State of Ohio, ex rel. Michael D. Filichia v. City of Columbus Et Al., -, 89-LW-2951
| Decision Date | 12 September 1989 |
| Docket Number | 89AP-183,89-LW-2951 |
| Parties | STATE of Ohio, ex rel. Michael D. FILICHIA, Relator-Appellant, v. CITY OF COLUMBUS et al., Respondents-Appellees. |
| Court | Ohio Court of Appeals |
Appeal from the Franklin County Court of Common Pleas.
Robert P. DiRosario, for appellant.
Ronald J. O'Brien, City Attorney, and Connie E. Frierson, for appellees.
This is an appeal from a decision of the Franklin County Court of Common Pleas.
Appellant Michael D. Filichia applied for and was administered the 1985-86 fire entrance examination by appellee, the Columbus Civil Service Commission ("commission"). Based upon his score, appellant ranked 329 out 533 on the eligibility list.
Pursuant to the rules and regulations of the commission, appellant was required to undergo a medical examination, including a vision exam. Firefighter applicants who failed to meet certain vision standards, promulgated by the commission in 1985, were entitled to a hearing at which they could proffer medical evidence from personal physicians, which evidence the commission could consider and find the applicant medically fit. However, on April 10, 1987, the commission implemented a new procedure regarding appeals for applicants who failed to meet the vision standards. This procedure requires that applicants submit a second opinion obtained from the Ohio State University College of Optometry, which opinion is conclusive upon the commission's resolution of the appeal.
Appellant completed his vision examination on April 15, 1987, and was notified by letter on April 28, 1987, that the commission was being requested to remove him from the eligibility list because he had been disqualified for medical reasons, specifically because he lacked binocular vision (exotropia). Subsequently, appellant was examined on May 18, 1987 at the Ohio State University College of Optometry, which examination confirmed appellant's lack of binocular vision.
The commission on May 27, 1987 formally adopted the appeal procedure which it had implemented on April 10, 1987. The commission notified appellant on June 4, 1987 that because he lacked binocular vision, he was being removed from the eligibility list for the position of firefighter. The commission, thereafter, notified appellant on July 1, 1987 that his examination by the Ohio State University College of Optometry was in satisfaction of his appeal rights and that his failure of the vision test automatically removed him from eligibility as a candidate for firefighter.
On July 10, 1987, appellant took an appeal to the Franklin County Court of Common Pleas from the decision of the commission in removing him from the eligibility list, which decision was affirmed by the common pleas court on October 2, 1987.
Appellant then initiated the instant cause in the Franklin County Court of Common Pleas on October 23, 1987. The complaint set forth three causes of action seeking relief in mandamus, by way of injunction, and by declaratory judgment. Appellant's prayer for a writ of mandamus sought an order from the common pleas court directing the commission to grant him the same appeal rights given other applicants on the eligibility list by accepting a report from his personal physician and to restore him to the list of eligibles to be certified for appointment to the next firefighter class or, in the alternative, a writ requiring appellees to show cause why a final peremptory writ should not issue. Appellant also sought injunctive relief enjoining appellees from certifying a list of eligibles for appointment to the next firefighter class and to restrain the public safety director from making appointments until appellant was restored to his proper place on the eligibility list. Appellant's declaratory judgment action sought a declaration as to the validity and applicability of the change in the appellate process adopted and placed into effect by appellees.
Thereafter, on November 25, 1986, appellees moved the common pleas court, pursuant to Civ.R. 12(B)(6), to dismiss the complaint for failure to state a claim upon which relief could be granted. The trial court granted this motion on February 25, 1988, which judgment this court reversed upon appeal. State, ex rel. Filichia, v. City of Columbus (June 21, 1988), Franklin App. No. 88AP-211, unreported (1988 Opinions 2187).
Upon remand to the common pleas court, appellees filed a motion for summary judgment pursuant to Civ.R. 56. Appellees maintained that they were entitled to judgment as a matter of law since appellant could prove no set of facts which would entitle him to relief in mandamus. Specifically, appellees argued that appellant could not demonstrate a clear legal right to relief since there was no law which commanded the commission to accept a letter from appellant's personal physician expressing an opinion that appellant was qualified to become a firefighter, or any law which directed the commission to entertain appeals beyond those established by the rules and procedures adopted by the commission. Appellees also argued that the decision of the common pleas court rendered in the administrative appeal taken by appellant from the July 1, 1987 decision of the commission was res judicata to any collateral attack upon that decision.
Following appellant's response, the common pleas court granted appellees' motion for summary judgment on January 31, 1989. The court concluded that even construing the evidence most strongly in favor of appellant's claim for mandamus, he could not prevail on such a claim for the reason that appellant failed to proffer any evidence demonstrating other applicants who were permitted to submit opinions beyond those set forth in the Commission rules, and that the prior decision in appellant's administrative appeal constituted the affirmative defense of res judicata to the instant cause.
Appellant now appeals and sets forth the following assignments of error:
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