Cirino v. Bureau of Workers' Comp.

• Decision Date: 20 April 2021
• Docket Number: No. 20AP-187,20AP-187
• Court: Ohio Court of Appeals
• Parties: Michael CIRINO, Plaintiff-Appellant, v. BUREAU OF WORKERS’ COMPENSATION, Defendant-Appellee.

171 N.E.3d 840

Michael CIRINO, Plaintiff-Appellant,

v.BUREAU OF WORKERS’ COMPENSATION, Defendant-Appellee.

No. 20AP-187

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on April 20, 2021

On brief: Bashein & Bashein Co., L.P.A., and W. Craig Bashein, and John P. Hurst, Cleveland; Paul W. Flowers Co., L.P.A., and Paul W. Flowers and Louis E. Grube, Cleveland; Charles J. Gallo Co., L.P.A., and Charles J. Gallo, Cleveland, for appellant. Argued: Paul W. Flowers.

On brief: Dave Yost, Attorney General, Christopher P. Conomy, and Randall W. Knutti, for appellee. Argued: Christopher P. Conomy.

DECISION

BEATTY BLUNT, J.

{¶ 1} Plaintiff-appellant, Michael Cirino ("Cirino"), appeals from a February 28, 2020 Decision and Judgment Entry issued by the Court of Claims of Ohio granting the motion of defendant-appellee, Bureau of Workers’ Compensation ("BWC"), for summary judgment denying the motion of appellant for partial summary judgment and rendering judgment in favor of BWC. For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} This case began in 2010, when Cirino sued BWC in the Cuyahoga County Court of Common Pleas, challenging the legality of fees incurred by certain BWC benefits recipients. Cirino v. Bur. of Workers’ Comp. , Ct. of Cl. No. 2018-01140JD, 2020-Ohio-3165, 2020 WL 4431490, ¶ 3. BWC filed a motion to dismiss Cirino's suit for lack of subject-matter jurisdiction. Id. The common pleas court denied the motion to dismiss and, on appeal, the Eighth District Court of Appeals affirmed the judgment of the trial court. Id. On motion of BWC, the Supreme Court of Ohio granted discretionary review. Id.

{¶ 3} Subsequently, the Supreme Court reversed the appellate court, holding that Cirino's suit against BWC in the Cuyahoga County Common Pleas Court was within the exclusive jurisdiction of the Court of Claims and not within the subject-matter jurisdiction of the common pleas court. Id. , citing Cirino v. Ohio Bur. of Workers’ Comp. , 153 Ohio St.3d 333, 2018-Ohio-2665, 106 N.E.3d 41 (" Cirino I "). The Supreme Court came to this conclusion after finding that Cirino's claims were legal claims, not equitable claims, regardless of how they were characterized by Cirino. Cirino I at ¶ 27. The Supreme Court vacated all orders issued by the common pleas court, including an order certifying a class, and remanded the case to the common pleas court for dismissal for lack of subject-matter jurisdiction. Id. , citing Cirino I at ¶ 1, 31.

{¶ 4} Thereafter, on August 1, 2018, Cirino filed a "class action complaint" in the Court of Claims that was based on the identical circumstances as those underlying the lawsuit in Cirino I . In discussing those circumstances and the evidence in Cirino I at ¶ 9-11, the Supreme Court stated as follows:

Cirino began receiving workers’ compensation benefits in 2009. He was entitled to $443 per week, which was paid to him on a biweekly basis in the amount of $886. At first he received his payments by paper check, which he deposited in his account with PNC Bank. After receiving a few paper checks, however, he was notified that his payments would be made electronically and he would be enrolled in the debit-card program if he did not elect to receive direct deposits. Cirino testified that he did not want to provide the bureau with his bank-account number, which was required in order to receive payments by direct deposit. He was therefore sent a debit card and enrolled in the debit-card program.

After he received the debit card, Cirino activated it and made a withdrawal of his $886 biweekly benefit in cash from a teller at a Chase branch location. Later that same month, he attempted to make a second in-person withdrawal of $886, but his request was denied because his account did not have enough funds to provide him with $886 while also covering the $5 fee for making a second in-person withdrawal in the same month. Cirino then went to a teller at another branch and withdrew $881 in cash, incurring a $5 fee for the transaction.

After this, Cirino spoke to an attorney, who informed him that the $5 charge was a service fee imposed by Chase. Cirino continued to withdraw cash through multiple teller visits per month, incurring numerous additional $5 fees.

Thus, Cirino's own testimony demonstrates he chose to incur the $5 fee charged by Chase in exchange for the convenience of a teller transaction, despite that he could have chosen to use several other methods for accessing his funds without incurring any such fee.¹ (Feb. 28, 2020 Decision at 3.)

{¶ 5} In this case, Cirino again asserts that BWC acted unlawfully in permitting JPMorgan Chase Bank, N.A. ("Chase Bank") to charge fees associated with a BWC-authorized "debit card program," which, according to Cirino's claim, resulted in BWC shifting administrative costs to BWC claimants in violation of R.C. 4123.341. (See, generally, Aug. 1, 2018 Compl., Count One.) Cirino also asserts that BWC violated its duties as set forth in R.C. 4123.67 by providing Cirino and other members of a proposed class of similarly situated individuals "with a method or mode of payment that was subject to monthly withholding of transaction fees, charges, costs, or expenses." Id. Cirino seeks legal, declaratory, injunctive, and other equitable relief.² Id.

{¶ 6} On November 29, 2018, BWC filed a motion for partial judgment on the pleadings pursuant to Civ.R. 12(C). On January 10, 2019, the trial court granted the motion in favor of BWC on all of Cirino's equitable claims except his claims for declaratory relief and injunctive relief. (Jan. 10, 2019 Decision at 8; Jgmt. Entry.)

{¶ 7} On December 18, 2018, Cirino moved for class certification,³ and on December 19, 2018, he moved for partial summary judgment on liability. On January 17, 2019, BWC moved: (1) for an extension of time to file responses to Cirino's motions for class certification and partial summary judgment; and (2) to stay any ruling on class certification until after the court issued a ruling on Cirino's motion for partial summary judgment on liability. On February 8, 2019, the trial court granted BWC's motions, thereby staying consideration of Cirino's motion for class certification until all summary judgment proceedings had been determined and permitting BWC to file responses to Cirino's motions for class certification and partial summary judgment within 120 days of the court's entry.

{¶ 8} Subsequently, on June 10, 2019, BWC filed a document titled "Defendant's Combined Motion for Summary Judgment and Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment on Liability." In response, Cirino moved (1) for an extension of time until July 1, 2019, to submit a response to BWC's combined motion for summary judgment and memorandum in opposition, and (2) for leave to file a reply in support of Cirino's motion for class certification. On June 21, 2019, the trial court granted Cirino's motions in two separate entries.

{¶ 9} On July 2, 2019, Cirino filed a response to BWC's cross-motion for summary judgment and a reply in support of Cirino's motion for class certification, and also moved for leave to file a reply instanter. That same day, BWC moved to strike Cirino's response and reply because Cirino failed to timely file them. On July 3, 2019, Cirino filed a response opposing BWC's motion to strike and also moved for leave to file a memorandum and reply instanter. The trial court determined that, notwithstanding Cirino's response and reply filed on July 2, 2019 were untimely, both filings should be accepted in the interest of justice and BWC's motion to strike should be denied. (Feb. 28, 2020 Decision at 5.) The trial court further denied as moot both Cirino's motion of July 2, 2019 for leave to file a reply instanter and Cirino's motion of July 3, 2019 for leave to file a memorandum and reply instanter. Id.

{¶ 10} Thereafter, on February 28, 2020, the trial court issued a decision and concurrent judgment entry in which the trial court denied Cirino's motion for partial summary judgment on liability filed on December 19, 2018; denied as moot Cirino's motion for class certification filed on December 18, 2018; granted BWC's motion for summary judgment filed on June 10, 2019 on all remaining claims; and rendered judgment in favor of BWC. (Feb. 28, 2020 Decision at 15.)

{¶ 11} This timely appeal followed.

II. Assignments of Error

{¶ 12} Appellant assigns three errors for our review:

[1.] The Court of Claims erred, as a matter of law, by dismissing Plaintiff-Appellant's Claims for Equitable Relief upon the pleadings through Civ.R. 12(C).

[2.] Given the undisputed factual record, the Court of Claims further erred as a matter of law by denying Plaintiff-Appellant's Motion for Summary Judgment upon liability and instead granting summary judgment in favor of Defendant-Appellee.

[3.] Because a meritorious claim for monetary damages has been established in the evidentiary record, the Court of Claims also possesses subject matter jurisdiction over the claims for declaratory and injunctive relief.

III. Discussion

A. Appellant's First Assignment of Error

{¶ 13} In his first assignment of error, appellant asserts the Court of Claims erred, as a matter of law, by granting the motion of BWC for judgment on the pleadings pursuant to Civ.R. 12(C) and dismissing appellant's claims for equitable relief. We disagree.

{¶ 14} Civ.R. 12(C) states: "After the pleadings are closed but within such times as not to delay the trial, any party may move for judgment on the pleadings." A motion for judgment on the pleadings filed pursuant to Civ.R. 12(C) "has been characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted." Tran v. State, 10th Dist. No. 09AP-587, 2009-Ohio-6784, 2009 WL 4932738, ¶ 10. In ruling on a motion for judgment on the pleadings, a trial court is permitted to "consider both the complaint and answer."

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