Cleveland v. Assn. of Cleveland Fire Fighters, Local 93 Internatl. Assn. of Fire Fighters

• Decision Date: 22 April 1991
• Docket Number: No. 58356,58356
• Citation: 596 N.E.2d 1086,73 Ohio App.3d 220
• Parties: CITY OF CLEVELAND, Appellant, v. ASSOCIATION OF CLEVELAND FIRE FIGHTERS, LOCAL 93, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, Appellee. *
• Court: Ohio Court of Appeals

Page 220

73 Ohio App.3d 220

596 N.E.2d 1086

CITY OF CLEVELAND, Appellant, v. ASSOCIATION OF CLEVELAND FIRE FIGHTERS, LOCAL 93, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, Appellee. ^*

No. 58356.

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

Decided April 22, 1991.

Craig S. Miller, Director of Law, and Thompson, Hine & Flory, Robert L. Larson and Keith A. Ashmus, Sp. Labor Counsel, Cleveland, for appellant

Summers, Fox & McGinty, William L. Summers and Norman A. Fox, Cleveland, for appellee.

McMANAMON, Judge.

The plaintiff, city of Cleveland ("the city"), appeals the judgment in favor of defendant, Association of Cleveland Fire Fighters, Local 93, International Association of Fire Fighters ("the union"), entered in a labor controversy submitted to the common pleas court on remand from this court. See Cleveland v. Assn. of Cleveland Fire Fighters, Local 93, Internatl. Assn. of Fire Fighters (Oct. 9, 1986), Cuyahoga App. No. 50773, unreported. In four assignments of error, ¹ the city contests the judgment of the trial court, controverting evidentiary matters and the court's findings of fact and conclusions of law. Upon review, we affirm.

In 1980 the city and union composed a "compact" in which the union agreed to limit any wage demands for 1981 and 1982 to a maximum eight percent pay increase to facilitate the city's drive to pass a .5 percent income tax increase on the November ballot. Representatives of the parties signed the document.

Voters defeated the proposed tax increase in 1980, but passed it in a February 1981 special election. Three months later, city and union officials agreed to a labor contract, which included an eight percent pay increase, for 1981-1982. The union membership, however, rejected this agreement and, through a union negotiating team, demanded a 9.6 percent wage increase.

The city and union, unable to reach consensus, submitted their impasse to arbitrators pursuant to a binding arbitration provision encompassed in a "Memorandum of Understanding" between the two. The arbitration panel approved the union's proposed 9.6 percent wage increase ceiling, declining to consider the 1980 compact because:

" * * * it would be highly presumptuous for this arbitration panel to justify any part of its Decision and Award on the basis of a compact which one party now disaffirms and which neither party chose to include in their Memorandum of Understanding as a 'factor' to be utilized in the arbitration process." In re Arbitration between City of Cleveland & Internatl. Assn. of Fire Fighters, AFL-CIO, Local No. 93 (Dec. 4, 1981), No. 53-30-0295-81, at 7.

The city sought declaratory relief and vacation of the arbitration award in the court of common pleas. That court declined to vacate the arbitration A panel of this court dismissed the city's appeal from that judgment for want of jurisdiction, pursuant to Civ.R. 54(B), as the court failed to enter a final decree on the city's prayer for declaratory relief. Cleveland v. Assn. of Cleveland Fire Fighters (Aug. 25, 1983), Cuyahoga App. No. 45216, unreported, 1983 WL 4630.

award, finding the panel properly excluded the compact, as irrelevant, from its consideration of the impasse. The court granted the union's motion to confirm the award.

Upon remand, the trial court amended its judgment to dismiss the declaratory judgment action, determining that it lacked authority to review an issue conclusively determined by a binding arbitration award.

The city appealed the judgment to this court and, despite losing on the issue of the trial court's refusal to vacate the arbitration award, won a reversal of the dismissal of the declaratory relief action. Cleveland v. Assn. of Cleveland Fire Fighters, Local 93 (1984), 20 Ohio App.3d 249, 20 OBR 311, 485 N.E.2d 792. A panel of this court held that, though the trial court properly confirmed and enforced the arbitrators' decision, it incorrectly decided that the order included a determination of the validity and effect of the compact. Id. The panel found "[t]he arbitrators expressly disclaimed any decision about the validity or effect of the later compact." Id. at 254, 20 OBR at 316, 485 N.E.2d at 798. The panel remanded the declaratory relief action to the trial court for a determination of the effect of the compact on the rights established by the arbitration decision. Id. at 255, 20 OBR at 317, 485 N.E.2d at 798-799.

The trial court, on remand, reviewed the transcripts of the arbitration panel and the transcript of the hearing on the city's motion to vacate the arbitration award. Without procuring or considering any additional evidence, requesting briefs or providing opportunity for the parties to present evidence or argue, the trial court concluded the compact was not a binding contract.

On appeal, another panel of this court reversed and remanded the judgment of the trial court for a trial de novo to determine the effect of the compact on any rights established by the arbitration decision.

In 1988, the trial court conducted the trial de novo. In its findings of fact and conclusions of law, it essentially concluded that the compact was invalid and thus not binding and without effect on the parties. As a result, it affirmed the arbitration award.

The city's first assigned error charges that the court erroneously refused to admit the record of a city press conference into evidence so as to establish the truth of its contents.

The city claims the substance of the record constituted a business or public records exception to the rule against hearsay. Evid.R. 803(6) and 803(8). In the alternative, the city posits the content of the document was an admission by a party opponent, and thus not hearsay, pursuant to Evid.R. 801(D)(2)(b).

The record of the press conference reveals that the mayor of the city told the press, in the presence of union presidents, that the unions signed the compact and that he would not have put the tax increase on the ballot had the city not reached a two-year agreement with the unions. City attorneys introduced the record through its custodian, the mayor's former assistant press secretary. A union objection was sustained.

The court found the mayor's recorded statements to be hearsay as defined by Evid.R. 801(C) and prohibited by Evid.R. 802. As a result, the court declined to admit the substance of the release, allowing the document into evidence only as proof that a news release of the compact was the subject of a news release on October 31, 1980. The city did not object.

A reviewing court will not consider issues which the appellant failed to raise in the trial court. Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 70 O.O.2d 123, 322 N.E.2d 629; American Vineyards Co. v. Wine Group (1984), 20 Ohio App.3d 366, 20 OBR 471, 486 N.E.2d 854; BancOhio Natl. Bank v. Abbey Lane Ltd. (1984), 13 Ohio App.3d 446, 13 OBR 536, 469 N.E.2d 958; Olbrich v. Shelby Mut. Ins. Co. (1983), 13 Ohio App.3d 423, 13 OBR 510, 469 N.E.2d 892; Schwartz v. Wells (1982), 5 Ohio App.3d 1, 2, 5 OBR 1, 2, 449 N.E.2d 9, 11. Further, we are mindful that the city cannot take advantage of the objection made by its opponent to seek relief. Ball v. Youngstown Sheet & Tube Co. (App.1955), 75 Ohio Law Abs. 140, 142 N.E.2d 874; Fried v. Fried (1989), 65 Ohio App.3d 61, 582 N.E.2d 1038. Finally, we note that, in a bench trial, the court is presumed to have considered only relevant, material and competent evidence. State v. Post (1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754, 759, certiorari denied (1988), 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1023; State v. Bey (Feb. 19, 1991), Cuyahoga App. No. 57973, unreported, 1991 WL 12950; State v. Standberry (July 26, 1990), Cuyahoga App. No. 56541, unreported, 1990 WL 104971.

This assignment of error is not well taken.

The city's second and third assigned errors controvert the court's findings of fact and conclusions of law. The city specifically attacks eleven of the factual findings as being unsupported by the record and seven conclusions of law as based neither in fact nor law.

An appellate court reviews a trial court's findings of fact and conclusions of law to determine whether the lower court properly applied the law to the facts and determined the facts consistent with the evidence. Freeman v. Westland Builders, Inc. (1981), 2 Ohio App.3d 212, 2 OBR 231, 441 N.E.2d 283.

A reviewing court must presume the trial court's findings are correct, in absence of evidence to the contrary, as the trial judge is best able to view the witnesses and use such observations in weighing their credibility. Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846, 849; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 410-411, 461 N.E.2d 1273, 1276. An appellate court should not substitute its judgment for that of the trial court when there is credible and competent evidence supporting the trial court's findings. Seasons Coal Co., supra.

We further note that three panels of this court have reviewed this matter and their findings and decisions have finally settled certain issues and thus become the law of the case. Hawley v. Ritley (1988), 35 Ohio St.3d 157, 519 N.E.2d 390; Nolan v. Nolan (1984), 11 Ohio St.3d 1, 11 OBR 1, 462 N.E.2d 410; McCoy v. Engle (1987), 42 Ohio App.3d 204, 537 N.E.2d 665; Blackwell v. Internatl. Union, U.A.W. (1984), 21 Ohio App.3d 110, 21 OBR 117, 487 N.E.2d 334.

The following factual findings, in addition to being evidence in the record before us, were previously determined by panels of this court: (1) The compact called for the unions to put an eight percent cap on their requests for wage and benefit increases for 1981 and 1982 while the city promoted passage of a .5 percent income tax increase; (2) the union president, before signing, expressed his lack of authority to bind members by signing the compact; (3) after the union leader signed the pact, the union ultimately submitted contract wage...