Summary
In Kabatek, the issue involved back pay and civil service benefits — no contract. Grosser was a mandamus action to obtain copies of high school records — once again, no contract. Finally, Sorin involved the termination of employment, and appeal therefrom, of a superintendent of a board of education.Still no contract.
Summary of this case from Nottingdale Homeowners' Assn., Inc. v. DarbyOpinion
No. 82-981
Decided July 20, 1983.
Attorneys at law — Attorney fees awarded, when — Bad faith not shown by fact that an interposed defense was ultimately overruled.
APPEAL from the Court of Appeals for Cuyahoga County.
This cause was previously before the court in State, ex rel. Kabatek, v. Stackhouse (1981), 66 Ohio St.2d 64 [20 O.O.3d 58]. At that time we held that mandamus was the proper remedy for appellant, Joseph Kabatek, to seek back pay and civil service benefits allegedly due him as the result of his layoff from employment with appellee Cuyahoga County Engineer. Id. at 65.
Between the time of the layoff and the commencement of this action, appellant had retired. It was appellees' contention that appellant's retirement was retroactive to the date of the layoff. In remanding the cause to the court of appeals for a determination on the merits, we indicated that the effect of appellant's retirement was "* * * a factual question to be decided by the Court of Appeals and * * * taken into consideration in the granting of back pay, if any, due to appellant." Id. On remand, the court of appeals determined that appellant was entitled to back pay for the period October 21, 1977 to June 18, 1979. He was awarded $11,974.52 plus six percent interest, representing back pay for the period, reduced by unemployment compensation received, employee contributions to the Public Employees' Retirement System ("PERS"), and advance payments made by PERS to appellant. He was also awarded employer contributions to PERS for the period. Appellant sought an award of attorney fees which was denied.
The cause is now before the court upon an appeal as of right.
Mr. Robert D. Holmes, for appellant.
Mr. John T. Corrigan, prosecuting attorney, and Mr. David A. Williamson, for appellees.
Appellant contests the denial of his request for an award of attorney fees.
"The general rule in Ohio is that, absent a statutory provision allowing attorney fees as costs, the prevailing party is not entitled to an award of attorney fees unless the party against whom the fees are taxed was found to have acted in bad faith. See Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177 [75 O.O.2d 224]; State, ex rel. Grosser, v. Boy (1976), 46 Ohio St.2d 184 [75 O.O.2d 228]." State, ex rel. Crockett, v. Robinson (1981), 67 Ohio St.2d 363, 369 [21 O.O.2d 228].
Appellant argues that appellees acted in bad faith by engaging in dilatory conduct designed to prolong litigation and delay the award of back pay to appellant. Specifically, appellant contends that appellees' motion to dismiss, the granting of which was the subject of the first appeal to this court, was without merit and filed only for the purpose of delay.
We cannot agree that this demonstrates bad faith on the part of appellees. As we stated in State, ex rel. Crockett, supra, at 369-370, the fact that appellees interposed a defense which was ultimately overruled does not, in and of itself, demonstrate bad faith. The court of appeals was persuaded by the motion and granted it. Though we reversed the dismissal, we agree that a colorable issue was presented for consideration on the merits as to whether appellant's intervening retirement would affect his entitlement to back pay.
Accordingly, we affirm the judgment of the court of appeals denying appellant an award of attorney fees.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.