State, ex rel. Delph, v. Greenfield

• Decision Date: 11 March 1991
• Docket Number: No. 759,759
• Citation: 593 N.E.2d 369,71 Ohio App.3d 251
• Parties: The STATE, ex rel. DELPH, Appellant, v. CITY OF GREENFIELD et al., Appellees.
• Court: Ohio Court of Appeals

Page 251

71 Ohio App.3d 251

593 N.E.2d 369

The STATE, ex rel. DELPH, Appellant, v. CITY OF GREENFIELD et al., Appellees.

No. 759.

Court of Appeals of Ohio, Fourth District, Highland County.

Decided March 11, 1991.

Hapner & Hapner and Jon C. Hapner, Hillsboro, for appellant.

James B. Grandey, Law Director, Greenfield, for appellee city of Greenfield.

Manley, Burke & Fischer and Andrew S. Lipton, Cincinnati, for appellee Gregory Barr. HARSHA, Judge.

The parties once again appear before this court on a dispute over a civil service appointment. ¹

This is an appeal from judgments entered by the Highland County Court of Common Pleas granting the motion of the city of Greenfield and several of its city officials, respondents-appellees, for summary judgment on the complaint of John H. Delph, relator-appellant. Delph's complaint sought a writ of mandamus, injunctive relief, and damages. Also on appeal is the granting of a motion of the appellee city of Greenfield for permission to appoint Clay McPherson to the position of chief of police for the city. We affirm.

Appellant assigns the following errors:

"First Assignment of Error:

"The Trial Court erred in allowing the appointment of Clay McPherson as chief of police, without a hearing on the merits herein.

"Second Assignment of Error:

"The Trial Court erred in refusing to provide a finding of fact and conclusion of law in the appointment of Clay McPherson.

"Third Assignment of Error:

"The Trial Court erred in granting summary judgment in favor of the defendants."

On October 3, 1989, appellant filed a multiple-count complaint. ² The complaint's first designated cause of action requested that appellees be enjoined from making further payments to appellee Gregory Barr and be required to cover money allegedly illegally paid to Barr. Appellant requested under his second cause of action that appellees be enjoined from appointing Barr to the position of chief of police or allowing him to hold any other position within the department. In the third cause of action, appellant prayed for a writ of mandamus compelling the Greenfield Civil Service Commission to provide a fair, untainted, and competitive examination for the office of chief of police.

In 1984, Barr was appointed police chief. Based upon a quo warranto action filed by appellant, he was ultimately ordered to vacate that position. On October 8, 1989, subsequent to receiving Barr's letter of resignation, the Greenfield Civil Service Commission determined that four applicants were entitled to take the examination for chief of police. Among the four eligible candidates was Barr. On October 11, 1989, the trial court granted appellant's motion for a temporary restraining order, thereby enjoining appellees from appointing Barr as chief or from permitting him to take the examination. On October 24, 1989, the trial court vacated its temporary restraining order and ordered that all eligible candidates, including Barr, be permitted to take the examination. The court further ordered that "no permanent appointment for Chief * * * be made * * * until further order of this court."

The examination was given with Clay McPherson receiving the highest score. Barr's score was third. The city subsequently sought permission of the court to appoint McPherson and a hearing was held on that motion on January 5, 1990. The parties subsequently filed respective motions for summary judgment on Delph's complaint.

On March 1, 1990, the court entered a judgment which granted the city's motion for permission to appoint McPherson as police chief. Appellant then filed a written request pursuant to Civ.R. 52 for separate findings of fact and conclusions of law with respect to that judgment entry. This request was overruled on March 15, 1990. On the same date, the court granted appellees' motion for summary judgment and overruled appellant's motion for summary judgment, thereby dismissing appellant's complaint.

Appellant's first assignment of error asserts that the trial court erred in allowing the appointment of McPherson as police chief without a hearing on the merits. The second assignment of error asserts that the court erred in refusing to provide findings of fact and conclusions of law for its decision authorizing McPherson's appointment. In that both assignments of error relate to the trial court's March 1, 1990 judgment entry granting the city's motion for permission to appoint McPherson, they will be considered jointly.

Appellant contends that the trial court was required to hold an evidentiary hearing prior to approving the appointment of McPherson as police chief. While unable to direct this court to any specific statutory or case law mandating such a requirement, appellant generally asserts that procedural due process necessitated such a hearing. Appellant further contends that by sanctioning McPherson's appointment before considering the motions for summary judgment, which in part were directed to the issue of the fairness of the exam, the trial court effectively decided the case.

First, we note that the only apparent reason that the city had to seek the court's permission to proceed with the appointment, was the trial court's prior order of October 24, 1989. At that time, the court dissolved the prior temporary restraining order which had prohibited the city from appointing Barr or allowing him to take the examination. The court's new entry prohibited appointment of a permanent chief "until further order of this court." We do not believe that this language, in and of itself, created a requirement for a full evidentiary hearing or established a procedural due process right therein. In any event, the court did set the matter for hearing and apparently one was ultimately held January 5, 1990. The parties differ as to the nature of the hearing. ³ Appellant would be entitled to an evidentiary hearing only if it was necessary for the court to decide genuinely disputed facts in determining whether or not to approve the appointment of McPherson. In making their motion, the city attached a copy of the minutes of a meeting of the Greenfield Civil Service Commission wherein they certified the results of the promotional examination which the court had ordered. These minutes indicate that McPherson received the highest score. The record is silent as to any evidence, testimonial or documentary, presented at any time by appellant in an effort to contest the issue of who received the highest score. In the absence of a genuine factual dispute as to the score or other qualifications for the appointment, we find no error in the trial court's approval of McPherson.

In reaching this conclusion, we note appellant's contention that the approval effectively decided the case prior to a consideration of the summary judgment motions. We believe appellant has failed to discern the distinction between the question of who received the highest score, i.e., the appointment process, and the question of the underlying fairness of the examination, i.e., the matter at issue under the respective motions for summary judgment. Because we believe the trial court could properly decide the former without predetermining the latter, we overrule appellant's first assignment of error. In other words, having found that McPherson received the highest score, the court was free to invalidate the test and vacate the position subsequently if it determined there was merit to appellant's claims of unfairness.

In his second assignment of error, appellant contends the trial court erroneously overruled his timely request for findings of fact and conclusions of law. ⁴ Civ.R. 52 provides, in pertinent part, as follows:

"When questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise before the entry of judgment pursuant to Civ.R. 58, or not later than seven days after the party filing the request has been given notice of the court's announcement of its decision, whichever is later, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.

" * * * "Findings of fact and conclusions of law required by this rule and by Rule 41(B)(2) are unnecessary upon all other motions including those pursuant to Rule 12, Rule 55 and Rule 56." (Emphasis added.)

Appellees contend that since Civ.R. 52 explicitly states that findings of fact and conclusions of law "are unnecessary upon all other motions," the judgment of the trial court granting the city's motion to appoint McPherson as police chief did not require the court to comply with appellant's request. Civ.R. 52 is based upon a similarly worded federal rule of civil procedure. Treatises analyzing Fed.R.Civ.P. 52 have noted that regardless of what the rule's actual terminology requires, whenever a decision of a matter requires the court to resolve conflicting versions of the facts, findings are desirable and ought to be made. 9 Wright & Miller, Federal Practice and Procedure (1971) 694, Section 2575; see, generally, 5A Moore's Federal Practice (2 Ed.1987), Section 52.08. Conversely, motions which raise only questions of law in which the trial court does not make findings of fact per se, such as motions for summary judgment and motions directed to pleadings, do not necessitate findings of fact and conclusions of law. See, e.g., Moore's Federal Practice, supra, at 52-182.

In Ohio, it has been held that the provisions of Civ.R. 52 are mandatory in any situation in which questions of fact are tried by the court without intervention of a jury. In re Adoption of Gibson (1986), 23 Ohio St.3d 170, 172, 23 OBR 336, 337, 492 N.E.2d 146, 147; Werden v. Crawford (1982), 70 Ohio St.2d 122, 124, 24 O.O.3d 196, 197, 435 N.E.2d 424, 426. Accordingly, in Werden, Civ.R. 52's requirement of findings of fact and conclusions of law upon timely request was held applicable to proceedings...