RICHARD BINDER, ET AL. v. CUYAHOGA COUNTY
No. 104399
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 22, 2016
2016-Ohio-8305
E.T. Gallagher, J., Jones, A.J., and Kilbane, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-851760
Joshua R. Cohen
Ellen M. Kramer
Cohen, Rosenthal & Kramer
Hoyt Block Building, Suite 400
700 West St. Clair Avenue
Cleveland, Ohio 44113
Kevin T. Roberts
The Roberts Law Firm
7622 Columbia Road
Olmsted Falls, Ohio 44138
ATTORNEYS FOR APPELLEE
Robert Triozzi
Law Director
Cuyahoga County
BY: Ruchi V. Asher
Robin M. Wilson
Assistant Law Directors
2079 East Ninth Street
Cleveland, Ohio 44115
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian R. Gutkoski
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Plaintiffs-appellants, Richard Binder, Louis Bucci, Dorniece Darson, Byron Chavers, Lisa Evans, Jane George, Tamara Mazina, Joseph Pina, Gail Ward, Sarah Watkins, and Pamela Whately (collectively “appellants“),1 appeal an order of the common pleas court dismissing their amended complaint for failure to state a claim. They raise two assignments of error:
- The trial court erred in dismissing the plaintiff-appellants’ claims based on a factual finding contrary to the allegations contained in the amended complaint.
- The trial court erred in granting dismissal under Civ.R. 12(B)(6) and holding as a matter of law that the plaintiff-appellants’ claims failed to state a viable basis for relief.
{¶2} We find merit to the appeal, reverse the trial court‘s judgment, and remand the case to the trial court for further proceedings
I. Facts and Procedural History
{¶3} In November 2009, the citizens of Cuyahoga County voted to adopt a Charter that became effective in early 2010. Prior to the Charter‘s adoption, voters elected the
{¶4} In 2011, the new county government decided to officially change the county employees’ schedules to require a 40-hour work week that included a lunch hour. The employees were not required to work during the lunch hour, but were now required to stay at work until 4:30 p.m. The county did not increase appellants’ salaries to reflect any increase in working hours. Consequently, appellants filed a complaint against appellee, Cuyahoga County, in common pleas court, claiming they should be compensated for the additional five hours added to their work week. Appellants alleged that by increasing their work week by five hours, the county reduced their hourly rate of compensation by 12.3 percent. Appellants further alleged this reduction in hourly rate violated
{¶5} In Count 1 of the complaint, appellants requested a declaratory judgment declaring that “the County‘s Charter did not authorize it to increase employees’ workweeks from 35 to 40 hours since it did not concomitantly increase their compensation to prevent a decrease in their hourly rates.” In Count 2, appellants
{¶6} The county filed a motion to dismiss, or in the alternative, to stay or consolidate this action with another pending action styled Dolezal v. Cuyahoga Cty., Cuyahoga C.P. No. 13-CV-801116. The plaintiffs in Dolezal brought the same claims for alleged unlawful reduction in rate of pay as a result of the change in the hours of the official work week. The plaintiffs in Dolezal also sought class certification in order to prosecute the claims on behalf of all similarly situated county employees.
{¶7} In April 2016, the trial court in this case granted the county‘s motion to dismiss. In dismissing appellants’ complaint, the court found “that the change in lunch break policy was not an increase in the work week from 35 to 40 hours or a reduction in pay.”
{¶8} Appellants now appeal the dismissal of their complaint.
II. Law and Analysis
{¶9} As a preliminary matter, we address the county‘s assertion that we lack jurisdiction to hear this appeal. The county maintains the trial court lacked jurisdiction to hear appellants’ claims because appellants failed to exhaust their administrative remedies and failed to name all the parties necessary to obtain a declaratory judgment.
{¶10} However, the county failed to raise the failure to exhaust administrative remedies argument in the trial court. Therefore, the argument is forfeited on appeal. See Dworning v. Euclid, 119 Ohio St.3d 83, 2008-Ohio-3318, 892 N.E.2d 420, ¶ 11 (Failure to exhaust administrative remedies is not a jurisdictional defect; it is an affirmative defense that may be waived.); See also Jones v. Chagrin Falls, 77 Ohio St.3d 456, 674 N.E.2d 1388 (1997), syllabus. Therefore, because the county failed to raise appellants’ failure to exhaust their administrative remedies as a defense in the trial court, it forfeited that argument on appeal.
{¶11}
{¶12} Whether a nonparty is a necessary party in an action for declaratory relief depends on whether that nonparty “has a legally protectable interest in rights that are the
{¶13} Appellants are members of the civil services, which
No * * * employee shall be reduced in pay or position, fined, suspended, or removed, or have the officer‘s or employee‘s longevity reduced or eliminated, except as provided in section 124.32 of the Revised Code, and for incompetency, inefficiency, unsatisfactory performance, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of any policy or work rule of the officer‘s or employee‘s appointing authority, violation of this chapter or the rules of the director of administrative services or the commission, any other failure of good behavior, any other acts of misfeasance, malfeasance, or nonfeasance in office, or conviction of a felony while employed in the civil service.
Thus, appellants and their unnamed coworkers have a legally protectable interest in their rate of pay and in this litigation. As previously stated, “[t]he absence of a necessary party is a jurisdictional defect that precludes any declaratory judgment.” Hilroc Condo. Unitowners Assn., 8th Dist. Cuyahoga No. 83309, 2004-Ohio-1254, ¶ 10. Therefore, the trial court lacked authority to determine the ultimate issue in the case, i.e., whether the change in appellants’ work schedules constituted a change in their rate of pay, since not all affected parties were joined in the action when the court rendered its judgment.
{¶14} Although appellants did not name all county employees who have a legally protected interest in their rate of pay as plaintiffs in this action, appellant‘s complaint
{¶15} Additionally, we note that in the county‘s motion to dismiss, it requested, in the alternative, that this case be consolidated with Dolezal, Cuyahoga C.P. No. 13-CV-801116, in lieu of dismissal. It has been represented that the plaintiffs’ claims in Dolezal are identical to the claims alleged in the complaint in this case, including the claim for class certification. If that is the case, then the two cases must be consolidated into a single action in order to join all necessary parties.
{¶16} Therefore, we reverse the trial court‘s judgment and remand the case to the trial court to consider both appellants’ claim for class certification and the county‘s request to consolidate this case with Dolezal.
It is ordered that appellants recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., A.J., and MARY EILEEN KILBANE, J., CONCUR