[Cite as White v. Cleveland, 2013-Ohio-3007.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 99400



                                    HERSHEL WHITE
                                                      PLAINTIFF-APPELLANT

                                                vs.

                                CITY OF CLEVELAND
                                                      DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-667908


        BEFORE: E.T. Gallagher, J., Rocco, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: July 11, 2013
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Law Director
James C. Cochran
Assistant Director of Law
City of Cleveland
Department of Law
601 Lakeside Avenue
Room 106
Cleveland, Ohio 44114-1077
EILEEN T. GALLAGHER, J.:

          {¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1.

          {¶2} Plaintiff-appellant Hershel White (“White”) appeals a judgment of the trial

court denying his motion for an award of back pay. We find no merit to the appeal and

affirm.

          {¶3} White resigned from his employment as a waste collection foreman with

defendant-appellee, city of Cleveland (“the city”), after being found guilty of three counts

of criminal usury. White’s convictions were later vacated on appeal. See State v. White,

8th Dist. No. 89085, 2007-Ohio-5951. White subsequently asked the city to reinstate

him to his former position, but the city refused. In August 2008, White initiated the

instant action for injunctive relief against the city seeking reinstatement to his former

employment.

          {¶4} The parties filed cross-motions for summary judgment.        The trial court

denied White’s motion and granted the city’s motion, finding that White was not entitled

to reinstatement to his former employment.           This court reversed the trial court’s

judgments. In accordance with this court’s mandate, the trial court ordered that White be

rehired and the city rehired him on June 26, 2012.
       {¶5} In July 2012, White filed a motion seeking an award of back pay for the

period of time from October 23, 2006, the date he resigned, to June 26, 2012, the date he

was rehired. White requested back pay in the amount of $279,041.20. The trial court

denied the motion for back pay and this appeal followed.

       {¶6} In his sole assignment of error, White argues the trial court erred in failing to

award him back pay after being reinstated to his former position.            White contends he is

entitled to back pay because: (1) the appellate court ordered reinstatement of his

employment; and (2) the city’s personnel policy requires the city to provide him with back

pay. We disagree.

       {¶7} In the complaint, White sought an order of reinstatement to his former

position of employment. However, he never stated a claim for back pay and never

requested any monetary damages. Although his prayer for relief generally seeks: “other

and further relief as is just and equitable,” a claim for back pay must be plead as special

damages pursuant to Civ.R. 9(G).

       {¶8} Civ.R. 9(A) states: “When items of special damage are claimed, they shall be

specifically stated.”     The Rules Advisory Committee Staff Notes define “special

damages” as “a damage measurable by proof of market value or out of pocket expense.”

In Morrison v. Devore Trucking Inc., 68 Ohio App.2d 140, 144, 428 N.E.2d 438 (9th

Dist. 1980), the court held that loss of earnings is an item of special damages.1 The court


           See also Hughes v. Rogers, 4th Dist. No. 488, 1983 Ohio App. LEXIS 13526 (Oct. 26,
       1


1983) (holding that loss of earnings is an item of special damages, which must be specifically stated
pursuant to Civ.R. 9(G))
explained that this special pleading requirement is intended to avoid surprise by requiring

the pleader to provide specific notice of measurable losses at the pleading stage. Id. at

144. Indeed, “[o]ne purpose of the Civil Rules is to ‘eliminate surprise’ and this is

accomplished by requiring the ‘free flow of accessible information.’” Jones v. Murphy,

12 Ohio St.3d 84, 86, 465 N.E.2d 444 (1984).              When notice is provided at the

commencement of litigation, the opposing party knows generally what kind of evidence

will be offered in support of the claim and will have an opportunity to prepare a defense.

       {¶9} The complaint in this case was filed over four years ago on August 15, 2008.

The caption of the complaint states: “Complaint for Injunctive Relief.” As previously

stated, the prayer for relief in the complaint merely asks for a court order, reinstating

White to his former position with the city. White never amended the complaint to add a

claim for back wages and there was no issue of back wages when the court ruled on the

parties’ motions for summary judgment in October 2009. White raised the issue of back

wages for the first time after this court reversed the summary judgments and his

employment was reinstated. Therefore, White failed to specifically allege a claim for

back pay, and the trial court could not award back pay.

       {¶10} The sole assignment of error is overruled.

       {¶11} Judgment affirmed. It is ordered that appellee recover from appellant 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

KENNETH A. ROCCO, P.J., and
PATRICIA A. BLACKMON, J., CONCUR
