[Cite as State ex rel. Holloway v. Personnel Appeals Bd., 2012-Ohio-628.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO EX REL.                                :
JOHNNY HOLLOWAY, JR.
     Plaintiff-Appellee                              :      C.A. CASE NO. 24635

vs.                                                  :      T.C. CASE NO. 09CV1568

PERSONNEL APPEALS BOARD, et al.:                            (Civil Appeal from
                                                             Common Pleas Court)
        Defendant-Appellant                          :

                                       . . . . . . . . .

                                           O P I N I O N

                 Rendered on the 17th day of February, 2012.

                                       . . . . . . . . .

Henry A. Arnett, Atty. Reg. No. 0011379, 135 Dublin Road, Suite
108-B, Columbus, OH 43215
     Attorney for Plaintiff-Appellee

Matthew D. Stokely, Atty. Reg. No. 0062611; Joshua M. Kin, Atty.
Reg. No. 0086965, 2700 Kettering Tower, Dayton, OH    45423
     Attorneys for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1}     This appeal is brought by the Personnel Appeals Board

of the City of Huber Heights (the “Board”) from a final order

granting a motion for summary judgment filed by Johnny Holloway

in an action Holloway commenced on a petition for a writ of mandamus.

        {¶ 2}     In 2008, Holloway was terminated from his position of

Battalion Chief in the City of Huber Heights’ Fire Division.
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Holloway requested a review of his termination by the Board.

Holloway’s counsel received a letter from the City Attorney for

Huber Heights, stating that Holloway had no right of appeal to

the Board.     Holloway then filed a petition for a writ of mandamus

in the court of common pleas, asking that the Board be ordered

to hear an appeal of his termination.

     {¶ 3}    The common pleas court granted a motion for summary

judgment filed by the Board, finding that Holloway’s termination

was not subject to an appeal to the Board under provisions of the

Charter of the City of Huber Heights creating that right of appeal.

 Therefore, the Board had no clear legal duty to hear an appeal,

and Holloway had no clear legal right to an appeal to the Board.

     {¶ 4}    Holloway appealed to this court from the final judgment

of the common pleas court.           On review, we found that Holloway did

have a right of appeal to the Board from his termination under

applicable provisions of the City’s Charter.             We therefore held

that the common pleas court erred when it granted summary judgment

for the Board on the grounds on which the court relied, and we

remanded     the   case   to   the    common   pleas   court   “for   further

proceedings, consistent with this opinion.”              State of Ohio, ex

rel. Johnny Holloway, Jr. v. Personnel Appeals Board, City of Huber

Heights, 2d Dist. Montgomery No. 23836,            2010-Ohio-4754, ¶ 21.

     {¶ 5}    Holloway had also filed a motion for summary judgment

when the Board did.        On remand, the common pleas court granted
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Holloway’s motion, finding that Holloway has a clear legal right

to an appeal to the Board, that the Board has a clear legal duty

to hear and decide Holloway’s appeal, and that Holloway has no

plain and adequate remedy for his termination from employment in

the ordinary course of law. (Dkt. 1).

     {¶ 6}        The Board filed a notice of appeal from the final order

granting Holloway’s motion for summary judgment.              The Board’s

brief on appeal does not include a statement of the specific error

or errors assigned for our review.        See App.R. 16(A)(3).   However,

we construe the following “Statement of Issues” to encapsulate

the error the Board assigns:

     {¶ 7}        Issue 1: The trial court erred in granting Holloway’s

motion for summary judgment without any evidence concerning the

lack of a legal remedy and without conducting further proceedings,

as this Court previously ordered, on the remaining elements

required to grant the extraordinary relief in mandamus.

     {¶ 8}        Civ.R. 56(C) provides that, upon motion, “[s]ummary

judgment shall be rendered forthwith if the pleadings, deposition,

answers      to    interrogatories,   written   admissions,   affidavits,

transcripts of evidence, and written stipulations of fact, if any,

timely filed in the action, show that there is no genuine issue

as to any material fact and that the moving party is entitled to

judgment as a matter of law.”

     {¶ 9}        To be entitled to a writ of mandamus compelling the
                                                                    4

Board to hear his appeal, Holloway must establish a clear legal

right to that relief, a corresponding clear legal duty on the part

of the Board to provide it, and the lack of an adequate legal remedy

in the ordinary course of the law.    State ex rel. Am. Subcontractors

Assn., Inc. v. Ohio State Univ., 129 Ohio St.3d 111, 2011-Ohio-2881,

950 N.E.2d 535, ¶ 20.

     {¶ 10}    In the prior appeal, we found that the first and second

prongs of Holloway’s burden of proof were satisfied.        The Board

argues that the trial court erred when it granted Holloway’s motion

for summary judgment because the record fails to support a finding

in Holloway’s favor on the third prong, that Holloway has no

adequate legal remedy in the ordinary course of law.     On that point

the Board contends that R.C. Chapter 2506 provides an adequate

legal remedy.

     {¶ 11}    R.C. 2506.01 states:

              {¶ 12} (A) Except as otherwise provided in sections

     2506.05 to 2506.08 of the Revised Code, and except as

     modified by this section and sections 2506.02 to 2506.04

     of the Revised Code, every final order, adjudication,

     or decision of any officer, tribunal, authority, board,

     bureau, commission, department, or other division of

     any political subdivision of the state may be reviewed

     by the court of common pleas of the county in which the

     principal office of the political subdivision is located
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     as provided in Chapter 2505. of the Revised Code.

              {¶ 13}   (B) The appeal provided in this section is

     in addition to any other remedy of appeal provided by

     law.

              {¶ 14} (C) As used in this chapter, “final order,

     adjudication, or decision” means an order, adjudication,

     or decision that determines rights, duties, privileges,

     benefits, or legal relationships of a person, but does

     not include any order, adjudication, or decision from

     which an appeal is granted by rule, ordinance, or statute

     to a higher administrative authority if a right to a

     hearing on such appeal is provided, or any order,

     adjudication, or decision that is issued preliminary

     to or as a result of a criminal proceeding.

     {¶ 15}    Holloway argues that he cannot invoke a right of appeal

under R.C. 2506.01 because the Board never entered an “order,

adjudication, or decision,” denying him a right of appeal.          The

Board responds that the letter Holloway received from the City

Attorney notifying him that he lacked a right of appeal to the

Board satisfies the requirement of R.C. 2506.01.

     {¶ 16}    Holloway’s motion for summary judgment (Dkt. 13, Case

No. 09CV01568, our Case No. 23836) is supported by his affidavit.

 The affidavit attaches what Holloway represents are “true and

correct copies” of documents relative to his claim.         Page 28 is
                                                                 6

a copy of Holloway’s notice of appeal to the Board and requesting

a hearing, which also identifies Attorney Henry A. Arnett as

Holloway’s legal representative for that purpose.     Page 29 is a

copy of a letter dated December 8, 2008, to Attorney Arnett from

an attorney with the law firm whose senior partner is City Attorney

for Huber Heights.   The letter states:

          {¶ 17} Dear Mr. Arnett:

          {¶ 18} I have reviewed your letter of December 3,

     2008 and respectfully disagree with your conclusion that

     Battalion Chief Holloway is entitled to appeal his

     dismissal to the Personnel Appeals Board.     Nowhere in

     the City Charter is the position of Battalion Chief

     designated as a position in the non-exempt service.

     However, Charter Section 8.02 specifically includes

     “directors of departments and their assistants, division

     heads and the Director of personnel” as constituting

     positions in the exempt service of the City.

          {¶ 19} Pursuant to Ordinance 2006-0-1617, adopted

     February 13, 2006, the fire Chief and Battalion Chief’s

     serve as assistants to the Director of Public Safety.

      A copy of the Ordinance is attached for your review.

          {¶ 20} Thus, there is no inconsistency between the

     City Charter and Resolution No. 2008-R-4987 which

     designates the position of Battalion Chief as being in

     the exempt service.
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              {¶ 21} If you have any questions or wish to discuss

     this matter further, please feel free to contact me at

     your convenience at 937-223-1130.

              {¶ 22} Very truly yours,

              {¶ 23} Pickrel, Schaeffer & Ebeling, L.P.A.

              {¶ 24} Scott T. Stirling

     {¶ 25}    In State ex rel. Lane v. City of Pickerington, 130 Ohio

St.3d 225, 2011-Ohio-5454, 957 N.E.2d 29, on similar facts, the

Supreme Court held that absent any authority for a city attorney

to act on behalf of a board, a letter from a city attorney that

did not say it was being issued on behalf of a board is not a final

order, adjudication, or decision of the board for purposes of R.C.

2506.01.      The Court distinguished its prior decision in State ex

rel. Henderson v. Maple Heights Civil Service Commission, 63 Ohio

St.2d 39, 406 N.E.2d 1105 (1980), in which “there was no question

that the civil service commission itself refused to hear the

discharged employee’s appeal and that the commission’s legal

counsel merely communicated the commission’s own decision to the

employee.”      Lane, ¶ 16.

     {¶ 26}    At oral argument, counsel for the Board conceded that

the letter to Holloway from the City Attorney contains no

representation that the Board itself had acted to refuse or dismiss

Holloway’s appeal.      The Board argues that, nevertheless, the City

Attorney is or may be authorized to act on behalf of the Board.
                                                                    8

 The Board relies on Section 7.05 of the charter of the City of

Huber Heights, a copy of which is attached to the Board’s brief.

 Section 7.05 states:

          {¶ 27} DEPARTMENT OF LAW.

          {¶ 28} There shall be a Department of Law, the head

     of which shall be the City Attorney.     The City Attorney

     shall be an attorney-at-law, qualified to practice law

     in the State of Ohio, appointed by and subject to the

     direction of the Council.

          {¶ 29 } A law firm, as well as an individual

     attorney, may serve as the City Attorney and in that

     case, the person designated by the law firm shall serve

     with the title of City Attorney, and other persons so

     designated by the law firm shall serve with the title

     of City Attorney, and other persons so designated may

     serve as Acting City Attorney with all the powers, duties

     and functions of the City Attorney when the person

     designated as City Attorney is not available.      The City

     Attorney shall serve as the chief legal advisor to

     Council, the City manager, and all City departments,

     divisions,   offices   and   other   agencies,   boards   or

     commissions.   The City Attorney shall represent the City

     in all legal proceedings and shall perform any other

     duties prescribed in this Charter, by ordinance or

     resolution or by the Administrative Code or the general
                                                                  9

     laws of Ohio, except that the person or firm holding

     the office of City Attorney shall not be required to

     represent any school district or any other unit of

     government other than the City, by virtue of holding

     the office of City Attorney.        When necessary, the

     Council may appoint special legal counsel to represent

     the City, together with or in place of the City Attorney.

     {¶ 30}   Section 7.05 provides that the City Attorney “shall

serve as chief legal advisor to . . . agencies, boards, or

commissions” of Huber Heights.    That provision presents no basis

to find that the City Attorney is authorized to act on behalf of

those entities in the functions they are charged to perform.

     {¶ 31}   Section 7.05 also provides that “[t]he City Attorney

shall represent the City in all legal proceedings and shall perform

any other duties prescribed in this Charter, by ordinance or

resolution or the Administrative Code or the General Laws of Ohio.”

     {¶ 32}   The Board, while unable to identify any other matters

that would authorize the City Attorney to act on behalf of the

Board, argues that the case should be remanded to determine whether

any such provisions exist or apply, because whether any do presents

a genuine issue of material fact that precludes the Civ.R. 56

summary judgment for Holloway the trial court ordered.

     {¶ 33}   The Board filed its notice of appeal to this court on

May 11, 2011.    Lane was decided on October 27, 2011, shortly after
                                                                10

the briefing in this case was complete.    Holloway filed a Notice

of Supplemental Authority, relying on Lane, on December 27, 2011.

 The Board had filed no memorandum in response to that Notice when

oral argument was held on January 31, 2012.

     {¶ 34}   Whether   any    Charter    provision,    ordinance,

Administrative Code or Revised Code section authorized the City

Attorney to act on behalf of the Board presents not an issue of

fact but an issue of law.     Courts, including appellate courts,

are authorized to take judicial notice of such matters.    Indeed,

the Board relied on that expedient in attaching a copy of Section

7.05 of the City Charter to its brief on appeal.       If any such

authority exists, the Board could have done the same in opposing

Holloway’s reliance on Lane, but didn’t.      On this record, and

concerning the possible existence of legal authority that would

render the City Attorney’s letter a final order for purposes of

R.C. 2506.01, no genuine issue of material fact remains for

determination which precludes the summary judgment the trial court

ordered is shown.

     {¶ 35}   Construing the letter dated December 8, 2008 and its

contents most strongly in favor of the Board, we find that

reasonable minds could only conclude that the letter neither

represents nor portrays a final order, adjudication, or decision

of the Board to not hear Holloway’s appeal of his termination.

The letter is no more than the stated opinion of the Board’s legal
                                                                 11

advisor that the Board should not hear the appeal.      There is no

evidence that the City Attorney was authorized to act on behalf

of the Board in that respect.

     {¶ 36}   The trial court correctly found that Holloway has no

right of appeal pursuant to R.C. Chapter 2506 from his termination.

 The Board does not argue that Holloway had any other avenue of

legal relief except for R.C. Chapter 2506, and we are aware of

none.   The trial court did not err when it granted summary judgment

for Holloway on his motion.   Our order of remand required the trial

court to conduct no proceedings other than to decide the merits

of the pleadings and motions before it, which the court did.

     {¶ 37}   The assignment of error is overruled.    The judgment

from which the appeal is taken will be affirmed.



FAIN, J., And DONOVAN, J., concur.



Copies mailed to:

Henry A. Arnett, Esq.
Matthew D. Stokely, Esq.
Joshua M. Kin, Esq.
Hon. Gregory F. Singer
