fee billing statements containing descriptions of legal services performed by

counsel are protected by the attorney-client privilege. * * * Other information on the billing

statements—e.g., the general title of the matter being handled, the dates the services

were performed, and the hours, rate, and money charged for the services—is considered

nonexempt and must be disclosed.” (Emphasis added.) State ex rel. Pietrangelo v. Avon

Lake,

,

,

; see also Dawson at ¶

28, quoting State ex rel. Alley v. Couchois, 2d Dist. Miami No. 94-CA-30,

, *4 (Sept. 20, 1995) (“To the extent that narrative portions of attorney-fee

statements are ‘descriptions of legal services performed by counsel for a client,’ they are

4

Case No. 2021-P-0046 protected by the attorney-client privilege because they ‘represent communications from

the attorney to the client about matters for which the attorney has been retained by the

client.’”). (Emphasis added.)

{¶8} In this matter, only the narrative portions of the billing records were

redacted. The dates of service, the hours, rates, and dollar amounts charged, along with

descriptions of any costs incurred for court reporters and like services, were not redacted.

{¶9} Following these standards, we find that the billing records provided to Mr.

Ames were all appropriately redacted, and that Mr. Ames’ public records request was

fulfilled according to law.

Final Disposition of the Motions to Dismiss

{¶10} “A motion to dismiss for failure to state a claim upon which relief can be

granted is procedural and tests the sufficiency of the complaint. * * * Thus, the movant

may not rely on allegations or evidence outside the complaint; otherwise, the motion must

be treated, with reasonable notice, as a Civ.R. 56 motion for summary judgment.” State

ex rel. Hanson v. Guernsey Cty. Bd. of Commrs.,

,

(1992).

{¶11} For example, in Pride v. Ohio Civ. Rights Comm., 10th Dist. Franklin No.

87AP-665,

(Dec. 3, 1987), the Tenth District recognized that remanding

a case to a trial court for an in camera inspection of records would, “as a practical matter,

require the court to consider matters outside the pleading.” Id. at *4. Therefore, it stated,

“where a civil defendant files a motion to dismiss in cases such as this, the court may

convert the matter to a motion for summary judgment pursuant to Civ.R. 12(B) to expedite

the matter.” Id.

5

Case No. 2021-P-0046 {¶12} However, “[m]aterial incorporated in a complaint may be considered part of

the complaint for purposes of determining a Civ.R. 12(B)(6) motion to dismiss.” State ex

rel. Crabtree v. Franklin Cty. Bd. of Health,

,

(1997), fn. 1. Further, “[a] court is not required to accept allegations in a complaint as

true when they are contradicted by documents attached to the complaint.” State ex rel.

Washington v. D’Apolito,

,

,

.

{¶13} Here, the Supreme Court of Ohio expressly acknowledged that “the

materials incorporated into Ames’s petition included redacted invoices sent to Ames by

the Baker firm.” (Emphasis sic.) Ames II at ¶ 16. We find no Ohio authority holding that

redaction (or lack thereof) changes a document’s identity. Thus, Baker’s unredacted

invoices may be considered under Civ.R. 12(B)(6). See Allied Erecting & Dismantling

Co., Inc. v. U.S. Steel Corp., N.D.Ohio No. 4:12CV1390,

, *1 (Sept. 27,

2013), fn. 1 (court reviewed redacted and unredacted versions of the controlling contracts

without converting a motion to dismiss into one for summary judgment); DeLoge v. Desoto

Cty. Sheriff’s Dept.,

(Miss.App. 2017) (court’s in camera review of

documents was not outside of the pleadings as would require the court to convert the

motion to dismiss into one for summary judgment).

{¶14} Inasmuch as we have determined as a matter of law that Mr. Ames is not

entitled to receive the unredacted attorney fees invoices and that respondents did not fail

to comply with obligations under R.C. 149.43, we determine Mr. Ames has failed to state

a claim for statutory damages, attorney fees, or costs.

{¶15} In conclusion, there are no claims upon which relief can be granted since

Mr. Ames received the legal invoices he requested, which were properly redacted under

6

Case No. 2021-P-0046 the attorney-client privilege. Further, Mr. Ames cannot establish claims for statutory

damages, attorney fees, or costs. Thus, it appears beyond doubt that he can prove no

set of facts entitling him to the requested writ of mandamus, and we grant respondents’

motions to dismiss.

JOHN J. EKLUND, P.J., concurs,

THOMAS R. WRIGHT, J., concurs in judgment only.

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Case No. 2021-P-0046