Gallia County Veterans Service Commission Cross-Complainants- v. Gallia County Board of County Commissioners
| Decision Date | 06 March 1996 |
| Docket Number | 95CA13,96-LW-0528 |
| Parties | Gallia County Veterans Service Commission, et al., Cross-complainants-Appellees v. Gallia County Board of County commissioners, et al., Defendants-Appellants.(fn1) Case |
| Court | Ohio Court of Appeals |
Rufus B. Hurst and Jonathon S. Forman, DOWNES & HURST, Columbus Ohio and Bruce A. Curry, BARAN, PIPER, TARKOWSKY, FITZGERALD & THEIS, Worthington, Ohio for appellants Gallia County Board of County Commissioners.
J. Rick Brown, MOWERY, BROWN & BLUME, Wheelersburg, Ohio for appellees Gallia County Veterans Service commission.
Michael A. Moses, Columbus, Ohio urging reversal for amicus curiae, plaintiffs Rhonda Lynch, et al.
Thomas A. Luebbers, PECK, SHAFFER & WILLIAMS, Cincinnati, Ohio urging reversal for amicus curiae, County commissioners Association of Ohio.
Andrew M. Kaplan and Scott A. Carroll, VORYS, SATER, SEYMOUR AND PEASE, Cincinnati, Ohio urging affirmance for amicus curiae, Ohio State Association of Veterans Service commissions.
DECISION
This appeal arises from a judgment of the Gallia County Court of Common Pleas in favor of appellee, the Gallia County Veterans Service Commission (hereinafter "Veterans Service") against appellant, the Gallia County Board of County Commissioners (hereinafter "Commissioners").(fn2) Veterans Service sought funding in the amount of $168,561(fn3) for fiscal year 1995(fn4) from the Commissioners but received only $127,559.40.(fn5)5 The trial court granted summary judgment in favor of Veterans Service and issued a writ of mandamus ordering the Commissioners to appropriate the entire sum requested by Veterans Service.
The Commissioners now appeal the trial court's judgment and present the following assignment of error:
The trial court erred in granting summary judgment in favor of the Veterans service Commission in this mandamus action because a Board of County Commissioners has no clear legal duty to appropriate the entire budget amount requested by the Veterans service Commission.
As a preliminary matter, we must address whether Veterans Service's mandamus action should be dismissed for failure to comply with R.C. 2731.04 which provides:
Application for the writ of mandamus must be by petition, in the name of the state on the relation to the person applying and verified by affidavit. The court may require notice of it to be given to the defendant, or grant an order to show cause why it should not be allowed, or allow the writ without the notice.
Veterans Service brought this cross-complaint in its own name and not in the name of the state as required by R.C. 2731.04.(fn6) "A writ of mandamus may be denied where the action is not brought in the name of the state on the relation of the person requesting the writ." State ex rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530, 532, citing, Maloney v. Sacks (1962), 173 Ohio St. 237, 238; Maloney v. Court of Common Pleas of Allen County (1962), 173 Ohio St. 226, 227. Gannon v. Gallagher (1945), 145 Ohio St. 170, 171. However, the Commissioners neither objected to this failure to comply with R.C. 2731.04 in the trial court nor do they assign this as error for our review. We must therefore determine whether this defect is jurisdictional or was waived. In State ex rel. Huntington Ins. Agency, Inc. v. Duryee, supra, the Ohio Supreme Court, in an original action before the Court, was confronted with a mandamus action not brought in the name of the state. The Ohio Supreme Court cited Civ.R. 17(A) and 15(A) as support for liberally allowing amendment of the complaint to comply with R.C. 2731.04 because "[t]he spirit of the Civil Rules is the resolution of cases upon their merits, not upon their pleading deficiencies." Id. at 533 (citations omitted). The case sub judice is not an original action before this court and therefore State ex rel. Huntington Ins. Agency, Inc. v. Duryee is not directly applicable, but we believe the citation of Civ.R. 17(A) to be most relevant. Civ.R. 17(A) provides:
Every action shall be prosecuted in the name of the real party in interest. *** When a statute of this state so provides, an action for the use or benefit of another shall be brought in the name of this state. *** No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest. Such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
If the Commissioners had objected to the failure to bring the mandamus action in the name of the state at trial, Veterans Service would have had opportunity to substitute the state and avoid dismissal. A party is precluded from asserting error on appeal which should have been, but was not raised at the trial level. See LeFort v. Century 21-Maitland Realty Co. (1987), 32 Ohio St.3d 121, 123; DeGarza v. Chetister (1978), 62 Ohio App.2d 149, 156. We therefore hold that any error on the part of Veterans Services for failing to bring its action in the name of the state is waived. We note that two appellate courts addressing R.C. 2731.04 and waiver have reached similar conclusions. Smithberger v. Woodsfield (June 10, 1983), Monroe App. No. 565, unreported; Wilbur v. Reed (July 1, 1975), Butler App. No. CA74050034, unreported.
Summary judgment is appropriate when the following factors have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed in his or her favor. See Bostic v. Connor (1988), 37 Ohio St.3d 144, 146; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66; Morehead v. Conley (1991), 75 Ohio App.3d 409, 411. Morehead v. Conley, 75 Ohio App.3d at 41112. See, also, Schwartz v. Bank one, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 809.
In order to be entitled to a writ of mandamus, Veterans Service had to establish that (1) it had a clear legal right to be funded to the levels of its proposed budget, (2) the Commissioners had a clear legal duty to fully fund Veterans Service's proposed budget, and (3) it had no plain and adequate remedy at law. See Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490. Veterans Service had previously exhausted the hearing process provided for in R.C. 5901.11 to address grievances with the Commissioners's appropriation and therefore had no plain and adequate remedy at law. The Commissioners challenge the trial court's interpretation of R.C. 5901.11, which found that Veterans Service was endowed with the sole discretion to determine its budget and that the Commissioners were required to fully fund Veterans Service's budget request. Where a statute vests sole discretion over budgetary items in a body other than the legislature, the legislative authority has a mandatory duty to fund the items. State ex rel. Hillyer v. Tuscarawas Cty. Bd. of Commrs. (1994), 70 Ohio St.3d 94, 101; State, ex rel. Durkin, v. City Council of Youngstown (1984), 9 Ohio St.3d 132, 134. Veterans Service's budget request would be limited by the five-tenths of a mill funding ceiling imposed by R.C. 5901.11.
The Commissioners argue for an alternative interpretation of R.C. 5901.11 that would permit them discretion to revise Veterans Service's budget request. If the General Assembly grants the local legislative body discretion to determine the amount a commission or agency receives, the recipient is not entitled to an automatic appropriation of all monies requested even if its requests are reasonable. State ex rel. Vet. Serv. Off. v. Pickaway Cty. Bd. (1991), 61 Ohio St.3d 461, 463. Absent an abuse of discretion, mandamus cannot compel a local legislative body to act in a certain way on a discretionary matter. Id.
R.C. Chapter 5901 provides for a comprehensive plan of services and benefits to needy veterans of the armed forces. These programs for veterans are administered by county veterans service commissions which receive funding of up to five-tenths of a mill from the county's general levy pursuant to R.C. 5901.11. See Id. at 464; R.C. 5705.05. Veterans service commissions are funded pursuant to R.C. 5901.11, which was recently amended by Am.Sub.H.B. No. 448, effective July 22, 1994, to read as follows:
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