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Per Curiam. We overruled a motion to dismiss Weiss’ complaint by entry dated May 27, 1992, 63 Ohio St.3d 1473, 591 N.E.2d 243. Perry and the commission, however, did not file their answer within fourteen days after receiving notice of the entry, as required by Civ.R. 12(A)(2)(a), and, on July 2, 1992, Weiss moved for default judgment pursuant to Civ.R. 55. On July 24, 1992, Perry and the commission requested leave to answer.
For the reasons that follow, we overrule the motion for leave to answer and the motion for default judgment. Moreover, because this disposition eliminates all justification for a writ of mandamus, we further deny the writ.
Leave to Answer
When a motion for leave to answer is filed after the date the answer was due, Civ.R. 6(B)(2) permits an extension upon a showing of excusable neglect. Perry and the commission assert that they failed to answer timely because (1) new assistant attorneys general (“AAGs”) were being assigned to replace the former AAG who was counsel of record when the motion to dismiss was overruled, and (2) the AAG who oversaw the reassignment did not “subjectively] or objectively]” know about our May 27 entry. Respondents claim that this inadvertent administrative delay constitutes excusable neglect.
We disagree. Counsel for Perry and the commission do not dispute that the Attorney General was served notice of the May 27 entry. Respondents, therefore, had constructive knowledge of the entry, which is all Civ.R. 58 requires. See Americare Corp. v. Misenko (1984), 10 Ohio St.3d 132, 134, 10 OBR 454, 456, 461 N.E.2d 1304, 1307 (“ * * * [N]o provision in Ohio law or
*473 rule of civil or appellate procedure requires that a party be given actual notice of the filing of a judgment entry.”), and State ex rel. Spirko v. Court of Appeals (1986), 27 Ohio St.3d 13, 27 OBR 432, 501 N.E.2d 625 (writ of mandamus granted by default judgment when motion to dismiss overruled and no answer filed).Moreover, in GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, we held that the failure to timely answer is neglect and should be imputed to the client. Accord Griffey v. Rajan (1987), 33 Ohio St.3d 75, 78, 514 N.E.2d 1122, 1125. GTE describes attorney neglect as conduct that “ ‘falls substantially below what is reasonable under the circumstances.’ ” Id., 47 Ohio St.2d at 152, 1 O.O.3d at 89, 351 N.E.2d at 117; see, also, Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, 68, 18 OBR 96, 100, 479 N.E.2d 879, 884. Here, no evidence suggests that an answer deadline may be reasonably overlooked due to case reassignment.
Perry and the commission cite Evans v. Chapman (1986), 28 Ohio St.3d 132, 28 OBR 228, 502 N.E.2d 1012, which held that a court does not abuse its discretion by finding clerical error a justifiable excuse for the failure to timely answer. Evans reached this result, however, because a motion for leave to answer had been filed before the motion for default. Id. at 135, 28 OBR at 231, 502 N.E.2d at 1016; Marion Prod. Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 272, 533 N.E.2d 325, 332. Thus, Evans must be distinguished from this case, where the motion for default came first.
Respondents missed the answer date set forth in Civ.R. 12(A)(2)(a) because no one checked for developments in Weiss’ case against them. Moreover, their request for leave to answer was filed in response to Weiss’ motion for default; it was not the result of diligence of their counsel. We do not consider administrative confusion an acceptable excuse for such neglect. The request for leave to answer, therefore, is overruled.
Default Judgment
Under Civ.R. 55(D), a default judgment may be entered against the state only if “the claimant establishes his claim or right to relief by evidence satisfactory to the court.” For a writ of mandamus to issue, Weiss must establish that she is entitled to respondents’ performance of a clear legal duty and that she has no adequate remedy in the ordinary course of law. State ex rel. The Fairfield Leader v. Ricketts (1990), 56 Ohio St.3d 97, 102, 564 N.E.2d 486, 491. Weiss asserts that she has satisfied both standards. We, however, find that an adequate remedy exists.
*474 Initially, Weiss appealed her removal from the classified service, the reduction of her duties, and her termination to SPBR. SPBR did not consolidate these appeals, even though they were filed within one month of each other and challenged job actions taken during the same period. Instead, the AU singled out one appeal — Weiss’ removal from the classified service — and dismissed it because the appeal did not also allege “an adverse personnel action such as a removal or reduction.” In effect, the AU determined that SPBR lacked jurisdiction because Weiss filed separate appeals. SPBR, however, adopted the AU’s recommendation, and Weiss appealed to the common pleas court, presumably pursuant to R.C. 119.12 (appeal by party adversely affected by state agency order to Franklin County Common Pleas Court).Against this backdrop, Weiss argues her lack of an adequate remedy. Apparently, she has decided to concede that SPBR has no jurisdiction over her appeal, without completing the appeal process she has begun. Her decision, however, does not make this process unavailable or inadequate. Indeed, we have reviewed at least three appeals from SPBR decisions in which jurisdiction was challenged on the ground that employees were not classified. See Rarick v. Geauga Cty. Bd. of Commrs. (1980), 63 Ohio St.2d 34, 17 O.O.3d 21, 406 N.E.2d 1101; Yarosh v. Becane (1980), 63 Ohio St.2d 5, 17 O.O.3d 3, 406 N.E.2d 1355; In re Termination of Employment of Moore (1974), 40 Ohio St.2d 107, 69 O.O.2d 512, 321 N.E.2d 603.
Rarick, in particular, establishes that Weiss’ remedy is by way of appeal. There, the court of appeals affirmed SPBR’s order reinstating a county building superintendent and his assistant, both of whom had been removed from the classified service, and then terminated six months later. We reversed, holding that these employees were in an administrative and fiduciary relationship with the board of commissioners and, thus, that they were “unclassified” pursuant to R.C. 124.11(A)(9). Responding to the argument that SPBR lacked jurisdiction because the employees had been designated as “unclassified,” we said:
“ ‘The State Personnel Board of Review has jurisdiction over appeals from removals of public employees if it determines that such employees are in the classified service, regardless of how they have been designated by their appointing authorities.’ ” Rarick, supra, 63 Ohio St.2d at 36, 17 O.O.3d at 22, 406 N.E.2d at 1103, quoting Yarosh, supra, at paragraph two of the syllabus.
Weiss maintains that Rarick is not controlling here because the employees in that case did not question, as she does, the authority for and constitutionality of their removal from the classified service. She apparently interprets Rarick to mean that these issues cannot be decided in a civil service appeal.
*475 The passage she quotes, however, suggests instead that the Ranch court would have considered these arguments had they been raised:“[The employees] have not claimed that the procedure by which their positions were designated, after many years of service, to be in the unclassified service was in any way contrary to the civil service statutes or to the Due Process Clause. Neither have they claimed the terminations to be unconstitutional. * * * [Citation omitted.] As a consequence, the sole issue before this court is whether the duties assigned and performed by the Raricks for the commissioners who terminated their employment placed them within R.C. 124.11(A)(9).” Rarick, supra, at 36, 17 O.O.3d at 22, 406 N.E.2d at 1103, fn. 1.
To justify her decision not to pursue further appeal, Weiss argues that R.C. 124.03 does not confer jurisdiction for SPBR to consider removals from the classified service. R.C. 124.03 provides, in part:
“The state personnel board of review shall exercise the following powers and perform the following duties:
“(A) Hear appeals, as provided by law, of employees in the classified state service from final decisions of appointing authorities or the director of administrative services relative to reduction in pay or position, job abolishments, layoff, suspension, discharge, assignment or reassignment to a new or different position classification, or refusal of the director, or anybody authorized to perform his functions, to reassign an employee to another classification or to reclassify his position pursuant to a job audit under division (E) of section 124.14 of the Revised Code.”
When isolated from the alleged reductions of her duties and discharge, Weiss’ removal from the classified service is not expressly covered by R.C. 124.03. However, this does not remove SPBR’s jurisdiction to consider that issue along with the other adverse job actions purportedly taken against her. Rarich, supra; see, also, Ohio Adm.Code 123-1-01, which acknowledges SPBR’s authority to consider exemptions from the classified service made pursuant to R.C. 124.11.
Moreover, State ex rel. Miller v. Witter (1926), 114 Ohio St. 122, 150 N.E. 431, Toledo v. Osborn (1926), 23 Ohio App. 62, 155 N.E. 250, and State ex rel. Click v. Thormyer (1958), 105 Ohio App. 479, 6 O.O.2d 220, 151 N.E.2d 246, which Weiss cites to show that mandamus is the means by which a public employee may recover a classified position, are distinguishable. The courts in those early cases reviewed the validity of or discussed job abolishments, and job abolishments, as compared to removals for disciplinary reasons, were not then appealable under the civil service laws. Miller, 114 Ohio St. at 124, 150 N.E. at 432; Toledo, 23 Ohio App. at 65, 155 N.E. at 251; Click, 105 Ohio App.
*476 at 485, 6 O.O.2d at 223, 151 N.E.2d at 249-250. Job abolishments are now within SPBR’s jurisdiction. See Bispeck v. Trumbull Cty. Bd. of Commrs. (1988), 37 Ohio St.3d 26, 523 N.E.2d 502; and Weston v. Ferguson (1983), 8 Ohio St.3d 52, 8 OBR 523, 457 N.E.2d 818. Thus, mandamus is no longer available to contest these job actions.Weiss also implies that appeal of SPBR’s decision is an inadequate remedy because SPBR can only reinstate her; it cannot order back pay. She cites Bowling Green State Univ. v. Williamson (1988), 39 Ohio St.3d 141, 529 N.E.2d 1371, to establish, in effect, that classified employees may choose between an SPBR appeal and a mandamus action to rectify adverse employment actions.
Back pay may not be available in SPBR appeals because SPBR has jurisdiction only to affirm, disaffirm, or modify decisions of appointing authorities. R.C. 124.03 and 124.34. However, the lack of authority to award back pay and Bowling Green, supra, do not warrant the conclusion that SPBR procedures are inadequate and may be bypassed.
In Bowling Green, a classified employee filed in common pleas court for a writ of mandamus to compel her promotion and award of back pay. The employer filed in this court for a writ to prohibit the common pleas court from proceeding, arguing that the lower court lacked jurisdiction in mandamus because the employee’s remedy was before SPBR. We held that the common pleas court was not so completely without jurisdiction that a writ of prohibition should issue despite the employee’s right to appeal the common pleas court’s decision.
Bowling Green recognized the common pleas court’s authority to determine, right or wrong, its own jurisdiction. Being based entirely on jurisdiction, Bowling Green did not address the merits of the underlying mandamus action, which included the availability and adequacy of an adequate remedy. Id. at 142, 529 N.E.2d at 1373. Thus, contrary to Weiss’ argument, Bowling Green does not approve of mandamus as an alternative to an SPBR appeal.
Moreover, before a writ of mandamus will issue to compel a classified employee’s reinstatement or back pay, there must first be a final determination made in an appeal from SPBR, a local civil service commission, or other quasi-judicial authority that the employee was “wrongfully excluded from employment.” State ex rel. Colangelo v. McFaul (1980), 62 Ohio St.2d 200,16 O.O.3d 239, 404 N.E.2d 745 (SPBR); Monaghan v. Richley (1972), 32 Ohio St.2d 190, 61 O.O.2d 425, 291 N.E.2d 462 (SPBR); State ex rel. Bush v. Spurlock (1992), 63 Ohio St.3d 453, 588 N.E.2d 840 (commission); State ex rel. Crockett v. Robinson (1981), 67 Ohio St.2d 363, 21 O.O.3d 228, 423 N.E.2d 1099 (commission); State ex rel. Martin v. Columbus (1979), 58 Ohio St.2d
*477 261, 12 O.O.3d 268, 389 N.E.2d 1123, paragraph one of the syllabus (commission); State ex rel. Borsuk v. Cleveland (1972), 28 Ohio St.2d 224, 57 O.O.2d 464, 277 N.E.2d 419, paragraph two of the syllabus (commission); and State ex rel. Rose v. James (1991), 57 Ohio St.3d 14, 565 N.E.2d 547 (grievance arbitrator). Until this determination is made, a “wrongful exclusion]” has not occurred, and mandamus does not lie. State ex rel. Cartmell v. Dorrian (1984), 11 Ohio St.3d 177, 179, 11 OBR 491, 492, 464 N.E.2d 556, 559. Accord Colangelo, supra. Cf. State ex rel. Fenton v. Dept. of Human Serv. (1992), 63 Ohio St.3d 481, 589 N.E.2d 11 (wrongfulness of exclusion from employment may be determined in mandamus action after appeal from civil service commission results in final order that commission lacked jurisdiction). Thus, mandamus is not available as a substitute for civil service appeals.Based on the foregoing, we hold that Weiss has an adequate remedy in the ordinary course of law by way of appeal. Therefore, she is not entitled to a writ of mandamus, and the motion for default judgment is overruled. As our finding defeats Weiss’ claim for relief, the writ of mandamus is also denied.
Motions overruled.
Writ denied.
Moyer, C.J., Holmes, Wright and H. Brown, JJ., concur. Sweeney, Douglas and Resnick, JJ., dissent.
Document Info
Docket Number: No. 91-2294
Citation Numbers: 65 Ohio St. 3d 470, 605 N.E.2d 37
Judges: Brown, Douglas, Holmes, Moyer, Resnick, Sweeney, Wright
Filed Date: 12/11/1992
Precedential Status: Precedential
Modified Date: 11/13/2024