City of Cleveland v. Ohio Civil Rights Com'n

• Decision Date: 05 January 1988
• Docket Number: No. 53095,53095
• Citation: 43 Ohio App.3d 153,540 N.E.2d 278
• Parties: , 50 Fair Empl.Prac.Cas. (BNA) 413 CITY OF CLEVELAND, Appellant, v. OHIO CIVIL RIGHTS COMMISSION et al., Appellees. *
• Court: Ohio Court of Appeals

Page 153

43 Ohio App.3d 153

540 N.E.2d 278, 50 Fair Empl.Prac.Cas. (BNA) 413

CITY OF CLEVELAND, Appellant, v.OHIO CIVIL RIGHTS COMMISSION et al., Appellees. ^*

No. 53095.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan. 5, 1988.

Syllabus by the Court

1.The Rules of Civil Procedure are applicable to an action commenced in common pleas court pursuant to R.C. 4112.06.

2.In order to commence an action in common pleas court pursuant to R.C. 4112.06, a petitioner is required to serve opposing parties with a summons and complaint through the clerk of courts.(Civ.R. 3 and 4, applied.)

Marilyn G. Zack, Director of Law, Cleveland, and Nick Tomino, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Diane J. Karpinski, Columbus, for appelleeOhio Civil Rights Com'n.

James Carnes, for appelleeRichard Lest.

KRUPANSKY, Presiding Judge.

In civil case No. 84510, appellant, city of Cleveland, petitioned for review of the Ohio Civil Rights Commission decision holding the Cleveland Police Department had illegally discriminated against complainant-appelleeRichard Lest on the basis of a physical handicap.Appellant filed a petition for review in the Court of Common Pleas of Cuyahoga County pursuant to R.C. 4112.06 on December 13, 1984.The petition named appelleeOhio Civil Rights Commission but neglected to name appellee Lest.It is undisputed appellant mailed a copy of this petition to each party via ordinary United States mail.Service was never made via the clerk of courts.

On April 2, 1985appellant filed a motion to amend the petition to name Lest.This motion was granted April 9, 1985.The Civil Rights Commission made an appearance contesting the appeal on the merits.

Lest made no appearance until February 7, 1986 over one year after filing of the petition.On that date Lest filed a motion to dismiss the untimely appeal contending the common pleas court lacked subject matter jurisdiction due to lack of timely service on Lest pursuant to Civ.R. 3(A) and 4(A).The Civil Rights Commission subsequently joined in this motion to dismiss which was granted by the trial courtNovember 21, 1986.Appellant filed timely notice of appeal to this court of appeals on December 19, 1986.

Appellant assigns two errors on appeal.Both assignments of error involve substantially identical issues of law and fact and will be discussed concurrently.Appellant's assignments of error follow:

"I.The common pleas court erred in dismissing the city's appeal on the grounds that Revised Code Section 4112.06(B) required that the city's petition for judicial review be served by the clerk of courts pursuant to Ohio Civil Rule 4.

"II.The common pleas court erred in dismissing the city's appeal on the grounds that the city's petition was not served by the clerk of courts pursuant to Ohio Civil Rule 4 where there had been no showing that any party had been prejudiced by the lack of this type of service."

Appellant's assignments of error lack merit.

Civ.R. 1(C) provides:

"Exceptions.These rules, to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure (1) upon appeal to review any judgment, order or ruling, (2) in the appropriation of property, (3) in forcible entry and detainer, (4) in small claims matters under Chapter 1925, Revised Code, (5) in uniform reciprocal support actions, (6) in the commitment of the mentally ill, (7) in all other special statutory proceedings; provided, that where any statute provides for procedure by a general or specific reference to all the statutes governing procedure in civil actions such procedure shall be in accordance with these rules."(Emphasis added.)

Thus, the question becomes whether Civ.R. 3(A) and 4(A) of the Ohio Rules of Civil Procedure are by their nature clearly inapplicable by virtue of R.C. 4112.06 governing judicial review from decisions of the Civil Rights Commission.

R.C. 4112.06 provides in pertinent part:

"(A) Any complainant, or respondent claiming to be aggrieved by a final order of the commission, including a refusal to issue a complaint, may obtain judicial review thereof, and the commission may obtain an order of court for the enforcement of its final orders, in a proceeding as provided in this section. * * *

"(B) Such proceedings shall be initiated by the filing of a petition in court as provided in division (A) of this section and the service of a copy of the said petition upon the commission and upon all parties who appeared before the commission.Thereupon the commission shall file with the court a transcript of the record upon the hearing before it.The transcript shall include all proceedings in the case, including all evidence and proffers of evidence.The court shall thereupon have jurisdiction of the proceeding and of the questions determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper and to make and enter, upon the record and such additional evidence as the court has admitted, an order enforcing, modifying and enforcing as so modified, or setting aside in whole or part, the order of the commission."

More specifically, the question is whether Civ.R. 3(A), 4(A) and 4(B)¹ are applicable to the parties sub judice.If the Civil Rules do in fact apply, then the appellant failed to properly commence this action under Civ.R. 3(A), since appellant failed to request service on the appellees through the clerk of courts.

The Staff Notes to the July 1, 1971 amendment to Civ.R. 1(C) state in pertinent part: "As a result of the amendment of Rule 1(C) the Civil Rules will be applicable to special statutory proceedings except 'to the extent that they would by their nature be clearly inapplicable. * * * 'Certainly the Civil Rules will not be applicable to those many special statutory proceedings which are nonadversary in nature.On the other hand, the Civil Rules will be applicable to special statutory proceedings adversary in nature unless there is a good and sufficient reason not to apply the rules."AccordPrice v. Westinghouse Electric Corp.(1982), 70 Ohio St.2d 131, 24 O.O.3d 237, 435 N.E.2d 1114²;Cuyahoga Metro. Housing Authority v. Jackson(1981), 67 Ohio St.2d 129, 21 O.O.3d 81, 423 N.E.2d 177.Therefore, the Civil Rules apply unless there is a good and sufficient reason not to apply them.Lysaght v. Dollison(1978), 61 Ohio App.2d 59, 61, 15 O.O.3d 77, 78, 399 N.E.2d 121, 123.

"Civ.R. 1(C) expressly excepts procedures upon appeal to review any judgment, order, or ruling from the Rules of Civil Procedure, to the extent the rules 'would by their nature be clearly inapplicable.'However, the Supreme Court has delineated Civil Rule applicability in numerous administrative review situations.SeePrice v. Westinghouse Electric Corp.(1982), 70 Ohio St.2d 131, 24 O.O.3d 237, 435 N.E.2d 1114.These determinations are made on a case-by-case basis.See, e.g., Price, supra(summary judgment available in a workers' compensation appeal), and Richmond v. Bd. of Review(1979), 64 Ohio App.2d 243, 18 O.O.3d 180, 412 N.E.2d 418(Civ.R. 6[B] applicable to filing transcript in unemployment appeal).But, see, Townsend v. Bd. of Bldg. Appeals(1976), 49 Ohio App.2d 402, 3 O.O.3d 461, 361 N.E.2d 271(Civ.R. 6[E] inapplicable in appeal from board of building appeals)."J.C. Sanson, Inc. v. Rodgers(1986), 30 Ohio App.3d 77, 78, 30 OBR 133, 135, 506 N.E.2d 290, 292-293.

The Rules of Civil Procedure apply to an action commenced in common pleas court pursuant to R.C. 4112.06.Abbyshire Constr. Co. v. Civil Rights Comm.(1974), 39 Ohio App.2d 125, 68 O.O.2d 319, 316 N.E.2d 893. R.C. 4112.06 is silent as to whether the petition initiating the appeal must be served through the clerk of courts.However, a de novo hearing of a Civil Rights Commission decision on the merits is clearly adversarial in nature.Therefore, Civ.R. 3(A)andCiv.R. 4(A) and (B) apply absent a good and sufficient reason not to apply those rules.We cannot find such good and sufficient reason.

Appellant's reliance on State, ex rel. Ohio Civil Rights Comm., v. Gunn(1976), 45 Ohio St.2d 262, 74 O.O.2d 422, 344 N.E.2d 327;Anson v. Tyree(1986), 22 Ohio St.3d 223, 22 OBR 372, 490 N.E.2d 593;andWinchester v. Pike(1986), 22 Ohio St.3d 227, 22 OBR 375, 490 N.E.2d 596, is unpersuasive.Gunn, supra, involved the enforcement of a subpoena issued by the Civil Rights Commission.The Gunn court stated:

" ' * * * We agree with the district court that the proceedings plainly are of a summary nature not requiring the issuance of process, hearing, findings of fact, and the elaborate process of a civil suit.* * *

" ' * * * Obviously, if the enforcement of valid subpoenas, the issuance of which is a mere incident in a case, were to require all of the formalities of a civil suit, the administrative work of the board might often be subject to great delay.' "Gunn, supra, 45 Ohio St.2d at 264-265, 74 O.O.2d at 423-424, 344 N.E.2d at 329, quotingGoodyear Tire & Rubber Co. v. NLRB(C.A. 6, 1941), 122 F.2d 450, 451.

Further, both Anson, supra, andWinchester, supra, involved the statutory procedure whereby service is made on the Secretary of State under R.C. 2703.20 when a plaintiff is unable to find and serve a complaint upon a defendant in a case arising out of an automobile accident occurring in the state of Ohio.By its very nature, service under R.C. 2703.20 is summary in nature and not adversarial.Therefore, appellant's authority is distinguishable in that the statutory proceedings at issue in Gunn, Anson and Winchester, supra, are not adversarial but summary proceedings.Clearly, an appeal on the merits from an adverse decision by the Civil Rights Commission is adversarial.Therefore, the authority submitted by appellant in this regard is not persuasive.As the case sub judice is an adversarial proceeding, appellant had the burden of showing good and sufficient reason not to apply the...