Gales v. Ohio Dept. of Public Safety

[Cite as Gales v. Ohio Dept. of Public Safety, 2021-Ohio-216.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Timothy Gales, :

Plaintiff-Appellant, :
Nos. 19AP-720
v. : (C.P.C. No. 19CV-3311)

Ohio Department of Public Safety, et al., : (REGULAR CALENDAR)

Defendants-Appellees. :

D E C I S I O N

Rendered on January 28, 2021

On brief: Timothy Gales, pro se. Argued: Timothy Gales.

On brief: Dave Yost, Attorney General, and Matthew J.
Karam, for appellees.

APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

{¶ 1} Plaintiff-appellant, Timothy Gales, appeals from a decision of the Franklin
County Court of Common Pleas granting the motion to dismiss of defendants-appellees,
Ohio Department of Public Safety ("ODPS") and Ohio State Highway Patrol ("OSHP")
(collectively "appellees"). For the reasons that follow, we affirm.
I. Facts and Procedural History
{¶ 2} Gales is a former employee of the OSHP, which is a division of the ODPS.
(May 20, 2019 Mot. to Dismiss at 2.) While employed by the OSHP, Gales was a member
of the Fraternal Order of Police ("FOP"). (Apr. 22, 2019 App. to Vacate at 1.) Although not
directly relevant to the matter presently before the court, we begin with a brief summary
of the prior history of the parties and events leading up to the instant matter to provide
context to our analysis of Gales' appeal.
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{¶ 3} Effective July 1, 2012, the State of Ohio ("the state") and FOP entered into
a collective bargaining agreement ("CBA") which permitted the parties to submit certain
disputes to arbitration. State v. FOP of Ohio, Inc., 10th Dist. No. 16AP-457, 2017-Ohio-
1382, ¶ 2. On March 1, 2013, the director of ODPS issued a letter to Gales informing him
that his employment had been terminated for violation of workplace rules, violation of
Ohio law, and "actions that brought discredit" upon ODPS. Id. The termination was the
culmination of a workplace investigation into allegations that Gales had sold numerous
vehicles that he purchased at auction to members of the public without obtaining a dealer
or salvage license from the Ohio Bureau of Motor Vehicles. Id.
{¶ 4} Pursuant to the terms of the CBA, Gales filed a grievance challenging his
termination. Id. at ¶ 3. Subsequently, the parties submitted the matter to arbitration. Id.
Following a two-day hearing in September 2014, the arbitrator1 issued a decision and
award dated November 24, 2014 which modified Gales' termination to a one-month
suspension without pay. Id.
{¶ 5} On February 20, 2015, the state filed an "application and motion to vacate
arbitration award" in the trial court. Id. at ¶ 4. On March 20, 2015, FOP responded in an
"answer and counterclaim" asserting the trial court should deny the state's motion to
vacate and seeking an order (1) confirming the arbitration award, (2) requiring the state
to pay Gales any and all back pay and benefits, (3) awarding interest to Gales, and
(4) requiring the state to pay all costs. Id.
{¶ 6} On May 19, 2016, the trial court issued a decision and entry denying the
state's motion to vacate the arbitration award and granting FOP's motion to confirm the
arbitration award. Id. at ¶ 7. The trial court also awarded both prejudgment and
postjudgment interest on the back pay due to Gales from November 24, 2014 until the
date of Gales' reinstatement. Id. at ¶ 9.
{¶ 7} The state filed a timely appeal of the judgment of the trial court. Id. at ¶ 9.
On April 13, 2017, this court issued a decision which affirmed the judgment of the trial
court in its entirety. Id. at ¶ 31.
{¶ 8} On May 15, 2017, Gales was reinstated to his position as an enforcement
agent with OSHP/ODPS. (App. to Vacate at 6.) On January 11, 2018, Gales became the

1 The arbitrator was E. William Lewis. (App. to Vacate at 5.)
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subject of an administrative investigation. Id. The investigation concerned allegations
by ODPS that Gales breached his obligation offset as provided for in the November 24,
2014 arbitration award by failing to disclose all income earned from other employment
during his absence subsequent to his previous termination. Id. at 6-7. Ultimately, on
March 20, 2018, Gales was terminated from his employment for being untruthful
regarding secondary employment. (Id. at 8; Mot. to Dismiss at 2.)
{¶ 9} Gales' termination was grieved and proceeded to arbitration on
September 10, 2018. (App. to Vacate at 9; Mot. to Dismiss at 2.) The parties to the
arbitration included the FOP and appellees. (App. to Vacate at 9.) On January 25, 2019,
the arbitrator2 issued an arbitration award denying the grievance and upholding Gales'
termination. Id. at 13.
{¶ 10} On April 22, 2019, Gales filed his "application to vacate arbitration award, to
non-party" in the Franklin County Court of Common Pleas, seeking to vacate the arbitration
award issued on January 25, 2019 which denied Gales' grievance and upheld Gales'
termination from employment.3 On May 20, 2019, appellees responded to Gales'
application to vacate by filing a motion to dismiss, arguing the trial court should dismiss
the complaint in its entirety pursuant to Civ.R. 12(B)(1) for lack of subject-matter
jurisdiction. On June 4, 2019, Gales filed an "answer" in response to appellees' motion to
dismiss.
{¶ 11} In a September 19, 2019 entry, the trial court granted appellees' motion to
dismiss, finding that Gales lacked standing to petition the court to vacate the January 25,
2019 arbitration award. More specifically, after first determining that the motion should
be evaluated under the Civ.R. 12(B)(6) standard as opposed to the Civ.R. 12(B)(1) standard,
the trial court reviewed the CBA attached to Gales' application to vacate and found that the
CBA failed to confer the requisite standing under R.C. 2711.10 to file such an application.
(Sept. 19, 2019 Decision and Entry at 1, 6.) Thus, the court dismissed Gales' application to
vacate arbitration award pursuant to Civ.R. 12(B)(6). (Id. at 7.)
{¶ 12} This timely appeal followed.

2 The arbitrator of Gales' grievance of the second termination was David Stanton. (App. to Vacate at 9.)

3Gales also filed an unfair labor practice charge with the State Employment Relation Board ("SERB") against
ODPS, OSHP, the FOP and the Office of Collective Bargaining. (Mot. to Dismiss at 2.) SERB dismissed the
charge on November 22, 2019. (Brief of Appellees at 1.)
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II. Assignments of Error

{¶ 13} Gales asserts the following nine assignments of error for our review:
[1.] Trial Court erred in dismissing the appellant action and
abused its discretion in dismissing appellant's action

[2.] Trial Court erred by dismissing appellant's action
pursuant to Ohio civil rule 12 (B-6) failure to state a claim. and
abused its discretion

[3.] trial court erred by dismissing appellant's application to
vacate in violation of 2711.13 and by doing so abused its
discretion when it dismissed the action on a 12 (B -6) which is
not part of the Ohio Revised Code 2711.

[4.] Trial court erred, and abused its discretion, by ruling the
defendants were parties to a collective bargaining agreement
pursuant to ORC 4117.10 (D) Then ruled, the Office of
Collective Bargaining were not a party to the agreement
between the state of Ohio and Fraternal Order of Police.
pursuant to orc 4117 (D) The appellee's, namely, State Patrol,
and Public safety, clearly were not ever meant to be included
into the laws by the general assembly

[5.] Trial Court erred by dismissing appellant's application that
alleged fraud, corruption, bias, and misconduct on the part of
the arbitrator Ohio Revised code 2711.10 . And that, the
Appellee's unlawfully and without leave of the court reversed
the appellant from being Judgment creditor and real person in
interest to judgment debtor. Which was confirmed by the
franklin county common pleas court on May 19, 2016
(15MS00119). The appellee's operated off a confirmed award
and a contract which had expired some three years ago.

[6.] Trial court erred and abused its discretion, by dismissing
appellant's application based on arbitrator and appellee's
public policy violations. The arbitrator violated public policy
by reviewing an award issued on November 24, 2014. The
arbitrator violated public policy when he ignored the fact he
was reviewing an award which was confirmed by the court. The
arbitrator to satisfy the will of the appellee's and fop crafted a
remedy to support issuing a fraudulent award of dishonesty.
When in fact it was the appellee's who were dishonest and acted
in bad faith when the appellee's unlawfully revisited a closed
award.
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[7.] Trial Court erred by dismissing Appellant's motion which
cited award not enforceable due arbitrator misconduct and
expired contract 2012-2015 and based on same set of facts from
previous arbitration. Arbitrator making rulings on disputes
not before him.

[8.] Trial Court erred by dismissing appellant's case due to
previous award confirmed by the courts May 2016 Appeals
Court April 14, 2017.

[9.] Trial court erred by dismissing appellant's application to
vacate due the appellee's lack of standings with a collective
bargaining agreement

(Sic passim.)
III. Discussion
{¶ 14} Gales has presented nine assignments of error, many of which are difficult to
parse as being unclear, indecipherable, and/or somewhat incoherent. Nevertheless, based
on our construction of the assignments of error as stated, each of Gales' assignments of
error asserts, in essence, either that the trial court erred in granting appellees' motion to
dismiss generally, or that the trial court erred in granting appellees' motion to dismiss
specifically by finding that Gales lacked standing to petition the court to vacate the
arbitration award pursuant to R.C. 2711.10. As explained below, we disagree.
{¶ 15} " 'An arbitration award may be challenged only through the procedure set
forth in R.C. 2711.13 and on the grounds enumerated in R.C. 2711.10 and 2711.11.' " State
v. FOP of Ohio at ¶ 14, quoting Miller v. Gunckle, 96 Ohio St.3d 359, 2002-Ohio-4932, ¶
10, citing Schaefer v. Allstate Ins. Co., 63 Ohio St.3d 708, 711 (1992). As set forth in R.C.
2711.13, "[a]fter an award in an arbitration proceeding is made, any party to the arbitration
may file a motion in the court of common pleas for an order vacating, modifying, or
correcting the award as prescribed in sections 2711.10 and 2711.11 of the Revised Code."
R.C. 2711.13. Furthermore, " 'the language of R.C. 2711.13 is clear, unmistakable, and, above
all, mandatory.' " FOP of Ohio at ¶ 14, quoting Galion v. Am. Fedn. & Mun. Emps., Local
No. 2243, 71 Ohio St.3d 620, 622 (1995).
{¶ 16} As we have previously stated, a motion filed pursuant to R.C. Chapter 2711
" 'is not a full complaint initiating a civil matter.' " FOP of Ohio at ¶ 15, quoting Geiger v.
Morgan Stanley DW, Inc., 10th Dist. No. 09AP-608, 2010-Ohio-2850, ¶ 19. Instead, a
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motion filed under R.C. Chapter 2711 " 'occupies a hybrid procedural position, only vaguely
defined by the statues that provide for it.' " Reynoldsburg City School Dist. Bd. of Edn. v.
Licking Hts. Local School Dist. Bd. of Edn., 10th Dist. No. 11AP-173, 2011-Ohio-5063, ¶ 16
("Reynoldsburg I"), quoting Geiger at ¶ 19. Therefore, in cases brought pursuant to
R.C.2711, " 'the applicable rules in both the local rules and Ohio Rules of Civil Procedure
are those pertaining to motions rather than those pertaining to the commencement of an
action.' " FOP of Ohio at ¶ 15, quoting Reynoldsburg at ¶ 15.
{¶ 17} We have previously held "that Civ.R. 13(A), pertaining to compulsory
counterclaims, does not apply to proceedings on a motion to vacate, modify or correct an
arbitration award brought pursuant to R.C. 2711.10." Licking Hts. Local School Dist. Bd.
of Edn. v. Reynoldsburg City School Dist. Bd. of Edn., 10th Dist. No. 12AP-579, 2013-Ohio-
3211, ¶ 22 ("Reynoldsburg II"). We arrived at this conclusion after an analysis that began
with a discussion of the applicability of the Ohio Rules of Civil Procedure (the "Rules") to
special statutory proceedings as provided for in Civ.R. 1. In Reynoldsburg II, we first noted
that pursuant to Civ.R. 1(C)(7), the Rules,

to the extent that they would by their nature be clearly
inapplicable, shall not apply to procedure * * * in all other
special statutory proceedings; provided, that where any statute
provides for procedure by a general or specific reference to all
the statutes governing procedure in civil actions such
procedure shall be in accordance with these rules.

Reynoldsburg II at ¶ 18, quoting Civ.R. 1(C)(7).
{¶ 18} We next cited favorably to a decision of our sister court in the Fifth Appellate
District which addressed the applicability of the Rules in a case brought under R.C. 2711.09.
In MBNA Am. Bank, N.A. v. Anthony, 5th Dist. No. 05AP09-0059, 2006-Ohio-2032, the
losing party had filed a motion for definite statement pursuant to Civ.R. 12(E) in response
to the prevailing parties' motion to confirm an arbitration award. Without ruling on the
motion brought pursuant to Civ.R. 12(E), the trial court confirmed the arbitration award.
The Fifth District affirmed the judgment of the trial court, stating:

Proceedings involving the confirmation or vacation of an
arbitration award are special statutory proceedings. Civil Rule
1(C)(7) provides the civil rules are by definition not to apply to
procedural matters in special statutory proceedings "to the
extent that they would by their nature be clearly inapplicable."
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Pursuant to R.C. 2711.09, when a motion is made to confirm an
arbitration award * * * [t]he applicable civil rule provisions are
those pertaining to motions, rather than those pertaining to
commencement of an action. The Civil Rules do not provide for
an answer and counterclaim to a motion in such proceedings.
Therefore, the trial court did not err in entering final judgment
prior to the alleged answer date.

Reynoldsburg at ¶ 19, quoting Anthony at ¶ 12-13.
{¶ 19} We then noted that we applied the same reasoning in our review of the trial
court's decision in Reynoldsburg I, which concerned the applicability of the discovery cut-
off date established by Loc.R. 39.05 to cases brought pursuant to R.C. 2711. In
Reynoldsburg I, we rejected appellant's argument that the trial court erred in denying the
motion to vacate the arbitration award prior to the expiration of the discovery cut-off date,
finding instead that the time limits set forth in the case schedule pursuant to Loc.R. 39.01
were inapplicable to a proceeding brought under R.C. 2711 because Loc.R. 39.01 applied
only to initial pleadings filed in order to open a new case, and hence commence an action,
and cases brought pursuant to R.C. 2711 did not involve the commencement of an action.
Reynoldsburg I at ¶ 15.
{¶ 20} Ultimately, we found in Reynoldsburg II that "[b]oth the Anthony case and
our opinion in Reynoldsburg I recognize, that by operation of Civ.R. 1(C)(7), the civil rules
that apply to special proceedings brought pursuant to R.C. 2711.05 et seq., are those
pertaining to motions, not pleadings. Civ.R. 13(A) applies only to counterclaims and cross-
claims, both of which are "pleadings" under the Civil Rules." Reynoldsburg II at ¶ 21, citing
Civ.R. 7(A). Thus, we found that based upon the foregoing reasoning, Civ.R. 13(A) is
inapplicable to proceedings brought pursuant to R.C. 2711.10. Id. at ¶ 22.
{¶ 21} Based upon the foregoing analysis, the Rules are clear that Civ.R. 12 applies
only in cases involving pleadings, and hence cases where an action has been commenced,
and not to special statutory proceedings such as cases like the instant matter brought
pursuant to R.C. 2711. Specifically, Civ.R. 12(B) provides as follows:

Every defense, in law or fact, to a claim for relief in any
pleading, whether a claim, counterclaim, cross-claim, or
third-party claim, shall be asserted in the responsive
pleading thereto if one is required, except that the following
defenses may at the option of the pleader be made by motion:
(1) lack of jurisdiction over the subject matter, (2) lack of
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jurisdiction over the person, (3) improper venue, (4)
insufficiency of process, (5) insufficiency of service of process,
(6) failure to state a claim upon which relief can be granted, (7)
failure to join a party under Rule 19 or Rule 19.1. A motion
making any of these defenses shall be made before pleading
if a further pleading is permitted. No defense or objection is
waived by being joined with one or more other defenses or
objections in a responsive pleading or motion. If a
pleading sets forth a claim for relief to which the adverse
party is not required to serve a responsive pleading, he may
assert at the trial any defense in law or fact to that claim for
relief. When a motion to dismiss for failure to state a claim
upon which relief can be granted presents matters outside the
pleading and such matters are not excluded by the court, the
motion shall be treated as a motion for summary judgment and
disposed of as provided in Rule 56. Provided, however, that the
court shall consider only such matters outside the pleadings
as are specifically enumerated in Rule 56. All parties shall be
given reasonable opportunity to present all materials made
pertinent to such a motion by Rule 56.

(Emphasis added) Civ.R. 12(B).
{¶ 22} Furthermore, the tests for reviewing motions made pursuant to Civ.R.
12(B)(1) and 12(B)(6) confirm that a court considers such motions by reviewing the
complaint, a pleading present only in actions which have been commenced. See Civ.R.
3(A); Civ.R. 7(A). A court presented with a motion to dismiss for lack of subject-matter
jurisdiction made pursuant to Civ.R. 12(B)(1) must determine whether the complaint
states any cause of action cognizable by the forum. State ex rel. Bush v. Spurlock, 42 Ohio
St.3d 77, 80 (1989); PNC Bank, Natl. Assn. v. Botts, 10th Dist. No. 12AP-256, 2012-Ohio-
5383, ¶ 21. A motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim on which
relief can be granted tests the sufficiency of the complaint, Volbers-Klarich v.
Middletown Mgt., 125 Ohio St.3d 494, 2010-Ohio-2057, ¶ 11, and in order for a court to
dismiss a case pursuant to Civ.R. 12(B)(6) "it must appear beyond doubt from the
complaint that the plaintiff can prove no set of facts entitling him to recovery." (Emphasis
added) O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975),
syllabus. In a proceeding brought pursuant to Chapter 2711 of the Revised Code, there
simply is no complaint, and thus no action which has been commenced.
{¶ 23} As set forth above, this court has consistently held that in cases brought
pursuant to R.C. 2711, " 'the applicable rules in both the local rules and Ohio Rules of Civil
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Procedure are those pertaining to motions rather than those pertaining to the
commencement of an action.' " FOP of Ohio at ¶ 15, quoting Reynoldsburg I at ¶ 15.
Because motions filed pursuant to Civ.R. 12 are applicable only in cases pertaining to the
commencement of an action, we find that motions filed pursuant to Civ.R. 12, including
motions filed pursuant to Civ.R. 12(B)(1) or 12(B)(6), are inapplicable in a proceeding
brought under Chapter 2711 of the Revised Code.
{¶ 24} Notwithstanding the foregoing, the inapplicability of Civ.R. 12(B)(6) to
proceedings brought pursuant to R.C. Chapter 2711 does not preclude a defendant from
moving for dismissal on the ground that a plaintiff lacks standing. See Lupo v. Columbus,
10th Dist. No. 13AP-1063, 2014-Ohio-2792, ¶ 19.4 This is so because Civ.R. 7(B)(1) permits
parties to file motions seeking court orders. Id. Furthermore, "trial courts * * * possess the
innate ability to rule on a motion to dismiss for lack of standing." Id. at ¶ 20. Therefore,
Civ.R. 7(B)(1) permits a party to file a motion to dismiss for lack of standing, and the trial
court's inherent power imbues the court with the authority to entertain and rule on that
motion. Id.
{¶ 25} " ' "The question of standing is whether a litigant is entitled to have a court
determine the merits of the issues presented." ' " Koehring v. Ohio State Dept. of Rehab.
& Corr., 10th Dist. No. 06AP-396, 2007-Ohio-2652, ¶ 8, quoting Cuyahoga Cty. Bd. of
Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-6499, ¶ 22, quoting Ohio Contrs. Assn. v.
Bicking, 71 Ohio St.3d 318, 320 (1994), reconsideration denied (1995), 71 Ohio St.3d 1459.
" 'Whether established facts confer standing to assert a claim is a matter of law.' " Id.,
quoting Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, ¶ 90,
reconsideration denied, 109 Ohio St.3d 1427, 2006-Ohio-1967 (further citations omitted).
{¶ 26} Because the question of standing is a matter of law, therefore, the standard
of judicial review to be applied in this case is de novo. Id., citing Portage Cty. Bd. of
Commrs. at ¶ 90, citing Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio
St.3d 512, 2002-Ohio-2842, ¶ 4, reconsideration denied, 96 Ohio St.3d 1489, 2002-
Ohio-4478; Cuyahoga Cty. Bd. of Commrs. at ¶ 23 (further citations omitted). " '[D]e
novo appellate review means that the court of appeals independently reviews the record

4 In Lupo, this court specifically found that "[t]he inapplicability of Civ.R. 12(B)(6) to R.C. 2506.01 appeals
does not preclude an appellee from moving for dismissal, or the trial court from granting such a motion, on
the ground that the appellant lacks standing." Lupo at ¶ 19.
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and affords no deference to the trial court's decision.' " Koehring, 2007-Ohio-2652, at
¶ 10, quoting BP Communications Alaska, Inc. v. Cent. Collection Agency, 136 Ohio
App.3d 807, 812 (8th Dist.2000), dismissed, appeal not allowed, 89 Ohio St.3d 1464,
citing Hall v. Ft. Frye Local School Dist. Bd. of Edn., 111 Ohio App.3d 690, 694 (4th
Dist.1996) (citation omitted).
{¶ 27} In the case before us, the trial court relied upon Leon v. Boardman Twp., 100
Ohio St.3d 335, 2003-Ohio-6466 in finding that Gales was not a proper party to pursue a
proceeding to vacate the arbitration award issued on January 25, 2019. In Leon, the
Supreme Court of Ohio held that "when an employee's discharge or grievance is arbitrated
between an employer and a union under the terms of a collective bargaining agreement,
the aggrieved employee does not have standing to petition a court to vacate the award
pursuant to R.C. 2711.10, unless the collective bargaining agreement expressly gives the
employee an independent right to submit disputes to arbitration." Leon at ¶ 18, syllabus.5
In reaching this conclusion, the high court found that "sound labor policy disfavors an
individualized right of action because it tends to vitiate the exclusivity of the union
representation, disrupt harmony, and in particular, impede the efforts of the employer and
union to establish a uniform method for the orderly administration of employee
grievances." Leon at ¶ 17.
{¶ 28} After reviewing the CBA attached by Gales to his application to vacate, the
trial court determined that it did not expressly give Gales the independent right to submit
his dispute to arbitration. Consequently, the court granted appellees' motion to dismiss
Gales' application to vacate for lack of standing under the standard applicable to Civ.R.
12(B)(6).
{¶ 29} As set forth above, Civ.R. 12(B)(6) is inapplicable in a proceeding brought
pursuant to R.C. Chapter 2711; therefore, it was error for the trial court to have applied
the standard used for motions brought pursuant to Civ.R. 12(B)(6) in reviewing and ruling
upon appellees' motion to dismiss. Nevertheless, as stated previously, a motion to dismiss

5 We note that in Leon, the Supreme Court of Ohio also specifically rejected the argument Gales makes
regarding being the "real party in interest." In Leon, the court found that our prior decision of Barksdale v.
Ohio Dept. of Adm. Servs., 78 Ohio App.3d 325 (10th Dist.1992), wherein we found that an employee-union
member had standing to challenge an arbitration award despite not being a party to the arbitration
proceeding, was a "legal anomaly" and improperly disregarded the terms of the collective bargaining contract.
Leon at ¶ 7-10.
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upon the grounds that Gales lacked standing could have been properly filed pursuant to
Civ.R. 7(B)(1) in any event. Accordingly, we find the trial court's error in applying Civ.R.
12(B)(6) was harmless error.
{¶ 30} Moreover, we have reviewed the copy of the CBA between the FOP and the
state attached by Gales to his application to vacate, and we agree with the trial court that
it does not contain any provision which expressly give Gales the independent right to
submit his dispute to arbitration or otherwise challenge the arbitration award. Therefore,
pursuant to the authority set forth in Leon, the trial court properly granted appellees'
motion dismiss for lack of standing under R.C. 2711.10. Accordingly, we overrule Gales'
nine assignments of error.
IV. Disposition
{¶ 31} Having overruled all of Gales' assignments of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.

NELSON, J.J., concurs.
LUPER SCHUSTER, J., concurs in judgment only.