[Cite as Mun. Constr. Equip. Operators’ Labor Council v. Cleveland, 2012-Ohio-3463.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97829




 MUNICIPAL CONSTRUCTION EQUIPMENT, ETC., ET
                   AL.
                                                          PLAINTIFFS-APPELLANTS

                                                    vs.

                          CLEVELAND, OHIO, ET AL.
                                                          DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            AFFIRMED



                                     Civil Appeal from the
                              Cuyahoga County Common Pleas Court
                                     Case No. CV-762701

        BEFORE: S. Gallagher, J., Cooney, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: August 2, 2012
ATTORNEY FOR APPELLANTS

Stewart D. Roll
Climaco, Wilcox, Peca, Tarantino & Garofoli Co., L.P.A.
55 Public Square
Suite 1950
Cleveland, OH 44113


ATTORNEYS FOR APPELLEES

Barbara Langhenry
Interim Director of Law

James C. Cochran
Assistant Director of Law
City of Cleveland Department of Law
601 Lakeside Avenue, Room 106
Cleveland, OH 44114
SEAN C. GALLAGHER, J.:

       {¶1} Plaintiffs-appellants, Municipal Construction Equipment Operators’ Labor

Council and Theodore A. Filip (collectively “appellants”), appeal the decision of the

Cuyahoga County Court of Common Pleas that granted summary judgment in favor of

defendants-appellees, city of Cleveland and Cleveland Civil Service Commission

(“CCSC”) (collectively “the City”). For the reasons stated herein, we affirm.

       {¶2} On August 24, 2011, appellants filed a complaint seeking injunctive and

declaratory relief. Appellants sought to remove Jonas Bates, Jr., from the eligibility lists

for the positions of Class “A” and Class “B” construction equipment operator on the

alleged grounds that Bates falsely represented his qualifications on his application.

Appellants asserted that CCSC failed to comply with the mandate of the Charter of the

City of Cleveland, Section 128(e), requiring the City’s civil service rules to provide “[f]or

the rejection of candidates or eligibles [for employment] * * * who have attempted

deception or fraud in connection with any test.” Cleveland Civil Service Rule 5.30 states

that CCSC “may” remove an eligible from an eligibility list for attempted deception or

fraud in connection with any application or test or for willfully making a false statement.

       {¶3} The City moved for summary judgment and asked the court to dismiss the

action because there was no longer an actual controversy and the case was not justiciable.

 In support of their amended motion for summary judgment, the City submitted
supporting documents demonstrating that the eligibility lists for Class “A” and Class “B”

construction equipment operator had been voided by CCSC at their regular meeting held

on November 11, 2011. CCSC also determined that the classifications would be retested

in the future, with the date yet to be scheduled. As such, Bates was no longer an

applicant or considered eligible for appointment from the voided eligibility lists. Further,

Bates attested in an affidavit that he has been in Maryland attending to the needs of his

son who was injured in Afghanistan and that he has no interest in reapplying for a

construction equipment operator position with the City. Upon this evidence, the City

argued that the action was moot and claimed the court was not required to issue a

declaratory judgment.

       {¶4} Appellants opposed the motion. They argued that the evidence failed to

comply with the requirements of Civ.R. 56(E), that voiding the eligibility lists did not

preclude defendants from hiring Bates, that Bates had not declared that he would not

accept employment, that genuine issues remained in dispute, and that the action was

justiciable.

       {¶5} The trial court granted the motion for summary judgment without opinion.

This appeal followed. Appellants filed a motion to remand the matter to the trial court,

claiming that the trial court’s opinion failed to address the issues presented in the

declaratory judgment action.     We granted the motion and issued a remand order.

Because no instructions were given in the remand order, the trial court returned the file to

this court with a request for clarification. Upon further review, we believe the remand
had been improvidently ordered. Appellants filed a motion requesting that the matter be

removed from oral argument and returned to the trial court for compliance with our order

of remand. We denied this motion.

       {¶6} Appellants have presented two assignments of error for our review. The first

assignment of error provides as follows:

       The trial court erred in its December 30, 2011, journal entry, granting

       defendants’ motion for summary judgment, because (a) appellees’ motion

       failed to satisfy the standards for granting summary judgment, (b) issues of

       fact remained to be litigated, (c) appellees’ affidavits failed to satisfy the

       requirements of Civ.R. 56(E), and (d) the case is justiciable.

       {¶7} In order to be entitled to a declaratory judgment, the following prerequisites

must be present: (1) a real controversy exists between the parties, (2) the controversy is

justiciable in character, and (3) speedy relief is necessary to preserve the rights of the

parties. Haig v. Ohio State Bd. of Edn., 62 Ohio St.3d 507, 511, 584 N.E.2d 704

(1992); Burger Brewing Co. v. Liquor Control Comm., 34 Ohio St.2d 93, 97, 296 N.E.2d

261 (1973). Although the City has not filed an appellate brief, the record reflects that the

City moved for summary judgment on the grounds that the action had been rendered moot

and there is no justiciable controversy.

       {¶8} A trial court’s determination concerning the appropriateness or justiciability

of a declaratory-judgment action is reviewed for an abuse of discretion. Arnott v. Arnott,

__ Ohio St.3d __, 2012-Ohio-3208, __ N.E.2d __.         “An abuse of discretion implies an
unreasonable, arbitrary, or unconscionable attitude.” State ex rel. Cooker Restaurant

Corp. v. Montgomery Cty. Bd. of Elections, 80 Ohio St.3d 302, 305, 1997-Ohio-315, 686

N.E.2d 238.

       {¶9} In support of the amended motion for summary judgment, the City submitted

the affidavit of Lucille Ambroz, who is the secretary of CCSC and is a member of the

five-member commission. She attested to the fact that CCSC voided the eligibility lists

for Class “A” and Class “B” construction equipment operator and that persons on those

lists, including Bates, were no longer eligible for appointment to the position. The City

also submitted an affidavit from Bates, who attested that he is not interested in reapplying

for such a position with the City.

       {¶10} While appellants argue that the affidavits do not specifically state that they

are based upon personal knowledge, a specific statement of “personal knowledge” is not

necessarily required.      OhioHealth Corp. v. Ryan, 10th Dist. No. 10AP-937,

2012-Ohio-60, ¶ 31-32. Civ.R. 56(E) states that supporting affidavits “shall be made on

personal knowledge, shall set forth such facts as would be admissible in evidence, and

shall show affirmatively that the affiant is competent to testify to the matters stated

therein.” Ohio courts have found that personal knowledge may be inferred from the

contents of an affidavit. Id. at ¶ 32; Chase Bank, USA v. Curren, 191 Ohio App.3d 507,

2010-Ohio-6596, 946 N.E.2d 810, ¶ 18 (4th Dist.).

       {¶11} Here, it can reasonably be inferred from the affidavits that the affiants had

personal knowledge of the information contained therein. Ambroz is the secretary of
CCSC and is a member of the commission. As such, she would have knowledge of

CCSC’s decisions relating to this matter. Further, Bates would have personal knowledge

of his lack of intent to reapply for the position of construction equipment operator with

the City. Accordingly, we reject appellants’ argument and find these affidavits meet the

requirements of Civ.R. 56(E).

       {¶12} Appellants further claim that an actual controversy still exists because the

City still could hire Bates and temporarily fill the position under Cleveland Civil Service

Rule 6.70(A). Appellants argue that Bates’s affidavit fails to indicate that he would not

accept a temporary appointment to the position.         They also claim there is evidence

showing that he made false statements on his application and that there are genuine issues

as to whether Cleveland Civil Service Rule 5.30 complies with the Charter of the City of

Cleveland, Section 128, and whether the City should have disqualified Bates from further

employment consideration.

       {¶13} The problem with appellants’ argument is that it is based on speculation

concerning future events that may never occur. There is no real controversy between the

parties.

       A “controversy” exists for purposes of a declaratory judgment when there is
       a genuine dispute between parties having adverse legal interests of
       sufficient immediacy and reality to warrant the issuance of a declaratory
       judgment.

Wagner v. Cleveland, 62 Ohio App.3d 8, 13, 574 N.E.2d 533 (8th Dist.1988), citing

Burger Brewing Co., 34 Ohio St.2d 93, 97, 296 N.E.2d 261. As reflected above, the

eligibility lists were declared void and Bates has no interest in reapplying for the position.
 As such, the present matter is moot and is no longer ripe for review. Further, insofar as

appellants claim the City’s civil service rules are not in compliance with the Cleveland

charter, the matter is not of sufficient immediacy and reality to warrant the issuance of a

declaratory judgment. The Ohio Supreme Court recently reiterated that for a justiciable

question to exist, there must be an actual, present controversy that will result in certain

rights or status being conferred upon the litigants, as opposed to one that is contingent on

the happening of hypothetical future events. Arnott, __ Ohio St.3d __, 2012-Ohio-3208,

__ N.E.2d __, at ¶ 10, citing Mid-Am. Fire & Cas. v. Heasley, 113 Ohio St.3d 133,

2007-Ohio-1248, 863 N.E.2d 142.

       {¶14} Accordingly, we find no abuse of discretion and conclude the trial court

properly granted summary judgment and dismissed the action.               Appellants’ first

assignment of error is overruled.

       {¶15} Appellants’ second assignment of error provides as follows:

       The trial court erred in its December 30, 2011 journal entry, granting
       defendants’ motion for summary judgment, by failing to construe the
       documents at issue and declare the rights of the parties.

       {¶16} Because appellants did not meet the requirements for declaratory relief, the

trial court was not required to construe the documents or declare the rights of the parties

in this action. Appellants’ second assignment of error is overruled.

       {¶17} Judgment affirmed.

       It is ordered that appellees recover from appellants 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.



SEAN C. GALLAGHER, JUDGE

COLLEEN CONWAY COONEY, P.J., and
KENNETH A. ROCCO, J., CONCUR
