[Cite as State ex rel. Vandenbos v. Xenia, 2015-Ohio-35.]




                                 IN THE COURT OF APPEALS OF OHIO
                                    SECOND APPELLATE DISTRICT
                                         GREENE COUNTY

STATE OF OHIO, ex rel.,
DARYL VANDENBOS

        Relator

v.

CITY OF XENIA, et al.

        Respondents


Appellate Case No.       14-CA-14




                            DECISION AND FINAL JUDGMENT ENTRY
                                        January 9, 2015


PER CURIAM:

        {¶ 1} Relator, Daryl Vandenbos, filed this original action against Respondents, the City of

Xenia and Tommy Norris, on April 11, 2014. Vandenbos, a Xenia firefighter, seeks a writ of quo

warranto declaring that he, and not Norris, is entitled to the position of Lieutenant with the Xenia

Fire Department, and ordering the City of Xenia Civil Service Commission (“CSC”) to change

Vandenbos’s eligibility ranking and appoint him Fire Lieutenant.
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          {¶ 2} This dispute arose from differing interpretations of Xenia’s civil service rules

concerning the manner in which Vandenbos’s seniority as a firefighter was calculated. Vandenbos

contends he is entitled to additional credit for previous employment with Xenia; Xenia contends he

is not. Xenia’s seniority calculation resulted in Norris, and not Vandenbos, being appointed Fire

Lieutenant. Vandenbos challenges that appointment. The matter is currently before this court on

Xenia and Norris’s motion for judgment on the pleadings.

                                                 Facts

          {¶ 3} Xenia hired Vandenbos as a firefighter on December 18, 1994. On May 17, 2001,

Vandenbos voluntarily resigned, effective June 1, 2001.             Xenia hired Vandenbos as a

firefighter/paramedic on May 23, 2002.

          {¶ 4} In 2012, Vandenbos, Norris, and others applied for the position of Fire Lieutenant.

On May 14, 2012, Xenia issued a promotional eligibility list, ranking Norris first and Vandenbos

fourth.    One of the factors considered was the applicants’ seniority.       Vandenbos’s seniority

calculation included only his employment since May 23, 2002, and not his previous employment

from December 18, 1994 to June 1, 2001. Vandenbos asserts that had Xenia included his previous

employment period, he would have ranked first on the eligibility list.

          {¶ 5} On June 13, 2012, Xenia promoted Norris to Fire Lieutenant on a probationary basis.

The complaint states that he was permanently promoted to Fire Lieutenant on June 12, 2013.

                                         Procedural History

          {¶ 6} Shortly after Xenia issued the eligibility list, Vandenbos appealed to the Xenia CSC.

The CSC held a hearing on June 11, 2012, and upheld Xenia’s calculation of Vandenbos’s seniority

points. Vandenbos filed an administrative appeal against the CSC in the Greene County Court of

Common Pleas on July 19, 2012. On April 30, 2013, a Magistrate’s Decision reversed the CSC’s
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determination and found that Vandenbos was entitled to the additional seniority points, effectively

placing him first on the eligibility list. The parties filed objections and responses.

       {¶ 7} While the objections were pending, the CSC filed a motion to dismiss the

administrative appeal.    The CSC argued that the Common Pleas Court lacked subject matter

jurisdiction and that a quo warranto action was the exclusive manner in which Vandenbos could

seek the Fire Lieutenant position. The court agreed, and on December 13, 2013, dismissed the

case. Vandenbos appealed to this court, but on March 13, 2014, the appeal was dismissed.

       {¶ 8} Vandenbos filed the instant quo warranto action on April 11, 2014. Xenia and

Norris answered on May 14, 2014. On June 3, 2014, Xenia and Norris filed the motion for

judgment on the pleadings currently before the court.           Vandenbos filed a memorandum in

opposition; Xenia and Norris filed a reply. The matter is ripe for decision.

                                           Legal Standards

                                            Quo Warranto

       {¶ 9} An action in quo warranto “is the exclusive remedy by which one’s right to hold a

public office may be litigated.”      State ex rel. Johnson v. Richardson, 131 Ohio St.3d 120,

2012-Ohio-57, 961 N.E.2d 187, ¶ 15. Assuming, as the parties do, that the fire lieutenant position

is a public office, to succeed in quo warranto Vandenbos must establish “ ‘(1) that the office is

being unlawfully held and exercised by respondent, and (2) that relator is entitled to the office.’ ”

State ex rel. Newell v. Jackson, 118 Ohio St.3d 138, 2008-Ohio-1965, 886 N.E.2d 846, ¶ 6, quoting

State ex rel. Paluf v. Feneli, 69 Ohio St.3d 138, 141, 630 N.E.2d 708 (1994). In addition, to “oust a

good-faith appointee, a relator must take affirmative action by either filing a quo warranto action or

an injunction challenging the appointment before the appointee completes the probationary period

and becomes a permanent employee.” Newell at ¶ 11.
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                                     Judgment on the Pleadings

       {¶ 10} Quo warranto actions “ordinarily proceed as civil actions under the Ohio Rules of

Civil Procedure.” Loc. App.R. 8(A). Pursuant to Civ.R. 12(C), “[a]fter the pleadings are closed

but within such time as not to delay the trial, any party may move for judgment on the pleadings.”

       {¶ 11} Dismissal under Civ.R. 12(C) “is appropriate where a court (1) construes the material

allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the

nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could prove no set of facts in

support of his claim that would entitle him to relief.” State ex rel. Midwest Pride IV, Inc. v.

Pontious, 75 Ohio St.3d 565, 570, 1996-Ohio-459, 664 N.E.2d 931, citing Lin v. Gatehouse Constr.

Co., 84 Ohio App.3d 96, 99, 616 N.E.2d 519 (8th Dist.1992). “Thus, Civ.R. 12(C) requires a

determination that no material factual issues exist and that the movant is entitled to judgment as a

matter of law.” Pontious at 570.

                                              Analysis

                                Evidence Properly Before This Court

       {¶ 12} This court considers the allegations in the complaint and the answer when deciding a

motion for judgment on the pleadings. Pontious at 569. Pleadings are defined by rule as a

complaint, answer, reply to a counterclaim, answer to a cross-claim, third-party complaint, and a

third-party answer. Civ.R. 7(A). In this case, the record contains a verified complaint and an

answer.

       {¶ 13} Civ.R. 10(C) provides that a “copy of any written instrument attached to a pleading is

a part of the pleading for all purposes.” This court has not construed “written instrument” to mean

any document attached to a pleading. Rather,

       the term “written instrument” in Civ.R. 10(C) has primarily been interpreted to
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       include documents that evidence the parties’ rights and obligations, such as

       negotiable instruments, “insurance policies, leases, deeds, promissory notes, and

       contracts.” 1 Klein & Darling, Baldwin’s Ohio Practice (2004), 744-45. We

       conclude that a trial court’s opinion in another matter is not the sort of written

       instrument proper for designation as “a part of the pleading” in the context of a

       motion for judgment on the pleadings.

Inskeep v. Burton, 2d Dist. Champaign No. 2007CA11, 2008-Ohio-1982, ¶ 17. But see Toman v.

Humility of Mary Health Partners, 7th Dist. Mahoning No. 13MA105, 2014-Ohio-4417, ¶ 9

(considering “any documents attached to those pleadings”).

       {¶ 14} Here, Xenia and Norris have attached a number of documents to their answer, several

of which are orders and opinions filed in the previous matters. We do not consider those opinions

and orders. See Inskeep. Similarly, we do not consider pleadings filed in those other actions. We

further conclude that the remaining attachments (excerpts of civil service rules, civil service meeting

notes and transcript, and a memorandum concerning Xenia’s position on Vandenbos’s seniority

credit) are more like a trial court’s opinion than a negotiable instrument, insurance policy, deed, or

contract, and likewise not the sort of written instrument proper for designation as “part of the

pleading” under Inskeep. Thus, we consider the allegations contained in the verified complaint and

the answer in deciding Respondents’ motion for judgment on the pleadings.

                                      Respondents’ Arguments

       {¶ 15} Respondents move for judgment on three grounds. First, they assert that Vandenbos

failed to take timely affirmative action to oust Norris, a good faith appointee, as Fire Lieutenant.

Second, they assert that laches bars Vandenbos’s claim. Third and alternatively, they assert that
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Vandenbos cannot show a clear legal right to the fire lieutenant position. Because it is dispositive,

we address only the first argument.

                         Affirmative Action to Oust a Good Faith Appointee

       {¶ 16} The parties do not dispute that Norris is a good faith appointee and that Vandenbos

must have taken affirmative action to oust Norris before his probationary period ended and he

became a permanent employee.          See State ex rel. Newell v. Jackson, 118 Ohio St.3d 138,

2008-Ohio-1965, 886 N.E.2d 846, ¶ 11 (2008).            The parties disagree about the date Norris

completed his probationary period and became a permanent employee. They also disagree about

what actions constitute sufficient “affirmative action” to oust a good faith appointee.

       {¶ 17} In their answer, Respondents asserted that Norris was appointed Fire Lieutenant on a

probationary basis on June 13, 2012. Vandenbos asserted in his verified complaint that “Norris

was permanently promoted to Fire Lieutenant on June 12, 2013, and continues to hold that

position.” In his response to the motion for judgment on the pleadings, Vandenbos questions

whether the promotion date is sufficiently established in the record. Respondents counter that

Vandenbos’s allegation in the verified complaint that Norris was permanently promoted on that date

sufficiently establishes the date. Respondents also assert that Norris’s probationary period could

not extend beyond one year by operation of law.

       {¶ 18} When considering a motion for judgment on the pleadings, this court must take as

true the allegations in the complaint. Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574,

581, 2001-Ohio-1287, 752 N.E.2d 267, 274 (“the trial court is required to construe as true all the

material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor

of the nonmoving party”). Here, Vandenbos, as the non-moving party, alleged that Norris was

permanently promoted to Fire Lieutenant on June 12, 2013. Respondents admitted this allegation
                                                                                                    7
in their Answer. For purposes of this motion, we find that the permanent promotion date of June

12, 2013 is established in the pleadings.

       {¶ 19} Prior to June 12, 2013, Vandenbos raised Norris’s lack of entitlement to the fire

lieutenant position in two ways. He appealed to the Xenia CSC on May 16, 2012, and, being

unsuccessful, filed an administrative appeal of that decision to the Greene County Court of

Common Pleas on July 19, 2012. This quo warranto action was filed after the June 12, 2013

promotion date.

       {¶ 20} The Ohio Supreme Court has held that the required affirmative action can take one

of two forms: “a relator must take affirmative action by either filing a quo warranto action or an

injunction challenging the appointment before the appointee completes the probationary period and

becomes a permanent employee.”              State ex rel. Newell v. Jackson, 118 Ohio St.3d 138,

2008-Ohio-1965, 886 N.E.2d 846 ¶ 11 (2008). These are the only two types of affirmative action

indicated in caselaw.

       {¶ 21} Vandenbos argues that the substance of his appeal to the Greene County Court of

Common Pleas, although not styled as a request for injunctive relief, was in essence such a request.

He notes that he asked that court “ ‘to reverse and disaffirm the decision of the City of Xenia Civil

Service Commission and order the City to recalculate the seniority upon which the promotional

examination eligibility was based. The result of such an order from this Court would be that

Appellant would be entitled to a promotion to the position of Fire Lieutenant.’ ” (Emphasis in

original) (citing September 17, 2012 Brief of Appellant in the previous appeal, at 5). Vandenbos

reasons that such an order would necessarily have excluded Norris from the position.

       {¶ 22} We do not accept this argument for several reasons. First, Vandenbos relies on

evidence not properly before this court. The brief he cites is not attached to the pleadings, and
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could not be properly considered on a Civ.R. 12(C) motion. Inskeep v. Burton, 2d Dist. Champaign

No. 2007CA11, 2008-Ohio-1982, ¶ 17.

        {¶ 23} Second, even if we considered Vandenbos’s brief, we do not equate an administrative

appellate brief’s request for recalculation of seniority points with a request for injunctive relief to

oust Norris from his position. Vandenbos asserts that he asked the Common Pleas Court to order

the CSC to recalculate his seniority points, but he does not allege he asked the court to issue an

order ousting Norris. Although it is not necessary to cite Civ.R. 65 or use any magic words,

seeking relief vis-à-vis the Civil Service Commission is not the same as seeking an injunction to

oust Norris. See Levinsky v. Lamping, 7th Dist. Mahoning No. 05MA71, 2005-Ohio-6924, ¶ 39.

        {¶ 24} In Levinsky, an analogous case, the relator had previously sought injunctive relief,

but as against parties other than the appointee he claimed wrongfully held the position. Id. The

court held that even this request for injunctive relief was insufficient; Levinsky must have

specifically filed for “an injunction to oust Lamping or an injunction preventing Lamping from

obtaining a permanent appointment.” Id. at ¶ 39. Vandenbos’s actions here are one step removed

from those found insufficient in Levinsky.         We conclude that the discussion in his previous

appellate brief is insufficient to constitute affirmative action.

        {¶ 25} Moreover, the Ohio Supreme Court has held that the same two actions Vandenbos

took here – an appeal to the CSC, and further appeal to the Common Pleas Court – were insufficient

to constitute affirmative action. State ex rel. Polen v. Wymer, 36 Ohio St.2d 24, 302 N.E.2d 889

(1973); see also State ex rel. Perkins v. Merrilees, 5th Dist. Knox No. 07-CA-6, 2008-Ohio-2942, ¶

11 (“Relator suggests he took affirmative action by filing an appeal with the Civil Service

Commission, however, the Supreme Court has held this to be insufficient.”). Vandenbos argues
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those cases are distinguishable because the courts failed to analyze the steps the relators asked the

reviewing bodies to take.

       {¶ 26} We agree that Polen and Perkins summarily rejected the civil service and

administrative appeals as affirmative action without addressing the particular relief requested

therein. We must, however, conduct the same categorical analysis. We hold that Vandenbos’s

civil service appeal and further administrative appeal do not satisfy the requirement that Vandenbos

take affirmative action by filing for an injunction or writ of quo warranto to oust Norris before his

promotion became permanent on June 12, 2013.

       {¶ 27} This finding is dispositive of Vandenbos’s complaint for quo warranto. Perkins at ¶

6. We do not reach the remaining arguments.



                                            Conclusion

       {¶ 28} Because Vandenbos failed to take timely affirmative action to oust Norris, he cannot

succeed in his action for a writ of quo warranto. The City of Xenia and Norris are entitled to

judgment as a matter of law. We SUSTAIN Respondents’ Motion for Judgment on the Pleadings.

The Verified Complaint in Quo Warranto is DENIED.

       SO ORDERED.



                                                    JEFFREY E. FROELICH, Presiding Judge




                                                    MICHAEL T. HALL, Judge
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                                                      JEFFREY M. WELBAUM, Judge


         To The Clerk: Within three (3) days of entering this judgment on the journal, you are
directed to serve on all parties not in default for failure to appear notice of the judgment and the date
of its entry upon the journal, pursuant to Civ.R. 58(B).




                                                      JEFFREY E. FROELICH, Presiding Judge


Copies to:

Jeffrey M. Silverstein                               Lynnette Dinkler
Attorney for Relator                                 Jamey T. Pregon
One Elizabeth Place, Suite 220                       Attorneys for Respondents
Dayton, Ohio 45417                                   5335 Far Hills Avenue, Suite 123
                                                     Dayton, Ohio 45429

CA3/KY
