Opinion
No. 79-1197
Decided March 19, 1980.
Attorney fees — Not recoverable as costs for mandamus action to vacate Industrial Commission's entry.
APPEAL from the Court of Appeals for Franklin County.
On March 20, 1979, the Court of Appeals for Franklin County issued a writ of mandamus against the Industrial Commission of Ohio ordering it to vacate its January 4, 1974, entry. The commission had refused to consider an appeal from a decision of the Cleveland Regional Board of Review that Patrick Murphy, appellant herein, did not suffer an injury arising out of and in the course of his employment with the Cleveland Electric Illuminating Co. The court ordered the commission to reconsider allowing the appeal. No appeal was taken from this order.
Appellant, however, filed a motion with the Court of Appeals for an order granting attorney's fees for the mandamus proceeding. The court overruled the motion.
That cause is now before this court pursuant to an appeal as of right.
Messrs. Mancino, Mancino, Mancino and Mr. Paul Mancino, Jr., for appellant. Mr. William J. Brown, attorney general, and Mr. Gerald H. Waterman, for appellee Industrial Commission.
Messrs. Squire, Sanders Dempsey, and Mr. Robert W. Bishop, for appellee Cleveland Electric Illuminating.
It is well established that the general rule in Ohio is that attorney fees are not recoverable as part of the costs of litigation in the absence of statutory authorization. See Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177. Appellant alleges that he is authorized to recover attorney's fees by R.C. 4123.519 and 2731.11. Neither statute is applicable, however. R.C. 4123.519 authorizes the recovery of attorney's fees in an appeal from the decision of the Industrial Commission. R.C. 2731.11 authorizes a court to award damages in a mandamus action. Appellant's attorney's fees are not recoverable as damages. See State, ex rel. Grosser, v. Boy (1976), 46 Ohio St.2d 184.
Appellant alleges further that he is entitled to recover his attorney's fees for the mandamus action because it was necessitated by the commission's "bad faith, vexatious, wanton, obdurate or oppressive" actions. We hold, however, that appellant has not borne his burden of proof to establish any improper action by the commission. Thus, we do not decide whether such actions, if proven, would entitle one to recover attorney's fees.
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.