Assn. of Cleveland Firefighters Local 93 I.A.F.F. v. Cleveland , 2017 Ohio 6887 ( 2017 )


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  • [Cite as Assn. of Cleveland Firefighters Local 93 I.A.F.F. v. Cleveland, 
    2017-Ohio-6887
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 105033
    ASSOCIATION OF CLEVELAND FIREFIGHTERS
    LOCAL 93 I.A.F.F.
    PLAINTIFF-APPELLANT
    vs.
    CITY OF CLEVELAND, ET AL.
    DEFENDANTS-APPELLEES
    JUDGMENT:
    REVERSED AND REMANDED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-14-823955
    BEFORE: Kilbane, P.J., Boyle, J., and S. Gallagher, J.
    RELEASED AND JOURNALIZED:                           July 20, 2017
    ATTORNEY FOR APPELLANT
    Daniel A. Powell
    Joseph W. Diemert & Associates Co., L.P.A.
    1360 S.O.M. Center Road
    Cleveland, Ohio 44124
    ATTORNEYS FOR APPELLEES
    For City of Cleveland
    Barbara A. Langhenry
    Director of Law
    Annette G. Butler
    Assistant Director of Law
    City of Cleveland, Department of Law
    601 Lakeside Avenue, Room 106
    Cleveland, Ohio 44114
    For Chief Angelo Calvillo
    Bradric T. Bryan
    Goodwin & Bryan L.L.P.
    22050 Mastick Road
    Fairview Park, Ohio 44126
    For John Coughlin, Vincent DiTeodoro, Bradley Englehart,
    William Gorey III, and James Thomas
    Scott C. Essad
    721 Boardman-Poland Road, Suite 201
    Boardman, Ohio 44512
    For Battalion Chief Anthony Luke
    Edward Richard Stege
    Stege & Michelson Co., L.P.A.
    30799 Pinetree Road #302
    Pepper Pike, Ohio 44124
    B. Nicole Bush
    20820 Chagrin Boulevard, Suite 301
    Cleveland, Ohio 44122
    MARY EILEEN KILBANE, P.J.:
    {¶1} Plaintiff-appellant, Association of Cleveland Firefighters, Local 93 I.A.F.F.
    (“Local 93”), appeals from the trial court’s decision that denied its motion for summary
    judgment on its claims for declaratory judgment and injunctive relief and dismissed its
    amended complaint, which also sought a writ of mandamus. For the reasons set forth
    below, we reverse and remand with instructions for the trial court to consider Local 93’s
    motion for summary judgment on the merits consistent with this opinion.
    Facts and Procedural History
    {¶2} This matter is before this court again because in March 2014, the City, for
    the first time in the history of the Cleveland Fire Department, administered
    noncompetitive examinations for the positions of assistant fire chief and battalion chief.
    The responsibilities of the assistant chiefs’ positions consist of an operational role or a
    fire ground commander. The responsibilities of the battalion chiefs include the first
    incoming tactical decisions and the decisions of where to place firefighters.
    {¶3} Local 93 is the sole certified bargaining representative for all of the city of
    Cleveland Division of Fire members holding rank of firefighter through assistant chief.
    In its original complaint for declaratory judgment and injunctive relief filed on March 20,
    2014, Local 93 sought to enjoin defendant-appellee, the city of Cleveland (the “City”),
    from administering a noncompetitive examination for the positions of assistant chief and
    battalion chief. Local 93 alleged that the City violated Ohio’s Constitution, state and
    local law, and the City’s Charter when it created a noncompetitive examination process
    for the positions of assistant chief and battalion chief. Local 93 maintained that the City
    is required to use a competitive exam designed to test for merit and fitness for promotion
    as set forth in the Ohio Constitution, Article XV, Section 10, R.C. Chapter 124,
    Cleveland Charter Section 128, and Cleveland Civil Service Commission Rules 4.60 and
    4.70.
    March 2014 Bulletin
    {¶4} On March 14, 2014, the City issued a bulletin announcing noncompetitive
    promotional examinations for vacancies for the positions of assistant chief and battalion
    chief. The noncompetitive process used by the City consisted of the submission of a
    resume and an interview by panel members. The City stipulates that the promotional
    exam was a noncompetitive examination.
    {¶5} The application filing period was set from March 17, 2014, through March
    22, 2014. The City’s Civil Service Commission Secretary, Lucille Ambroz (“Secretary
    Ambroz”), testified that she made the decision, on her own accord, to change the testing
    to a noncompetitive test. Secretary Ambroz was unable to explain why competitive
    testing was not practicable under the current situation.      She believed the need for
    noncompetitive examinations existed to permit the appointing authority to look at all the
    individuals that were applying and vet them out completely. She later testified that she
    had in fact decided, along with the former safety director, to switch to noncompetitive
    testing. Secretary Ambroz acknowledged that this was the first time the City has ever
    used noncompetitive testing to promote individuals in the City’s Division of Fire. The
    City had been utilizing a competitive examination for promotions since 1912.
    {¶6} Assistant Safety Director Edward Eckart (“Assistant Director Eckart”), who
    was the former EMS Commissioner, conducted the interviews with a group of panelists.
    Assistant Director Eckart has no experience as a firefighter.           He stated that each
    interview consisted of 45 minutes of questions from himself, followed by 15 minutes of
    assessment by the panelists. After the interviews were completed, Assistant Director
    Eckart directed the fire chief to assemble files on those candidates who the panelists
    perceived to be the top 15 candidates. Selections were then made from that list.
    The Dismissal of Local 93’s Complaint and its Initial Appeal
    {¶7} On March 20, 2014, the same day Local 93 filed its complaint, the trial
    court entered an order allowing the City to continue to accept applications through the
    City’s set deadline and scheduled a hearing on April 7, 2014. At the hearing, the trial
    court heard testimony from the fire chief, an assistant fire chief, and several battalion
    chiefs, as well as Secretary Ambroz and Assistant Safety Director Eckart regarding
    competitive exams, the testing process, and the seismic shift in testing methods from
    competitive to noncompetitive examinations.
    {¶8} Thereafter, the trial court requested that the parties return for oral argument
    on the issue of subject matter jurisdiction, an issue that was raised, sua sponte, by the trial
    court. The court held a hearing on April 17, 2014, regarding this issue. Both Local 93
    and the City argued that the trial court has proper jurisdiction because the issue of
    noncompetitive exams is not addressed in their collective bargaining agreement. On
    April 25, 2014, the trial court issued a decision finding that it lacked jurisdiction to hear
    the matter in light of the union’s failure to exhaust its remedies under the collective
    bargaining agreement. As a result, the court ordered, sua sponte, that Local 93’s claims
    be dismissed as a matter of law.
    {¶9} Local 93 appealed, and the City cross-appealed to this court in Assn. of
    Cleveland Firefighters, Local 93 I.A.F.F., v. Cleveland, 
    2015-Ohio-1538
    , 
    31 N.E.3d 1285
    (8th Dist.).    Both parties argued the trial court erred when it dismissed Local 93’s
    complaint for lack of subject matter jurisdiction. On April 23, 2015, we reversed the
    trial court’s decision and remanded the matter for the trial court to adjudicate Local 93’s
    complaint and injunction motions. Id. at ¶ 24.
    The City promotes Six Fire Captains through
    the Noncompetitive Examination Process
    {¶10} While the matter was pending before this court, the City went ahead and
    administered the noncompetitive promotional exam in May 2014, which was the subject
    of Local 93’s complaint. Local 93 took no action to stop the administration of the
    noncompetitive exam, and the City promoted six fire captains to fill the battalion-chief
    positions.      These newly promoted fire captains were promoted through the
    noncompetitive examination process.
    The Trial Court Grants Local 93’s Motion for Preliminary Injunction
    {¶11} In August 2015, following a hearing after our remand, the trial court granted
    Local 93’s preliminary injunction, as set forth in the initial complaint, and prohibited the
    City from continuing to administer its noncompetitive examination process for promotion
    in the fire department. In its opinion, the trial court acknowledged that the March 2014
    bulletin was “the first time in the history of the fire department that promotion to the rank
    of battalion chief and assistant chief would be by noncompetitive means.” The court
    further acknowledged that Local 93 is seeking a declaration that the March 2014 bulletin
    was in violation of Ohio’s Constitution, state and local law, and the City’s Charter. The
    court then stated that “under the first prong of the prima facie case for the Local 93’s
    motion for preliminary injunction, this court must analyze the likelihood that the Local 93
    will prevail on the merits of the declaratory judgment action.”
    {¶12} In doing so, the trial court found that the City’s administrative decision to
    change to noncompetitive testing was not supported by the evidence and there was a
    substantial likelihood that Local 93 would prevail on the merits of its declaratory
    judgment. The court reasoned that
    [t]hroughout the entire hearing, both [Ambroz and Eckart] were pressed by
    counsel and the Court as to why it was not practicable to implement the
    proposed new testing method into competitive testing. At no time did
    either witness provide the Court with persuasive evidence that a deviation
    from competitive examination designed to test for merit and fitness as
    required by the Ohio Constitution, the Ohio Revised Code, and the City of
    Cleveland Charter was appropriate or necessary under the circumstances.
    Furthermore, while the Court recognizes that [Ambroz] has broad discretion
    to determine promotion and the method of testing, said discretionary powers
    must be exercised fairly and reasonably.
    {¶13} The trial court further found that if the injunction was not granted, the
    potential of irreparable harm to Local 93 “is quite real.” The court explained that
    the threatened harm is more than just hurt feelings or disharmony with the
    division. Rather, * * * competitive testing requires selection amongst the
    highest ranked individuals according to performance, including the ability
    to make time sensitive and critical tactical decisions. Said decisions deal
    directly with the safety of firefighters on scene, as well as with the
    protection and safety of the community. The decisions for which battalion
    and assistant chiefs are responsible are often life and death decisions.
    Where lack of competitive testing erodes the confidence of rank and file
    fire fighters in the decisions that are being made and orders that are being
    implemented, the Court finds there is a high risk of harm associated with
    lack of confidence in commanding officers.
    {¶14} We note that at the time the court granted Local 93’s motion, the City had
    already promoted six individuals through the noncompetitive process.1 Then between
    June 26 and September 15, 2015, several interested parties filed motions to intervene,
    which the trial court ultimately granted.
    Local 93’s Amended Complaint
    {¶15} In September 2015, Local 93 moved for leave to amend its complaint, which
    the trial court granted in December 2015. In its amended complaint, Local 93 again
    sought a declaratory judgment, a preliminary injunction, and permanent injunction, and
    also sought a petition for writ of mandamus. Local 93 maintains that because the March
    14, 2014 bulletin violates the Ohio Constitution, both state and local law, and the City’s
    Charter it was entitled to
    a declaratory judgment that all vacancies in the promoted ranks of Division
    of Fire created since the expiration of the most recent certified civil service
    eligibility lists, as well as any such vacancies which have yet to be created
    1Wenote that the last eligibility lists formulated on the basis of competitive
    examinations for assistant chief and battalion chief expired at the end of 2013.
    in the promoted ranks, must be filled by a competitive examination process
    in compliance with applicable law.
    {¶16} Local 93 also sought preliminary and permanent injunctions prohibiting the
    administration of noncompetitive promotional exams for any promoted rank in the fire
    department, and sought a writ of mandamus “as a result of the City’s failure to comply
    with its clear legal duties with regard to promotional examinations within the Division of
    Fire[.]”
    12 Fire Captain’s Motion to Intervene and their Writ of Mandamus
    {¶17} Also in September 2015, 12 fire captains filed a motion to intervene, which
    they later withdrew on November 12, 2015, because the trial court had not yet ruled on
    their motion. The next day, these 12 fire captains (relators) filed a complaint for a writ
    of mandamus with the Ohio Supreme Court in State ex rel. Schroeder v. Cleveland, Slip
    Opinion No. 
    2016-Ohio-8105
    . The relators asserted that they have a clear legal right to
    require that the City
    choose battalion chiefs and assistant chiefs from among the three highest
    scores in a competitive promotional exam, that they have no adequate
    remedy in the ordinary course of the law, and that [the City] has no lawful
    reason for refusing to offer a competitive exam or for filling the positions
    with firefighters who do not rank among the top three scores in a
    competitive exam.
    Id. at ¶ 11.
    {¶18} They requested that the Ohio Supreme Court order the City
    to immediately offer a competitive promotional exam to all firefighters who
    were eligible to sit for such a test when the noncompetitive examination
    process was announced in March 2014, fill all battalion-chief and
    assistant-chief positions available since March 2014 with firefighters who
    rank in the top three of that competitive test, make those promotions
    retroactive to the date each would have been effective if [the City] had
    complied with the law, and provide back pay and benefits to the firefighters
    promoted under the new competitive process.
    Id.
    {¶19} The Schroeder court noted that to be entitled to extraordinary relief in
    mandamus, “relators must establish a clear legal right to the requested relief, a clear legal
    duty on the part of [the City] to provide it, and the lack of an adequate remedy in the
    ordinary course of the law.” Id. at ¶ 13, citing State ex rel. Waters v. Spaeth, 
    131 Ohio St.3d 55
    , 
    2012-Ohio-69
    , 
    960 N.E.2d 452
    , ¶ 6.
    {¶20} The relators challenged the noncompetitive examination process on the
    same grounds as Local 93 did in its amended complaint and sought the immediate return
    of the competitive examination process. Id. at ¶ 21. In August 2016, the Schroeder
    court dismissed relators’ writ, finding that they had an adequate remedy in the ordinary
    course of law by way of intervention. Id. at ¶ 24. The court stated that relators could
    have intervened in Local 93’s declaratory judgment action and obtained all the relief they
    sought in their writ of mandamus. Id. at ¶ 21.
    Motions for Summary Judgment
    {¶21} Meanwhile in March 2016, Local 93 and the City each filed motions for
    summary judgment. Local 93 opposed the City’s motion. The City, however, did not
    file a response in opposition to Local 93’s motion for summary judgment. 2            After
    submitting briefs and evidence, the trial court issued a
    judgment entry and opinion dismissing the action in September 2016. The court stated:
    Initially, the court notes that not one of the Local 93’s amended counts
    references the March 14th, 2014 bulletin announcing the noncompetitive
    promotional examinations, the fact that those noncompetitive tests have
    already been administered, the fact that promotional lists were generated
    from those noncompetitive exam processes, the fact that several promotions
    have already been effectuated from said lists, or the fact that the lists
    generated from the noncompetitive examination processes have since
    expired and can no longer be utilized. Rather, the amended complaint asks
    this court to find all vacancies in the promoted ranks both past and future
    must be filled by competitive examination, and that all noncompetitive
    examination for the promoted ranks within the Division of Fire is
    prohibited.
    ***
    Local 93’s arguments to this court in their motion for summary judgment do
    not comport with the counts in their amended complaint. From the
    evidence submitted, which pertains solely to the March 14th, 2014 bulletin,
    the noncompetitive examinations administered thereafter and the
    promotions effectuated therefrom, this court could not possibly conclude
    that all vacancies in the promoted ranks both past and future must be filled
    by competitive examination, or that all noncompetitive examination for the
    promoted ranks within the Division of Fire should be strictly prohibited.
    ***
    The testing itself has already been administered and it cannot be undone
    through declaration from this court. Furthermore[,] the promotional lists
    generated from the noncompetitive examination processes have already, on
    their face, expired and can no longer be used. (See, Plaintiff’s Exhibits 2
    & 3.) Thus, the only possible right that this court could issue declaration
    2We  note that none of the intervenors filed motions in opposition to either
    Local 93’s or the City’s motion for summary judgment, nor did they file their own
    motions for summary judgment.
    on would be whether the promotions effectuated from the noncompetitive
    promotional lists are contrary to law. No other justiciable controversy is
    presented by the evidence before this court.
    ***
    It is important to note that the Local 93 filed their amended complaint after
    the August 6th, 2015 order of this court. As such, the Local 93, * * * had
    ample opportunity to specify its claims. However, as the evidence
    submitted by these parties and the arguments presented in the motions for
    summary judgment do not comport with the relief sought in the amended
    complaint, this court must deny the motions.
    Upon due consideration of the motions filed by these parties and after
    construing all the evidence submitted as required by Ohio law, the court
    issues the following judgment: as the amended complaint seeks both
    declaration and injunctive relief specifying that all vacancies in the
    promoted ranks of the Division of Fire, both past and future, must always
    be filled by competitive examination process, and that all noncompetitive
    examination for the promoted ranks within the Division of Fire should be
    strictly prohibited, this court finds that there is no justiciable issue or
    controversy and hereby dismisses all remaining counts in the amended
    complaint.
    (Emphasis sic.)
    {¶22} It is from this order that Local 93 appeals, raising the following two
    assignments of error for review.
    Assignment of Error One
    The trial court erred in denying Local 93’s motion for summary judgment.
    Assignment of Error Two
    The trial court erred in dismissing Local 93’s claims.
    Analysis
    {¶23} Local 93 argues the March 2014 bulletin violates the Ohio Constitution,
    state and local law, and the Cleveland City Charter because the City is required to use a
    competitive exam designed to test for promotion within the Division of Fire, as set forth
    in Article XV, Section 10 of the Ohio Constitution, R.C. Chapter 124, Cleveland Charter
    Section 128, and Cleveland Civil Service Commission Rules 4.60 and 4.70. As a result,
    Local 93 maintains that the trial court erred when it denied its motion for summary
    judgment and dismissed its claims.
    Civil Service Law
    {¶24} We note that the fundamental purpose of Ohio’s civil service laws is to
    establish a merit system, whereby selections for appointments [and
    promotions] in certain branches of the public service may be made upon the
    basis of demonstrated relative fitness, without regard to political
    considerations, and to safeguard appointees against unjust charges of
    misconduct and inefficiency, and from being unjustly discriminated against
    for religious or political reasons or affiliations.
    Curtis v. State ex rel. Morgan, 
    108 Ohio St. 292
    , 
    140 N.E.2d 522
     (1923), paragraph four
    of the syllabus. To carry out this purpose, rules have been
    formulated and designed to facilitate its operation. Id. at 296.
    {¶25} Relevant to the instant case, Article XV, Section 10 of the Ohio
    Constitution, imposes strict limitations on the operation of civil service systems within the
    state. It provides that
    [a]ppointments and promotions in the civil service of the state, the several
    counties, and cities, shall be made according to merit and fitness, to be
    ascertained, as far as practicable, by competitive examinations. Laws shall
    be passed providing for the enforcement of this provision.
    (Emphasis added.) Id.
    {¶26} R.C. 124.45 governs promotional examinations for the fire department and
    provides that
    [v]acancies in positions above the rank of regular fire fighter in a fire
    department shall be filled by competitive promotional examinations, and
    promotions shall be by successive ranks as provided in this section and
    sections 124.46 to 124.49 of the Revised Code. Positions in which those
    vacancies occur shall be called promoted ranks.
    ***
    Promotional examinations for positions within a fire department shall relate
    to those matters that test the ability of the person examined to discharge the
    particular duties of the position sought, shall include a written testing
    component, and, in examinations for positions requiring the operation of
    machines or equipment, may include practical demonstration tests of the
    operation of those machines or equipment as a part of the examination.
    (Emphasis added.)
    {¶27} Cleveland Charter Section 128 states that
    [t]he rules of the Civil Service Commission shall among other things,
    provide:
    (a) For the standardization and classification of all positions and
    employments in the classified service of the City, including officers and
    employees of the Civil Service Commission. Such classification into
    groups and subdivisions shall be based upon and graded according to duties
    and responsibilities and so arranged as to promote the filling of the higher
    grades, so far as practicable, through promotions.
    (b) For open competitive tests to ascertain the relative fitness of all
    applicants for appointments in the competitive class.
    ***
    (j) For promotion based on competitive tests and records of efficiency,
    character, conduct and seniority.
    (Emphasis added.)
    {¶28} Section 4.60 of the City’s Rules of the Civil Service Commission provides
    that “[n]on-competitive examinations shall be regarded as exceptional and may be held
    only for positions requiring peculiar and exceptional qualifications of a scientific,
    managerial, professional, or educational character.”
    {¶29} Section 4.70 of the City’s Rules of the Civil Service Commission provides
    that “[e]xaminations for promotion shall be of the same character, conducted in the
    same manner and the examination papers shall be scored in accordance with the same
    standards as are prescribed for assembled open competitive examinations.” (Emphasis
    added.)
    {¶30} A “‘competitive civil service examination’ has been defined as an
    ‘[e]xamination which conforms to measures or standards which are sufficiently objective
    to be capable of being challenged and reviewed by other examiners of equal ability and
    experience.’” State ex rel. Brenders v. Hall, 
    71 Ohio St.3d 632
    , 634, 
    1995-Ohio-106
    ,
    
    646 N.E.2d 822
    , quoting Black’s Law Dictionary 284 (6 Ed.1990), and citing State ex
    rel. Delph v. Greenfield, 
    71 Ohio App.3d 251
    , 
    593 N.E.2d 369
     (4th Dist.1991). A
    competitive examination “is open to all who are eligible.” State ex rel. King v. Emmons,
    
    128 Ohio St. 216
    , 221, 
    190 N.E. 468
     (1934). Whereas, “a non-competitive examination
    is one in which the examining authority selects at pleasure such candidates as he may
    choose and subjects them to examination as he deems necessary.” 
    Id.
    {¶31} The Ohio Supreme Court has stated that “[i]n a great majority of
    circumstances, appointments and promotions in civil service positions must be made
    pursuant to competitive examination.” Moore v. Agin, 
    12 Ohio St.3d 173
    , 174, 
    465 N.E.2d 1293
     (1984), citing Article XV, Section 10 of the Ohio Constitution. In general,
    “a civil service commission has broad discretion to determine promotion and the method
    of testing, but it cannot arbitrarily dispense with a competitive examination designed to
    test for merit and fitness if required by the city charter.” Local 67 I.A.F.F. v. Columbus,
    10th Dist. Franklin No. 86AP-428, 
    1987 Ohio App. LEXIS 9741
     (Nov. 17, 1987), *5.
    {¶32} Here, in its amended complaint and motion for summary judgment, Local 93
    argued the City is required to use a competitive exam designed to test for promotion
    within the Division of Fire, as set forth in the Ohio Constitution, R.C. Chapter 124,
    Cleveland Charter Section 128, and Cleveland Civil Service Commission Rules 4.60 and
    4.70. It further argued that the March 2014 bulletin violates state and local law.
    {¶33} The trial court’s decision, however, did not address the merits of Local 93’s
    motion for summary judgment. Rather, the court dismissed the amended complaint,
    finding no justiciable issue or controversy because the positions had already been filled
    through the noncompetitive examination process.        The trial court reasoned that the
    arguments presented in Local 93’s motion for summary judgment do not comport with the
    relief sought in its amended complaint. In particular, the trial court mentions that Local
    93 failed to reference the March 2014 noncompetitive examination bulletin in its
    amended complaint. We disagree.
    {¶34} A review of Local 93’s amended complaint reveals that the March 2014
    bulletin is referenced several times, including in the facts section, each count of the
    amended complaint, and the prayer for relief. Local 93 also attached the bulletin to its
    amended complaint. In particular, paragraph 66 of the amended complaint states that
    because the subject bulletin violates
    both state and local law, and because any and all vacancies in the various
    promoted ranks of the Division of Fire must be filled by competitive
    examination, Local 93 is entitled to a declaratory judgment that all
    vacancies in the promoted ranks of Division of Fire created since the
    expiration of the most recent certified civil service eligibility lists, as well
    as any such vacancies which have yet to be created in the promoted ranks,
    must be filled by a competitive examination process in compliance with
    applicable law.
    Based on the foregoing, it is clear that the arguments in Local 93’s motion for summary
    judgment comport with the relief sought in its amended complaint.
    {¶35} Moreover, there is a justiciable issue for the trial court to decide because the
    eligibility lists expired and the City can use the noncompetitive examination process again
    to fill future positions.
    {¶36} It is important to note that the trial court previously addressed the merits of
    Local 93’s amended complaint in its August 2015 opinion granting Local 93’s
    preliminary injunction, which was after the positions had already been effectuated
    through the noncompetitive examination process. In its opinion, the trial court analyzed
    the likelihood that Local 93 would prevail on the merits of its declaratory judgment
    action. The trial court found the City did not provide evidence that a deviation from
    competitive examination designed to test for merit and fitness as required by the Ohio
    Constitution, the Ohio Revised Code, and the Cleveland Charter was appropriate or
    necessary under the circumstances.        The court further found that the potential of
    irreparable harm “is quite real,” explaining that
    competitive testing requires selection amongst the highest ranked
    individuals according to performance, including the ability to make time
    sensitive and critical tactical decisions. Said decisions deal directly with
    the safety of firefighters on scene, as well as with the protection and safety
    of the community. The decisions for which battalion and assistant chiefs
    are responsible are often life and death decisions. Where lack of
    competitive testing erodes the confidence of rank and file fire fighters in the
    decisions that are being made and orders that are being implemented[.]
    {¶37} By improperly dismissing the amended complaint, the trial court did not
    consider the merits of Local 93’s motion for summary judgment. “Civ.R. 56 requires
    trial courts to consider motions for summary judgment in the first instance. Appellate
    courts cannot cure defects by independently reviewing the record and entering the
    judgment the trial court should have entered.” Anders v. Specialty Chem. Res., 
    121 Ohio App.3d 348
    , 353, 
    700 N.E.2d 39
     (8th Dist.1997), citing Murphy v. Reynoldsburg, 
    65 Ohio St.3d 356
    , 
    604 N.E.2d 138
     (1992). See also Schmucker v. Kurzenberger, 9th Dist.
    Wayne No. 10CA0045, 
    2011-Ohio-3741
    . Thus, we find the trial court erred when it
    dismissed Local 93’s amended complaint without addressing the merits of Local 93’s
    motion for summary judgment in the first instance. On its face, the record appears to
    support Local 93’s position that the City’s decision to use a noncompetitive examination
    appears to be a violation of the Ohio Constitution, state and local law, and the City’s
    Charter.
    {¶38} Therefore, the first and second assignments of error are sustained.
    Conclusion
    {¶39} Based on the foregoing, we reverse the trial court’s judgment and remand
    the matter to the trial court with instructions to consider the merits of Local 93’s motion
    for summary judgment consistent with this opinion.3
    {¶40} Accordingly, judgment is reversed, and the matter is remanded for further
    proceedings consistent with this opinion.
    It is ordered that appellant recover of appellees costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing 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.
    MARY EILEEN KILBANE, PRESIDING JUDGE
    MARY J. BOYLE, J., and
    SEAN C. GALLAGHER, J., CONCUR
    3 Atappellate oral argument, both parties conceded that they were not
    challenging the positions already filled by the City’s noncompetitive examination
    process. Moore, 
    12 Ohio St.3d 173
    , 
    465 N.E.2d 1293
     (1984).
    

Document Info

Docket Number: 105033

Citation Numbers: 2017 Ohio 6887

Judges: Kilbane

Filed Date: 7/20/2017

Precedential Status: Precedential

Modified Date: 7/20/2017