Prosen v. Dimora
Citation | 606 N.E.2d 1050,79 Ohio App.3d 120 |
Decision Date | 06 April 1992 |
Docket Number | No. 59995,59995 |
Court | United States Court of Appeals (Ohio) |
Parties | PROSEN et al., Appellants, v. DIMORA et al., Appellees. * |
Joseph W. Diemert, Jr. & Assoc. Co., L.P.A., Joseph W. Diemert, Jr. and Thomas M. Hanculak, Mayfield Heights, for appellants.
Charles E. Merchant, and Katharine Lang Bettasso, Cleveland, for appellees.
Plaintiffs-appellants, Robert Prosen and the Fraternal Order of Police ("F.O.P."), filed this appeal subsequent to the trial court's granting the motion to dismiss filed by defendants-appellees, Mayor Jimmy Dimora and the city of Bedford Heights.
Prosen was employed by the Bedford Heights Police Department as a patrolman. On February 23, 1989, the civil service commission was informed that Mayor Dimora, acting in his capacity as safety director, appointed Prosen to the position of lieutenant. By letter dated February 12, 1990, Dimora notified Prosen that his probationary promotion would not be made permanent, and returned him to the rank of patrolman. This letter was pursuant to Section 12.2 of the Rules and Regulations of the Bedford Heights Police Department, which states there is no right to appeal to the civil service commission.
On March 20, 1990, Prosen and the F.O.P. filed a complaint in common pleas court. Count one of the complaint was for relief pursuant to R.C. Chapter 2506 as an administrative appeal, count two sought a declaratory judgment, and count three alleged Prosen was wrongfully discharged from his rank of police lieutenant.
The city of Bedford Heights has adopted a charter pursuant to Section 7, Article XVIII of the Ohio Constitution. The city charter creates a civil service commission.
The relevant portions of the Bedford Heights City Charter are as follows:
Pursuant to Section 8.04.06, the mayor, as the director of public safety, set forth rules and regulations for the government of the police department. Section 12.2, which is relevant to this appeal, states:
The rules and regulations of the Civil Service Commission for Bedford Heights do not contain any provision for placing an officer on probation.
Appellants set forth one assignment of error:
In the trial court, appellees filed a motion to dismiss for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted. Civ.R. 12(B)(1), (6).
State ex rel. Bush v. Spurlock (1989), 42 Ohio St.3d 77, 80, 537 N.E.2d 641, 644.
Subject-matter jurisdiction may be raised sua sponte at any stage of the proceedings by the trial judge. Fox v. Eaton Corp. (1976), 48 Ohio St.2d 236, 2 O.O.3d 408, 358 N.E.2d 536. And, in setting forth the standard for reviewing a motion under Civ.R. 12(B)(6), the Supreme Court recently held in Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 229-230, 551 N.E.2d 981, 982-983:
A trial court is not empowered to sua sponte grant a motion to dismiss under Civ.R. 12(B)(6) without notice to the plaintiff and an opportunity to respond. See Lundy v. Lederle Laboratories, Div. of American Cyanamid Co. (1988), 54 Ohio App.3d 192, 561 N.E.2d 1027.
Appellant first contends that since Section 7.07.05 of the charter states that any promotions, transfers, reductions or removals from office are subject to the civil service provisions, and the civil service provisions make no mention of probation, and that no proper probationary period existed. If no probationary period was enacted, appellant remained a classified civil servant, and could not have his rank reduced without a civil service hearing.
Appellant's reasoning is flawed for several reasons. First, that the mayor's authority as to promotions, transfers, reductions...
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...granted, only after the parties are given notice of the court's intention to dismiss and an opportunity to respond. Prosen v. Dimora , 79 Ohio App.3d 120, 124, 606 N.E.2d 1050 (8th Dist.1992). The only instances of when a sua sponte dismissal of complaint without notice is appropriate is wh......
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...... parties are given notice of the court's intention to. dismiss and an opportunity to respond. Prosen v. Dimora, 79 Ohio App.3d 120, 124, 606 N.E.2d 1050 (8th. Dist.1992). The only instances of when a sua sponte dismissal. of complaint without ......
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