[Cite as Cleveland Fire Fighters, Local 93 of the I.A.F.F. v. Cleveland, 2020-Ohio-4751.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CLEVELAND FIRE FIGHTERS,
LOCAL 93 OF THE I.A.F.F., :
Relator-Appellant, :
No. 109136
v. :
CITY OF CLEVELAND, :
Respondent-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 1, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-14-823955
Appearances:
Diemert & Associates Co., L.P.A., Joseph W. Diemert,
Jr., Thomas M. Hanculak, and Mark V. Guidetti, for
appellant.
Zashin & Rich Co., L.P.A., Jon M. Dileno, and Jessi L.
Ziska; Barbara Langhenry, Cleveland Director of Law,
and William Menzalora, Assistant Director of Law, for
appellee.
LARRY A. JONES, SR., J.:
In this appeal, relator-appellant, Association of Cleveland Fire
Fighters, Local 93 of the I.A.F.F. (“the Union” or “Local 93”), appeals from two
September 24, 2019 trial court orders: the first, its “judgment entry and opinion”
disposing of the parties’ motions for summary judgment, and the second, its “order
issuing writ.” For the reasons that follow, we affirm.
Procedural and Factual Background
This case was initiated by the Union in March 2014, when it
challenged respondent-appellee’s, the city of Cleveland, use of a noncompetitive
exam to fill vacancies in the city’s division of fire. The vacancies were for the high-
level ranks of battalion chief and assistant chief. Historically, those positions were
filled by applicants who took a competitive, rather than a noncompetitive, exam.
In its complaint, the Union sought a declaratory judgment and injunctive relief; it
also filed for a temporary restraining order and preliminary injunction ─ it sought
to enjoin the city from administering the noncompetitive exam. In April 2014, the
trial court dismissed the case on the ground that it lacked jurisdiction; Local 93
appealed and the city cross-appealed.
From January 2015 through March 2015, the city promoted six
captains to battalion chief and one battalion chief to assistant chief through the
noncompetitive exam process ─ a process the city contends was proper because
Local 93 did not seek a stay of execution pending the outcome of the appeal. In
April 2015, this court reversed the trial court’s judgment dismissing the Union’s
case. Assn. of Cleveland Firefighters v. Cleveland, 2015-Ohio-1538, 31 N.E.3d
1285, ¶ 1 (8th Dist.).
On remand, in August 2015, the trial court granted Local 93’s
request for injunctive relief and prohibited the city from making any further
promotions through the noncompetitive process; it ordered the city to “maintain
the status quo.”
Thereafter, Local 93 was permitted to file an amended complaint,
which included a writ of mandamus. In its writ, the Union requested that the city
[i]mmediately administer competitive examinations, certify eligibility
lists which would expire on July 2016, and make promotional
appointments therefrom to fill (through the competitive promotional
process) all vacancies created since the expiration of the last certified
civil service eligibility list as well as all vacancies which are created
during the life of the eligibility list certified through the competitive
promotional process.
The parties filed motions for summary judgment, and in September
2016, the trial court dismissed the case, and the Union appealed again. In 2017,
this court reversed the trial court a second time, and remanded the case to the trial
court to consider the case on its merits. Assn. of Cleveland Firefighters Local 93
I.A.F.F. v. Cleveland, 8th Dist. Cuyahoga No. 105033, 2017-Ohio-6887.
On remand for a second time, and as instructed by this court, the
trial court ruled on the parties’ motions for summary judgment. The court granted
Local 93’s declaratory judgment claim in part, and declared that the
noncompetitive process the city used in 2014 was unlawful. However, the trial
court denied Local 93’s request for a declaratory judgment that all current
assistant chief and battalion chief vacancies as well as any future vacancies be filled
through the competitive exam process. Further, the trial court denied the city’s
motion for summary judgment on the Union’s request in its writ that the city
immediately administer competitive exams, and allowed the parties to submit
additional briefing on that issue. In its supplemental briefing, the Union proposed
a promotional process, which was a revised proposal to the one previously
advocated for by the Union. The Union also sought, for the first time, back pay and
other benefits for those who would be promoted subject to the court’s order (i.e.,
those who were not promoted because of the city’s noncompetitive testing system).
On September 24, 2019, the trial court issued the two orders that are
the subject of this appeal. In its judgment entry and opinion, the trial court stated
that Local 93 “possesses a clear legal right to have all current vacancies in the
Assistant Chief and Battalion Chief ranks filled by competitive exam.” Likewise,
the court found that the city has a “corresponding legal duty to administer a
competitive exam to fill all current vacancies for the position of Assistant Chief and
Battalion Chief and that [Local 93] has no adequate remedy in the ordinary course
of law.”
However, the trial court denied Local 93’s request for back pay and
benefits, finding that it failed to establish the amount of damages with certainty, as
required by law. The court also denied Local 93’s request for attorney fees because
it did not find the city’s conduct to be “bad faith, vexatious, wanton, obdurate, or
oppressive.” The trial court further found that there was no “clear legal right to
negatively affect the position of the five captains1 the City promoted to Battalion
Chief during the course of the litigation.”
The writ order required the following of the city:
To immediately administer competitive examinations, certify
eligibility lists to restore the promotional cycle, and make promotional
appointments therefrom to fill all current vacancies in the Assistant
Chief and Battalion Chief ranks of the Division of Fire within six
months of this order.
The Union filed this appeal, raising the following three assignments
of error for our review:
I. The trial court erred by failing to order two separate civil service
promotional examinations ─ one for the battalion chief rank and one
for the assistant chief rank ─ and failing to divide the resultant
eligibility lists by the qualified candidates in each promotional period.
II. The trial court erred by failing to award back pay, seniority and
other benefits to the eventual appointees.
III. The trial court erred by failing to award attorneys’ fees to Local 93.
Law and Analysis
When reviewing a trial court’s decision regarding a summary
judgment motion, an appellate court conducts a de novo review. Doe v. Shaffer,
90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000); Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Thus, we must independently review
the record to determine if summary judgment was appropriate and need not defer
to the trial court’s decision. Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704,
711, 622 N.E.2d 1153 (4th Dist.1993); Morehead v. Conley, 75 Ohio App.3d 409,
1As mentioned, six captains were promoted to battalion chief, but one since retired,
leaving five at issue.
411-12, 599 N.E.2d 786 (4th Dist.1991). In determining whether a trial court
properly granted a summary judgment motion, an appellate court must review the
standard for granting a summary judgment motion as set forth in Civ.R. 56, as well
as the applicable law.
Under its first assignment of error, the Union contends that the two
subject orders issued by the trial court create an inconsistency and, therefore, we
should remand this case to the trial court so that it can do the following:
Order the City to abide by the Ohio Revised Code’s mandatory
competitive promotional examination procedure, clarify the specific
components of Local 93’s proposed writ that the Trial Court rejects,
require two competitive promotional exams (1 for each rank) be
conducted, with the test results divided into two categories based on
test takers’ eligibility to fill vacancies for the two promotional periods
involved, and allow the five already-promoted individuals to remain
in their positions but without accumulating seniority or [being]
eligible for promotion without subsequent competitive examination.
According to Local 93, although the trial court granted its writ of
mandamus, the court “fail[ed] to set forth the proper procedure that the City
should follow.” The Union maintains that the lack of specificity is particularly
troubling in this case because “[t]he City’s past actions demonstrate its
unwillingness to follow Chapter 124 of the Ohio Revised Code absent a clear and
explicit court order.”
Local 93 points to the following in the trial court’s orders as being
unclear or contradictory: (1) the judgment entry and opinion states that the city
has a “corresponding duty to administer a competitive exam to fill all current
vacancies for the positions of Assistant Chief and Battalion Chief”; (2) but the
judgment also states that the court “does not find a clear legal right and
corresponding duty supporting the promotion process identified in [Local 93’s]
proposed writ”; and (3) the writ “indicates a somewhat different determination”
than the judgment order because it orders the city to “immediately administer
competitive examinations” ─ which is different from the singular “exam” above-
referenced in the judgment entry. (All emphases added.)
Upon review, we do not find that the trial court’s orders are
ambiguous or unclear and, therefore, we find there is no need to remand this case
for clarification. After determining that the Union has a “clear legal right to have
all current vacancies in the Assistant Chief and Battalion Chief ranks filled by
competitive exam,” the judgment entry states that the court “will issue the subject
writ by separate order.” The writ order makes it clear what the city is to do:
“immediately administer competitive examinations, certify eligibility lists to
restore the promotional cycle, and make promotional appointments therefrom to
fill all current vacancies in the Assistant Chief and Battalion Chief ranks of the
Division of Fire within six months of this Order.”
We are not persuaded by Local 93’s contention that the case should
be remanded for clarification on whether the court’s order means the city should
administer the same exam for the two separate positions, or whether, as
historically has been done, administer two exams, one for each respective position.
In our view, the writ order makes it clear that two exams, one for each respective
position, are to be administered.
Further, the record indicates that that was the city’s understanding
as well: in its November 6, 2019 brief in opposition to the Union’s motion to stay
and set bond filed in the trial court, the city represented that it “has already begun
its implementation of the Court’s clear order, by preparing and presenting
legislation for bids from testing companies to prepare two separate tests ─ one for
Assistant Chiefs and one for Battalion Chiefs.”
We are likewise not persuaded by Local 93’s contention that there is
an inconsistency between the language in the trial court’s stating that the vacancies
for the assistant chief and battalion chief positions must be filled through the
competitive exam process and the language stating that the court “does not find a
clear legal right and corresponding duty supporting the promotion process
identified in [Local 93’s] proposed writ.” (Emphasis added.) The “proposed writ”
that the court referred to was the Union’s proposal set forth in its summary
judgment motion, which differed from what it originally proposed in its amended
complaint. The court granted a writ, albeit not as the Union had revised its
request. Moreover, the trial court detailed how the city was to proceed under the
writ.
In light of the above, the Union’s first assignment of error is
overruled.
In its second assignment of error, Local 93 challenges the trial
court’s decision to deny its request for back pay and other benefits. In response,
the city contends that the Union failed to request that relief in its original filing ─
its 2015 writ (the Union requested the relief for the first time in its 2019 motion for
summary judgment) ─ and that that failure was fatal to its request. The Union, on
the other hand, maintains that it was not precluded from such a request because its
2015 amended complaint sought in its prayer for relief “any and all other relief,
both legal and equitable that this Court is empowered to grant.”
Under Civ.R. 54(C), except in the cases of default judgments, the
trial court may award damages other than those requested in the pleading.
Specifically, the rule provides as follows:
A judgment by default shall not be different in kind from or exceed in
amount that prayed for in the demand for judgment. Except as to a
party against whom a judgment is entered by default, every final
judgment shall grant the relief to which the party in whose favor it is
rendered is entitled, even if the party has not demanded the relief in
the pleadings.
Civ.R. 54(C).
However, this case was a writ of mandamus. A writ of mandamus is
“an extraordinary writ which may be issued only where relators establish a clear
legal right to the relief prayed for; a clear legal duty upon respondents to perform
the act requested; and that relators have no plain and adequate remedy in the
ordinary course of the law.” (Emphasis added.) Morgan v. Cincinnati, 25 Ohio
St.3d 285, 496 N.E.2d 468 (1986), citing State ex rel. Butler v. Demis, 66 Ohio
St.2d 123, 124, 420 N.E.2d 116 (1981). Notwithstanding that the Union failed to set
forth a request for the specific relief it sought in its writ petition, for the reasons
that follow, we agree with the trial court’s decision to deny Local 93 back pay and
other benefits.
In State ex rel. Gibbons v. Cleveland, 9 Ohio St.3d 216, 459 N.E.2d
892 (1984), the Ohio Supreme Court stated the rule for public employees’ requests
for back pay. In Gibbons, the relators, police officers, sought back pay after certain
ordinances enacted by the city were declared invalid; the relators requested back
pay for time during which the city acted in reliance on the ordinances. The Ohio
Supreme Court held that a police officer “has no legal right to the salary and
benefits incidental to a rank prior to his [or her] appointment to that rank,
regardless of the reasons for the failure to make the appointment.” (Quotations
omitted.) Id. at 287. Two years later, the court created an exception to this
holding in Morgan.
In Morgan, the plaintiffs (Robert Morgan and Michael Hines) were
classified civil service employees and police officers for the city of Cincinnati.
Morgan and Hines sued the city, alleging that each had been delayed in his
promotion to the rank of police captain due to actions taken knowingly and in bad
faith by the city’s safety director. Both sought restoration of lost seniority and back
pay.
The parties stipulated to the following relevant facts. On November
8, 1975, a vacancy in the rank of police captain was created as the result of the
incumbent’s resignation. Four days later, a request to fill the vacancy was
transmitted to the city’s safety director for forwarding to the civil service
commission. At the time, there was no existing eligible list from which to make a
promotion to the vacant position. Under R.C. 124.44, therefore, the civil service
commission would have been required to hold a competitive examination for the
rank of captain within 60 days of the vacancy, or by January 7, 1976. When the
request to fill the vacancy was made, Morgan and Hines each had sufficient time in
grade as police lieutenants to qualify to take a timely administered competitive
promotional examination for the rank of police captain.
Notwithstanding the above, on November 12, 1975, two police
lieutenants who did not have sufficient time in grade to qualify sent a joint request
to delay the examination until after March 10, 1976, so that they could establish the
requisite time in grade requirements. The competitive examination was delayed
until March 18, 1976, or 131 days after the vacancy occurred. As a result of the
delay, the two previously ineligible lieutenants became eligible to take the exam,
along with Morgan and Hines (and others) who would have been eligible to take
the exam if it had been timely administered.
On May 27, 1976, the civil service commission posted the
promotional eligibility list that resulted from the delayed examination. Prior to
that date, two additional vacancies had occurred in the rank of police captain, so
there were three vacancies immediately available. Jeffrey Butler, one of the
lieutenants who would have been ineligible to take a timely administered
examination, ranked second on the eligibility list; plaintiff Morgan ranked fourth,
and plaintiff Hines ranked fifth. Both plaintiffs were eventually promoted to the
rank of police captain as additional vacancies occurred. However, the parties
stipulated to the following:
Had the competitive promotional examination for the classification
(rank) of Police Captain been administered within sixty (60) days of
the vacancy created by the November 8, 1975 retirement * * * Jeffrey
L. Butler [who placed second on the eligibility list] could not have
been certified for promotion to the rank of Police Captain * * *.
If plaintiff Morgan [who placed fourth on the eligibility list] had
received promotion to the rank of Police Captain on May 30, 1976, the
date Jeffrey L. Butler was promoted to the rank of Police Captain, he
would have been entitled to increased earnings totalling [sic] * * *
[$244.59] and his date of appointment as a Police Captain for
seniority purposes would have been May 30, 1976. * * *
If Plaintiff Hines had received promotion to the rank of Police Captain
on July 8, 1976, the date Robert L. Morgan was promoted to the rank
of Police Captain, he would have been entitled to increased earnings
totalling [sic] * * * [$2,651.88] and his date of appointment as a Police
Captain for seniority purposes would have been July 8, 1976 * * *.
Id. at 286.
The trial and appellate courts found that even though the city’s delay
of testing constituted “bad faith,” the Ohio Supreme Court’s holding in Gibbons, 9
Ohio St.3d 216, 459 N.E.2d 892, precluded the plaintiffs from obtaining back pay
and other benefits. Morgan at 287.
On appeal to the Ohio Supreme Court, the Morgan court held that
“where a civil service employee shows that a promotion to which he [or she] was
entitled was delayed as the result of actions taken by a municipality in violation of
R.C. 124.44, that employee is entitled to recover back pay and seniority for the
period of delay.” Id. at 289. The Morgan court stated, however, that, “Gibbons is
entirely different from the case at bar.” Morgan at id. Specifically, the court noted
that the city’s actions in Morgan were in violation of state law and were found to
be in bad faith. Id.
We find the facts of this case to be more on par with Gibbons than
Morgan. Specifically, there was no determination that the city was per se
precluded from administering noncompetitive exams for the battalion chief and
assistant chief positions. And some of the trial court’s decisions seem to indicate
that there is no such per se preclusion. For example, the trial court denied the
Union’s request for a permanent injunction prohibiting the use of noncompetitive
exams. The court also denied the Union’s request for a broad declaratory
judgment that the vacancies for all the battalion chief and assistant chief police
positions, including those yet to be created, be filled through the competitive civil
service examination process.
Local 93 also cites to two other Ohio Supreme Court cases in
support of its request for back pay and other benefits: State ex rel. Crockett v.
Robinson, 67 Ohio St.2d 363, 423 N.E.2d 1099 (1981), and State ex rel. Dean v.
Huddle, 45 Ohio St.2d 234, 344 N.E.2d 138 (1976). We find Crockett and Dean
distinguishable from this case. Specifically, they involve situations where the
employee was reinstated after discharge because of the city’s violation of the Ohio
Revised Code (Crockett) or reinstated after illegally being laid off (Dean).
Moreover, the employees in Crockett and Dean were able to prove with certainty
that, but for the unlawful acts of their employers, they would have been the
employees working in the respective positions; thus, their damages were
ascertainable with certainty. The trial court here found Local 93’s request for back
pay and other benefits lacking the requisite certainty and, therefore, denied the
Union’s request. We agree with the trial court’s finding.
In its decision denying the Union’s request for back pay and other
benefits, the trial court relied on the seminal case on this issue, State ex rel.
Bednar v. N. Canton, 69 Ohio St.3d 278, 631 N.E.2d 621 (1994). In Bednar, the
Ohio Supreme Court held that the relator “must first establish that the dismissal or
denial of promotion was wrongful. * * * Then, the relator must prove a clear right
to relief by establishing the amount due with certainty.” Id. at 283, citing State ex
rel. Martin v. Columbus, 58 Ohio St.2d 261, 389 N.E.2d 1123 (1979), and Crockett.
The Bednar court did not define what “wrongful” means in this
context. However, for the reasons discussed above, we do not find that the city’s
action in this case was “wrongful.” But more importantly, we agree with the trial
court’s assessment that the Union’s members did not establish with any certainty
that the city’s noncompetitive testing process denied any of the members a
promotion. We note that this case is distinguishable from Bednar, where the
employee had already taken a competitive examination, was scored, and an
eligibility list was created. Id. at 278. In contrast, here, the Union was asking the
trial court to find that had the city administered a competitive examination in
2014, and if members had taken it, they would have scored high enough to earn a
promotion. That type of speculation does not fulfill the requirement that a relator
“prove a clear right to relief by establishing the amount due with certainty.”
Bednar at id.
In light of the above, we find no error in the trial court’s denial of
Local 93’s request for back pay and other benefits. The second assignment of error
is therefore overruled.
In its final assignment of error, the Union challenges the trial court’s
decision to deny its request for attorney fees.
In Ohio, the general rule is that, absent a statutory provision
allowing attorney fees as costs, the prevailing party is not entitled to an award of
attorney fees unless the party against whom the fees are taxed was found to have
acted in bad faith. State ex rel. Kabatek v. Stackhouse, 6 Ohio St.3d 55, 55-56, 451
N.E.2d 248 (1983). Bad faith can involve conduct during litigation, but can also
involve conduct giving rise to a party’s claim. See, e.g., Brooks v. Dayton, 70 Ohio
App.3d 722, 723, 591 N.E.2d 1352 (2d Dist.1990). Trial court decisions on attorney
fees are within the court’s sound discretion and are reviewed for abuse of
discretion. SST Bearing Corp. v. Twin City Fan Cos., Ltd., 1st Dist. Hamilton No.
C-110611, 2012-Ohio-2490, ¶ 29.
The trial court in this case found “no bad faith, vexatious, wanton,
obdurate, or oppressive conduct necessary to allow attorney fees and therefore
decline[d] to issue a writ ordering payment of attorney’s fees * * *.” We decline to
disturb the court’s judgment. Deferring to the trial court’s judgment, as we must
under an abuse-of-discretion review, we do not find the court’s decision denying
the Union’s request for attorney fees was unreasonable or arbitrary. For the
reasons discussed earlier in this opinion, we agree with the trial court that the
city’s actions in this case did not amount to bad faith.
In light of the above, the third assignment of error is without merit
and is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
ANITA LASTER MAYS, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR