White v. Cleveland ( 2013 )

[Cite as White v. Cleveland, 2013-Ohio-3007.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99400
HERSHEL WHITE
PLAINTIFF-APPELLANT
vs.
CITY OF CLEVELAND
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-667908
BEFORE: E.T. Gallagher, J., Rocco, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: July 11, 2013
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Law Director
James C. Cochran
Assistant Director of Law
City of Cleveland
Department of Law
601 Lakeside Avenue
Room 106
Cleveland, Ohio 44114-1077
EILEEN T. GALLAGHER, J.:
{¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1.
{¶2} Plaintiff-appellant Hershel White (“White”) appeals a judgment of the trial
court denying his motion for an award of back pay. We find no merit to the appeal and
affirm.
{¶3} White resigned from his employment as a waste collection foreman with
defendant-appellee, city of Cleveland (“the city”), after being found guilty of three counts
of criminal usury. White’s convictions were later vacated on appeal. See State v. White,
8th Dist. No. 89085, 2007-Ohio-5951. White subsequently asked the city to reinstate
him to his former position, but the city refused. In August 2008, White initiated the
instant action for injunctive relief against the city seeking reinstatement to his former
employment.
{¶4} The parties filed cross-motions for summary judgment. The trial court
denied White’s motion and granted the city’s motion, finding that White was not entitled
to reinstatement to his former employment. This court reversed the trial court’s
judgments. In accordance with this court’s mandate, the trial court ordered that White be
rehired and the city rehired him on June 26, 2012.
{¶5} In July 2012, White filed a motion seeking an award of back pay for the
period of time from October 23, 2006, the date he resigned, to June 26, 2012, the date he
was rehired. White requested back pay in the amount of $279,041.20. The trial court
denied the motion for back pay and this appeal followed.
{¶6} In his sole assignment of error, White argues the trial court erred in failing to
award him back pay after being reinstated to his former position. White contends he is
entitled to back pay because: (1) the appellate court ordered reinstatement of his
employment; and (2) the city’s personnel policy requires the city to provide him with back
pay. We disagree.
{¶7} In the complaint, White sought an order of reinstatement to his former
position of employment. However, he never stated a claim for back pay and never
requested any monetary damages. Although his prayer for relief generally seeks: “other
and further relief as is just and equitable,” a claim for back pay must be plead as special
damages pursuant to Civ.R. 9(G).
{¶8} Civ.R. 9(A) states: “When items of special damage are claimed, they shall be
specifically stated.” The Rules Advisory Committee Staff Notes define “special
damages” as “a damage measurable by proof of market value or out of pocket expense.”
In Morrison v. Devore Trucking Inc., 68 Ohio App.2d 140, 144, 428 N.E.2d 438 (9th
Dist. 1980), the court held that loss of earnings is an item of special damages.1 The court
See also Hughes v. Rogers, 4th Dist. No. 488, 1983 Ohio App. LEXIS 13526 (Oct. 26,
1
1983) (holding that loss of earnings is an item of special damages, which must be specifically stated
pursuant to Civ.R. 9(G))
explained that this special pleading requirement is intended to avoid surprise by requiring
the pleader to provide specific notice of measurable losses at the pleading stage. Id. at
144. Indeed, “[o]ne purpose of the Civil Rules is to ‘eliminate surprise’ and this is
accomplished by requiring the ‘free flow of accessible information.’” Jones v. Murphy,
12 Ohio St.3d 84, 86, 465 N.E.2d 444 (1984). When notice is provided at the
commencement of litigation, the opposing party knows generally what kind of evidence
will be offered in support of the claim and will have an opportunity to prepare a defense.
{¶9} The complaint in this case was filed over four years ago on August 15, 2008.
The caption of the complaint states: “Complaint for Injunctive Relief.” As previously
stated, the prayer for relief in the complaint merely asks for a court order, reinstating
White to his former position with the city. White never amended the complaint to add a
claim for back wages and there was no issue of back wages when the court ruled on the
parties’ motions for summary judgment in October 2009. White raised the issue of back
wages for the first time after this court reversed the summary judgments and his
employment was reinstated. Therefore, White failed to specifically allege a claim for
back pay, and the trial court could not award back pay.
{¶10} The sole assignment of error is overruled.
{¶11} Judgment affirmed. It is ordered that appellee recover from appellant costs
herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
PATRICIA A. BLACKMON, J., CONCUR