State ex rel. Weiss v. Indus. Comm.

• Decision Date: 11 December 1992
• Docket Number: No. 91-2294,91-2294
• Citation: 605 N.E.2d 37,65 Ohio St.3d 470
• Parties: The STATE ex rel. WEISS v. INDUSTRIAL COMMISSION OF OHIO et al.
• Court: Ohio Supreme Court

Page 470

65 Ohio St.3d 470

605 N.E.2d 37

The STATE ex rel. WEISS v. INDUSTRIAL COMMISSION OF OHIO et al.

No. 91-2294.

Supreme Court of Ohio.

Submitted Oct. 13, 1992.

Decided Dec. 11, 1992.

Relator, Carol W. Weiss, was formerly employed by respondent Industrial Commission of Ohio ("commission") as its chief hearing officer in the civil service classification of Hearing Officer 3. Weiss was hired effective June 17, 1990 and accepted her position on the commission's representation that it would be classified.

Approximately one year later, Weiss was removed from the classified service and, apparently, experienced some corresponding reduction in her duties. In a letter to Weiss dated May 31, 1991, respondent Stephen Perry, Director of the Department of Administrative Services, explained:

"The Chairman of the Industrial Commission of Ohio requested the Department of Administrative Services to review your personnel history as your position appears to be erroneously listed in the classified service while authorizing you to act on behalf of your chairman or to hold a fiduciary relation to your chairman. We have reviewed your position description and your actual job duties and have concluded that you do in fact have authority to act on your chairman's behalf, or the commission's behalf, and that your position requires a high degree of personal loyalty, trust, confidence, reliance, and fidelity.

"We, therefore, have determined that your position was erroneously placed in the classified service and have rescinded the Personnel Actions which did so. Your position is in the unclassified service."

According to a completed personnel action form, Weiss' position was changed from classified to unclassified and provisional, purportedly pursuant to R.C. 124.11(A)(9) (unclassified service includes assistants of principal executive officers authorized to act for or holding a fiduciary relationship to the principal). The personnel action was approved on July 24, 1991, but was backdated to become effective on the date that Weiss was hired.

By separate notices of appeal dated June 11, 1991, Weiss challenged her removal from the classified service and the reduction of her duties before the State Personnel Board of Review ("SPBR"). On July 1 or 2, 1991, Weiss learned that her chief hearing officer duties had been reassigned, and she appealed again to SPBR. On July 10, 1991, Weiss was advised, by a letter from the commission chairman dated June 26, 1991, that she had been terminated from her "unclassified" position. She also appealed this job action to SPBR.

SPBR decided only one of Weiss' four appeals--the appeal of her removal from the classified service (case No. 91-REM-06-0379). An administrative law judge ("ALJ") heard the matter and recommended that the appeal be dismissed for lack of jurisdiction. In his September 24, 1991 order, the ALJ reasoned:

"It is true that when an appellant seeks to invoke the jurisdiction of this Board, it is often necessary to determine initially whether an Appellant's position falls within the classified or alternatively the unclassified service. Yet, such a determination must be precipitated by an adverse personnel action, such as a removal or reduction, which either accompanied or followed an Appellant's change or 'correction' of status. Indeed, under R.C. 124.03 [powers and duties], the State Personnel Board of Review does not have the authority to issue declaratory judgments determining the classified or unclassified status of an employee's position. There is no other statute in R.C. Chapter 124. which invests such jurisdiction in the State Personnel Board of Review."

SPBR adopted the ALJ's recommendation and dismissed Weiss' appeal in October 1991. Weiss appealed the dismissal to the Court of Common Pleas of Franklin County. The ALJ then stayed consideration of Weiss' three other appeals, pending the common pleas court's decision. Thereafter, Weiss filed this action, seeking a writ of mandamus to compel her reinstatement and payment of her back wages.

Lane, Alton & Horst and William Scott Lavelle, Columbus, for relator.

Lee I. Fisher, Atty. Gen., Angela G. Phelps-White and Darlene E. Chavers, Asst. Attys. Gen., for respondents.

PER CURIAM.

We overruled a motion to dismiss Weiss' complaint by entry dated May 27, 1992, 63 Ohio St.3d 1473, 591 N.E.2d 243. Perry and the commission, however, did not file their answer within fourteen days after receiving notice of the entry, as required by Civ.R. 12(A)(2)(a), and, on July 2, 1992, Weiss moved for default judgment pursuant to Civ.R. 55. On July 24, 1992, Perry and the commission requested leave to answer.

For the reasons that follow, we overrule the motion for leave to answer and the motion for default judgment. Moreover, because this disposition eliminates all justification for a writ of mandamus, we further deny the writ.

Leave to Answer

When a motion for leave to answer is filed after the date the answer was due, Civ.R. 6(B)(2) permits an extension upon a showing of excusable neglect. Perry and the commission assert that they failed to answer timely because (1) new assistant attorneys general ("AAGs") were being assigned to replace the former AAG who was counsel of record when the motion to dismiss was overruled, and (2) the AAG who oversaw the reassignment did not "subjective[ly] or objective[ly]" know about our May 27 entry. Respondents claim that this inadvertent administrative delay constitutes excusable neglect.

We disagree. Counsel for Perry and the commission do not dispute that the Attorney General was served notice of the May 27 entry. Respondents, therefore, had constructive knowledge of the entry, which is all Civ.R. 58 requires. See Americare Corp. v. Misenko (1984), 10 Ohio St.3d 132, 134, 10 OBR 454, 456, 461 N.E.2d 1304, 1307 (" * * * [N]o provision in Ohio law or rule of civil or appellate procedure requires that a party be given actual notice of the filing of a judgment entry."), and State ex rel. Spirko v. Court of Appeals (1986), 27 Ohio St.3d 13, 27 OBR 432, 501 N.E.2d 625 (writ of mandamus granted by default judgment when motion to dismiss overruled and no answer filed).

Moreover, in GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, we held that the failure to timely answer is neglect and should be imputed to the client. Accord Griffey v. Rajan (1987), 33 Ohio St.3d 75, 78, 514 N.E.2d 1122, 1125. GTE describes attorney neglect as conduct that " 'falls substantially below what is reasonable under the circumstances.' " Id., 47 Ohio St.2d at 152, 1 O.O.3d at 89, 351 N.E.2d at 117; see, also, Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, 68, 18 OBR 96, 100, 479 N.E.2d 879, 884. Here, no evidence suggests that an answer deadline may be reasonably overlooked due to case reassignment.

Perry and the commission cite Evans v. Chapman (1986), 28 Ohio St.3d 132, 28 OBR 228, 502 N.E.2d 1012, which held that a court does not abuse its discretion by finding clerical error a justifiable excuse for the failure to timely answer. Evans reached this result, however, because a motion for leave to answer had been filed before the motion for default. Id. at 135, 28 OBR at 231, 502 N.E.2d at 1016; Marion Prod. Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 272, 533 N.E.2d 325, 332. Thus, Evans must be distinguished from this case, where the motion for default came first.

Respondents missed the answer date set forth in Civ.R. 12(A)(2)(a) because no one checked for developments in Weiss' case against them. Moreover, their request for leave to answer was filed in response to Weiss' motion for default; it was not the result of diligence of their counsel. We do not consider administrative confusion an acceptable excuse for such neglect. The request for leave to answer, therefore, is overruled.

Default Judgment

Under Civ.R. 55(D), a default judgment may be entered against the state only if "the claimant establishes his claim or right to relief by evidence satisfactory to the court." For a writ of mandamus to issue, Weiss must establish that she is entitled to respondents' performance of a clear legal duty and that she has no adequate remedy in the ordinary course of law. State ex rel. The Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97, 102, 564 N.E.2d 486, 491. Weiss asserts that she has satisfied both standards. We, however, find that an adequate remedy exists. Initially, Weiss appealed her removal from the classified service, the reduction of her duties, and her termination to SPBR. SPBR did not consolidate these appeals, even though they were filed within one month of each other and challenged job actions taken during the same period. Instead, the ALJ singled out one appeal--Weiss' removal from the classified service--and dismissed it because the appeal did not also allege "an adverse personnel action such as a removal or reduction." In effect, the ALJ determined that SPBR lacked jurisdiction because Weiss filed separate appeals. SPBR, however, adopted the ALJ's recommendation, and Weiss appealed to the common pleas court, presumably pursuant to R.C. 119.12 (appeal by party adversely affected by state agency order to Franklin County Common Pleas Court).

Against this backdrop, Weiss argues her lack of an adequate remedy. Apparently, she has decided to concede that SPBR has no jurisdiction over her appeal, without completing the appeal process she has begun. Her decision, however, does not make this process unavailable or inadequate. Indeed, we have reviewed at least three appeals from SPBR decisions in which jurisdiction was challenged on the ground that employees were not classified. See Rarick v. Geauga Cty. Bd. of Commrs. (1980), 63 Ohio St.2d 34, 17 O.O.3d 21, 406 N.E.2d 1101; Yarosh v. Becane (1980), 63 Ohio St.2d 5, 17 O.O.3d 3, 406 N.E.2d 1355; In re Termination of Employment of Moore (1974), 40 Ohio St.2d 107, 69 O.O.2d 512, 321...