Opinion
No. 87-43
Decided December 2, 1987.
Court of Claims — Mandamus action to correct abuse of discretion by court in victims of crime case — No provision for attorney fees — R.C. 2743.65(A) and V.C.C.R. 1, construed.
APPEAL from the Court of Appeals for Franklin County.
Relator-appellant, Carol Jenkins, filed an original action in the Court of Appeals for Franklin County requesting that the court grant a writ of mandamus ordering respondent-appellee, Ohio Court of Claims Judge Leonard J. Stern, to vacate a portion of a judgment entry stating, in pertinent part, that "* * * applicant's attorney should not be compensated by the victims fund for work performed in connection with the mandamus action * * *."
Appellant had filed a claim for economic loss and replacement service loss under the Victims of Crime Act as a result of the death of her husband on October 13, 1980. On May 6, 1982, a single commissioner of the Victims of Crime Division denied appellant's claim of economic loss other than funeral expenses. Thereafter, a panel of three commissioners, after hearing evidence, reversed the single commissioner's findings and concluded that relator and her two minor children sustained economic loss as a result of the death of her husband.
On September 29, 1983, Judge Gerald A. Baynes of the Court of Claims vacated the decision of the panel of commissioners as being against the manifest weight of the evidence, unreasonable, and unlawful. He reinstated the order of the single commissioner. Appellant then filed a mandamus action in the Court of Appeals for Franklin County, arguing that Judge Baynes abused his discretion when he reversed the decision of the panel of commissioners. The court of appeals denied appellant's request for a writ of mandamus. Thereafter, in September 1984, appellant appealed to this court.
This court affirmed the decision of the court of appeals, holding that a writ of mandamus may not be utilized, absent an abuse of discretion, to collaterally attack a Court of Claims decision in an action initiated under the Victims of Crime Act. State, ex rel. Jenkins, v. Tyack (1985), 17 Ohio St.3d 242, 17 OBR 479, 479 N.E.2d 267.
Thereafter, on August 5, 1985, appellant filed a motion requesting that the Court of Claims vacate its judgment of September 29, 1983. Appellant urged that the judgment was based upon incorrect facts (that the decedent had a weekly pay of $163, where there was no support in the record that the figure was accurate or correct).
On January 30, 1986, Judge Stern issued an entry denying appellant's motion to vacate judgment, holding that relator's motion was not well-taken and also stating that:
"* * * [S]ince a petition for a mandamus action was obviously not contemplated when the attorney fee provisions of the victims act [ sic], V.C.C.R. 1 were promulgated by the Supreme Court, applicant's attorney should not be compensated by the victims fund for work performed in connection with the mandamus action * * *."
Appellant again requested that the Court of Appeals for Franklin County issue a writ of mandamus, urging that it was improper for the Court of Claims to deny her attorney compensation from the Victims of Crime Fund for work performed in connection with the mandamus action. She requested that the writ require the trial judge to vacate that portion of his entry and permit her attorney to receive compensation for work performed in connection with the mandamus action.
The court of appeals referred the matter to a referee, pursuant to Civ. R. 53. He recommended that the court sustain appellee's Civ. R. 12(B)(6) motion to dismiss, as the complaint on its face failed to state a claim upon which the requested relief could be granted. Relator filed objections to the referee's report. Upon review of the record, including the objections and the referee's report, the court of appeals found that there were no arguments or issues presented to the court which were not considered and correctly determined by the referee. The court adopted the referee's report and dismissed the case.
The cause is now before this court upon an appeal as of right.
Turoff Turoff and Jack N. Turoff, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Catherine M. Cola, for appellee.
In her first proposition of law, appellant asserts that both the Revised Code and the Victims of Crime Compensation Rules authorize an award of attorney fees to an attorney who represents a claimant in an action for a writ of mandamus, provided that such action is not frivolous.
It is not disputed that appellant is entitled to seek a writ of mandamus to correct an abuse of discretion by the Court of Claims. In State, ex rel. Jenkins, supra, this court held that "[a] writ of mandamus may not be utilized, absent an abuse of discretion, to collaterally attack a Court of Claims decision in an action initiated under the Victims of Crime Act." The central issue is whether attorney fees are provided for either by statute or rule.
Appellant urges that, because attorneys are entitled to an award of attorney fees unless an action in mandamus is frivolous, and this action is not frivolous, the Court of Claims must allow her attorney these fees.
R.C. 2743.65(A) provides, in pertinent part, that:
"As part of an order, a single commissioner or a panel of court of claims commissioners shall determine and award reasonable attorney's fees, commensurate with services rendered * * *. Additional attorney's fees may be awarded by the court of claims in the event of appeal. Attorney's fees may be denied upon a finding that the claim or appeal is frivolous. * * *" (Emphasis added.)
First, the legislature intended to limit final appellate jurisdiction in cases involving the Victims of Crime Act to the Court of Claims. State, ex rel. Jenkins, supra, at 243-244, 17 OBR at 480-481, 479 N.E.2d at 269.
Accordingly, any statutory provision establishing payment of attorney fees for appeals anticipates only the appeal to the Court of Claims.
Second, by the very terms of the statute, a claimant's attorney shall be awarded attorney fees unless the claim is frivolous. However, additional attorney fees may be awarded by the Court of Claims in the event of appeal. Nowhere in the statute is it provided that an attorney may receive attorney fees for a mandamus action.
It is true that the court in State, ex rel. Graves, v. State (1983), 9 Ohio App.3d 260, 9 OBR 473, 459 N.E.2d 913, stated, in paragraph one of the syllabus, that an attorney representing a claimant may receive only such fees for his services as are determined to be reasonable by either a single commissioner or a panel of commissioners and that such fees are to be denied only upon finding that a claim or appeal is frivolous. However, Graves does not hold that a claimant's attorney is entitled to attorney fees in a mandamus action.
V.C.C.R. 1 does not require a different conclusion. In V.C.C.R. 1(B), the maximum amounts of reimbursement allowable to an attorney for services performed are listed. The stages which are listed include a determination by a single commissioner, a determination by a panel of commissioners, and a determination by a judge of the Court of Claims. There is no other allowance for reimbursement listed in the rule. This fact supports appellee's contention that the legislature never contemplated attorney fees to be awarded for a mandamus action.
To adopt appellant's view, that her attorney is entitled to an award of attorney fees for a mandamus action where the action is not frivolous, would be to create an entire level of appellate review never contemplated by the General Assembly. Neither statute nor rule supports appellant's theory. Accordingly, appellant's first proposition of law is rejected.
In her second proposition of law, appellant urges that the denial of compensation to any attorney for work performed in pursuit of a writ of mandamus to correct an abuse of discretion is a denial of the claimant's right to due process of law, depriving the claimant of the right to be represented by an attorney in a civil proceeding.
First, the prohibition against an attorney charging a claimant for services rendered applies only to work performed in representing a claimant under R.C. 2743.51 through 2743.72. Mandamus is codified in R.C. 2731.01 et seq. Therefore, R.C. 2743.65(A) does not prevent a claimant from retaining counsel to pursue a mandamus action, nor does it prohibit an attorney from charging for services in connection with such an action.
Second, appellant has not been denied any right of due process. Here, appellant perfected the allowed appeal and therefore received all that to which she was entitled. This court has never recognized the proposition that a civil litigant is entitled to representation of counsel at the appellate level.
There is no generalized right of counsel in civil litigation. As the court observed in Potashnick v. Port City Constr. Co. (C.A. 5, 1980), 609 F.2d 1101, certiorari denied (1980), 449 U.S. 820:
"* * * [C]ertain distinctions can be made between the rights of civil litigants and those of criminal defendants. A criminal defendant's right to counsel arises out of the sicth amendment, and includes the right to appointed counsel when necessary. * * * A civil litigant's right to retain counsel is rooted in fifth amendment notions of due process; the right does not require the government to provide lawyers for litigants in civil matters. * * * A criminal defendant faced with a potential loss of his personal liberty has much more at stake than a civil litigant asserting or contesting a claim for damages, and for this reason the law affords greater protection to the criminal defendant's rights." (Citations omitted.) Id. at 1118.
Accordingly, appellant's second proposition of law is without merit and it is overruled.
In her third proposition of law, appellant urges that an incorrect application or interpretation of the law constitutes an abuse of discretion which will justify the issuance of a writ of mandamus where no other remedy is available.
As noted in the foregoing discussion, here the Court of Claims did not incorrectly apply or interpret the law. Accordingly, there is no abuse of discretion. This proposition of law is overruled.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.