Reyna asserts in his propositions of law that the court of appeals erred in failing to grant him longevity pay, a monetary sum in lieu of accrued, unused vacation credit, and costs. Fоr the reasons that follow, we hold Reyna’s contentions to be meritless and affirm the judgment of the court of appeals.
Reyna contends in his first proposition of law that the court of appeals erred in denying longevity pay to which he is entitled pursuant to former R.C. 124.181.
Former R.C. 124.181, in effect at the time DYS hired Reyna, provided:
“(A) Except as provided in division (M) of this section, any employee paid under schedule A or B of section 124.15 or under schedule E-l of section 124.152 of the Revised Code is eligible for the pay supplements provided herein upon application by the appointing authority substantiating the employee’s qualifications for the supplement and with thе approval of the director of administrative services except as provided in division (E) of this section.
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“(D) The director shall, by rule, establish standards regarding the administration of this sectiоn.
“(E) Except as otherwise provided in this division, beginning on the first day of the pay period within which the employee completes five years of total service with the state government or any of its political subdivisions, each еmployee in positions paid under salary schedules A and B of section 124.15 or under salary schedule E-l of section 124.152 of the Revised Code shall receive an automatic salary аdjustment equivalent to two and one-half per cent of the classification salary base, to the nearest whole cent. Each employee shall receive thereafteran annual adjustment equivalent to one-half of one per cent of his classification salary base, to the nearest whole cent, for each additional year of qualified employment until a maximum of ten per cent of the employee’s classification salary base is reached. The granting of longevity adjustments shall not be affected by promotion, demotion, or other changes in classification held by the employee, nor by any chаnge in pay range for his class. Longevity pay adjustments shall become effective at the beginning of the pay period within which the employee completes the necessаry length of service. Time spent on authorized leave of absence shall be counted for this purpose. * * * ” (Emphasis added.) (143 Ohio Laws, Part IV, 5702-5703.)
Former Ohio Adm.Code 123:1-37-03, effective at the time Rеyna was hired by DYS, provided:
“Those employees who have completed a minimum of five years of total service with the state or any of its political subdivisions shall receive the lоngevity pay supplement which shall be a percentage equal to one-half of one percent for each year of such service. This percentage shall be an automatic pay supplement administered by the Department of Administrative Services, and shall be applicable to the entire pay period in which that date occurs. A maximum accumulation of ten percent shall be applicable after twenty years of total service.” (Emphasis added.)
As the court of appeals correctly held, the fоregoing provisions required DAS to administer the longevity pay supplements provided by former R.C. 124.181(E). Reyna argues that the “except as provided in division (E) of this section” clause ip former R.C. 124.181(A) оbviated the necessity of a formal application and approval of the Director of Administrative Services before receipt of longevity pay. But former R.C. 124.181(D) speсifically authorized the Director of Administrative Services to promulgate rules establishing standards regarding administration of the R.C. 124.181 pay supplements, including the longevity pay provisions of former R.C. 124.181(E). Pursuant to this authority, the director issued Ohio Adm.Code 123:1-37-03, which vests DAS with the duty to administer longevity pay supplements.
Our conclusion comports with the plain language of former R.C. 124.181, which did not, as Reyna assеrts, specify that the appointing authority administer the automatic longevity pay supplement. The paramount consideration in construing statutes is legislative intent, which is determined by reviewing the statutory language. State ex rel Sinay v. Sodders (1997),
Therefore, the court of appeals did not err in denying Reyna’s claim for longevity pay because he failed to join DAS as a respondent in his mandamus action.
Reyna asserts in his second proposition of law that the court of appeals еrred by awarding him vacation credit instead of a monetary sum for his accrued, unused vacation leave because of his right under R.C. 124.134(C) to liquidate this leave when he transferred to the Department of Rehabilitation and Correction from DYS in March 1996. R.C. 124.134(C) provides that “[i]n case of transfer of an employee from one state agency to another, the employeе may elect to be compensated at the employee’s current rate of pay for accrued and unused vacation leave at the time of transfer by the releasing agency or to retain the accrued and unused vacation leave.”
For the reasons that follow, however, Reyna’s second proposition of law lacks merit.
First, Reyna waived this issue by not claiming entitlement to the monetary amount in lieu of vacation credit by virtue of the R.C. 124.134(C) election provision in the court of appeals. See State ex rel. Quarto Mining Co. v. Foreman (1997),
Second, Reyna introduced no evidence that he would have elected to cash out his accrued, unused vacation credit either when he transferred to DYS or when he transferred to the Department of Rehabilitation and Correction. In fact, Reyna testified in his deposition that he was concerned about DYS properly crediting his prior public service for purposes of vacation leave; he did not testify that he wanted to liquidate such credit at that time.
Third, Reyna did not establish the monetary amount of his accrued, unused vacation credit with certainty, which рrecludes extraordinary relief in mandamus. State ex rel. Guerrero v. Ferguson (1981),
Therefore, Reyna did not prove that the court of appeals erred by awarding vacation credit rather than a monetary amount. Cf. State ex rel. Yudofsky v. Cincinnati (1992),
In his third proposition of law, Reyna asserts that the court of appeals erred in failing to award him costs under Civ.R. 54(D). Civ.R. 54(D) grants trial courts discretion to order that the prevailing party bear all or part of his or her own costs. Vance v. Roedersheimer (1992),
The court of appeals did not abuse its discretion in refusing to award Reyna the costs of his mandamus action. Denying costs to both parties can be appropriate when neither party entirely prevails. See, generally, 10 Wright, Miller & Kane, Federal Practice & Procedure (1998) 241-242, Section 2668, and Gooden v. Neal (C.A.7, 1994),
Judgment affirmed.
Notes
. For example, in Reyna’s appellate brief, he states:
“Prior to initiating this litigation, counsel attempted to estimate the amount of vacation leave Reyna was denied and believes he is owed 400 to 500 hours of leave. Depending upon Reyna’s leave balance when the additional time is added, this much leave сould easily push Reyna’s balance over 600 hours.”
. R.C. 124.134(B) provides:
“Except as otherwise provided in this section, employees granted leave under this section shall forfeit their right to take or to bе paid for any vacation leave to their credit which is in excess of the accrual for three years. Such excess leave shall be eliminated from the employees’ leave balance. * * 4s »