611 N.E.2d 390 | Ohio Ct. App. | 1992
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *447
Appellant, Bruce Collyer, appeals from a judgment of the Franklin County Court of Common Pleas which denied his motion for attorney fees under R.C.
Appellant was employed as a classified civil service therapeutic worker with appellee, Broadview Development Center, a state facility operated by the Ohio Department of Mental Retardation and Developmental Disabilities. After requiring appellant to undergo a psychiatric examination, appellee placed appellant on administrative leave and eventually gave him a disability separation under Ohio Adm. Code
Appellant appealed the disability separation to the State Personnel Board of Review, which ultimately "disaffirmed" appellee's actions on procedural grounds. Nevertheless, appellee appealed the board's order to the Franklin County Court of Common Pleas, citing R.C.
The common pleas court vacated the board's order, finding that the board had no authority to review disability separations. However, this court reversed the trial court's judgment in Collyer v. Broadview Dev. Ctr. (1991),
Appellant's own affidavit claimed that appellee's actions in this case were designed to punish and deter him from reporting abuses at the state mental retardation facility. Appellant maintained that he acted as a whistle-blower on the Human Rights Committee of the facility. Consequently, he contended that appellee, fearing a loss of federal Medicaid certification and possible tort liability, sought to quell his activity on behalf of patients. Appellant claimed that his disability separation on psychiatric grounds was simply a ruse to *448 enable appellee to terminate him, despite civil service job protection. Further, appellant contended that the state is forcing him to defend this action in state court while his civil rights lawsuit against appellee is pending in federal court.
The common pleas court denied appellant's motion on July 26, 1991. The court reasoned that appellant was not entitled to an award of attorney fees "* * * because attorney fees are not recoverable in an Revised Code
The issue presented in this appeal is whether the trial court erred in concluding that appellant was barred from recovering attorney fees pursuant to statutory authority.
Generally, an award of attorney fees must be predicated upon statutory authority. State ex rel. Gallucci v. Brown (Sept. 26, 1991), Franklin App. No. 91AP-453, unreported, 1991 WL 224215. R.C.
Like the federal Act, the Ohio Act was passed to censure frivolous government action which coerces a party to resort to the courts to protect his or her rights. Malik v. Ohio StateMed. Bd. (Oct. 2, 1989), Franklin App. No. 88AP-741, unreported, 1989 WL 112346. This serves to "* * * encourage relatively impecunious private parties to challenge unreasonable or oppressive governmental behavior by relieving such parties of the fear of incurring large litigation expense." Spencer v. NLRB
(C.A.D.C.1983),
The operative language in R.C.
"Except as provided in divisions (B)(2) and (F) of this section, in a civil action, or appeal of a judgment in a civil action, to which the state is a party, or in an appeal of an adjudication order of an agency pursuant to section
Division (B)(2) then provides that, upon the filing of a motion under R.C.
Under this provision, an award of attorney fees is not automatic. It has been held that there is no presumption that attorney fees should be awarded to the prevailing eligible party. Malik, supra, at 5; Boyle, supra, at 3. However, a party need not go so far as to prove bad faith or malice. Rather, the basic standard to be applied to the state's action under scrutiny is whether such action was "substantially justified." In essence, this translates into a determination of whether the state's action or inaction was unreasonable on the facts or on the law. Boyle, supra, at 4 (quoting Pierce v. Underwood [1988],
Recognizing that not all legal actions are subject to the attorney fees provisions in R.C.
"The provisions of this section do not apply in appropriation proceedings under Chapter 163. of the Revised Code; in civil actions or appeals of civil actions that involve torts; or in an appeal pursuant to section
R.C.
"The provisions of this section do not apply when any of the following circumstances are involved:
"* * *
"(4) An adjudication hearing was conducted by the state personnel board of review pursuant to authority conferred by section
While the trial court found this particular language dispositive because the instant case involves an order of the personnel board of review, we must disagree. The crucial language in R.C.
We do not think that the question of whether R.C.
Nevertheless, the trial court cited R.C.
The somewhat ambiguous term "civil action" is not defined in R.C. Chapter 2335. Although the language differs in some respects at the federal level, we note that in recent years the United States Supreme Court has broadly construed the term "civil action" in the federal Equal Access to Justice Act. See,e.g., Sullivan v. Hudson (1989),
Aside from these grounds for denying attorney fees, appellee has raised another ground that the trial court could have also used to deny attorney fees. Appellee claims that since appellant initiated the legal proceedings in this case before the personnel board of review, attorney fees cannot be *451 awarded. We note that appellee has not argued that the common pleas court lacks jurisdiction to award attorney fees.
One of the first cases to interpret the Ohio Equal Access to Justice Act was this court's decision in Highway Valets, Inc. v.Ohio Dept. of Transp. (1987),
"Although the term `matter in controversy' is a matter of some controversy, we believe the term refers to the litigation itself and not to the conduct which gave rise to the litigation. When the term is viewed in relation to the entire text of R.C.
For some courts, Highway Valets has served as a threshold requirement on the type of parties which can claim attorney fees under R.C.
By contrast, another view has either distinguished or limited the broad language in Highway Valets to the facts and circumstances involved in that case. For instance, in Holden v.Ohio Bur. of Motor Vehicles (1990),
In the present case, we do not think that Highway Valets serves as a limitation on appellant's right to an award of attorney fees. Appellee was the first party to initiate action having legal consequences in this case. Appellant was a classified civil service worker and he claims that the state wrongfully removed him from his position by virtue of a sham disability separation which painted him as having a paranoid personality disorder, despite the fact that the Ohio Bureau of Administrative Services had found such charges to be unfounded. Appellant was not merely applying for a benefit. Van Arsdal,supra. Instead, he was forced to defend by virtue of appellee's allegedly unreasonable positions taken with respect to his continued right to employment. Further, it was appellee who took the so-called appeal to the common pleas court in this case.
Accordingly, we hold that the trial court erred in concluding that appellant was barred from claiming attorney fees in any event in this case. Therefore, appellant's assignment of error is well taken. While appellee has raised issues pertaining to the propriety of an award of attorney fees under the substantial justification test, and further issues concerning the amount of attorney fees, we note that the trial court never ruled on these issues in the first instance. Therefore, we think the appropriate remedy is to remand the cause to the trial court so the correct legal standards can be applied. See Korn v. OhioState Med. Bd. (1991),
For the foregoing reasons, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion and in accordance with law.
Judgment reversedand cause remanded.
JOHN C. YOUNG, P.J., and PEGGY BRYANT, J., concur.
Concurrence Opinion
Inasmuch as I cannot agree with the reasoning relied upon by the majority in reaching the result herein, I write separately.
I agree with the majority that R.C.
In that context, R.C.
Further, in my view the statutory bar in R.C.
"* * * reduction in pay or position, job abolishments, layoff, suspension, discharge, assignment or reassignment to a new or different position classification, or the refusal of the director * * * to reassign an employee to another classification or to reclassify his position * * *."
Finding no basis for concluding that the board's hearing of appellant's disability separation involved a matter enumerated in R.C.