State ex rel. Internatl. Assn. of Fire Fighters v. Barbish , 2024 Ohio 3148 ( 2024 )

[Cite as State ex rel. Internatl. Assn. of Fire Fighters v. Barbish, 2024-Ohio-3148.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO ex rel. CASE NO. 2021-L-103
THE INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS, LOCAL 1536,
AFL-CIO, Civil Appeal from the
Court of Common Pleas
Relator-Appellant,
-v- Trial Court No. 2020 CV 001168
JOHN BARBISH, IN HIS OFFICIAL
CAPACITY AS MAYOR AND
DIRECTOR OF PUBLIC SAFETY, et al.,
Respondents-Appellees,
JAMES G. POWERS,
Intervenor-Appellee.
OPINION
Decided: August 19, 2024
Judgment: Affirmed
Joseph W. Diemert, Jr., Thomas M. Hanculak, and Mark V. Guidetti, Diemert &
Associates Co., LPA, 1360 SOM Center Road, Cleveland, OH 44124 (For Relator-
Appellant).
John D. Latchney, Hanna Campbell & Powell, LLP, 3737 Embassy Parkway, Suite 100,
Akron, OH 44333 (For Respondents-Appellees).
Alexander L. Ewing and Charles B. Galvin, Frost Brown Todd LLC, 9277 Centre Pointe
Drive, Suite 300, West Chester, OH 45069, and Stuart G. Torch, Elfvin, Klingshirn, Royer
& Torch, LLC, 4700 Rockside Road, Suite 530, Independence, OH 44131 (For
Intervenor-Appellee).
MATT LYNCH, J.
{¶1} Relator-appellant, International Association of Fire Fighters, Local 1536,
appealed from the judgments of the Lake County Court of Common Pleas, granting partial
judgment on the pleadings and summary judgment in favor of respondents-appellees, John
Barbish, the Mayor of Wickliffe; the City of Wickliffe Civil Service Commission; the City of
Wickliffe; and intervenor-appellee, James Powers. This matter is presently before the court
on remand from the Ohio Supreme Court for consideration of those issues previously found
to be moot. For the following reasons, we affirm the decision of the lower court on the
second and third assignments of error.
{¶2} On September 21, 2020, Local 1536 filed a Complaint for Declaratory
Judgment, Permanent Injunction, and Petition for Writ of Mandamus against Barbish, the
City of Wickliffe Civil Service Commission, and the City of Wickliffe. The Complaint alleged
that the Wickliffe Fire Chief, James Powers, retired on January 6, 2020, and was rehired the
next day by Mayor Barbish, in violation of civil service laws requiring that the vacancy be
filled through a competitive promotional examination process. It requested relief in the form
of a declaratory judgment that Powers does not properly hold the position of Fire Chief, an
injunction preventing non-competitive means for filling vacancies in the Division of Fire, and
a writ of mandamus ordering the vacancy be filled through the examination process. The
Complaint further requested “reasonable attorneys’ fees incurred by Plaintiff-Relator relative
to the filing of this Complaint and Petition”; “punitive damages as a result of the Defendants-
Respondents’ malicious and intentional refusal to follow the mandates of State and local civil
service law”; and “any and all other relief, including alternative relief, both legal and equitable
that this Court is empowered to grant to Plaintiff-Relator.” Powers was subsequently
permitted to intervene in the matter.
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{¶3} On December 10, 2020, Barbish and Wickliffe filed a Motion for Partial
Judgment on the Pleadings, seeking dismissal of the Petition for Writ of Mandamus and
dismissal of the claims for punitive damages and attorney’s fees. The parties also filed
competing motions for summary judgment regarding whether the vacancy was required to
be filled through competitive examination.
{¶4} The parties filed joint stipulations of fact which established, in pertinent part,
the following facts: Powers retired as the Wickliffe Chief of Fire on January 6, 2020. Mayor
Barbish and the city submitted paperwork to the Ohio Police and Fire Pension Fund verifying
that Powers retired on January 6 and was rehired by Barbish on January 7. He was sworn
in by Barbish on January 7. At a subsequent city council meeting, Barbish represented that
Powers’ retirement and rehiring was “an administrative change” and Powers “did not vacate
the position.” No process was initiated under the civil service rules to fill the vacancy for the
Fire Chief position. Local 1536 sent communications to the Civil Service Commission and
the Law Director stating that the vacancy should be filled via a competitive promotional
examination but Powers remained in the position of Fire Chief.
{¶5} In a June 14, 2021 Opinion and Journal Entry, the lower court granted the
request for partial judgment on the pleadings as to punitive damages and attorney’s fees,
finding these were not recoverable. It found that Local 1536 failed to seek compensatory
damages in its complaint and punitive damages could not lie without compensatory
damages. It further found that the grounds for seeking attorney’s fees in a mandamus action
or in a declaratory judgment action were not applicable, nor were such fees available in the
action seeking injunctive relief. The court subsequently issued an August 26, 2021 Opinion
and Judgment Entry granting appellees’ motions for summary judgment and concluding that
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there had been no vacancy in the chief position.
{¶6} Local 1536 appealed to this court, assigning three errors. On appeal, this court
determined a “vacancy” for the position of Fire Chief had not been created since there was
no permanent departure. State ex rel. Internatl. Assn. of Fire Fighters v. Barbish, 2022-
Ohio-2201, ¶ 24 and 31 (11th Dist.). The remaining assignments relating to damages and
attorney’s fees were found moot given the disposition of the first assignment of error. Id. at
¶ 34.
{¶7} Local 1536 appealed to the Ohio Supreme Court. It found that Powers’
retirement created a vacancy requiring initiation of the competitive exam process. State ex
rel. Internatl. Assn. of Fire Fighters v. Sakacs, 2023-Ohio-2976, ¶ 22. It remanded for this
court to “consider Local 1536’s assignments of error that it had deemed moot.” Id. at ¶ 26.
We now address the second and third assignments of error.
{¶8} In its second assignment of error, Local 1536 argues: “The Trial Court erred in
granting Appellees’ Motion for Partial Judgment on the Pleadings denying recovery of
punitive damages.”
{¶9} “Civ.R. 12(C) motions are specifically for resolving questions of law.” Redding
v. United States Parachute Assn., Inc., 2023-Ohio-884, ¶ 31 (11th Dist.). “A court must
construe as true all of the material allegations in the complaint, with all reasonable inferences
to be drawn therefrom, in favor of the nonmoving party.” (Citations omitted.) Id. “To grant
judgment on the pleadings the trial court must determine ‘that no material factual issues
exist and that the movant is entitled to judgment as a matter of law.’” Maplewood at Chardon,
LLC v. Stinn, 2023-Ohio-2539, ¶ 10 (11th Dist.), citing State ex rel. Midwest Pride IV, Inc. v.
Pontious, 75 Ohio St.3d 565, 570 (1996). The standard of review for a ruling on a motion
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for judgment on the pleadings is de novo. Maplewood at ¶ 11. “De novo review requires an
independent examination of the record and law without deference to the trial court’s
decision.” (Citation omitted.) Id.{¶10} On the issue of punitive damages, the trial court made the following findings:
punitive damages could not be awarded because compensatory damages were not sought;
“[a]s against a municipal corporation, it has long been decided that absent some statutory
authority that punitive damages are not recoverable”; and R.C. 2731.11 provides that
recovery in mandamus is only permitted for damages “sustained before the writ is granted,
not in pursuit of the writ.”
{¶11} Local 1536 first argues that the lower court erred in granting judgment on the
pleadings in favor of appellees on the issue of punitive damages due to Local 1536’s failure
to request compensatory damages.
{¶12} The Ohio Supreme Court has held that punitive damages may not be awarded
in the absence of compensable harm. “[A] plaintiff must be awarded some measure of
compensatory damages to receive punitive damages.” Niskanen v. Giant Eagle, Inc., 2009-
Ohio-3626, ¶ 12. “Punitive damages are awarded as punishment for causing compensable
harm and as a deterrent against similar action in the future. No civil cause of action in this
state may be maintained simply for punitive damages.” (Citation omitted.) Id. at ¶ 13; also
Malone v. Courtyard by Marriott L.P., 74 Ohio St.3d 440, 447 (1996) (“punitive damages
may not be awarded when a jury fails to award compensatory damages”).
{¶13} The trial court found that punitive damages could not be awarded since there
was no request for compensatory damages. It is correct that Local 1536 did not specifically
request compensatory damages. However, in addition to requests for injunctive relief, a writ
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of mandamus, declaratory judgment, punitive damages, and attorney fees, it included in the
complaint a request for “any and all other relief, including alternative relief, both legal and
equitable that this Court is empowered to grant to Plaintiff-Relator.”
{¶14} Courts have found that a “catch-all” provision requesting all available legal and
equitable relief provides grounds for the court to award damages not specifically requested.
See State ex rel. Blackwell v. Bachrach, 166 Ohio St. 301, 303 (1957) (the request “for all
other relief that is proper in such cases, either at equity or law” was sufficient to grant relief
that was consistent with the allegations of the petition); First Natl. Bank of Bellvue v. NE Port
Invests., LLC, 2015-Ohio-558, ¶ 28 (6th Dist.) (“simply pleading that one is entitled to ‘all
remedies at law and equity’ or praying for ‘such relief as may be just and equitable’ may
ordinarily suffice to entitle a party to relief not specifically requested”); State ex rel. Rothal v.
Smith, 2002-Ohio-7328, ¶ 81 (9th Dist.) (inclusion of language that appellees “further ask
for all else to which they are entitled in equity or at law” was sufficient for the court to award
damages to which they were entitled).
{¶15} Civil Rule 54(C) provides: “Except as to a party against whom a judgment is
entered by default, every final judgment shall grant the relief to which the party in whose
favor it is rendered is entitled, even if the party has not demanded the relief in the pleadings.”
It has been observed that the party seeking relief is not “necessarily confined to the request
for recovery in the prayer” and can seek to amend their request for relief subject to Civ.R.
15(A). (Citation omitted.) Germadnik v. Auld, 2018-Ohio-2889, ¶ 12 (11th Dist.). Here, the
issue of damages and relief sought was decided by the court pursuant to a motion for
judgment on the pleadings. Although a request for “any and all” legal or equitable relief was
made, the granting of the motion for judgment on the pleadings prevented appellant from
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seeking leave to amend its request for damages or present evidence to demonstrate
entitlement to such damages under Civ.R. 54. While recognizing that the compensatory
damages to which Local 1536 might be entitled may not be fully evident at this stage of the
proceedings, we emphasize that, a motion for judgment on the pleadings may be granted
only if “the plaintiff can prove no set of facts in support of the claims that would entitle him
or her to relief.” Bend-Fast, Inc. v. SBA Monarch Towers III, LLC, 2024-Ohio-2036, ¶ 37
(11th Dist.). See Chase Home Fin., LLC v. Literski, 2014-Ohio-615, ¶ 12 (1st Dist.) (“[t]he
trial court was required to accept the [plaintiffs’] allegation that they had suffered pecuniary
damage as true at this stage of the proceedings”).
{¶16} The next reason provided as grounds for granting the motion for judgment on
the pleadings was that a municipal corporation is not subject to an award of punitive
damages. Appellees contend that punitive damages could not be awarded against them
since they are political subdivisions.
{¶17} The Ohio Supreme Court “has long prohibited the assessment of punitive
damages against a municipal corporation, except when specifically permitted by statute.”
Cementech, Inc. v. Fairlawn, 2006-Ohio-2991, ¶ 12, citing Ranells v. Cleveland, 41 Ohio
St.2d 1, 6-7 (1975) (emphasizing that the burden of punitive damages assessed on a
municipal corporation would fall on the taxpayers). Under this principle, punitive damages
could not be assessed against the City of Wickliffe. See Ohio Const., art. XVIII, § 1
(“[m]unicipal corporations are . . . classified into cities and villages”). While Local 1536
argues that “an award of punitive damages is proper in a mandamus action, particularly
where a municipality has intentionally subverted longstanding civil service laws,” it does not
cite to any statutes or other provisions to support a conclusion that punitive damages can
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be assessed against a city as a municipal corporation.
{¶18} Further, R.C. 2744.05(A) provides: “Notwithstanding any other provisions of
the Revised Code or rules of a court to the contrary, in an action against a political
subdivision to recover damages for injury, death, or loss to person or property caused by an
act or omission in connection with a governmental or proprietary function . . . [p]unitive or
exemplary damages shall not be awarded.” “‘Political subdivision’ . . . means a municipal
corporation, township, county, school district, or other body corporate and politic responsible
for governmental activities in a geographic area smaller than that of the state.” R.C.
2744.01(F).
{¶19} As noted above, the City of Wickliffe is a political subdivision since it is a
municipal corporation. As to the Wickliffe Civil Service Commission, it also falls under R.C.
2744.05(A). A political subdivision includes a “body corporate and politic,” which is “a
governmental body . . . having powers and duties of government. . . . [It is a body] created
by the state for political purposes and to act as an agency in the administration of civil
government . . . and usually invested, for that purpose, with subordinate and local powers of
legislation.” (Citation omitted.) Hamilton Cty. Bd. of Mental Retardation and Dev. Disabilities
v. Professionals Guild of Ohio, 46 Ohio St.3d 147, 150 (1989). The Civil Service
Commission falls under this definition as a body created under R.C. 124.40 which has power
to “prescribe, amend, and enforce rules” regarding civil service. R.C. 124.40(A). See Studer
v. Seneca Cty. Humane Soc., 2000 WL 566738, *3 (3d Dist. May 4, 2000) (a humane society
is a body corporate and politic since the Revised Code provided for its organization and it
has the power to arrest and prosecute, serving a governmental function similar to law
enforcement).
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{¶20} Finally, Mayor Barbish was an employee of a political subdivision. While
immunity is generally extended to employees of political subdivisions, such is not the case
when “[t]he employee’s acts or omissions were with malicious purpose, in bad faith, or in a
wanton or reckless manner” or such acts fall manifestly outside of the scope of employment.
Alcus v. Bainbridge Twp., 2020-Ohio-543, ¶ 138-139 (11th Dist.), citing R.C. 2744.03(A)(6).
“Immunity from punitive damages available to political subdivisions is not available to
government employees sued in their individual capacity and outside the scope of their official
capacity.” Hope Academy Broadway Campus v. Integrated Consulting & Mgt., 2011-Ohio-
6622, ¶ 28 (8th Dist.). Here, the complaint alleged that punitive damages resulted from
“Defendants-Respondents[’] malicious and intentional refusal to follow” civil service laws.
{¶21} However, to determine whether the foregoing applies, it is necessary to decide
whether Barbish was sued in his individual or official capacity. “[A] suit against a political-
subdivision employee in his or her official capacity is treated the same as a suit against the
political subdivision itself.” Alcus at ¶ 141. Where “the allegations contained in the complaint
are ostensively directed against the office and against the named officeholder in the
officeholder’s official capacity . . . [t]his is the equivalent of suing the political subdivision
rather than the officeholder in an individual or personal capacity.” Lambert v. Clancey, 2010-
Ohio-1483, ¶ 21 and 17 (where “the named defendant holds an elected office within a
political subdivision . . . and that officeholder is sued in his or her official capacity . . . the
employee-immunity provisions of R.C. 2744.03(A)(6)” do not apply). As noted above,
“[i]mmunity from punitive damages available to political subdivisions is not available to
government employees sued in their individual capacity.” Hope Academy at ¶ 28.
{¶22} In Lambert, the Ohio Supreme Court addressed whether a clerk of courts was
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sued individually or in his official capacity. It considered that the complaint named “Greg
Hartmann, Hamilton County, Ohio, Clerk of Courts,” did not include the words “personally”
or “individually,” and that the allegations in the complaint pertained to policies of the clerk of
courts’ office rather than “actions taken by Hartmann personally.” Id. at ¶ 15-16 (“Lambert’s
complaint asserts claims against the office of the clerk of the Hamilton County clerk of courts,
an elected position within a political subdivision held by Greg Hartmann at the time the
complaint was filed”).
{¶23} This court found board of education members were sued in their official
capacity where the complaint alleged they were “acting in the course and scope of their
duties,” the allegations were general as to “all defendants” including the Board and School
District, and the substance of the pleading “fail[ed] to specifically allege the board members
transcended their official duties.” (Emphasis omitted.) Parmertor v. Chardon Local Schools,
2016-Ohio-761, ¶ 32 (11th Dist.) See also Cool v. Brown-Clark, 2020-Ohio-6968, ¶ 24 (7th
Dist.) (defendant was sued in her official capacity where the complaint and caption did not
state that the clerk was sued individually, damages were sought against both the clerk and
the city, and allegations were made that she engaged in negligent, wanton, and malicious
conduct but that her conduct was “ratified” by the city and she was acting under its direction
and control).
{¶24} In contrast, an employee has been found to be sued in his individual capacity
where the allegations in the complaint did not challenge policies and practices of the
government office, the employer was not named in the complaint, and the complaint alleged
the employee “personally engaged in actions that subject him to liability as an employee of”
the school district. Doe 1 v. Licate, 2019-Ohio-412, ¶ 43 (11th Dist.). This court has also
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found a defendant was sued in his individual capacity where it was alleged he negligently
operated a backhoe and was sued for punitive damages, as “[a] request for punitive
damages suggests an employee is being sued as an individual.” Alcus, 2020-Ohio-543, at
¶ 144. See also Curry v. Blanchester, 2010-Ohio-3368, ¶ 22 (12th Dist.) (in determining
that a party is being sued individually, courts have considered allegations in the complaint
that the actions were not committed in the scope of employment and that the allegations
pertained to the actions of the defendant personally “and not to the policies and practices”
of the government entity for which they worked).
{¶25} Regarding whether Barbish was sued in his official capacity, we initially
observe that the case caption lists “John Barbish In his official capacity as mayor and
Director of Public Safety, City of Wickliffe, Ohio.” This court has found that a complaint’s
caption is not determinative as to “the nature of the claims.” (Citation omitted.) Parmertor
at ¶ 31. It is noteworthy, however, that the Ohio Supreme Court in the appeal of this matter
observed: “The complaint named as a defendant John Barbish in his official capacity as
mayor and director of public safety for the city,” and it substituted Joseph Sakacs, who
succeeded Barbish as mayor/public-safety director, as a party on appeal. Sakacs, 2023-
Ohio-2976, at ¶ 4, fn. 1.
{¶26} Further, we observe that punitive damages were sought “as a result of the
Defendants-Respondents[’] malicious and intentional refusal to follow the mandates of State
and local civil service law.” Presumably, this request included all defendants. While seeking
punitive damages against a defendant has been considered as “suggesting” the defendant
was sued individually, this was based on the assumption that a plaintiff would not seek
punitive damages against a political subdivision since they are not permitted. Alcus at ¶
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144, citing Thompson v. Buckeye Joint Vocational School Dist., 2016-Ohio-2804, ¶ 40 (5th
Dist.) (“the request for punitive damages suggests Davis is being sued as an individual . . .
as punitive damages cannot be awarded against a political subdivision performing a
governmental function”). As explained above, the plaintiffs sought punitive damages against
all defendants, including the Wickliffe Civil Service Commission and the City of Wickliffe,
even though the law provides that such damages are not proper against a political
subdivision. The fact that Local 1536 sought punitive damages against “defendants-
respondents” does not demonstrate whether it sued Barbish in his individual capacity.
{¶27} With the foregoing in mind, we proceed to a review of the allegations in the
Complaint. The Complaint set forth actions taken by Mayor Barbish, including rehiring
Powers, directing appropriation of his pension, authoring a memo in relation to his retirement
package, presenting an ordinance regarding his salary to the City Council, and “failing to
take action to enforce mandatory civil service laws for filling the vacancy.” The Complaint
does not state that Barbish was sued “individually” or “personally.” It states that “Mayor
Barbish is the City’s Director of Public Safety and, in that capacity, serves as the appointing
authority for the Division of Fire.” The allegations related to actions taken in his official
position to hire and address matters relating to employees. See Kirkhart v. Keiper, 2004-
Ohio-1496, ¶ 14 (acts by county commissioners relating to an employee’s rate of pay and
discharge, as well as the choice of an employee as dog warden, were acts taken and which
“could only have been taken—in the exercise of their official duties and responsibilities as
public officials and due to the official position that [they] occupied as public officials”).
{¶28} Further, the motion for judgment on the pleadings and response to this motion,
which are properly considered to determine the capacity under which a defendant was sued,
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demonstrate that Barbish was sued in his official capacity. See Thompson, 2016-Ohio-2804,
at ¶ 41 (to determine in what capacity a plaintiff has sued a defendant, courts may examine
both the complaint and the “course of proceedings”). In their motion, defendants argued
that Barbish had been sued only in his official capacity and was not a real party in interest.
Local 1536 did not deny it had sued Barbish in his official capacity. Instead, in its brief in
opposition, it argued that, “in cases seeking a writ of mandamus, litigation is properly brought
against elected officials in their official capacity,” referencing Barbish. This lends support to
the conclusion that this action was pursued against Barbish in his official capacity. In its
argument on damages in that filing, it also argued that “the City [e]ffectively punished Local
1536’s members by . . . attempting to avoid holding a promotional examination,” that
“[r]equiring the City to pay attorneys’ fees helps to correct the unjust behavior,” and that the
court “possesses the ability to grant any and all relief . . . to correct the wrongs perpetrated
by the City.” It did not mention damages in relation to Barbish individually.
{¶29} For these reasons, we find that the trial court did not err in determining punitive
damages were improper. While it did not specifically rule on whether damages could be
sought against Barbish on the grounds outlined above, we observe “that a reviewing court
has a duty to affirm the trial court’s judgment when the judgment is correct albeit based on
the wrong reason.” (Citation omitted.) DePizzo v. Stabile, 2006-Ohio-6102, ¶ 11 (11th Dist.).
Since punitive damages cannot be recovered on the ground that the parties were a municipal
corporation or political subdivisions, we decline to address the merits of issues relating to
whether punitive damages are appropriate in mandamus or non-tort claims.
{¶30} The second assignment of error is without merit.
{¶31} In its third assignment of error, Local 1536 argues: “The Trial Court Erred in
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granting Appellees’ Motion for Partial Judgement on the Pleadings denying recovery of
attorney fees.”
{¶32} The trial court found that R.C. 2721.16(A) allows attorney fees only in certain
situations for declaratory judgments which do not apply here; attorney fees are not permitted
when seeking injunctive relief; and exceptions to the “American Rule” do not apply.
{¶33} “Ohio courts generally follow the ‘American rule’ with respect to attorney fees:
each party is responsible for its own attorney fees.” Phoenix Lighting Group, L.L.C. v.
Genlyte Thomas Group, L.L.C., 2020-Ohio-1056, ¶ 9. As a general matter, it has been held
that “attorney fees are not recoverable as damages in a mandamus action under R.C.
2731.11.” State ex rel. Chapnick v. E. Cleveland City School Dist. Bd. of Edn., 93 Ohio St.3d
449, 451 (2001); State ex rel. Murphy v. Indus. Comm., 61 Ohio St.2d 312, 313 (1980).
Similarly, “attorney’s fees are generally not recoverable in a proceeding for declaratory relief”
unless “[a] section of the Revised Code explicitly authorizes” such award or “[a]n award of
attorney’s fees is authorized by section 2323.51 of the Revised Code, by the Civil Rules, or
by an award of punitive or exemplary damages.” Jasper v. White, 2023-Ohio-2358, ¶ 45 (3d
Dist.), citing R.C. 2721.16.
{¶34} While attorney fees are generally not recoverable in the foregoing situations,
there are some exceptions. “Attorney fees may be awarded as an element of compensatory
damages where the jury finds that punitive damages are warranted.” Zoppo v. Homestead
Ins. Co., 71 Ohio St.3d 552, 558 (1994). As noted above, punitive damages would not have
been properly awarded in the present matter.
{¶35} Further, “[a] prevailing party may recover attorney’s fees under” the following
exceptions to the American Rule: “(1) a statute creating a duty to pay the fees, (2) the losing
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party acted in bad faith, or (3) the parties contract to shift fees.” Clem v. Steiner, 2003-Ohio-
4865, ¶ 24 (11th Dist.), citing Pegan v. Crawmer, 79 Ohio St.3d 155, 156 (1997) (“in the
absence of statutory authorization or a finding of conduct that amounts to bad faith, a
prevailing party may not recover attorney fees”); Chapnick at 450 (‘[t]he general rule in Ohio
is that, absent a statutory provision allowing attorney fees as costs, the prevailing party is
not entitled to an award of attorney fees unless the party against whom the fees are taxed
was found to have acted in bad faith”) (citations omitted). A party can recover attorney fees
if the opposing party “was found to have acted in bad faith” which “can involve conduct during
litigation, but can also involve conduct giving rise to a party’s claim.” Cleveland Fire Fighters,
Local 93 of the I.A.F.F. v. Cleveland, 2020-Ohio-4751, ¶ 37 (8th Dist.).
{¶36} Local 1536 argues that bad faith was alleged in the complaint through its
claims that damages should be awarded “as a result of the Defendants-Respondents[’]
malicious and intentional refusal” to follow civil service law.
{¶37} We initially observe that it has been held that there is an exception to the
American Rule where a defendant acts with malice, but for attorney fees to be awarded
under this exception, there must also be an award of punitive damages. See Zappitelli v.
Miller, 2007-Ohio-3251, ¶ 6, citing Digital & Analog Design Corp. v. N. Supply Co., 63 Ohio
St.3d 657, 662 (1992) (“[w]ithout a finding of malice and the award of punitive damages,
plaintiff cannot justify the award of attorney fees”); Nozik v. McDonald, 1999 WL 454503,
*11 (11th Dist. June 25, 1999) (“[a]ttorney fees also may be awarded when there has been
a finding of actual malice and an award of punitive damages”). While there is an allegation
of malice in the complaint, there can be no award of punitive damages to support an award
of attorney fees under this exception.
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{¶38} Local 1536 argues, however, that the bad faith exception applies. It points to
its request for damages alleging the malicious and intentional refusal to follow the law. While
the complaint specifically alleges malice, it does not make specific allegations of bad faith,
which is defined as a “dishonest purpose, conscious wrongdoing or breach of a known duty
by some ulterior motive or ill will characterized by fraud.” Cawley v. Lake Cty. Sheriff, 1995
WL 238608, *3 (11th Dist. Apr. 7, 1995). In Catalanotto v. Byrd, 2017-Ohio-7688 (9th Dist.),
the court found that attorney fees could not be awarded for bad faith when the party’s
counterclaim made only allegations of malice and did not allege “bad faith conduct.” Id. at
¶ 24 (“Ms. Byrd’s counterclaim did not allege bad faith conduct, but instead alleged
‘intentional’” and malicious conduct).
{¶39} Local 1536 argues that it alleged bad faith in its brief in opposition to the
judgment on the pleadings through arguments regarding “unjust behavior engaged in by the
Appellees.” The cited portion of its brief argues only that the defendants did not comply with
and carry out required functions under the law, much like the allegations in the complaint
that there was a lack of compliance with law requiring civil service competitive examination
rules be followed. The allegations that the defendants failed to apply the law do not fit under
the definition of bad faith as they do not demonstrate dishonest purpose, conscious
wrongdoing, or a breach of duty through an ulterior motive or ill will.
{¶40} Since there were no punitive damages to support a claim of malice for attorney
fees and allegations of bad faith were not made in the complaint, we do not find that proper
grounds for an award of attorney fees were raised or that reversal of the trial court’s judgment
on this issue is warranted.
{¶41} The third assignment of error is without merit.
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{¶42} For the foregoing reasons, we find that the second and third assignments of
error which we were to consider on remand are without merit. We affirm the judgment of
the Lake County Court of Common Pleas granting judgment on the pleadings on the issues
of punitive damages and attorney fees. Costs to be taxed against appellant.
JOHN J. EKLUND, J.,
ROBERT J. PATTON, J.,
concur.
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