State ex rel. Weiss v. Industrial Commission

605 N.E.2d 37, 65 Ohio St. 3d 470
CourtOhio Supreme Court
DecidedDecember 11, 1992
DocketNo. 91-2294
StatusPublished
Cited by70 cases

This text of 605 N.E.2d 37 (State ex rel. Weiss v. Industrial Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Weiss v. Industrial Commission, 605 N.E.2d 37, 65 Ohio St. 3d 470 (Ohio 1992).

Opinions

Per Curiam.

We overruled a motion to dismiss Weiss’ complaint by entry dated May 27, 1992, 63 Ohio St.3d 1473, 591 N.E.2d 243. Perry and the commission, however, did not file their answer within fourteen days after receiving notice of the entry, as required by Civ.R. 12(A)(2)(a), and, on July 2, 1992, Weiss moved for default judgment pursuant to Civ.R. 55. On July 24, 1992, Perry and the commission requested leave to answer.

For the reasons that follow, we overrule the motion for leave to answer and the motion for default judgment. Moreover, because this disposition eliminates all justification for a writ of mandamus, we further deny the writ.

Leave to Answer

When a motion for leave to answer is filed after the date the answer was due, Civ.R. 6(B)(2) permits an extension upon a showing of excusable neglect. Perry and the commission assert that they failed to answer timely because (1) new assistant attorneys general (“AAGs”) were being assigned to replace the former AAG who was counsel of record when the motion to dismiss was overruled, and (2) the AAG who oversaw the reassignment did not “subjectively] or objectively]” know about our May 27 entry. Respondents claim that this inadvertent administrative delay constitutes excusable neglect.

We disagree. Counsel for Perry and the commission do not dispute that the Attorney General was served notice of the May 27 entry. Respondents, therefore, had constructive knowledge of the entry, which is all Civ.R. 58 requires. See Americare Corp. v. Misenko (1984), 10 Ohio St.3d 132, 134, 10 OBR 454, 456, 461 N.E.2d 1304, 1307 (“ * * * [N]o provision in Ohio law or [473]*473rule of civil or appellate procedure requires that a party be given actual notice of the filing of a judgment entry.”), and State ex rel. Spirko v. Court of Appeals (1986), 27 Ohio St.3d 13, 27 OBR 432, 501 N.E.2d 625 (writ of mandamus granted by default judgment when motion to dismiss overruled and no answer filed).

Moreover, in GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, we held that the failure to timely answer is neglect and should be imputed to the client. Accord Griffey v. Rajan (1987), 33 Ohio St.3d 75, 78, 514 N.E.2d 1122, 1125. GTE describes attorney neglect as conduct that “ ‘falls substantially below what is reasonable under the circumstances.’ ” Id., 47 Ohio St.2d at 152, 1 O.O.3d at 89, 351 N.E.2d at 117; see, also, Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, 68, 18 OBR 96, 100, 479 N.E.2d 879, 884. Here, no evidence suggests that an answer deadline may be reasonably overlooked due to case reassignment.

Perry and the commission cite Evans v. Chapman (1986), 28 Ohio St.3d 132, 28 OBR 228, 502 N.E.2d 1012, which held that a court does not abuse its discretion by finding clerical error a justifiable excuse for the failure to timely answer. Evans reached this result, however, because a motion for leave to answer had been filed before the motion for default. Id. at 135, 28 OBR at 231, 502 N.E.2d at 1016; Marion Prod. Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 272, 533 N.E.2d 325, 332. Thus, Evans must be distinguished from this case, where the motion for default came first.

Respondents missed the answer date set forth in Civ.R. 12(A)(2)(a) because no one checked for developments in Weiss’ case against them. Moreover, their request for leave to answer was filed in response to Weiss’ motion for default; it was not the result of diligence of their counsel. We do not consider administrative confusion an acceptable excuse for such neglect. The request for leave to answer, therefore, is overruled.

Default Judgment

Under Civ.R. 55(D), a default judgment may be entered against the state only if “the claimant establishes his claim or right to relief by evidence satisfactory to the court.” For a writ of mandamus to issue, Weiss must establish that she is entitled to respondents’ performance of a clear legal duty and that she has no adequate remedy in the ordinary course of law. State ex rel. The Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97, 102, 564 N.E.2d 486, 491. Weiss asserts that she has satisfied both standards. We, however, find that an adequate remedy exists.

[474]*474Initially, Weiss appealed her removal from the classified service, the reduction of her duties, and her termination to SPBR. SPBR did not consolidate these appeals, even though they were filed within one month of each other and challenged job actions taken during the same period. Instead, the AU singled out one appeal — Weiss’ removal from the classified service — and dismissed it because the appeal did not also allege “an adverse personnel action such as a removal or reduction.” In effect, the AU determined that SPBR lacked jurisdiction because Weiss filed separate appeals. SPBR, however, adopted the AU’s recommendation, and Weiss appealed to the common pleas court, presumably pursuant to R.C. 119.12 (appeal by party adversely affected by state agency order to Franklin County Common Pleas Court).

Against this backdrop, Weiss argues her lack of an adequate remedy. Apparently, she has decided to concede that SPBR has no jurisdiction over her appeal, without completing the appeal process she has begun. Her decision, however, does not make this process unavailable or inadequate. Indeed, we have reviewed at least three appeals from SPBR decisions in which jurisdiction was challenged on the ground that employees were not classified. See Rarick v. Geauga Cty. Bd. of Commrs. (1980), 63 Ohio St.2d 34, 17 O.O.3d 21, 406 N.E.2d 1101; Yarosh v. Becane (1980), 63 Ohio St.2d 5, 17 O.O.3d 3, 406 N.E.2d 1355; In re Termination of Employment of Moore (1974), 40 Ohio St.2d 107, 69 O.O.2d 512, 321 N.E.2d 603.

Rarick, in particular, establishes that Weiss’ remedy is by way of appeal. There, the court of appeals affirmed SPBR’s order reinstating a county building superintendent and his assistant, both of whom had been removed from the classified service, and then terminated six months later. We reversed, holding that these employees were in an administrative and fiduciary relationship with the board of commissioners and, thus, that they were “unclassified” pursuant to R.C. 124.11(A)(9). Responding to the argument that SPBR lacked jurisdiction because the employees had been designated as “unclassified,” we said:

“ ‘The State Personnel Board of Review has jurisdiction over appeals from removals of public employees if it determines that such employees are in the classified service, regardless of how they have been designated by their appointing authorities.’ ” Rarick, supra, 63 Ohio St.2d at 36, 17 O.O.3d at 22, 406 N.E.2d at 1103, quoting

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Bluebook (online)
605 N.E.2d 37, 65 Ohio St. 3d 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-weiss-v-industrial-commission-ohio-1992.