State ex rel. Capretta v. Zamiska , 135 Ohio St. 3d 177 ( 2013 )

[Cite as State ex rel. Capretta v. Zamiska, 135 Ohio St.3d 177, 2013-Ohio-69.]
THE STATE EX REL. CAPRETTA, APPELLANT, v. ZAMISKA ET AL., APPELLEES.
[Cite as State ex rel. Capretta v. Zamiska, 135 Ohio St.3d 177, 2013-Ohio-69.]
Quo warranto—Adequate remedy by way of appeal precluded issuance of writ of
quo warranto—Court of appeals’ judgment denying claim affirmed.
(No. 2012-1287—Submitted January 9, 2013—Decided January 16, 2013.)
APPEAL from the Court of Appeals for Medina County, No. 11CA0085-M.
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Per Curiam.
{¶ 1} Appellant, Anthony P. Capretta, appeals from a judgment denying
his claim for a writ of quo warranto to oust appellee Lisa J. Zamiska from the
office of city council member for Ward 4 of the city of Brunswick, Ohio, to
restore him to the office, and to require appellees Brunswick and its city council
to provide him with lost wages and public-employee-retirement-system credit for
the time that he was improperly ousted from office. Because Capretta had an
adequate remedy by way of administrative appeal from his removal, we affirm the
judgment.
Facts
{¶ 2} On November 6, 2007, Capretta was reelected to a four-year term
as city council member for Brunswick Ward 4 and began serving that term on
January 1, 2008. In May 2010, Capretta contacted the city service director about
reimbursing one of his constituents for the replacement cost of a mailbox
destroyed by a city snowplow. As a result of that contact, the city manager and
the service director filed complaints against Capretta with the Brunswick Board of
Ethics. Following an evidentiary hearing, the board of ethics determined that the
service director’s complaint had merit. The board concluded that Capretta had
violated Section 3.05(b) of the Brunswick Charter, which provides:
January Term, 2013
Interference with Administration
Except for the purpose of inquiries and investigations under
Article VI, Section 6, the Council or its members shall deal with
City officers and employees who are subject to the direction and
supervision of the City Manager solely through the City Manager
or his/her designee(s), and neither the Council nor its members
shall give orders to any such officer or employee either publicly or
privately.
{¶ 3} On September 27, 2010, following an evidentiary hearing, the
remaining members of the Brunswick City Council removed Capretta from office
as council member for Ward 4 for violating Section 3.05(b) of the charter. See
Brunswick Charter, Sections 3.06(b)(2) (council member shall forfeit office if the
member “[v]iolates any express prohibition of this Charter”) and 3.07 (“The
Council shall be the judge of the election and qualifications of its members and of
the grounds for forfeiture of their office and for that purpose shall have the power
to subpoena witnesses, administer oaths and require the production of evidence”).
On October 18, 2010, Zamiska was appointed to fill the vacancy created by
Capretta’s removal.
{¶ 4} On October 26, 2010, Capretta filed an administrative appeal
pursuant to R.C. 2506.01 from the city council’s decision removing him from his
elective position of council member. On September 1, 2011, the Medina County
Court of Common Pleas affirmed the city council’s decision. Capretta appealed
the common pleas court’s judgment to the court of appeals, and on October 22,
2012, the court of appeals dismissed the appeal based on mootness. Capretta v.
Brunswick City Council, 9th Dist. No. 11CA0094-M, 2012-Ohio-4871.
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January Term, 2013
According to the court of appeals, the term of office for which Capretta sought
reinstatement expired in 2011, and he was subsequently reelected to that office.
{¶ 5} In August 2011, a few weeks before the common pleas court
decided his administrative appeal, Capretta filed a petition for a writ of quo
warranto in the court of appeals. Capretta requested that Zamiska be ousted and
that he be restored to the office of council member for Brunswick Ward 4.
Capretta also requested that the city and the city council be required to pay his
lost wages and provide him with service credit from his September 27, 2010
ouster until the date the writ is granted and he is returned to office. Appellees
filed an answer and a motion for summary judgment, and Capretta filed a
response opposing the motion. The court of appeals granted appellees’ motion for
summary judgment and, in effect, denied the writ.
{¶ 6} This cause is now before the court upon Capretta’s appeal as of
right.
Analysis
{¶ 7} The court of appeals determined that Capretta’s administrative
appeal constituted an adequate remedy in the ordinary course of law, which
precluded his claimed entitlement to a writ of quo warranto. We agree.
{¶ 8} “Extraordinary writs like quo warranto provide extraordinary, not
alternative remedies, and they will not lie where there exists an adequate remedy
in the ordinary course of the law.” State ex rel. Johnson v. Talikka, 71 Ohio St.3d
109, 110, 642 N.E.2d 353 (1994). An administrative appeal constitutes an
adequate remedy in the ordinary course of law that precludes extraordinary relief
in quo warranto. See State ex rel. Fogle v. Carlisle, 99 Ohio St.3d 46, 2003-Ohio-
2460, 788 N.E.2d 1060, ¶ 9.
{¶ 9} On appeal, Capretta does not dispute this general proposition or
suggest that the city council did not exercise quasi-judicial power in removing
him from office. See State ex rel. Zeigler v. Zumbar, 129 Ohio St.3d 240, 2011-
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Ohio-2939, 951 N.E.2d 405, ¶ 20 (“R.C. 2506.01 provides for administrative
appeals only from quasi-judicial proceedings”).
{¶ 10} Instead, Capretta claims that his administrative appeal does not
constitute an adequate remedy, because he cannot get back pay and retirement-
system credit in an administrative appeal but can obtain these remedies pursuant
to R.C. 2733.181 if a writ of quo warranto issues.
{¶ 11} Capretta waived this claim, however, by failing to raise it in the
court of appeals in response to appellees’ motion for summary judgment, in which
they claimed that Capretta’s administrative appeal pursuant to R.C. Chapter 2506
provided him with an adequate remedy in the ordinary course of law. See
generally Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965 N.E.2d
282, ¶ 18; McGhan v. Vettel, 122 Ohio St.3d 227, 2009-Ohio-2884, 909 N.E.2d
1279, ¶ 26.
{¶ 12} Moreover, Capretta cites no case in support of his claim that R.C.
2506.04 does not authorize an award of back pay and benefits in the context of an
administrative appeal pursuant to R.C. 2506.01. He cannot meet his burden of
demonstrating reversible error under these circumstances. See In re Application
of Columbus S. Power Co., 129 Ohio St.3d 271, 2011-Ohio-2638, 951 N.E.2d
751, ¶ 14 (court can reject argument on appeal when the appellant fails to cite any
legal authority in support).
{¶ 13} Finally, in comparable writ cases, we have held that the mere fact
that the tribunal hearing a civil-service appeal from the removal of a classified
employee from a position is not authorized to award back pay does not warrant
1. R.C. 2733.18 provides:
Within one year after the date of a judgment mentioned in section 2733.17 of the
Revised Code, the person in whose favor the judgment is rendered may bring an
action against the party ousted, and recover the damages he sustained by reason
of such usurpation.
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the conclusion that the administrative appeal is inadequate and may be bypassed
by an action for extraordinary relief. See, e.g., State ex rel. Weiss v. Indus.
Comm., 65 Ohio St.3d 470, 476, 605 N.E.2d 37 (1992).
{¶ 14} Therefore, Capretta failed to establish that the court of appeals
erred in denying the requested extraordinary relief in quo warranto. We affirm
the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
O’DONNELL, J., dissents.
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Joseph F. Salzgeber, for appellant.
Kenneth J. Fisher Co., L.P.A., and Kenneth J. Fisher, for appellees.
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