604 N.E.2d 1367 | Ohio Ct. App. | 1992
The Estate of Roy T. Kirby ("appellant") appeals from the judgment of the Hamilton County Court of Common Pleas in favor of the Hamilton County Juvenile Court ("appellee")1 in which the trial court denied the appellant's claim for attorney fees and interest. For the reasons that follow, we affirm the trial court's judgment in part, reverse in part and remand the cause for further proceedings.
The record discloses that at the time of the proceedings below, Roy T. Kirby ("Kirby") had been employed in various capacities by the appellee at the Hillcrest School for approximately eleven years. Hillcrest School is a facility for children who are adjudged to be delinquent, dependent, neglected, abused, unruly, or juvenile traffic offenders. Kirby, a classified civil service employee pursuant to R.C.
On February 16, 1990, a hearing was held before an SPBR administrative law judge. At the hearing the appellee presented the testimony of Welti as well as of three Hillcrest employees, including its superintendent. Kirby testified on his own behalf. Kirby also offered the testimony of his wife and a co-worker. The administrative law judge issued findings of fact and conclusions of law, determining that appellee had proven Welti's allegations *399 by a preponderance of the evidence, and recommending that Kirby's removal be affirmed. Kirby appealed the administrative law judge's recommendation to the SPBR, which conducted a hearing before the board members on June 12, 1990, at which only Welti, Kirby and the superintendent testified. Thereafter, the board issued its order, concluding that appellee had not furnished sufficient evidence to prove the allegations set forth in appellee's removal order. The board ordered that Kirby be reinstated to his former position with back pay and benefits.
Pursuant to R.C.
Appellant timely appealed, alleging in a single assignment of error that the trial court erred in failing to award appellant attorney fees and interest. We will first address the matter of attorney fees.
In denying the appellant's motion for attorney fees, the trial court determined that R.C.
R.C.
"(B)(1) 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
"* * *
"(2) Upon the filing of a motion under this section, the court shall review the request for the award of compensation for fees and determine whether the position of the state in initiating the matter in controversy was substantially justified, whether special circumstances make an award unjust, and whether the prevailing eligible party engaged in conduct during the course of the *400 action or appeal that unduly and unreasonably protracted the final resolution of the matter in controversy. The court shall issue an order, in writing, on the motion of the prevailing eligible party, which order shall include a statement indicating whether an award has been granted, the findings and conclusions underlying it, the reasons or bases for the findings and conclusions, and, if an award has been granted, its amount. The order shall be included in the record of the action or appeal, and the clerk of the court shall mail a certified copy of it to the state and the prevailing eligible party.
"With respect to a motion under this section, the state has the burden of proving that its position in initiating the matter in controversy was substantially justified, that special circumstances make an award unjust, or that the prevailing eligible party engaged in conduct during the course of the action or appeal that unduly and unreasonably protracted the final resolution of the matter in controversy.
"* * *
"(F) 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
Applicable to this cause, R.C.
"The tenure of every officer or employee in the classified service of the state and the counties, civil service townships, cities, city health districts, general health districts, and city school districts thereof, holding a position under this chapter of the Revised Code, shall be during good behavior and efficient service and no such officer or employee shall be reduced in pay or position, suspended, or removed, except as provided in section
The appellee argues that since the procedure set forth in R.C.
In Riddle v. State Personnel Bd. of Review (1987),
"* * * Hence, the provisions of R.C.
We find the court's reasoning in Riddle to be persuasive. R.C.
Having held that appellant was not precluded from seeking attorney fees under R.C.
In Highway Valets, Inc. v. Ohio Dept. of Transp. (1987),
Following the Ohio Supreme Court's denial of certification of the record, plaintiff applied to the Court of Claims for attorney fees pursuant to R.C.
"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.
We find the reasoning by the court in Highway Valets, Inc.,supra, to be compelling and dispositive of the issue subjudice. Having determined that appellee was not the initiating party of this cause, we conclude that the appellant's argument that the appellee was not substantially justified in initiating the matter likewise fails.
We now turn to the matter of interest. R.C.
"In an appeal on questions of law and fact, if the judgment of an appellate court is substantially the same as the final order of an administrative officer, agency, board, department, tribunal, commission, or other instrumentality, whose final order is the subject of the appeal, or if such an appeal is dismissed for want of prosecution, damages may be awarded as follows:
"(A) If the judgment involves the payment of money other than in a nominal amount, unless the appellate court is satisfied that there were reasonable grounds for the appeal, it shall be adjudged that the appellant pay the appellee five per cent on the amount of that money or, if the court is satisfied that the appeal was for delay merely, that he pay ten per cent on the amount of that money.
"(B) In other appeals, including those in which a judgment is for a nominal amount of money, costs only, or both, unless the court is satisfied that a reasonable ground existed for the appeal, it shall grant damages to the appellee in any sum considered reasonable, not exceeding two hundred dollars."
The trial court did not set forth its reasons for denying interest to the appellant in its journal entry. We see no reason why this cause is not contemplated within R.C.
For the reasons set forth above, we affirm the trial court's judgment as it pertains to the award of attorney fees. We reverse that part of the trial court's judgment regarding interest and remand this cause to the trial court for further proceedings consistent with this opinion and law.
Judgment accordingly.
DOAN, P.J., concurs.
KLUSMEIER, J., not participating.