Hungler v. City of Cincinnati

• Decision Date: 13 August 1986
• Docket Number: No. 85-1392,85-1392
• Citation: 496 N.E.2d 912,25 Ohio St.3d 338,25 OBR 392
• Parties: , 25 O.B.R. 392 HUNGLER et al., Appellants and Cross-Appellees, v. CITY OF CINCINNATI et al., Appellees and Cross-Appellants.
• Court: Ohio Supreme Court

Page 338

25 Ohio St.3d 338

496 N.E.2d 912, 25 O.B.R. 392

HUNGLER et al., Appellants and Cross-Appellees, v. CITY OF CINCINNATI et al., Appellees and Cross-Appellants.

No. 85-1392.

Supreme Court of Ohio.

Aug. 13, 1986.

The facts of this case are complex and involve a series of civil service promotions, vacancies and job abolishments in the lieutenant's rank of the Cincinnati police division. Appellants, Robert J. Hungler et al., classified civil service employees and sworn members of the police division, brought a declaratory judgment action alleging that their promotions had been unlawfully delayed or denied by the appellee city of Cincinnati. Appellants also sought a court order for retroactive promotions and back pay.

We begin with a matter of agreement among the parties. In February 1982 the complement of police lieutenants, as authorized by the Cincinnati City Council, was set at thirty-nine. At that time police sergeant Daniel J. McDonald, one of the appellants herein, was ranked highest on the promotion eligible list should a vacancy occur in the lieutenant rank.

Indeed, a lieutenant's position was soon to open. In March 1982, by court decree, the city was required to promote lieutenant Ray McCarter to captain. However, the city claimed it was in the process of reorganizing its police division and sought to abolish two lieutenant's positions for efficiency reasons. Thus, rather than promoting McDonald to fill the vacancy created by McCarter's promotion, the city employed a demotion-repromotion procedure in order to reduce the complement of thirty-nine lieutenants.

On March 29, 1982 the least senior lieutenant, Clarence T. Gardner, was demoted for one day to sergeant. In turn, the least senior sergeant, Gregory Guy, was bumped into the lowest rank of police officer. No person in the lowest rank, however, was laid off. On March 30, 1982 lieutenant McCarter was promoted to captain, creating a lieutenant's vacancy. Gardner was then repromoted to lieutenant, thus filling the vacancy while reducing the complement of lieutenants to thirty-eight. Guy was also repromoted to sergeant.

In July 1982, a vacancy in the rank of police captain occurred. Again, the city used the demotion-repromotion procedure. On July 24, 1982 lieutenant Gardner was demoted to sergeant, thus bumping a sergeant into the police officer ranks. As before, no person in the lowest rank was laid off. On July 25, 1982 the top ranking lieutenant on the captain promotion eligible list was promoted to that rank, leaving a vacancy in the lieutenant's position. Gardner was repromoted, thus filling that vacancy while reducing the complement of lieutenants from thirty-eight to thirty-seven. The sergeant who had been bumped to police officer was also repromoted.

Because of the abolishment of the two lieutenant's positions in this manner the serial promotions of the appellants, who held top ranking positions on the promotion eligible lists for lieutenant, sergeant and police specialist, were either delayed or denied.

On October 27, 1982 appellants filed a complaint for declaratory judgment, alleging that the city had abolished the two lieutenant's positions by a method contrary to R.C. 124.37 and requesting an injunction ordering their retroactive promotions. The trial court granted the requested relief. In its findings of fact and conclusions of law, the trial court held, inter alia, as follows:

"On both March 29 and July 24, 1982, defendant City of Cincinnati improperly attempted to abolish positions in the rank of Police Lieutenant for alleged lack of work. In neither case was the person holding the least senior Police Officer rank laid off and the attempted one-day demotions were not authorized by the City Manager until after the effective date of the demotions.

" * * * The one-day 'demotions' of Lieutenant Clarence T. Gardner, Jr. on March 29 and July 24, 1982, were attempts on the part of defendant City to 'eliminate' or abolish two positions in the 39-man complement of Police Lieutenants through unlawful means. The City did not comply with the mandatory provisions of R.C., § 124.37, since it did not lay off the youngest person in point of service in the rank of Police Officer.

" * * * The two (2) attempted abolishments in the rank of Police Lieutenant were unlawful and therefore void, and there were no reductions in the authorized and funded complement of thirty-nine (39) Police Lieutenants.

"* * * Due to the unlawful and void actions by defendants as set forth above, plaintiff Robert J. Hungler should have been promoted to the rank of Police Lieutenant on July 25, 1982; plaintiff Robert W. Biddle should have been promoted to the rank of Police Lieutenant on August 8, 1982; plaintiff Ronald H. Kissinger should have been promoted to the rank of Police Sergeant on July 25, 1982; plaintiff James E. Day should have been promoted to the rank of Police Sergeant on August 8, 1982; plaintiff Stephen R. Gregoire should have been promoted to the rank of Police Lieutenant on July 8, 1983; plaintiff Paul J. Buelterman should have been promoted to the rank of Police Lieutenant on March 11, 1984; plaintiff Michael W. O'Brien should have been promoted to the grade of Police Specialist on August 8, 1982; plaintiff Daniel J. McDonald should have been promoted to the rank of Police Lieutenant on March 30, 1982 and plaintiff John E. Ott should have been promoted to the rank of Police Sergeant on March 30, 1982."

The trial court ordered retroactive promotions and back pay for all appellants.

The court of appeals reversed. It held that the city's failure to lay off the least senior officer in the police division was not a violation of R.C. 124.37 prejudicial to appellants. The court of appeals further concluded that the trial court's finding that the city manager, as appointing authority, had not authorized the one day demotions was against the manifest weight of the evidence. The appellate court also, sua sponte, raised the issue of whether the city manager had the authority to abolish the two lieutenant's positions. This issue had not been briefed or argued below and was not assigned as error on appeal. Rather than determining that error had occurred below related to this issue, the appellate court remanded the cause "in order to open the opportunity to litigate the unaddressed issue * * *."

The cause is now before this court pursuant to the allowance of a motion and cross-motion to certify the record.

Swain & Hardin Co., L.P.A. and Donald E. Hardin, Cincinnati, for appellants and cross-appellees.

Richard A. Castellini, City Solicitor, and Robert H. Johnstone, Jr., Cincinnati, for appellees and cross-appellants.

CELEBREZZE, Chief Justice.

Initially, both parties to this appeal have assigned as error the appellate court's determination to remand for further litigation the issue of the city manager's authority to abolish positions in the complement of thirty-nine lieutenants funded through the mandate of city council. ¹ This issue was not raised either at trial or on appeal and, as the court of appeals itself pointed out, there was not sufficient basis in the record upon which the court could make a determination of error relative to it.

The authority of the appellate courts is carefully set forth in the Ohio Constitution and the Appellate Rules. Section 3(B)(2), Article IV of the Constitution states in pertinent part that "[c]ourts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *." (Emphasis added.)

App.R. 12 draws the parameters of the court of appeals' exercise of its reviewing power. App.R. 12(A) provides that an appellate court need not pass on errors which are not assigned or argued. Because this language is discretionary, this court has held in C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio St.2d 298, 313 N.E.2d 400, that an appellate court may pass on error not assigned by the parties.

In Willoughby Hills, supra, an issue not litigated at trial was raised for the first time by the court of appeals. Subsequent to oral argument, the appellate court ordered both parties to file additional briefs on that issue. Based on those briefs and the record before it, the court of appeals made a determination that error had occurred below. This court stated at 301 that "nothing prevents a court of appeals from passing upon error which was neither briefed nor pointed out by a party."

App.R. 12(B), however, provides that when the court of appeals determines as a matter of law that there was prejudicial error below, it shall reverse the judgment of the lower court or remand the cause with instructions to render judgment or final order in favor of the appellant. App.R. 12(D) further states that "[i]n all other cases where the court of appeals finds error prejudicial to the appellant, the judgment or final order of the trial court shall be reversed and the cause remanded to the trial court for further proceedings."

Thus, a remand by an appellate court to the trial court for further proceedings must be premised on a determination that error occurred below and a ruling on that error.

Consistent with the foregoing, then, it can be stated that although a court of appeals may recognize error not assigned by the parties, there must be sufficient basis in the record before it upon which the court can decide that error. In the instant case the court of appeals exceeded the permissible exercise of its review. It raised an issue, the city manager's authority to abolish the lieutenant's positions, which was outside the record before it and therefore could not be determined as error. As we stated in State v. Ishmail (1978), 54 Ohio St.2d 402, 405-406, 377 N.E.2d 500, "[s]ince a reviewing court can only reverse the judgment of a trial court if it finds error in the proceedings of...