THE STATE EX REL. HOGAN LOVELLS U.S., L.L.P., ET AL. v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION.
No. 2019-1511
Supreme Court of Ohio
May 26, 2021
Slip Opinion No. 2021-Ohio-1762
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Hogan Lovells U.S., L.L.P. v. Ohio Dept. of Rehab. & Corr., Slip Opinion No. 2021-Ohio-1762.]
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2021-OHIO-1762
THE STATE EX REL. HOGAN LOVELLS U.S., L.L.P., ET AL. v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Hogan Lovells U.S., L.L.P. v. Ohio Dept. of Rehab. & Corr., Slip Opinion No. 2021-Ohio-1762.]
Mandamus—Public-records law—Records covered by the attorney-client or attorney-work-product privilege are not public records—Records that relate or refer to an inmate are not public records and are exempt from disclosure under
(No. 2019-1511—Submitted January 26, 2021—Decided May 26, 2021.)
IN MANDAMUS.
Per Curiam.
{¶ 1} This is the second public-records action filed in this court by relators, Hogan Lovells U.S., L.L.P., and Elizabeth Och (collectively, “Hogan Lovells“), against respondent, the Ohio Department of Rehabilitation and Correction (“DRC“).
{¶ 2} We deny the writ in this case. But because DRC failed to timely respond to Hogan Lovells‘s request, we grant Hogan Lovells‘s request for an award of statutory damages in the amount of $500. We deny Hogan Lovells‘s request for an award of court costs. We defer our decision on Hogan Lovells‘s request for attorney fees pending Hogan Lovells‘s submission of an itemized application.
I. BACKGROUND
{¶ 3} In March 2016, Hogan Lovells asked DRC to produce records relating to drugs intended to be used or considered for use in lethal injections. Id. at ¶ 2. After nearly nine months had passed without DRC providing a substantive response, Hogan Lovells filed a mandamus action in this court. Id. at ¶ 3-4. DRC eventually gave Hogan Lovells some responsivе records, but it withheld or redacted other records based on a claimed exemption under
{¶ 4} We granted Hogan Lovells‘s requested writ in part, ordering DRC to produce redacted copies of four pieces of correspondence that DRC previously had withheld in their entirety. Hogan Lovells, 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, at ¶ 24. But we denied the writ concerning other records, either because protected information was “inextricably intertwined,” id. at ¶ 24, with the remainder of the information in the record or because DRC had created or received the records after Hogan Lovells had made its request. Id. at ¶ 24, 30, 47. We determined that
{¶ 5} In July 2019, Hogan Lovells made another request for records relating to DRC‘s plans for carrying out executions by lethal injection. Hogan Lovells sent the request by e-mail to DRC‘s general public-information address, with “Ohio public records request” written in the subject line. This e-mail request was similar to the one Hogan Lovells had made in 2016 and sought 16 specific records that postdated the first request. Hogan Lovells brought this action in November 2019, after DRC had failed to acknowledge or respond to the request for more than three months. In addition to the records, Hogan Lovells seeks awards of statutory damages, attorney fees, and court costs.
{¶ 6} Four days after Hogan Lovells filed its complaint, DRC responded to the records request. Although DRC provided more than 120 pages of documents, it asserted that other documents were exempt from disclosure. Two specific requests—Nos. 11 and 16—are now at issue.
{¶ 7} In request No. 11, Hogan Lovells asked for correspondence between DRC and any other party from January 1, 2019, to July 19, 2019, “regarding any considered, proposed, or current execution protocols, regulations, guidelines, checklists, notes, or other documents that instruct or direct the carrying out of an execution.” DRC produced a policy that establishes guidelines for carrying out executions. That policy is labeled “01-COM-11” and is dated as being effective October 7, 2016. But DRC withheld four other responsive documents from Hogan Lovells‘s request No. 11: (1) a summary of execution-protocol options prepared by DRC‘s chief counsel, (2) a May 16, 2019 e-mail and attached document sent by DRC‘s chief counsel to two DRC employees, (3) a May 21, 2019 e-mail and attached document sent by a DRC employee to DRC‘s chief counsel, and (4) a June 11, 2019
{¶ 8} In request No. 16, Hogan Lovells asked for “[r]ecords pertaining to training activities or exercises related to execution prоcedures or protocol from January 1, 2019 through [July 19, 2019], including any and all records pertaining to any substances used during the training exercises and including any reports, evaluations, or other documents produced pursuant to such trainings.” In response to that request, DRC produced training logs, training forms, agendas for planning and status meetings, and execution-team training schedules. But DRC withheld records of trainings or exercises conducted for the execution of specific inmates. DRC asserted that those records were exempt under
{¶ 9} After DRC filed its answer to Hogan Lovells‘s complaint, we granted an alternative writ and ordered the parties to submit evidence and file briefs in accordance with S.Ct.Prac.R. 12.05. 158 Ohio St.3d 1480, 2020-Ohio-1487, 143 N.E.3d 516. Pursuant to this court‘s subsequent order, DRC filed under seal for in camera inspection unredacted copies of all the records that it had withheld in response to Hogan Lovell‘s request Nos. 11 and 16. 159 Ohio St.3d 1467, 2020-Ohio-3884, 150 N.E.3d 121.
II. ANALYSIS
{¶ 10}
A. Hogan Lovells‘s claim is not moot
{¶ 11} DRC argues that this case is moot because it has provided all nonexempt records responsive to Hogan Lovells‘s request. But as we discuss below, questions remain about whether DRC has properly withheld records (or portions of records) based on claimed statutory exemptions. And even if Hogan Lovells is not entitled to additional records, its requests for awards of statutory damages, attorney fees, and court costs arе not moot. Because these matters are still in dispute, we must address the merits of Hogan Lovells‘s claim.
B. Request No. 11
{¶ 12} After learning that DRC had withheld four records in response to request No. 11 based on claims of attorney-client and work-product privilege, Hogan Lovells demanded that DRC produce copies of those records with any privileged information redacted. DRC eventually acceded to Hogan Lovells‘s demand by providing copies that were almost entirely redacted. The dispute concerning request No. 11 now centers on whether DRC‘s initial refusal to provide the records was proper and whether DRC‘s later redaction of the records was too extensive.
{¶ 13} Hogan Lovells does not squarely challenge DRC‘s claim that the four records, at least to some extent, are covered by the attorney-client or attorney-work-product privilege. It is well established that records covered by the attorney-client privilege are not public records. State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 26 (applying
{¶ 14} In demanding that DRC disclose more of the records with fewer redactions, Hogan Lovells relies on
{¶ 15} Because Hogan Lovells challenges the extent to which DRC has withheld records responsive to request No. 11, we must individually scrutinize the records to determine whether they contain nonprivileged information. State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988), paragraph four of the syllabus.
1. Chief counsel‘s summary of protocol options
{¶ 16} The first withheld record is a three-page document authored by DRC‘s chief counsel that identifies numerous drugs and combinations of drugs that could be used in carrying out lethal injections. The document describes drug protocols used by other states and identifies advantages of implementing certain alternatives. When
{¶ 17} The attorney-client privilege applies to communication that facilitates an attorney‘s provision of legal services or advice to a client. State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 27. The рrivilege is not restricted just to the provision of pure legal advice, but also covers the attorney‘s own factual investigation when that investigation is “incident to or related to any legal advice” the attorney gives. Id. at ¶ 29. The chief counsel‘s protocol-options summary meets this standard, as it communicates information and advice to DRC concerning how DRC may legally carry out executions. We hold, therefore, that DRC properly withheld the protocol-options summary under the attorney-client privilege.
2. May 16, 2019 e-mail and attachment
{¶ 18} The second withheld record consists of a one-page e-mail sent by DRC‘s chief counsel to two DRC employees, with a five-page document attached. The five-page document is similar to the protocol-options summary discussed above: it lists numerous drugs or combinations of drugs that could be used to carry out lethal injections, identifies drugs that are used in other states, and discusses various factors that could be relevant to the possible use of different drugs. It also refers to expert-witness testimony related to these issues. DRC completely redacted this document, except for notations of “ATTORNEY WORK PRODUCT,” “PRIVILEGED AND CONFIDENTIAL,” and “NOT FOR PUBLIC RELEASE” on each page. (Capitalization sic.) Just as with the protocol-options summary, we hold that DRC properly withheld the five-page attachment to the May 16, 2019 e-mail under the attorney-client privilege.
{¶ 19} Hogan Lovells argues, however, that DRC improperly redacted nonprivileged information in the May 16, 2019 e-mail itself. Specifically, Hogan Lovells questions DRC‘s redaction of part of the document‘s name in the e-mail‘s header, arguing that “[a] single line description of a document cannot by any reasonable stretch of the imagination constitute legal advice.”
{¶ 20} To support its claim, Hogan Lovells relies on State ex rel. Anderson v. Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, a case involving a request for itemized billing statements for attorney services. In Anderson, we recognized that “the narrative portions of itemized attorney-billing statements containing descriptions of legal services performed by counsel for a client are protected by the attorney-client privilege.” Id. at ¶ 13. But we held that other parts of billing statements—“e.g., the general title of the matter being handled, the dаtes the services were performed, and the hours, rate, and money charged for the services“—are nonexempt and must be disclosed under
{¶ 21} There is an important difference between the records at issue in Anderson and the record at issue here. Anderson involved attorney-billing statements that described legal services—they were secondary references to already-completed legal work. The billing statements were not themselves attorney-client communications. Production of the billing statements with redactions was appropriate because parts of the statements did not disclose protected information. Here, in contrast, the e-mail is the attorney-client communication itself. The privilege applies to the whole e-mail because the entire document constitutes communication between an attorney and a client that facilitated the attorney‘s provision of legal services or advice. See Toledo Blade, 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, at ¶ 27. There was no need for DRC to dissect the e-mail to determine whether аn isolated word or phrase was not fundamental to the chief counsel‘s provision of legal services. See id. at ¶ 26. We therefore hold that DRC properly
3. May 21, 2019 e-mail and attachment
{¶ 22} The next withheld record consists of an e-mail sent by a DRC employee to DRC‘s chief counsel, with a three-page document attached. There is no message in the e-mail. The three-page document makes recommendations about how Ohio might satisfy concerns raised by expert witnesses who had testified in the federal-court litigation involving Ohio‘s execution protocol, and it notes that the use of a particular drug withstood a legal challenge in another state. Except for the heading “Ohio Lethal Injection Protocol Considerations & Recommendations,” which appears at the beginning of the three-page document, the document that DRC gave to Hogan Lovells is completely redacted.
{¶ 23} The attorney-client privilege extends to communication that facilitates an attorney‘s provision of legal services or advice, not just to discrete lines offering a legal opinion. See Toledo Blade at ¶ 27. Hogan Lovells does not address why it believes that DRC improperly withheld and/or redacted this record. Although the author of the e-mail does not expressly ask for the chief counsel‘s legal advice, the communication clearly is part of an ongoing discussion within DRC about Ohio‘s effort to develop an execution-drug protocol that withstands legal scrutiny. Therefore, for the reasons addressed in the previous two sections, we hold that DRC properly withheld the May 21, 2019 e-mail and its attachment under the attorney-client privilege.
4. June 11, 2019 e-mail and attachment
{¶ 24} This record consists of a one-page e-mail sent by DRC‘s chief counsel to the governor‘s chief counsel, with a 29-page document attached. There is no message in the e-mail.
{¶ 25} Hogan Lovells argues that DRC improperly withheld and redacted the 29-page document, which is a proposed draft of an updated version of 01-COM-11
{¶ 26} Hogan Lovells concedes that any suggested changes to 01-COM-11 made by DRC‘s chief counsel are protected by the attorney-client privilege, but it argues that the remaining portions of the draft are not protected. In particular, Hogan Lovells contends that the document‘s subheadings and a section defining terms are not privileged.
{¶ 27} Hogan Lovells argues that the document is protected from disclosure only to the extent that it transmits legal advice. This view of the attorney-client privilege is too narrow. The privilege, again, extends to communication that facilitates an attorney‘s provision of legal services or advice, not just to discrete lines offering a legal opinion. See Tоledo Blade, 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, at ¶ 27. Moreover, there is communicative value in what DRC‘s chief counsel changed in 01-COM-11 and in what he left alone.
{¶ 28} Hogan Lovells also points out that a record is not exempt from disclosure under
{¶ 29} For these reasons, we hold that DRC properly withheld the June 11, 2019 e-mail and its attachment under the attorney-client privilege. Hogan Lovells is not entitled to a writ of mandamus concerning request No. 11.
C. Request No. 16
{¶ 30} In request No. 16, Hogan Lovells asked for “[r]ecords pertaining to training activities or exercises related to execution procedures or protocol from January 1, 2019 through [July 19, 2019], including any and all records pertaining to any substances used during the training exercises and including any reports, evaluations, or other documents produced pursuant to such trainings.” DRC submitted for in camera inspection 210 pages of records that it withheld in response to request No. 16. DRC argues that the withheld records are exempt as “records of inmates” under
1. Laches
{¶ 31} As an initial matter, DRC argues that any claim concerning request No. 16 is barred under the doctrine of laches because Hogan Lovells failed to previously object to DRC‘s decision to withhold the records under
2. Summary of the records
{¶ 32} All the records withheld in response to request No. 16 relate to activities that occurred in January 2019, when DRC was preparing for the anticipated execution of Warren Henness, who had been scheduled to be executed in February 2019. On January 25, 2019, the governor issued a warrant of reprieve delaying Henness‘s execution.
{¶ 33} The withheld records are divided into three parts. The first part consists of reports and memoranda that document, for example, physical and mental-health assessments of Henness and the relocation of Henness to different areas within the prison that he was being housed. The second part of the withheld records consists of “activity logs” and “incident briefings.”
{¶ 34} The majority of the records in the third part of the withheld records are similar to records that DRC already has provided Hogan Lovells. In response to request No. 16, DRC gave Hogan Lovells records relating to execution-training activities that took place in June and July 2019. Those records were unrelated to the anticipated execution of any particular inmate. The withheld records consist of the same form documents that were used in June and July 2019, but they document four rehearsals that were conducted in anticipation of Henness‘s February 2019 execution. Although many of the withheld records include Henness‘s name, they do not appear to provide any information about Henness himself.
3. R.C. 5120.21(F)
{¶ 35} DRC argues that the above records are exempt as “records of inmates” under
Except as otherwise provided in division (C) of this section, records of inmates committed to [DRC] as wеll as records of persons under the supervision of the adult parole authority shall not be considered public records as defined in section 149.43 of the Revised Code.
{¶ 36} The term “records of inmates” is not defined by statute, so we must determine its plain and ordinary meaning. Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 17. Because the definitions of “records” and “inmates” are not in question, the meaning of “records of inmates” turns on “of,” a word of many uses. See Webster‘s Third New International Dictionary 1565 (1993) (listing 20 senses and definitions). “Of,” for example, may be used as a function word “after a noun indicating the maker” or “indicating a possessive relationship.” Id. But these and other definitions do not fit this context. Here, “of” simply means “relating to,” “with reference to,” or “about.” Id. So in looking at
{¶ 37} Hogan Lovells argues that this expansive understanding of “records of inmates” does not fit within the context of
{¶ 38} Hogan Lovells‘s argument fails with respect to
{¶ 39} Under Hogan Lovells‘s argument, that would leave the medical records described in
{¶ 40} Finally, Hogan Lovells argues that statutory exemptions to Ohio‘s Public Records Act must be construed strictly against a public office. See State ex rel. McGowan v. Cuyahoga Metro. Hous. Auth., 78 Ohio St.3d 518, 519, 678 N.E.2d 1388 (1997). But here, because there is no ambiguity as to the term “records of inmates,” there is no need to resort to that rule of construction.
{¶ 41} The question before this court is whether the records DRC withheld in response to request No. 16 are records that relate or refer to an inmate. We hold that the withheld records fit within that definition because they provide specific information about Henness, document the activities that DRC undertook in preparing to execute him, and refer to facts, circumstances, or activities specifically related to Henness.
{¶ 42} Hogan Lovells is not entitled to a writ of mandamus concerning request No. 16.
D. Statutory damages
{¶ 43} “If a request meets the form and transmission requirements of
{¶ 44} Although DRC ultimately produced responsive records, it did not do so until November 8, 2019, four business days after Hogan Lovells filed its complaint. DRC acknowledges that that production was not made within a reasonable period of time, as required under
{¶ 45}
The amount of statutory damages shall be fixed at one hundred dollars for each business day during which the public office or person responsible for the requested public records failed to comply with an obligation in accordance with division (B) of this section, beginning with the day on which the requester files a mandamus action to recover statutory damages, up to a maximum of one thousand dollars.
Because statutory damages accrue at $100 per day “beginning with the day on which the requester files a mandamus action,”
E. Attorney fees
{¶ 46} Even though a writ of mandamus is not appropriate in this case, Hogan Lovells still could be entitled to an award of attorney fees. Under
{¶ 47} Although DRC concedes that its production of responsive records was not timely, it argues that we should decline to award attorney fees pursuant to
{¶ 48} We will determine whether Hogan Lovells is entitled to an award of its attorney fees and whether it would be appropriate to reduce any such award after Hogan Lovells submits evidence supporting the amount and reasonableness of its fees. Hogan Lovells‘s application shall be limited to the fees it incurred before DRC provided the nonexempt public records on November 8, 2019, plus the fees it incurs in proving the reasonableness and amount of its fees and in otherwise litigating its entitlement to fees.
F. Court costs
{¶ 49} Because we are not issuing a writ of mandamus, Hogan Lovells is entitled to an award of its court costs only if we determine that DRC acted in bad faith by voluntarily producing the responsive public records to Hogan Lovells after Hogan Lovells commenced this action. See
III. CONCLUSION
{¶ 50} We deny Hogan Lovells‘s request for a writ of mandamus but award statutory damages in the amount of $500. Hogan Lovells shall file an itemized application for attorney fees. Hogan Lovells‘s request for an award of court costs is denied.
Writ denied.
O‘CONNOR, C.J., and FISCHER and BRUNNER, JJ., concur.
DONNELLY, J., concurs in judgment only.
KENNEDY, J., concurs in part and dissents in part, with an opinion joined by DEWINE and STEWART, JJ.
{¶ 51} I concur in the majority‘s holding that certain records that were requested by relators, Hogan Lovells, U.S., L.L.P., and Elizabeth Och (collectively, “Hogan Lovells“) are exempt from disclosure because those records are protected by the attorney-client privilege (Hogan Lovells‘s request No. 11). I part ways with the majority, however, with respect to its holding that other records sought by Hogan Lovells in its request No. 16 are also exempt from disclosure.
{¶ 52} In request No. 16, Hogan Lovells asked respondent, the Ohio Department of Rehabilitation and Correction (“DRC“) to produce “[r]ecords pertaining to training activities or exercises related to execution procedures or protocol from January 1, 2019 through [July 19, 2019], including any and all records pertaining to any substances used during the training exercises and including any reports, evaluations, or other documents produced pursuant to such trainings.” DRC produced some relevant records pursuant to that request but withheld other responsive records that contained the name of an inmate, Warren Henness, asserting that those records were exempt from disclosure under
{¶ 53} The potential impact of today‘s decision is far-reaching. The lead opinion concludes that any record which in any way relates to an inmate is not a public record, shielding such documents from Ohio‘s Public Records Act. Arguably
{¶ 54} Because the term “records of inmates” as used in
The plain meaning of
{¶ 55} I agree with the lead opinion that determining the plain and ordinary meaning of the term “records of inmates” is the key to resolving this case. But the lead opinion doеs not focus on the language and design of
{¶ 56}
{¶ 57} When considering the particular language of
{¶ 58} When
{¶ 59}
{60} To start,
{61}
{62}
{63}
{64}
{65}
{66}
{67} Construing the language of
{68} The lead opinion takes a far more expansive view of
{69} Second, pursuant to
Hiding elephants in mouseholes
{71} Under the lead opinion‘s interpretation of
The lead opinion‘s interpretation is contrary to our jurisprudence and the Ohio Administrative Code
{72} Further, the lead opinion‘s reasoning is contrary to our own caselaw. If
{73} If
{74} Moreover, the lead opinion‘s interpretation of the meaning of “records of inmates” conflicts with the Ohio Administrative Code‘s definition of what cоnstitutes a public record.
The lead opinion‘s interpretation is contrary to the purpose of Ohio‘s Public Records Act
{75} “[T]he purpose of Ohio‘s Public Records Act,
{76} The lead opinion would exempt most of DRC‘s records from the definition of public records. The treatment of inmates, who are already voiceless to a great extent, would be a governmental secret. Without access to reсords regarding the treatment of inmates, Ohioans would be left with no evidence of how their government fulfilled one of its essential missions.
{77} Because in my view
Applying R.C. 5120.21(F) to request No. 16
{78} To the extent that DRC claims that the records it has that are responsive to Hogan Lovells‘s request No. 16 are exempt from disclosure, the only records exempt under
{79} In request No. 16, Hogan Lovells seeks “[r]ecords pertaining to training activities or exercises related to execution procedures or protocol from January 1, 2019 through [July 19, 2019], including any and all records pertaining to any substances used during the training exercises and including any reports, evaluations, or other documents produced pursuant to such trainings.” There is not a specific indication excluding such reports in
{80} Turning to the requested documents at issue, I would hold that most of the documents withheld by DRC relating to the preparations for the execution of Henness were wrongfully withheld. Those documents are fundamentally concerned with the prison‘s processes in preparing for an execution and do not include the type of information prohibited from being disclosed by
{82} The bulk of the material that DRC submitted for in camera review in this case regarding request No. 16 concerns institutional activity and should be provided to Hogan Lovells; the exception from the definition of public records in
Court costs, statutory damages, and attorney fees
{83} Because I would order DRC to comply with
{84} Moreover, I dissent from the majority‘s judgment awarding Hogan Lovells only $500 in statutory damages; since more than ten days will have passed from the date on which Hogan Lovells‘s filed its compliant for a writ of mandamus to the date on which DRC would provide the requested records, I would award Hogan Lovells the maximum amount of statutory damages, $1,000. A court may decline to award statutory damages or may reduce the amount of the award if it finds that (1) based on the public-records law that existed at the time of the alleged conduct that constituted the failure to comply with
{85} Neither of those reduction factors apply in this case. DRC failed to respond to Hogan Lovells within an acceptable period of time based on an overly expansive interpretation of the term “records of inmates.” This decision falls well outside the conduct that a well-informed public office reasonably would believe complies with Ohio‘s Public Records Act.
{86} Like the majority, I would award reasonable attorney fees to Hogan Lovells. But I would not limit the award to work performed prior to November 8, 2019. I would include attorney fees for all the work related to request No. 16. I would also make a final determination on the amount of attorney fees after reviewing an itemized billing statement submitted by Hogan Lovells—which must be supported by independent evidence—demonstrating the reasonableness of the hourly rates charged and the hours billed. See
{87} Indeed, under
Conclusion
{88} I concur in the majority‘s judgment that the records requested by Hogan Lovells pursuant to request No. 11 are exempt from disclosure because those records are protected by the attorney-client privilege. However, I dissent from the majority‘s judgment regarding Hogan Lovells‘s request No. 16. Because the records-of-inmates exemption under
{89} Therefore, for the foregoing reasons, I concur in part and dissent in part from the judgment of the majority.
DEWINE and STEWART, JJ., concur in the foregoing opinion.
Graydon, Head & Ritchey, L.L.P., John C. Greiner, and Darren W. Ford, for relators.
Isaac, Wiles, Burkholder & Teetor, L.L.C., Mark Landes, and Aaron M. Glasgow, for respondent.