State ex rel. Durkin v. Ungaro

• Decision Date: 26 October 1988
• Docket Number: No. 88-707,88-707
• Citation: 529 N.E.2d 1268,39 Ohio St.3d 191
• Parties: The STATE, ex rel. DURKIN et al., Appellees, v. UNGARO et al., Appellants.
• Court: Ohio Supreme Court

Page 191

39 Ohio St.3d 191

529 N.E.2d 1268

The STATE, ex rel. DURKIN et al., Appellees, v. UNGARO et al., Appellants.

No. 88-707.

Supreme Court of Ohio.

Submitted Aug. 19, 1988.

Decided Oct. 26, 1988.

In July 1985, respondent-appellant, city of Youngstown ("city"), abolished the jobs of thirteen current or former municipal employees, including relator-appellee, Esther Harris. Subsequently, the abolishments were appealed to the Youngstown Civil Service Commission ("commission"), and in September 1985, the commission ordered the city to reinstate the employees.

Thereafter, nine of the employees ("relators") brought an original action in mandamus in the court of appeals in order to compel the city to reinstate the relators to their employment with back pay. On January 16, 1986, the appellate court issued an opinion and journal entry granting the requested writ. The city has not appealed that judgment before this court.

The city attempted to appeal the order of the civil service commission before the court of common pleas, but such appeal was dismissed by the trial court, and the judgment of dismissal was thereafter affirmed by the court of appeals. The city's subsequent motion to certify the record to this court was denied.

Thereafter, the city filed a motion to vacate the writ of mandamus issued by the court of appeals on January 16, 1986. On February 17, 1988, the appellate court denied the city's motion to vacate the writ.

The cause is now before this court upon an appeal as of right.

Green, Haines, Sgambati, Murphy & Macala Co., L.P.A., Dennis Haines and Barry Laine, Youngstown, for appellees.

Edwin Romero, Director of Law, and Cheryl L. Waite, Youngstown, for appellants.

PER CURIAM.

Appellee, Esther Harris, has filed a motion before this court to dismiss the city's appeal. The appeal brought by the city is from the appellate court's denial of the city's motion to vacate the court's prior judgment entry of January 16, 1986, which granted the writ of mandamus. Appellee also requests that the city's appeal be dismissed on jurisdictional grounds since the appeal was filed before this court beyond the thirty-day limitation period set forth in Section 1(B), Rule I of the Supreme Court Rules of Practice. Additionally, appellee requests this court to award her attorney fees based on the assertion that the city has acted in bad faith in dealing with its employees throughout the course of this entire controversy.

In our view, appellee's motion to dismiss should be granted because the city's appeal is nothing more than an attempt to gain review of the judgment rendered on January 16, 1986, by the court of appeals through the procedural device of a Civ.R. 60(B) motion to vacate the judgment. Clearly, the city failed to appeal the original granting of the writ of mandamus to this court. The city cannot now use a motion to vacate as a substitute for a timely appeal, or as a device to extend the time for perfecting an appeal. See Steadley v. Montanya (1981), 67 Ohio St.2d 297, 21 O.O.3d 187, 423 N.E.2d 851.

In State, ex rel. Dooley, v. Porter (1987), 30 Ohio St.3d 47, 30 OBR 87, 506 N.E.2d 211, we were faced with a similar situation where an appeal was brought before this court from the denial of a motion by the court of appeals of what was essentially a motion for reconsideration. In Dooley, we noted that the thirty-day time period in which to appeal the underlying judgment under Rules I(1)(A) and (B) of the Supreme Court Rules of Practice had expired. The essence of our holding therein was that such procedural devices cannot be used in order to review a prior judgment that was not initially appealed in a timely fashion. In the cause sub judice, the city is essentially attempting to gain review of the January 16, 1986 judgment by appealing the denial of the motion to vacate which was rendered by the appellate court in February 1988. Such procedural devices cannot be used in order to obtain review of a judgment where a timely appeal was not filed. If we were to hold differently, judgments would never be final because a party could indirectly gain review of a judgment from which no timely appeal was taken by filing a motion for reconsideration or a motion to vacate judgment. For these reasons, we find appellee's motion to dismiss to be well-taken and, therefore, the appeal by the city is hereby dismissed. ¹

Having determined that the instant appeal by the city should be dismissed, we now inquire whether attorney fees should be awarded to moving appellee based on the alleged bad faith course of conduct undertaken by the city during this entire litigation.

"The general rule in Ohio is that, absent a statutory provision allowing attorney fees as costs, the prevailing party is not entitled to an award of attorney fees unless the party against whom the fees are taxed was found to have acted in bad faith. See Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177 [77 O.O.2d 224, 347 N.E.2d 527]; State, ex rel. Grosser, v. Boy (1976), 46 Ohio St.2d 184 [75 O.O.2d 228, 347 N.E.2d 539]." State, ex rel. Crockett, v. Robinson (1981), 67 Ohio St.2d 363, 369, 21 O.O.3d 228, 232, 423 N.E.2d 1099, 1103. See, also, State, ex rel. Kabatek, v. Stackhouse (1983), 6 Ohio St.3d 55, 6 OBR 73, 451 N.E.2d 248.

In our view, appellee has shown that the continuing course of bad faith conduct undertaken by the city during this litigation compels an award of attorney fees in her favor. Specific instances of bad faith conduct on the part of the city are...