William Bolinger v. Lake County Sheriff's Department, 87-LW-3207
| Decision Date | 30 September 1987 |
| Docket Number | 87-LW-3207,12-053 |
| Parties | William BOLINGER, Plaintiff-Appellee, v. LAKE COUNTY SHERIFF'S DEPARTMENT, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Civil appeal from the Common Pleas Court of Lake County, Case No 85CIV0589.
John Meros, Schulman and Schulman, A Professional Corporation Cleveland, for plaintiff-appellee.
John E Shoop, Prosecutor by John Hawkins, Assistant Prosecutor, Painesville, for defendant-appellant.
Before FORD, P.J., and COOK and CHRISTLEY, JJ.
This appeal comes from the rulings of the trial court following a reversal and remand in a prior appeal in this matter. The first appeal came about after the present appellant Bolinger was removed as a Lake County Correction Officer. Bolinger, as a classified civil service employee, timely filed an appeal to the State Personnel Board of Review. At that hearing before the board's referee, the plaintiff presented one witness, John Howard, who was a fellow correction officer with Bolinger. His testimony was that Bolinger had slept on duty. Bolinger testified on his own behalf denying the allegations. No other testimony was offered.
As a result of this hearing, the board affirmed Bolinger's removal as a Lake County Correction Officer. Bolinger then perfected an appeal of the board's decision to the Lake County Common Pleas Court.
That court also affirmed the decision of the board and Bolinger then filed a timely appeal to this court.
In the meantime, the single witness who testified against Bolinger at the Board of Review hearing gave affidavits to Bolinger's counsel stating that he had perjured himself when he testified. As a result of these affidavits of perjury, Bolinger filed a motion to vacate under Civ.R. 60(B) with the Lake County Common Pleas Court. That court denied Bolinger's motion for relief without a hearing. He therefore filed a second appeal from the lower court's denial of the motion to vacate. Bolinger's two appeals were consolidated. Judgment was reversed and remanded in that consolidated case.
Following the remand to the common pleas court, Bolinger filed a motion for summary judgment. He presented a single issue in his motion: "Bolinger is entitled to summary judgment since there is no genuine issue of material fact as to John Howard's admitted perjury." This motion was supported by several sworn affidavits of John Howard confirming Howard's perjury at the original Board of Review hearing.
A briefing schedule was established by the court and the parties. As of January 20, 1986, the last day of the briefing schedule, the sheriff's department had not submitted anything in opposition to Bolinger's motion for summary judgment. The court then granted Bolinger's motion for relief from judgment on remand and his application for summary judgment.
A brief in opposition was then untimely filed by the sheriff's department at 4:33 p.m. on January 21, 1986 which was the day after a holiday. Despite the fact that the brief was late, the trial court reconsidered the matter and reissued a supplemental judgment entry on February 7, 1986. That entry simply reaffirmed his original entry which granted the 60(B) motion and the motion for summary judgment.
The trial judge correctly noted that while the sheriff's department's brief did have an affidavit attached to it, that affidavit did not controvert John Howard's admission of perjury. The attached affidavit simply recited additional instances of actionable behavior by Bolinger.
Therefore, because there was nothing to contradict the affidavit of the admission of perjury, the trial judge properly ruled that his earlier ruling of February 3, 1986 would remain the judgment of the court.
At the same time the judge set a hearing date for the assessment of damages and also set the date of February 10, 1986 for Bolinger's reinstatement with the sheriff's department.
On July 2, 1986, the court denied the sheriff's department's motion to reconsider/vacate without a hearing.
Therefore, it is from those three decisions by the common pleas court on remand that present appellant, sheriff's department, now appeals. In summary those rulings are:
1.The ruling granting Bolinger's 60(B) motion by vacating the trial court's judgment affirming a removal order for Bolinger by the State Personnel Board of Review;
2.The granting of Bolinger's motion for summary judgment by:
a.) Reversing the common pleas court order removing Bolinger from his employment; and
b.) Ordering Bolinger reinstated; and
3.The overruling of the sheriff's department's subsequent motion to vacate/reconsider.
For its first assignment of error, appellant, sheriff's department, now states:
The trial court erred when it reversed the decision of the State Personnel Board of Review and entered an order of reinstatement.
Appellee argues that this court has no jurisdiction to consider this assignment of error claiming it was not timely filed. It is true that an appeal of a judgment vacating a final appealable order under Civ.R. 60(B) must be taken therefrom within 30 days of such order under App.R. 4(A), Bates and Springer, Inc. v. Stallworth (1978), 56 Ohio App.2d 223 at 230; GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146.
That situation does not apply here because the judgment entry vacated was not the judgment entry complained of in the first assignment of error. The judgment entry which was vacated by appellee's 60(B) motion was the entry by which the common pleas court affirmed the removal order of the State Personnel Board of Review. That 60(B) ruling by the court simply put the parties back at square one with all other issues on remand yet to be decided. It was appellee's motion for summary judgment and the court's subsequent ruling on that motion which resulted in the reversal complained of in the first assignment of error.
As to the merits of the first assignment of error, the trial judge is quite correct in his analysis that:
"certain evidence relied upon by this [trial] court in reaching its original decision in November, 1984 should have been discredited; namely, the uncorroborated accusations made against appellant, Bolinger, by special deputy John Howard."
He further correctly found that:
"the lower court could reverse, vacate or modify if there existed legally significant reasons for discrediting certain evidence relied upon by an agency such as the State Personnel Board of Review and necessary to its determination." Andrews v. Board of Liquor Control (1955), 164 Ohio St.2d 275 and University of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 111.
He correctly concluded that:
The referee's report on behalf of the State Board of Review stated that the only issue was the credibility of the two witnesses presented. Those witnesses were appellee, Bolinger and deputy John Howard. The record fails to show that the lower court abused its discretion by reversing itself on this issue when presented with uncontroverted evidence of perjury by Howard. This...
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