[Cite as Binder v. Cuyahoga Cty., 2016-Ohio-8305.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 104399



                           RICHARD BINDER, ET AL.
                                                           PLAINTIFFS-APPELLANTS

                                                     vs.

                                CUYAHOGA COUNTY
                                                           DEFENDANT-APPELLEE




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-15-851760


        BEFORE: E.T. Gallagher, J., Jones, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: December 22, 2016
ATTORNEYS FOR APPELLANTS

Joshua R. Cohen
Ellen M. Kramer
Cohen, Rosenthal & Kramer
Hoyt Block Building, Suite 400
700 West St. Clair Avenue
Cleveland, Ohio 44113

Kevin T. Roberts
The Roberts Law Firm
7622 Columbia Road
Olmsted Falls, Ohio 44138


ATTORNEYS FOR APPELLEE

Robert Triozzi
Law Director
Cuyahoga County

BY:    Ruchi V. Asher
       Robin M. Wilson
Assistant Law Directors
2079 East Ninth Street
Cleveland, Ohio 44115

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Brian R. Gutkoski
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Plaintiffs-appellants, Richard Binder, Louis Bucci, Dorniece Darson, Byron

Chavers, Lisa Evans, Jane George, Tamara Mazina, Joseph Pina, Gail Ward, Sarah

Watkins, and Pamela Whately (collectively “appellants”), 1 appeal an order of the

common pleas court dismissing their amended complaint for failure to state a claim.

They raise two assignments of error:

       1. The trial court erred in dismissing the plaintiff-appellants’ claims based
       on a factual finding contrary to the allegations contained in the amended
       complaint.

       2. The trial court erred in granting dismissal under Civ.R. 12(B)(6) and
       holding as a matter of law that the plaintiff-appellants’ claims failed to state
       a viable basis for relief.

       {¶2} We find merit to the appeal, reverse the trial court’s judgment, and remand

the case to the trial court for further proceedings

                              I. Facts and Procedural History

       {¶3} In November 2009, the citizens of Cuyahoga County voted to adopt a Charter

that became effective in early 2010. Prior to the Charter’s adoption, voters elected the


           At oral argument, the parties were notified that a current member of the Cuyahoga County
       1


Council is related to a panel judge. The panel judge disclosed, pursuant to Ohio Code of Judicial
Conduct Rule 2.11(C), her relationship with the Council member and stated that she could perform an
independent, fair, and impartial review of the legal issues presented in this case. Counsel for the
appellants and the appellees each indicated that they waived disqualification and had no objection to
the panel member’s participation in the proceeding.
Cuyahoga County Auditor, Recorder, Treasurer, and Clerk of Courts. Employees in

these offices received annual salaries based on a 35-hour work week, but were not

compensated for their daily one-hour lunch period. When appellants worked under the

formerly elected public officials, they were permitted to take their lunch at the end of the

day instead of the middle of the day so they could leave work at 3:30 p.m. instead of 4:30

p.m.

       {¶4} In 2011, the new county government decided to officially change the county

employees’ schedules to require a 40-hour work week that included a lunch hour. The

employees were not required to work during the lunch hour, but were now required to

stay at work until 4:30 p.m. The county did not increase appellants’ salaries to reflect

any increase in working hours.       Consequently, appellants filed a complaint against

appellee, Cuyahoga County, in common pleas court, claiming they should be

compensated for the additional five hours added to their work week. Appellants alleged

that by increasing their work week by five hours, the county reduced their hourly rate of

compensation by 12.3 percent. Appellants further alleged this reduction in hourly rate

violated R.C. Chapter 124, Ohio Civil Service Statute, which prohibits pay reductions

without cause.

       {¶5} In Count 1 of the complaint, appellants requested a declaratory judgment

declaring that “the County’s Charter did not authorize it to increase employees’

workweeks from 35 to 40 hours since it did not concomitantly increase their

compensation to prevent a decrease in their hourly rates.”         In Count 2, appellants
requested pecuniary relief related to “lost pay and loss of benefits” under R.C. 124.34 due

to the increase in working hours without an increase in pay, resulting in an unlawful

reduction in their rate of compensation. Appellants also sought class certification in

order to prosecute the claims of approximately 927 employees, who were allegedly

affected by the change in their schedules.

        {¶6} The county filed a motion to dismiss, or in the alternative, to stay or

consolidate this action with another pending action styled Dolezal v. Cuyahoga Cty.,

Cuyahoga C.P. No. 13-CV-801116. The plaintiffs in Dolezal brought the same claims

for alleged unlawful reduction in rate of pay as a result of the change in the hours of the

official work week. The plaintiffs in Dolezal also sought class certification in order to

prosecute the claims on behalf of all similarly situated county employees.

        {¶7} In April 2016, the trial court in this case granted the county’s motion to

dismiss. In dismissing appellants’ complaint, the court found “that the change in lunch

break policy was not an increase in the work week from 35 to 40 hours or a reduction in

pay.”

        {¶8} Appellants now appeal the dismissal of their complaint.

                                 II. Law and Analysis

        {¶9} As a preliminary matter, we address the county’s assertion that we lack

jurisdiction to hear this appeal. The county maintains the trial court lacked jurisdiction

to hear appellants’ claims because appellants failed to exhaust their administrative

remedies and failed to name all the parties necessary to obtain a declaratory judgment.
       {¶10} However, the county failed to raise the failure to exhaust administrative

remedies argument in the trial court. Therefore, the argument is forfeited on appeal.

See Dworning v. Euclid, 119 Ohio St.3d 83, 2008-Ohio-3318, 892 N.E.2d 420, ¶ 11

(Failure to exhaust administrative remedies is not a jurisdictional defect; it is an

affirmative defense that may be waived.); See also Jones v. Chagrin Falls, 77 Ohio St.3d

456, 674 N.E.2d 1388 (1997), syllabus. Therefore, because the county failed to raise

appellants’ failure to exhaust their administrative remedies as a defense in the trial court,

it forfeited that argument on appeal.

       {¶11}    R.C. 2721.12(A), which governs declaratory judgments, provides, in

relevant part, that “when declaratory relief is sought under this chapter in an action or

proceeding, all persons who have or claim any interest that would be affected by the

declaration shall be made parties to the action or proceeding.” “A party’s failure to join

an interested and necessary party constitutes a jurisdictional defect that precludes the

court from rendering a declaratory judgment.” Portage Cty. Bd. of Commrs. v. Akron,

109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 99, citing Plumbers &

Steamfitters Local Union 83 v. Union Local School Dist. Bd. of Edn., 86 Ohio St.3d 318,

323,715 N.E.2d 127 (1999). See also Bretton Ridge Homeowners Club v. DeAngelis, 51

Ohio App.3d 183, 555 N.E.2d 663 (8th Dist.1988); Cerio v. Hilroc Condo. Unitowners

Assn., 8th Dist. Cuyahoga No. 83309, 2004-Ohio-1254, ¶ 10.

       {¶12} Whether a nonparty is a necessary party in an action for declaratory relief

depends on whether that nonparty “has a legally protectable interest in rights that are the
subject matter of the action.” Rumpke Sanitary Landfill, Inc. v. Ohio, 128 Ohio St.3d 41,

2010-Ohio-6037, 941 N.E.2d 1161, ¶ 15.         A “legally protectable interest” is ‘“[a]n

interest recognized by law.”’ Id., quoting Black’s Law Dictionary 886 (9th Ed.2009).

       {¶13} Appellants are members of the civil services, which R.C. 124.01 defines, in

relevant part, as “all * * * positions of * * * employment * * * in the service of the

counties.” R.C. 124.34 provides, in relevant part, that

       No * * * employee shall be reduced in pay or position, fined, suspended,
       or removed, or have the officer’s or employee’s longevity reduced or
       eliminated, except as provided in section 124.32 of the Revised Code, and
       for incompetency, inefficiency, unsatisfactory performance, dishonesty,
       drunkenness, immoral conduct, insubordination, discourteous treatment of
       the public, neglect of duty, violation of any policy or work rule of the
       officer’s or employee’s appointing authority, violation of this chapter or the
       rules of the director of administrative services or the commission, any other
       failure of good behavior, any other acts of misfeasance, malfeasance, or
       nonfeasance in office, or conviction of a felony while employed in the civil
       service.

Thus, appellants and their unnamed coworkers have a legally protectable interest in their

rate of pay and in this litigation.   As previously stated, “[t]he absence of a necessary

party is a jurisdictional defect that precludes any declaratory judgment.” Hilroc Condo.

Unitowners Assn., 8th Dist. Cuyahoga No. 83309, 2004-Ohio-1254, ¶ 10. Therefore, the

trial court lacked authority to determine the ultimate issue in the case, i.e., whether the

change in appellants’ work schedules constituted a change in their rate of pay, since not

all affected parties were joined in the action when the court rendered its judgment.

       {¶14} Although appellants did not name all county employees who have a legally

protected interest in their rate of pay as plaintiffs in this action, appellant’s complaint
seeks class certification to litigate claims on behalf of all affected employees.       R.C.

2721.12 mandates the joinder of necessary parties in order to avoid the possibility of

piecemeal litigation and inconsistent results. Class certification would achieve these

objectives.    Thus, appellants’ complaint satisfies the requirements of R.C. 2721.12,

unless and until class certification is denied.

       {¶15} Additionally, we note that in the county’s motion to dismiss, it requested, in

the alternative, that this case be consolidated with Dolezal, Cuyahoga C.P. No.

13-CV-801116, in lieu of dismissal. It has been represented that the plaintiffs’ claims in

Dolezal are identical to the claims alleged in the complaint in this case, including the

claim for class certification.   If that is the case, then the two cases must be consolidated

into a single action in order to join all necessary parties.

       {¶16}    Therefore, we reverse the trial court’s judgment and remand the case to

the trial court to consider both appellants’ claim for class certification and the county’s

request to consolidate this case with Dolezal.

       It is ordered that appellants recover from appellee 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

LARRY A. JONES, SR., A.J., and
MARY EILEEN KILBANE, J., CONCUR
