State ex rel. Jenkins v. Stern

• Decision Date: 02 December 1987
• Docket Number: No. 87-43,87-43
• Citation: 515 N.E.2d 928,33 Ohio St.3d 108
• Parties: The STATE, ex rel. JENKINS, Appellant, v. STERN, Judge, Appellee.
• Court: Ohio Supreme Court

Page 108

33 Ohio St.3d 108

515 N.E.2d 928

The STATE, ex rel. JENKINS, Appellant, v. STERN, Judge, Appellee.

No. 87-43.

Supreme Court of Ohio.

Dec. 2, 1987.

Relator-appellant, Carol Jenkins, filed an original action in the Court of Appeals for Franklin County requesting that the court grant a writ of mandamus ordering respondent-appellee, Ohio Court of Claims Judge Leonard J. Stern, to vacate a portion of a judgment entry stating, in pertinent part, that " * * * applicant's attorney should not be compensated by the victims fund for work performed in connection with the mandamus action * * *."

Appellant had filed a claim for economic loss and replacement service loss under the Victims of Crime Act as a result of the death of her husband on October 13, 1980. On May 6, 1982, a single commissioner of the Victims of Crime Division denied appellant's claim of economic loss other than funeral expenses. Thereafter, a panel of three commissioners, after hearing evidence, reversed the single commissioner's findings and concluded that relator and her two minor children sustained economic loss as a result of the death of her husband.

On September 29, 1983, Judge Gerald A. Baynes of the Court of Claims vacated the decision of the panel of commissioners as being against the manifest weight of the evidence, unreasonable, and unlawful. He reinstated the order of the single commissioner. Appellant then filed a mandamus action in the Court of Appeals for Franklin County, arguing that Judge Baynes abused his discretion when he reversed the decision of the panel of commissioners. The court of appeals denied appellant's request for a writ of mandamus. Thereafter, in September 1984, appellant appealed to this court.

This court affirmed the decision of the court of appeals, holding that a writ of mandamus may not be utilized, absent an abuse of discretion, to collaterally attack a Court of Claims decision in an action initiated under the Victims of Crime Act. State, ex rel. Jenkins, v. Tyack (1985), 17 Ohio St.3d 242, 17 OBR 479, 479 N.E.2d 267.

Thereafter, on August 5, 1985, appellant filed a motion requesting that the Court of Claims vacate its judgment of September 29, 1983. Appellant urged that the judgment was based upon incorrect facts (that the decedent had a weekly pay of $163, where there was no support in the record that the figure was accurate or correct).

On January 30, 1986, Judge Stern issued an entry denying appellant's motion to vacate judgment, holding that relator's motion was not well-taken and also stating that:

" * * * [S]ince a petition for a mandamus action was obviously not contemplated when the attorney fee provisions of the victims act [sic ], V.C.C.R. 1 were promulgated by the Supreme Court, applicant's attorney should not be compensated by the victims fund for work performed in connection with the mandamus action * * *."

Appellant again requested that the Court of Appeals for Franklin County issue a writ of mandamus, urging that it was improper for the Court of Claims to deny her attorney compensation from the Victims of Crime Fund for work performed in connection with the mandamus action. She requested that the writ require the trial judge to vacate that portion of his entry and permit her attorney to receive compensation for work performed in connection with the mandamus action.

The court of appeals referred the matter to a referee, pursuant to Civ.R. 53. He recommended that the court sustain appellee's Civ.R. 12(B)(6) motion to dismiss, as the complaint on its face failed to state a claim upon which the requested relief could be granted. Relator filed objections to the referee's report. Upon review of the record, including the objections and the referee's report, the court of appeals found that there were no arguments or issues presented to the court which were not considered and correctly determined by the referee. The court adopted the referee's report and dismissed the case.

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

Turoff & Turoff and Jack N. Turoff, Cleveland, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Catherine M. Cola, Columbus, for appellee.

PER CURIAM.

In her first proposition of law, appellant asserts that both the Revised Code and the Victims of Crime Compensation Rules authorize an award of attorney fees to an attorney who represents a claimant in an action for a writ of mandamus, provided that such action is not frivolous.

It is not disputed that appellant is entitled to seek a writ of mandamus to correct an abuse of discretion by the Court of Claims. In State, ex rel. Jenkins, supra, this court held that "[a] writ of mandamus may not be utilized, absent an abuse of discretion, to collaterally attack a Court of Claims decision in an action initiated under the Victims of Crime Act." The central issue is whether attorney fees are provided for either by statute or rule.

Appellant urges that, because attorneys are entitled to an award of attorney fees unless an action in mandamus is frivolous, and this action is not frivolous, the Court of Claims must allow her attorney these fees.

R.C. 2743.65(A) provides, in pertinent part, that:

"As part of an order, a single commissioner or a panel of court of claims commissioners shall determine and award reasonable attorney's fees, commensurate with services rendered * * *. Additional attorney's fees may be awarded by the court of claims in the event of appeal. Attorney's fees may be denied upon a finding that the claim or appeal is frivolous. * * * " (Emphasis added.)

First, the legislature intended to limit final appellate jurisdiction in cases involving the Victims of Crime Act to the Court of Claims. State, ex rel. Jenkins, supra, at 243-244, 17 OBR at 480-481, 479 N.E.2d at 269.

Accordingly, any statutory provision establishing payment of attorney fees for appeals anticipates only the appeal to the Court of Claims.

Second, by the very terms...