State ex rel. Holloway v. Personnel Appeals Bd.

Ohio Court of Appeals

State ex rel. Holloway v. Personnel Appeals Bd.

2012 Ohio 628

CourtOhio Court of Appeals

DecidedFebruary 17, 2012

Docket24635

StatusPublished

This text of 2012 Ohio 628 (State ex rel. Holloway v. Personnel Appeals Bd.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State ex rel. Holloway v. Personnel Appeals Bd., 2012 Ohio 628 (Ohio Ct. App. 2012).

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Opinion

[Cite as State ex rel. Holloway v. Personnel Appeals Bd., 2012-Ohio-628.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO EX REL. : JOHNNY HOLLOWAY, JR. Plaintiff-Appellee : C.A. CASE NO. 24635

vs. : T.C. CASE NO. 09CV1568

PERSONNEL APPEALS BOARD, et al.: (Civil Appeal from Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 17th day of February, 2012.

Henry A. Arnett, Atty. Reg. No. 0011379, 135 Dublin Road, Suite 108-B, Columbus, OH 43215 Attorney for Plaintiff-Appellee

Matthew D. Stokely, Atty. Reg. No. 0062611; Joshua M. Kin, Atty. Reg. No. 0086965, 2700 Kettering Tower, Dayton, OH 45423 Attorneys for Defendant-Appellant

GRADY, P.J.:

{¶ 1} This appeal is brought by the Personnel Appeals Board

of the City of Huber Heights (the “Board”) from a final order

granting a motion for summary judgment filed by Johnny Holloway

in an action Holloway commenced on a petition for a writ of mandamus.

{¶ 2} In 2008, Holloway was terminated from his position of

Battalion Chief in the City of Huber Heights’ Fire Division. 2

Holloway requested a review of his termination by the Board.

Holloway’s counsel received a letter from the City Attorney for

Huber Heights, stating that Holloway had no right of appeal to

the Board. Holloway then filed a petition for a writ of mandamus

in the court of common pleas, asking that the Board be ordered

to hear an appeal of his termination.

{¶ 3} The common pleas court granted a motion for summary

judgment filed by the Board, finding that Holloway’s termination

was not subject to an appeal to the Board under provisions of the

Charter of the City of Huber Heights creating that right of appeal.

Therefore, the Board had no clear legal duty to hear an appeal,

and Holloway had no clear legal right to an appeal to the Board.

{¶ 4} Holloway appealed to this court from the final judgment

of the common pleas court. On review, we found that Holloway did

have a right of appeal to the Board from his termination under

applicable provisions of the City’s Charter. We therefore held

that the common pleas court erred when it granted summary judgment

for the Board on the grounds on which the court relied, and we

remanded the case to the common pleas court “for further

proceedings, consistent with this opinion.” State of Ohio, ex

rel. Johnny Holloway, Jr. v. Personnel Appeals Board, City of Huber

Heights, 2d Dist. Montgomery No. 23836, 2010-Ohio-4754, ¶ 21.

{¶ 5} Holloway had also filed a motion for summary judgment

when the Board did. On remand, the common pleas court granted 3

Holloway’s motion, finding that Holloway has a clear legal right

to an appeal to the Board, that the Board has a clear legal duty

to hear and decide Holloway’s appeal, and that Holloway has no

plain and adequate remedy for his termination from employment in

the ordinary course of law. (Dkt. 1).

{¶ 6} The Board filed a notice of appeal from the final order

granting Holloway’s motion for summary judgment. The Board’s

brief on appeal does not include a statement of the specific error

or errors assigned for our review. See App.R. 16(A)(3). However,

we construe the following “Statement of Issues” to encapsulate

the error the Board assigns:

{¶ 7} Issue 1: The trial court erred in granting Holloway’s

motion for summary judgment without any evidence concerning the

lack of a legal remedy and without conducting further proceedings,

as this Court previously ordered, on the remaining elements

required to grant the extraordinary relief in mandamus.

{¶ 8} Civ.R. 56(C) provides that, upon motion, “[s]ummary

judgment shall be rendered forthwith if the pleadings, deposition,

answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any,

timely filed in the action, show that there is no genuine issue

as to any material fact and that the moving party is entitled to

judgment as a matter of law.”

{¶ 9} To be entitled to a writ of mandamus compelling the 4

Board to hear his appeal, Holloway must establish a clear legal

right to that relief, a corresponding clear legal duty on the part

of the Board to provide it, and the lack of an adequate legal remedy

in the ordinary course of the law. State ex rel. Am. Subcontractors

Assn., Inc. v. Ohio State Univ., 129 Ohio St.3d 111, 2011-Ohio-2881,

950 N.E.2d 535, ¶ 20.

{¶ 10} In the prior appeal, we found that the first and second

prongs of Holloway’s burden of proof were satisfied. The Board

argues that the trial court erred when it granted Holloway’s motion

for summary judgment because the record fails to support a finding

in Holloway’s favor on the third prong, that Holloway has no

adequate legal remedy in the ordinary course of law. On that point

the Board contends that R.C. Chapter 2506 provides an adequate

legal remedy.

{¶ 11} R.C. 2506.01 states:

{¶ 12} (A) Except as otherwise provided in sections

2506.05 to 2506.08 of the Revised Code, and except as

modified by this section and sections 2506.02 to 2506.04

of the Revised Code, every final order, adjudication,

or decision of any officer, tribunal, authority, board,

bureau, commission, department, or other division of

any political subdivision of the state may be reviewed

by the court of common pleas of the county in which the

principal office of the political subdivision is located 5

as provided in Chapter 2505. of the Revised Code.

{¶ 13} (B) The appeal provided in this section is

in addition to any other remedy of appeal provided by

law.

{¶ 14} (C) As used in this chapter, “final order,

adjudication, or decision” means an order, adjudication,

or decision that determines rights, duties, privileges,

benefits, or legal relationships of a person, but does

not include any order, adjudication, or decision from

which an appeal is granted by rule, ordinance, or statute

to a higher administrative authority if a right to a

hearing on such appeal is provided, or any order,

adjudication, or decision that is issued preliminary

to or as a result of a criminal proceeding.

{¶ 15} Holloway argues that he cannot invoke a right of appeal

under R.C. 2506.01 because the Board never entered an “order,

adjudication, or decision,” denying him a right of appeal. The

Board responds that the letter Holloway received from the City

Attorney notifying him that he lacked a right of appeal to the

Board satisfies the requirement of R.C. 2506.01.

{¶ 16} Holloway’s motion for summary judgment (Dkt. 13, Case

No. 09CV01568, our Case No. 23836) is supported by his affidavit.

The affidavit attaches what Holloway represents are “true and

correct copies” of documents relative to his claim. Page 28 is 6

a copy of Holloway’s notice of appeal to the Board and requesting

a hearing, which also identifies Attorney Henry A. Arnett as

Holloway’s legal representative for that purpose. Page 29 is a

copy of a letter dated December 8, 2008, to Attorney Arnett from

an attorney with the law firm whose senior partner is City Attorney

for Huber Heights. The letter states:

{¶ 17} Dear Mr. Arnett:

{¶ 18} I have reviewed your letter of December 3,

2008 and respectfully disagree with your conclusion that

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