[Cite as Mingo Junction Safety Forces Assoc. Local 1 v. Chappano, 2011-Ohio-3401.]

                           STATE OF OHIO, JEFFERSON COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


THE MINGO JUNCTION SAFETY       )
FORCES ASSOC. LOCAL 1, et al.,  )                        CASE NO. 10 JE 20
                                )
    PLAINTIFFS-APPELLEES,       )
                                )
    - VS -                      )                                 OPINION
                                )
MAYOR DOMENIC CHAPPANO, et al., )
                                )
    DEFENDANTS-APPELLANTS. )

CHARACTER OF PROCEEDINGS:                                Civil Appeal from Common Pleas
                                                         Court, Case No. 10 CV 543.

JUDGMENT:                                                Affirmed.

APPEARANCES:
For Plaintiffs-Appellees:                                Attorney Michael W. Piotrowski
                                                         2721 Manchester Road
                                                         Akron, OH 44319-1020

For Defendants-Appellants:                               Attorney Kristopher Haught
                                                         Scarpone Professional Bldg.
                                                         2021 Sunset Boulevard
                                                         Steubenville, OH 43952

                                                         Attorney Matthew Baker
                                                         913 Elcliff Drive
                                                         Westerville, OH 43081


JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl Waite
Hon. Joseph J. Vukovich


                                                         Dated: June 29, 2011
                                                                                      -2-




DeGenaro, J.
       {¶1}    Defendants-Appellants, The Village of Mingo Junction, and Mayor Dominic
Chappano appeal the September 21, 2010 judgment of the Jefferson County Court of
Common Pleas overruling a motion for a permanent mandatory injunction sought by
Plaintiff-Appellees, Mingo Junction Safety Forces Association Local No. 1, et al., and
ordering the parties to engage in the grievance and arbitration procedures set forth in a
collective bargaining agreement previously entered into by the parties.
       {¶2}    Appellants argue that the trial court erred by entering a final judgment
before they filed an answer. Further, they argue that their due process rights were
violated when the trial court entered a final judgment before they received notice and an
opportunity to be heard. These arguments are meritless. The trial court's September 21
judgment only ruled upon Appellees' claims for injunctive relief, and Appellants were
afforded notice and an opportunity to be heard on those claims. Accordingly, the
judgment of the trial court is affirmed.
                              Facts and Procedural History
       {¶3}    Appellee, Mingo Junction Safety Forces Association Local No. 1 is a labor
organization that represents safety force employees employed by the Village of Mingo
         1
Junction. Appellee, Joseph Sagun is the president of the Union. Appellant, Village and
the Union entered into a collective bargaining agreement. Article 2, Section A of the CBA
                                                   th                  th
states that the agreement "shall run from August 20 , 2006 to August 15 , 2009." By
agreement of the parties, this term had been extended to August 15, 2010.
       {¶4}    Article 34, Section 10 of the CBA states: "The current Collective bargaining
Agreement shall continue until a new contract is agreed upon and signed, subject to the
laws of the State of Ohio."

1
 As a village, which is a municipal corporation with a population of less than 5,000, see
R.C. 703.01(A), Mingo Junction is not considered a "public employer" bound by Ohio's
Public Employees' Collective Bargaining Act. See R.C. 4117.01(B).
                                                                                         -3-


       {¶5}   Further, Article 35, Section A states:
       {¶6}   "The procedures contained in this article shall govern all negotiations for a
new collective bargaining agreement between the parties. Within ninety days of the
expiration of this collective bargaining agreement. [sic] The parties shall continue in full
force and effect all terms and conditions of this existing agreement unless and until a new
or modified agreement is agreed upon or established by operation of this Article. The
parties shall conduct all negotiations in accordance with this Article in good faith."
       {¶7}   The CBA also states that the grievance procedure, the final step of which is
binding arbitration, "shall be the exclusive method of resolving both contractual and
disciplinary grievances." The CBA broadly defines a grievance as "a dispute between the
Village and members of the bargaining unit over [sic] alleged violation, misinterpretation
or misapplication of a specific article(s) or section(s) of this agreement."
       {¶8}   According to Appellees, beginning on June 8, 2010 the Union repeatedly
attempted to schedule negotiations for a successor CBA. However, the meeting was not
ultimately scheduled until August 17, 2010. During that meeting, the Village asserted that
because the contract term had expired it was under no obligation to negotiate or follow
the CBA.
       {¶9}   The Mayor issued layoff notices to seven members of the Union, stating that
as of September 10, 2010, seven of the eight sworn members of the Mingo Junction
Police Department (everyone except for the Police Chief) would be laid off from their
positions.
       {¶10} The Union filed two class action grievances. The first concerned the
Village's refusal to enter into negotiations, negotiate in good faith, or maintain the current
CBA until another agreement was put in place. The second concerned the layoffs. The
Mayor responded to the grievances in a letter to the Union president in which he asserted
that the CBA had expired as of August 15, 2010 and that therefore the terms and
conditions of the CBA were no longer in effect and that the Village was under no
obligation to address the grievances.
       {¶11} On September 7, 2010, Appellees filed a verified complaint for declaratory
                                                                                           -4-


judgment and temporary and permanent injunction, in which they requested the following
relief:
          {¶12} "(1) That the Plaintiffs and Defendants have a real and justiciable
controversy that must be expeditiously resolved.
          {¶13} "(2) That Plaintiffs are entitled to a declaration that the Defendants are
required to rescind the lay-off notice dated August 24, 2010.
          {¶14} "(3) That Plaintiffs are entitled to a declaration that the Defendants and its
representatives and agents, are required to comply with Mingo Junction ordinance 140.01
and 141.12(A) and the Collective Bargaining Agreement.
          {¶15} "(4) That Plaintiffs are entitled to a declaration that the Defendants and its
representatives and agents, are required to comply with the terms of the existing
collective bargaining agreement until such time as a new agreement has been negotiated
as required by Article 34, Section 10 of the Collective Bargaining Agreement.
          {¶16} "(5) That the Plaintiffs are entitled to the remedies requested in the form of a
Temporary Restraining Order, a Preliminary Restraining Order and a Permanent
Mandatory injunction enjoining the Defendants from implementing layoffs in the Village of
Mingo Junction Police department, requiring the Defendants and its representatives and
agents, to enforce Mingo Junction ordinance 140.01, ordering the defendant [sic] to
comply with the collective bargaining agreement and ordering the Defendants to submit
the resolution of its dispute with the Plaintiff to binding arbitration.
          {¶17} "(6) That all costs in this matter be assessed against the Defendants."
(Verified Complaint.)
          {¶18} Appellees also filed a motion for a restraining order, preliminary injunction
and permanent mandatory injunction.             Appellees requested that the court enjoin
Appellants from instituting the layoffs, and order Appellants to comply with Mingo Junction
Ordinance 141.01 and 141.12(A) and the CBA. These local ordinances, which are
referenced in the CBA, concern personnel and scheduling requirements for the police
department.
          {¶19} The day the complaint was filed a hearing on the TRO was held and
                                                                                      -5-


attended by counsel for both sides. As a result of this hearing the trial court granted the
TRO/preliminary injunction. The trial court's decision turned, at least in part, on its
conclusion that the Mayor was not the appointing authority for Mingo Junction.
       {¶20} Specifically, the court ruled:
       {¶21} "IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the
defendants, its officers, employees, servants, agents and attorneys shall be and are
hereby restrained as follows:
       {¶22} "1. From enforcing the layoff notices as the layoff notices issued by the
Mayor shall not be effective as they were not issued by the appropriate appointing
authority.
       {¶23} "2. From undermining the provisions contained in the ordinance requiring a
minimum complement of safety forces in the Village of Mingo Junction (Ordinance No.
141.01), as the same is currently staffed.
       {¶24} "3. Further, plaintiffs are hereby granted the requested Temporary
Restraining Order and Preliminary Injunction for a fourteen (14) day period (through
September 21, 2010).
       {¶25} "4. The parties are to submit memorandums of law or briefs in support of
their position regarding the permanent injunction on or before September 17, 2010, to
enable the Court to rule on the same on September 21, 2010, without an oral hearing.
       {¶26} "5. The parties are urged to engage in negotiations regarding the police
department staffing and the Collective Bargaining Agreement within the fourteen (14) day
period.
       {¶27} "6. No bond shall be required of the plaintiffs."
       {¶28} Both sides filed briefs in support of their respective positions. Among other
things, Appellants argued that assuming arguendo the court found the CBA was still in
effect, injunctive relief would be precluded since the CBA provided an adequate remedy
at law, namely arbitration.
       {¶29} On September 21, 2010, the trial court entered a judgment entry overruling
Appellees' motion for a permanent mandatory injunction and ordering the parties to
                                                                                         -6-


proceed with the grievances and arbitration. The trial court changed its earlier opinion
about the identity of the appointing authority for Mingo Junction, now finding that it was
the Mayor. The court concluded that Appellees would not suffer irreparable harm absent
the injunction and that they had an adequate remedy at law, i.e., the grievance and
arbitration procedures in the CBA. Notably, in so doing, the trial court did not determine
whether or not the CBA had expired. Rather, it found that the CBA provided a forum to
litigate that very question, along with the issue of whether Appellants violated the CBA by
issuing layoff notices. Specifically, the trial court stated:
       {¶30} "Therefore, the claims of the plaintiff that the CBA continues to be in effect
and that the CBA has been violated by the defendants shall be handled in accordance
with said grievance and arbitration procedures as agreed to between the parties
previously in said CBA, and a mandatory permanent injunction is not warranted."
       {¶31} Finally, the trial court did not address Appellees' claims for declaratory relief
in the September 21 entry. And at the end of the entry the trial court included the Civ.R.
54(B) "no just cause for delay" language.
       {¶32} Appellants filed a motion for additional time to answer or respond to
Plaintiff's complaint, along with a request for hearing. Before the trial court could rule on
that motion, Appellants filed a timely of appeal with this court.
       {¶33} Appellants filed a motion for stay of execution of judgment pending appeal
pursuant to Civ.R. 62 with the trial court which was overruled. Appellants then filed a stay
motion with this court, which was granted on December 14, 2010. Specifically, this Court
concluded that the Village was entitled to a stay as a matter of right pursuant to Civ.R.
62(C), and consequently stayed the portion of the court's September 21, 2010 order
compelling Appellants "to engage in the grievance and arbitration procedures" from the
previously entered CBA.
                      Trial Court Ruling before Answer was Filed
       {¶34} In their first of two assignments of error, Appellants assert:
       {¶35} "The trial court erred in issuing a final appealable order on a complaint for
declaratory judgment filed by the Plaintiff-Appellees before the Defendant-Appellants had
                                                                                       -7-


submitted an answer to the complaint and before the time to answer the complaint as
prescribed by Ohio Civil Rule 12(A)(1) expired."
       {¶36} Appellants are correct that prior to ruling on a claims for declaratory relief,
the trial court must follow the civil rules and allow the defendants time to answer. See
Civ.R. 7(A) and Civ.R. 12(A)(1). "The procedure for obtaining a declaratory judgment
must be in accordance with the civil rules." Galloway v. Horkulic, 7th Dist. No. 02JE52,
2003-Ohio-5145, at ¶21, citing Civ.R. 57.       See, also, Hartley v. Clearview Equine
Veterinary Servs., 6th Dist. No. L-04-1163, 2005-Ohio-799.
       {¶37} Civ.R. 7(A) provides: "Pleadings. There shall be a complaint and an
answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the
answer contains a cross-claim; a third-party complaint, if a person who was not an original
party is summoned under the provisions of Rule 14; and a third-party answer, if a third-
party complaint is served. No other pleading shall be allowed, except that the court may
order a reply to an answer or a third-party answer."
       {¶38} Civ.R. 12(A)(1) provides: "The defendant shall serve his answer within
twenty-eight days after service of the summons and complaint upon him; if service of
notice has been made by publication, he shall serve his answer within twenty-eight days
after the completion of service by publication."
       {¶39} Thus, it would be error for a trial court to rule on a declaratory judgment
complaint before the defendant has been afforded time to answer pursuant to Civ.R.
12(A)(1) and assuming no Civ.R. 12(B) motion had been filed. Here, Appellants had until
October 7, 2010 to answer the declaratory judgment action which is clearly after the trial
court's September 21, 2010 judgment.
       {¶40} However, as indicated above, the trial court did not rule on Appellees' claims
for declaratory relief in the September 21 judgment. Again, those claims were as follows:
       {¶41} "(2) That Plaintiffs are entitled to a declaration that the Defendants are
required to rescind the lay-off notice dated August 24, 2010.
       {¶42} "(3) That Plaintiffs are entitled to a declaration that the Defendants and its
representatives and agents, are required to comply with Mingo Junction ordinance 140.01
                                                                                        -8-


and 141.12(A) and the Collective Bargaining Agreement.
       {¶43} "(4) That Plaintiffs are entitled to a declaration that the Defendants and its
representatives and agents, are required to comply with the terms of the existing
collective bargaining agreement until such time as a new agreement has been negotiated
as required by Article 34, Section 10 of the Collective Bargaining Agreement."
       {¶44} The September 21 entry did not address those claims. The trial court did
not declare that Appellants must rescind the layoff notices, or that Appellants must
comply with Mingo Junction Ordinance 140.01 and 141.12(A) and all the terms and
conditions in the CBA. Further, the court did not declare that Appellants are required to
comply with the terms of the CBA until such time as a new agreement has been
negotiated.    Importantly, the trial court included the Civ.R. 54(B) language in the
September 21 entry, making it immediately appealable, even if all the claims had not
been disposed of. See, e.g., Ankrom v. Hageman, 10th Dist. No. 06AP-735, 2007-Ohio-
5092, at ¶13 (concluding that denial of permanent injunction was final order, but where
other claims remained, the Civ.R. 54(B) language was required to make it immediately
appealable).
       {¶45} Rather, the September 21, 2010 judgment entry only ruled on Appellees'
claim for injunctive relief. Again, that claim stated:
       {¶46} "(5) That the Plaintiffs are entitled to the remedies requested in the form of a
Temporary Restraining Order, a Preliminary Restraining Order and a Permanent
Mandatory injunction enjoining the Defendants from implementing layoffs in the Village of
Mingo Junction Police department, requiring the Defendants and its representatives and
agents, to enforce Mingo Junction ordinance 140.01, ordering the defendant [sic] to
comply with the collective bargaining agreement and ordering the Defendants to submit
the resolution of its dispute with the Plaintiff to binding arbitration."
       {¶47} The trial court overruled Appellees' request for a permanent injunction
because the CBA provided a remedy for the parties' disputes in the form of grievance
procedures that culminate in binding arbitration. The trial court followed the proper
procedure regarding Appellants' request for injunctive relief. See Civ.R. 65. Appellants
                                                                                      -9-


received notice of the complaint, the motion for TRO, preliminary and permanent
injunction, and counsel for both sides appeared for a hearing on the TRO. Id. The trial
court handled the TRO and preliminary injunction request together, which is proper
where, as here, both parties had notice of, were present at, and participated in the
hearing. See Turoff v. Stefanec (1984), 16 Ohio App.3d 227, 228, 475 N.E.2d 189. The
trial court then granted the TRO/preliminary injunction and instructed the parties to brief
the issue of whether a permanent mandatory injunction should issue, which both sides
then did.
       {¶48} The trial court ultimately overruled Appellees' motion for a permanent
injunction, and dissolved the TRO/preliminary injunction since the parties had an
adequate remedy at law to resolve their disputes, the grievance and binding arbitration
procedures contained in the CBA. Thus, the court ordered the parties to engage in the
grievance and binding arbitration procedures found in the CBA. It is this portion of the
judgment that caused Appellants to appeal.
       {¶49} One argument advanced by Appellees is that any error by the trial court in
compelling the parties to engage in the grievance and arbitration procedures in the CBA
was invited by Appellants, since one of their reasons for opposing the injunction was that
the CBA provided an adequate remedy at law.
       {¶50} Under the invited-error doctrine, "a party will not be permitted to take
advantage of an error that he himself invited or induced the trial court to make." State ex
rel. Beaver v. Konteh (1998), 83 Ohio St.3d 519, 521, 700 N.E.2d 1256. "Invited error is
a branch of the waiver doctrine that estops a party from seeking to profit from an error
that the party invited or induced." Koch v. Rist (2000), 89 Ohio St.3d 250, 256, 730
N.E.2d 963.
       {¶51} In their memorandum contra to Appellees' motion for permanent injunction,
Appellants argued: "assuming arguendo only, that Plaintiffs' assertions are true that the
CBA remains in effect, the grievance procedure found therein constitutes an adequate
remedy at law. Because the Plaintiffs have an adequate remedy at law there can be no
entitlement to injunctive relief." (emphasis in original)
                                                                                       - 10 -


       {¶52} Since Appellants couched the above argument as one made arguendo, at
first blush it appears to be unfair to conclude that this constitutes invited error. However,
Appellant did advance this argument to prevent the trial court from issuing the injunction.
Thus, it is somewhat disingenuous to now complain on appeal that the trial court
erroneously used that same reasoning to order the parties engage in the grievance and
arbitration process. In effect, Appellants are attempting to use this argument as both a
shield and a sword.
       {¶53} Regardless, the court properly ordered the parties submit to the grievance
and arbitration procedures in the CBA notwithstanding Appellants' assertion that the CBA
had expired. "[A] grievance which arises after the lapse of a collective bargaining
agreement is arbitrable even though there is no longer any contract between the parties."
Internatl. Bhd. Of Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union 20 v.
Toledo, 48 Ohio App.3d 11, 14, 548 N.E.2d 257, citing John Wiley & Sons, Inc. v.
Livingston (1964), 376 U.S. 543, 553, 84 S.Ct. 909, 11 L.Ed.2d 898; and Nolde Brothers,
Inc. v. Local No. 358, Bakery & Confectionery Workers Union, AFL-CIO (1977), 430 U.S.
243, 97 S.Ct. 1067, 51 L.Ed.2d 300.
       {¶54} Further, the CBA states that the grievance procedure, the final step of which
is binding arbitration, "shall be the exclusive method of resolving both contractual and
disciplinary grievances." Further, it broadly defines a grievance as "a dispute between the
Village and members of the bargaining unit over [sic] alleged violation, misinterpretation
or misapplication of a specific article(s) or section(s) of this agreement." The parties'
disputes, whether the CBA remains in effect and whether Appellants violated it by issuing
the layoff notices, are disputes that fall under the CBA's definition of grievance.
Accordingly, the trial court properly ordered the parties to submit to the grievance
procedures in the CBA but otherwise denied Appellees' request for injunctive relief.
       {¶55} The trial court did not err by ruling on the claims for injunctive relief before
Appellants filed an answer to the claims for declaratory relief. Accordingly, Appellants'
first assignment of error is meritless.
                                                                                      - 11 -


                                      Due Process
       {¶56} In their second and final assignment of error, Appellants assert:
       {¶57} "The trial court erred by denying the Defendant-Appellants due process of
law when it issued a final appealable order granting declaratory judgment on a complaint
for declaratory judgment filed by the Plaintiff-Appellees without providing the Defendant-
Apellees [sic] notice and opportunity to be heard on the complaint."
       {¶58} This assignment of error also presupposes that the trial court granted
declaratory relief in the September 21, 2010 entry. However, as discussed above, the
entry did not rule upon the requests for declaratory relief, but rather overruled Appellees'
request for injunctive relief and ordered the parties to submit their disputes to binding
arbitration.
       {¶59} Appellants received notice of Appellees' Verified Complaint and motion for
injunctive relief. Appellants attended a hearing on the TRO/preliminary injunction, and
pursuant to the trial court's request, they submitted a brief regarding the permanent
injunction.    Thus, Appellants received notice and had an opportunity to be heard
regarding Appellees' request for injunctive relief.     Accordingly, Appellants' second
assignment of error is meritless.
       {¶60} In conclusion, both of Appellants' assignments of error are meritless. Both
presuppose that the September 21, 2010 judgment ruled on Appellees' claims for
declaratory relief. However, the judgment only ruled upon Appellees' claims for injunctive
relief. Appellants were afforded notice and an opportunity to be heard on those claims.
Accordingly, the judgment of the trial court is affirmed.
Waite, P.J., concurs.
Vukovich, J., concurs.
