Summary
In Bush, supra, the appellants alleged that they were classified civil servants, that they were entitled to the protections of R.C. 124.321 et seq. regarding layoff procedures, that they had been unlawfully laid off or demoted by appellees because appellees had not observed those protections, and that their request for the damages specified in the complaint had been refused by appellees.
Summary of this case from State, ex Rel. Baran, v. FuerstOpinion
No. 88-22
Submitted February 8, 1989 —
Decided April 19, 1989.
Public employment — Civil service — Layoffs — Mandamus action lies for wrongful exclusion from employment, when — Each element of cause of action need not be pled with crystalline specificity — Dismissal of action eschewed when indispensable party is not joined pursuant to Civ. R. 19(A).
APPEAL from the Court of Appeals for Hamilton County, No. C-870693.
Appellants are eleven public employees who were either laid off or demoted from janitorial and other related jobs with appellee Norwood Board of Education ("board"), in July 1981. The members and treasurer of the board are also appellees herein. By February 1983, appellees had voluntarily reinstated or recalled all but two of these employees to their former jobs. (One employee found a job during his layoff, and another resigned from the position to which he had been demoted.) However, all eleven sought to recover wages lost due to these job actions through a mandamus action filed in the Court of Appeals for Hamilton County. This appeal concerns that court's decision.
After being excluded from their employment, appellants challenged their layoffs and demotions before the Norwood Civil Service Commission ("NCSC"). The record does not contain a transcript of these proceedings, but it appears that the NCSC did not hear any evidence. Instead, it only heard counsel argue the legal issues they believed to be involved. Afterward, the NCSC decided that the layoffs and demotions were proper. A portion of the NCSC decision, while not in the record, is quoted in a subsequent decision of the Court of Common Pleas of Hamilton County on appeal, which reads:
"`* * * [W]here an employee is temporarily laid off by the Norwood School Board in the interest of economy and for the sole reason of lack of sufficient funds, the layoff by order of seniority within the job classification as was done in this instance is justified.'" Swafford v. Norwood Bd. of Edn. (Dec. 2, 1986), Hamilton C.P. No. A8208048, unreported, at 3.
All the affected employees except one appealed to the common pleas court. The case was ultimately assigned to Hamilton County Common Pleas Judge Gilbert Bettman.
In the course of reviewing the NCSC's affirmation of the challenged layoffs and demotions, Judge Bettman received briefs from the parties, including the NCSC. However, in a letter to counsel, dated February 28, 1985, Judge Bettman observed that:
The common pleas court referred only to the layoffs in considering this matter, but it appears that both types of job actions were before the court since a demoted employee was the lead plaintiff.
"The transcript of the record of proceedings before the Commission contains no evidence other than the letters laying off plaintiffs, their notices of appeal to the Civil Service Commission and the order of the Commission. The transcripts of proceedings contain nothing but extensive arguments by counsel as to what the law might be applicable to the facts. They contain no evidence."
Judge Bettman therefore advised the parties that he would set the matter for hearing after they completed discovery. But because he understood that the aggrieved employees had been reemployed, he also urged the parties to work out a settlement of the case.
When a settlement had not yet been reached a year later, the parties decided to brief the matter again. No evidentiary hearing was ever held. At that point, however, the board presented only legal issues to Judge Bettman. The employees argued, inter alia, that the common pleas court had no authority to remand the case to the NCSC and that it must instead summarily disaffirm the job actions because no evidence supported the NCSC's decision.
On November 12, 1986, Judge Bettman advised the parties' representatives by letter that after considering their briefs and the record (such as it was), he had concluded that "the layoffs were contrary to law and appellants * * * [are] entitled to be compensated for their lost wages mitigated by amounts othewise earned or received as unemployment compensation." He then indicated that he would hold a hearing if the parties could not agree on these amounts.
Thereafter, on December 2, 1986, Judge Bettman formally announced his decision in a filing captioned "Findings of Fact and Conclusions of Law and Judgment Entry." Therein, he held that the board and NCSC were required to abide by the provisions of R.C. Chapter 124 with respect to the layoffs in dispute. Judge Bettman further found that the board had not complied with the procedures required by that chapter because the board (1) did not issue layoff notices signed by the appointing authority, (2) did not calculate the employees' retention points, (3) did not have a classification plan on the date of the layoffs, and (4) did not create or post layoff lists. According to the court, such deficiencies frustrated the exercise of any bumping rights. These findings and the lack of any evidence supporting that the layoffs were temporary or that they were due to lack of funds caused the court to rule that the NCSC's order affirming the layoffs was not supported by reliable, probative and substantial evidence and that the employees were "entitled to be compensated for their lost wages mitigated by amounts otherwise earned and/or received as unemployment compensation."
Appellees contend that the common pleas court's December 2 entry was based on the employees' proposed findings of fact and conclusions of law and that appellees were given no opportunity to respond to these proposals. In any event, there appears to have been some disagreement below over how the entry should have read. As a result, Judge Bettman wrote to the parties' counsel a third time on February 18, 1987. This letter suggests, as appellants submit, that Judge Bettman was persuaded by the argument that the court had no authority to do more than simply disaffirm the NCSC decision; that is, it could not award back pay. Consequently, Judge Bettman in this letter declared the December 2 entry "not a final order."
Thereafter, on February 27, 1987, the court issued its final entry in the appeal of the NCSC decision. That entry incorporated the findings of fact and conclusions of law in the court's December 2 entry, but it deleted the earlier reference to back pay. In addition, the February 27 entry ordered the NCSC decision "reversed and vacated" and claimed to adjudicate "all claims and the rights and liabilities of all the parties."
Neither the board nor the NCSC appealed this decision. (The board did not appeal because it thought the decision vacated and reversed an NCSC "summary judgment" order for the board.) The eleven employees, however, filed the instant complaint in mandamus, asserting that the February 27 decision was a final adjudication. This complaint alleged that the relevant layoffs, as well as the relevant demotions, had been found unlawful. It also set forth the wages lost by all the employees (including those of the employee who had not appealed and those of the demoted employees) and requested corresponding relief.
Appellees moved to dismiss the complaint under Civ. R. 12(B)(1), (6) and (7). Pursuant to this motion, they argued that: (1) the February 27 common pleas court judgment did not specify injury, establish liability, or determine damages such that appellants could show a clear legal right to back pay; (2) even if a right to back pay was shown, it was the NCSC's duty to pay, not the appellees' duty; (3) appellants had an adequate alternative legal remedy in that they could have asked for a hearing before the NCSC or appealed the common pleas court decision; and (4) the February 27 judgment did not grant relief to those appellants who were demoted or to the appellant who did not appeal the NCSC order.
The court of appeals granted appellees' motion to dismiss, without explanation, on December 21, 1987. All the demoted and laid-off employees appealed the dismissal.
The cause is now before this court upon an appeal as a matter of right.
Gurley, Rishel, Myers Kopech and David E. Northrop, for appellants.
Wood Lamping and Paul R. Berninger, for appellees.
The court of appeals dismissed this complaint on appellees' motion filed pursuant to Civ. R. 12(B)(1) (lack of subject matter jurisdiction), (B)(6) (failure to state a claim), and (B)(7) (failure to join a necessary party). The court's entry, however, does not provide any rationale for this decision beyond the conclusion that the motion was "well taken." Thus, before this court, appellants basically maintain that their complaint stated a cognizable claim in mandamus and that nothing in appellees' motion warranted summary dismissal of their claim.
In response, appellees argue, as they did below, that appellants cannot prevail as a matter of law. Specifically, appellees claim that they have no duty to pay the wages and benefits sought because: (1) mandamus lies only when a salary is set by statute or ordinance, and appellants' salaries were not so set; (2) mandamus lies only when damages have been liquidated or stipulated, and appellants' damages were not liquidated or stipulated; (3) mandamus lies only when an employee's reinstatement has already been ordered, or when both reinstatement and back pay are requested in the mandamus action, neither of which is the case here; (4) mandamus will not lie to decide the degree to which each of two responsible public entities (here, the board and, supposedly, the NCSC) is to be held liable for a particular job action; and (5) mandamus will not lie where an adequate remedy in the ordinary course of law exists.
As appellees correctly state, however, the court of appeals did not grant summary judgment in their favor; it granted their Civ. R. 12 motion to dismiss. Thus, their arguments miss the mark. None of them relates to the lower court's jurisdiction to hear this case, the sufficiency of appellants' complaint, or the reason why the NCSC was so indispensable that dismissal was required. Accordingly, the dispositive questions in this case involve whether the complaint was sufficient to withstand challenges under Civ. R. 12(B)(1), (6) and (7).
The standard of review for a dismissal pursuant to Civ. R. 12(B)(1) is whether any cause of action cognizable by the forum has been raised in the complaint. Avco Financial Services Loan, Inc. v. Hale (1987), 36 Ohio App.3d 65, 67, 520 N.E.2d 1378, 1380, citing Steffen v. General Tel. Co. (1978), 60 Ohio App.2d 144, 14 O.O. 3d 111, 395 N.E.2d 1346. Under Section 3, Article IV of the Ohio Constitution, a court of appeals has original jurisdiction in mandamus. Moreover, "[a]n action in mandamus is maintainable by a reinstated public employee to recover compensation due him for the period of time during which he was wrongfully excluded from his employment, provided the amount is established with certainty." Monaghan v. Richley (1972), 32 Ohio St.2d 190, 61 O.O. 2d 425, 291 N.E.2d 462, syllabus.
In this mandamus action, appellants have alleged that they were wrongfully excluded from public employment and have further alleged the specific monetary losses that resulted therefrom. Monaghan recognizes the actionability of such a claim in mandamus, and the Ohio Constitution affords original jurisdiction for such action. Thus, the court of appeals erred if it dismissed this complaint for lack of subject matter jurisdiction under Civ. R. 12(B)(1).
A Civ. R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted will only be granted where the party opposing the motion is unable to prove any set of facts that would entitle him to relief. Korodi v. Minot (1987), 40 Ohio App.3d 1, 3, 531 N.E.2d 318, 321. Indeed, before a court may dismiss an action under this rule, "* * * it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 71 O.O. 2d 223, 327 N.E.2d 753, syllabus. To make this determination, the court is required to interpret all material allegations in the complaint as true and admitted. Phung v. Waste Management, Inc. (1986), 23 Ohio St.3d 100, 102, 23 OBR 260, 262, 491 N.E.2d 1114, 1116.
A complaint in mandamus states a claim if it alleges "the existence of the legal duty and the want of an adequate remedy at law with sufficient particularity so that the respondent is given reasonable notice of the claim asserted." State, ex rel. Alford, v. Willoughby (1979), 58 Ohio St.2d 221, 224, 12 O.O. 3d 229, 230, 390 N.E.2d 782, 785, mandamus denied in part on further appeal (1981), 67 Ohio St.2d 260, 21 O.O. 3d 163, 423 N.E.2d 457. In Alford, supra, this court reversed and remanded a case that had been dismissed by the court of appeals under Civ. R. 12(B)(6). There, unskilled laborers who had formerly been employed by a school board brought an action in mandamus against the board, its clerk-treasurer, and several civil service commissions in an effort to secure reinstatement with full back pay and seniority. We found that their complaint had stated a claim by alleging that the laborers were classified civil servants, that they were entitled to the protections of R.C. Chapter 124 (mainly, R.C. 124.34, which required the board of education to discharge employees in a specific manner), that the laborers were unlawfully discharged due to the board's failure to comply with that chapter, and that they had no adequate remedy at law. Id.
Here, appellants made similar allegations in their complaint. They alleged that they were classified civil servants, that they were entitled to the protections of R.C. 124.321 et seq. regarding layoff procedures, that they had been unlawfully laid off or demoted by appellees because appellees had not observed those protections, and that their request for the damages specified in the complaint had been refused by appellees. The only significant difference between these allegations and those pled in Alford is that appellants did not specifically allege the absence of an adequate remedy at law. The reference to the appeal of the NCSC order, coupled with appellants' request for damages, however, is enough to give appellees notice of this aspect of their claim. This court has said that the failure to set forth each element of a cause of action with crystalline specificity does not subject a complaint to dismissal. Border City S. L. Assn. v. Moan (1984), 15 Ohio St.3d 65, 66, 15 OBR 159, 160, 472 N.E.2d 350, 352. Thus, based on Alford, the court of appeals also erred to the extent it relied on Civ. R. 12(B)(6) to dismiss the action below.
Nor should appellants' complaint have been dismissed for failing to join the NCSC as a necessary party. Ohio courts have eschewed the harsh result of dismissing an action because an indispensable party was not joined, electing instead to order that the party be joined pursuant to Civ. R. 19(A) (joinder if feasible), Kesselring Ford, Inc. v. Cann (1980), 68 Ohio App.2d 131, 133-134, 22 O.O. 3d 162, 164, 427 N.E.2d 785, 787, or that leave to amend the complaint be granted, Harrier v. Crow (Dec. 6, 1985), Montgomery App. No. CA 8900, unreported, at 6. Moreover, Civ. R. 21 can be applied in mandamus actions and it allows parties to be added or dropped at any stage of the proceeding, as justice requires. See Barton v. Shupe (1988), 37 Ohio St.3d 308, 309, 525 N.E.2d 812, 813. Indeed, dismissal due to a party's failure to join a necessary party is warranted only where the defect cannot be cured. 5 Wright Miller, Federal Practice Procedure (1969), 628, Section 1359.
Under this authority, even if the NCSC would be a necessary party to the action below, its absence alone would not justify a summary dismissal. Accordingly, we find that the court of appeals also erred if it dismissed this complaint under Civ. R. 12(B)(7).
Based on the foregoing, we conclude that the court of appeals could not have properly dismissed appellants' complaint under Civ. R. 12(B)(1), (6) or (7). Therefore, we reverse the judgment of the court of appeals and remand the cause to that court for further proceedings.
Judgment reversed and cause remanded.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, H. BROWN and RESNICK, JJ., concur.
WRIGHT, J., concurs in judgment only.