[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Manley v. Walsh, Slip Opinion No. 2014-Ohio-4563.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-4563
  THE STATE EX REL. MANLEY, APPELLANT, v. WALSH, PROS. ATTY., ET AL.,
                                      APPELLEES.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
                  it may be cited as State ex rel. Manley v. Walsh,
                         Slip Opinion No. 2014-Ohio-4563.]
Mandamus—Public employees—Employee’s claim for back pay actionable in
        mandamus, but right to relief must be clear and amount established with
        certainty—When underlying material facts are in dispute, appropriate
        remedy is declaratory judgment to establish amount owed—Writ denied.
   (No. 2013-0880—Submitted February 4, 2014—Decided October 21, 2014.)
        APPEAL from the Court of Appeals for Summit County, No. 25262.
                                  ________________
        FRENCH, J.
        {¶ 1} On February 19, 2010, appellant, John Manley, brought an original
action for a writ of mandamus in the Ninth District Court of Appeals against his
former employers, Summit County Prosecutor Sherri Bevan Walsh and Summit
County, Ohio, appellees (collectively “the county”). In his prayer for relief,
Manley asked the court to issue a writ compelling payment of “an amount to
                             SUPREME COURT OF OHIO




cover back pay losses,” including pension contributions and benefits, based on his
allegation that the county did not compensate him in accordance with established
county pay scales for his position.
       {¶ 2} The Ninth District Court of Appeals granted summary judgment in
favor of the county, denied Manley’s cross-motion for summary judgment, and
denied the writ. The appellate court also denied Manley’s motion for sanctions.
       {¶ 3} Manley filed a timely appeal to this court and has requested oral
argument.    For the following reasons, we deny Manley’s request for oral
argument and affirm the court of appeals’ decision.
                               Factual background
       {¶ 4} The parties agree that Manley was hired as an assistant prosecutor
in the Summit County Prosecutor’s Office on July 1, 2002. They also agree that
Manley’s position in the office changed as of January 2003 and that Manley’s
employment terminated in January 2009. But they agree on little else.
       {¶ 5} According to Manley, Walsh promoted him to the position of chief
counsel, civil division. He cites an interoffice memo in which Walsh wrote,
“[e]ffective January 6, 2003, your classification is hereby changed from Assistant
Prosecuting Attorney 3 * * * to Chief Counsel/Civil Division * * *.” The
letterhead later used by the prosecutor’s office identified Manley as “Chief
Counsel, Civil Division.” The same title was attached to Manley’s name in
county audit documents, on an overtime-exemption form signed by Walsh, and in
correspondence.
       {¶ 6} Prior to 2003, an employee named John Quinn had management
responsibility for the civil and tax divisions of the prosecutor’s office and the
child-support enforcement agency (“CSEA”). Quinn’s title was “chief assistant
county prosecutor,” with a job code of 50031 and a working title of “chief
counsel.” In 2004, the official title for the 50031 position changed from chief




                                        2
                                 January Term, 2014




assistant county prosecutor to chief counsel. The duties of the position remained
the same.
       {¶ 7} Summit County defined the job responsibilities of the chief-
counsel position (Code 50031) as follows:


               Under administrative direction; plans, assigns, directs, and
       manages a division of the Prosecutor’s Office; formulates policy
       and procedure; evaluates, assigns, prepares, and presents cases in
       court; prepares legal documentation; acts on behalf of the
       Prosecutor; maintains a working knowledge of the law.


Manley alleged that the duties he actually performed matched this description: he
planned, directed, and managed the work of a division of the office, reviewed and
assigned cases to subordinates, and presented legal argument before courts and
administrative agencies.
       {¶ 8} When Quinn resigned in January 2003 to become a domestic-
relations judge, Walsh decided to divide Quinn’s duties among multiple
employees. She promoted Manley to manage the civil division and Sandy Rubino
to manage the tax division.         But neither Manley nor Rubino had any
responsibilities for the CSEA.      Despite Walsh’s interoffice memo informing
Manley that his “classification [was] changed from Assistant Prosecuting
Attorney 3 * * * to Chief Counsel/Civil Division,” the county maintains that
Manley kept his current pay grade, his job code of 50021, and his official title of
assistant county prosecutor 3.
       {¶ 9} Job code 50031 described the job’s responsibilities as managing a
division of the prosecutor’s office.     By contrast, job code 50021 included
management responsibilities for a unit of the prosecutor’s office. The documents




                                         3
                             SUPREME COURT OF OHIO




in the record do not define the difference between a “unit” and a “division” of the
office.
          {¶ 10} As of 2003, the Summit County Council had set an annual pay
scale for the position of chief counsel ranging from a minimum of $84,872 to a
maximum of $106,090. However, when Manley was appointed chief counsel of
the civil division, his salary was set at $73,730 annually, well below the minimum
set by law for job code 50031. Manley’s salary fell above the midpoint of the
established salary range for job code 50021. In his complaint, Manley alleged that
he should have received an increase in salary to at least the minimum for the
chief-counsel position, but he also alleged that comparable employees in the
prosecutor’s office were compensated with salaries at the midpoint in the
applicable salary ranges.
          {¶ 11} Summit County employees received pay increases of 3 percent in
2004, 2 percent in 2005, 3 percent in 2006, 3 percent in 2007, and 3 percent in
2008. But because his base salary was allegedly set too low, Manley claims that
he did not receive the full benefit of those pay increases. In addition, he claims
that he lost the full benefit of the county’s 14 percent contribution on his behalf to
the Ohio Public Employees Retirement System.
          {¶ 12} Manley calculated that the county owed him $73,180.82 in back
pay, $22,869.94 in statutory prejudgment interest, and $10,245.31 in lost
retirement contributions.
                        The motions for summary judgment
          {¶ 13} Manley’s argument for summary judgment was straightforward:
the county held him out as “Chief Counsel, Civil Division,” and he performed the
duties of that position. Therefore, the county had a clear legal obligation under
the Summit County Codified Ordinances to pay him accordingly. Essentially,
Manley claims a clear legal right to be paid in accordance with the pay scale
applicable to job code 50031, at a minimum annual salary of $84,872.




                                          4
                                January Term, 2014




       {¶ 14} The county’s motion presented two arguments. First, the county
asserted that Manley could not demonstrate a clear right to relief because he was
at all times officially a 50021 assistant county prosecutor 3, and the office used
“chief counsel” in relation to him only as a “working title.” Second, the county
argued that laches barred Manley’s claim. By his own admission, Manley knew
of the alleged salary disparity in early 2003, yet he did not file suit until seven
years later, in 2010.
                          The court of appeals’ decision
       {¶ 15} The Ninth District granted the county’s motion for summary
judgment, but did not adopt the county’s legal arguments or version of the facts.
Rather, the court granted judgment because it concluded that Manley was
improperly using mandamus to establish the county’s duty rather than to compel
the enforcement of an established duty. That is, Manley was asking the court to
create a duty from disputed facts and then enforce it. Thus, the court held that
Manley failed to establish by clear and convincing evidence a clear legal right to
be paid in accordance with his prayer for relief.
                                   Legal analysis
                                  Oral argument
       {¶ 16} Manley has filed a request for the court to conduct oral argument.
Oral argument in a direct appeal is discretionary. S.Ct.Prac.R. 17.02(A). In
exercising this discretion, we consider whether the case involves a matter of great
public importance, complex issues of law or fact, a substantial constitutional
issue, or a conflict among the courts of appeals. Appenzeller v. Miller, 136 Ohio
St.3d 378, 2013-Ohio-3719, 996 N.E.2d 919, ¶ 4 (and cases cited therein).
Because Manley does not allege any such matters, we deny his request for oral
argument and proceed to the merits of the appeal.




                                          5
                             SUPREME COURT OF OHIO




                                    Mandamus
       {¶ 17} Because the appellate court granted summary judgment, this court
reviews the decision de novo, notwithstanding the general rule that the standard of
review in a mandamus case is abuse of discretion. State ex rel. Anderson v.
Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 8-9.
       {¶ 18} Mandamus is an extraordinary remedy “to be issued with great
caution and discretion and only when the way is clear.” State ex rel. Taylor v.
Glasser, 50 Ohio St.2d 165, 166, 364 N.E.2d 1 (1977), citing State ex rel. Kriss v.
Richards, 102 Ohio St. 455, 132 N.E. 23 (1921), and State ex rel. Skinner Engine
Co. v. Kouri, 136 Ohio St. 343, 25 N.E.2d 940 (1940). A relator seeking a writ of
mandamus must establish (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent official or governmental unit to provide it,
and (3) the lack of an adequate remedy in the ordinary course of the law. State ex
rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6.
The relator must prove entitlement to the writ by clear and convincing evidence.
State ex rel. Cleveland Right to Life v. State Controlling Bd., 138 Ohio St.3d 57,
2013-Ohio-5632, 3 N.E.3d 185, ¶ 2.
       {¶ 19} Manley asserts that the appellate court erred in its determination
that he was trying to establish, rather than enforce, a legal duty. The legal duty
already exists, he contends, by virtue of the Summit County pay scales. The
county does not dispute the pay scales, only Manley’s place on them. To be
entitled to the writ he requests, however, Manley must establish not only a clear
legal right to be paid in accordance with the county pay scales, but also a clear
legal right to be classified as a 50031 employee. That is where his claim falters.
Further, we conclude that Manley had an adequate remedy in the ordinary course
of the law.




                                         6
                                 January Term, 2014




       {¶ 20} The parties vehemently dispute Manley’s job classification
following his January 2003 change in position, and both Manley and the county
submitted evidence in support of their respective positions on that question.
       {¶ 21} The county disputes that Manley was ever a 50031 employee,
either officially or de facto, for two reasons. First, Walsh states in her affidavit
that despite the names, both the civil division and the tax division were considered
units of the office, under the management of a 50021 assistant county prosecutor
3, not divisions under the management of a 50031 chief counsel. By Walsh’s own
admission, however, Mary Ann Kovach “held job class 50031 and the title of
‘Chief Counsel’ for Criminal.” Walsh does not explain why criminal was a
division but civil was a unit.
       {¶ 22} Walsh’s second justification for keeping Manley in a 50021
classification is that Manley’s “actual job responsibilities were considerably less
than those contemplated for job class 50031.” She does not explain this assertion
except to note that Manley managed fewer employees and had fewer
responsibilities than either Quinn or Kovach. But the responsibility of a 50031
employee is to manage a division of the office, not multiple divisions, as Quinn
had. And Walsh does not identify any portion of the job descriptions suggesting
that the difference between a 50021 employee and a 50031 employee is the
number of employees supervised.
       {¶ 23} Finally, in response to Manley’s evidence that the office referred to
him as “Chief Counsel, Civil Division” on multiple official documents, Walsh
claims that she allowed Manley to use “Chief Counsel, Civil” as a “working title.”
       {¶ 24} In simple terms, the parties disagree about the facts.
       {¶ 25} We begin with the principle that, as a general rule, a public
employee’s claim for wages or benefits is actionable in mandamus. State ex rel.
Kabert v. Shaker Hts. City School Dist. Bd. of Edn., 78 Ohio St.3d 37, 39, 676
N.E.2d 101 (1997). For a writ to issue on such a claim, however, the right to




                                         7
                             SUPREME COURT OF OHIO




relief must be clear and the amount established with certainty. State ex. rel.
Madden v. Windham Exempted Village School Dist. Bd. of Edn., 42 Ohio St.3d
86, 88, 537 N.E.2d 646 (1989), quoting State ex rel. Villari v. Bedford Hts., 11
Ohio St.3d 222, 223, 465 N.E.2d 64 (1984). “The term ‘with certainty’ generally
refers to ‘whether a particular amount has been precisely determined as to its
value in dollars and cents’ and at times ‘also refer[s] to the quality of proof, in
order for an employee to demonstrate that he has a clear legal right to the relief
for which he prays.’ ” [Brackets sic.] State ex rel. Tempesta v. Warren, 128 Ohio
St.3d 463, 2011-Ohio-1525, 946 N.E.2d 208, ¶ 27, quoting State ex rel. Hamlin v.
Collins, 9 Ohio St.3d 117, 120, 459 N.E.2d 520 (1984).
       {¶ 26} Here, Manley’s right to relief is not clear. Rather, it depends
entirely upon his classification as either a 50021 or 50031 employee, a factual
question the parties dispute. When the underlying material facts are in dispute,
the appropriate remedy for a public employee is not mandamus, but a declaratory
judgment to establish the amount owed. State ex rel. Bossa v. Giles, 64 Ohio
St.2d 273, 276, 415 N.E.2d 256 (1980) (cases “involving a dispute over the
number of hours of leave due might not be appropriately decided by an action in
mandamus”); see also State ex rel. McGarvey v. Zeigler, 62 Ohio St.2d 320, 321,
405 N.E.2d 722 (1980) (holding that declaratory judgment was “more suited to
resolving the issues presented” where the relator’s rights were not clear).
       {¶ 27} This court has explained that “ ‘[m]andamus is not well adapted to
the trial of questions of fact * * *. Its office is rather to command and enforce the
performance of those duties in which the public has some concern, and where the
right is clear, and does not depend upon complication of disputed facts which
must be settled from the conflicting testimony of witnesses.’ ”           (Emphasis
deleted.) State ex rel. Libby-Owens-Ford Glass Co. v. Indus. Comm., 162 Ohio
St. 302, 307, 123 N.E.2d 23 (1954) (overruled in part on other grounds, State ex
rel. Sibarco Corp. v. Berea, 7 Ohio St.2d 85, 218 N.E.2d 428 (1966)), quoting




                                         8
                                January Term, 2014




State ex rel. Boss v. Carpenter, 51 Ohio St. 83, 89, 37 N.E. 261 (1894),. That is
precisely the case here; Manley’s right to the compensation he seeks depends
entirely upon determination of the disputed question regarding his job
classification, which must be settled in his favor from the conflicting evidence
before he may succeed.
       {¶ 28} We acknowledge that this court has on occasion held that factual
disputes do not necessarily warrant dismissal of a mandamus action, but may
instead warrant an evidentiary hearing in the court of appeals. See State ex rel.
J.J. Detweiler Ents., Inc. v. Warner, 103 Ohio St.3d 99, 2004-Ohio-4659, 814
N.E.2d 482; State ex rel. Levin v. Schremp, 73 Ohio St.3d 733, 654 N.E.2d 1258
(1995); State ex rel. O’Farrell v. New Philadelphia City Council, 57 Ohio St.3d
73, 565 N.E.2d 829 (1991). Here, however, not only are factual disputes present,
but Manley has an adequate remedy at law to resolve them.
       {¶ 29} Specifically, Manley has an alternative remedy available through a
combined action for declaratory judgment—deciding his job classification—and
monetary relief in the court of common pleas. That single action in the common
pleas court will provide complete relief to Manley.         See State ex rel. Viox
Builders, Inc. v. Lancaster, 46 Ohio St.3d 144, 145, 545 N.E.2d 895 (1989)
(where a declaratory-judgment action would provide a complete remedy, it is an
adequate remedy to warrant denial of a writ of mandamus). But compare State ex
rel. Fenske v. McGovern, 11 Ohio St.3d 129, 464 N.E.2d 525 (1984) (where
declaratory judgment would not be complete remedy unless coupled with
mandatory injunction, availability of declaratory judgment was not appropriate
basis to deny a writ to which relator was otherwise entitled).
       {¶ 30} In summary, we conclude that Manley has not established a clear
legal right to the 50031 job classification or to any particular salary within the
salary range for that classification. Therefore, his right to back pay is not so clear
as to justify issuance of the extraordinary writ of mandamus, and an action for




                                          9
                              SUPREME COURT OF OHIO




declaratory judgment is more suited to resolving Manley’s claim. See Viox.
Because a single action in common pleas court can resolve Manley’s job
classification through declaratory judgment and, if appropriate, provide Manley
the monetary relief he seeks, Manley has an adequate remedy in the ordinary
course of the law.
          {¶ 31} For these reasons, we hold that the court of appeals was correct in
its determination that Manley failed to carry his burden of proof. However, we
caution that this decision is not an adjudication on the merits and should not bar
Manley from instituting an action for declaratory judgment in the court of
common pleas.
                                      Sanctions
          {¶ 32} During the proceedings in the court of appeals, Manley filed a
motion for sanctions against the county respondents. Manley accused them of
acting in bad faith by denying that he had served as chief counsel. In addition, he
accused the county of meritless delay tactics, including filing a motion for
reconsideration under App.R. 26, when that rule does not apply in original
actions.
          {¶ 33} Manley’s third allegation of misconduct concerned the county’s
motion to dismiss, filed on April 9, 2010. Section III.A of the motion argued that
Manley unreasonably failed to bring his salary complaint to Walsh’s attention
during his six years of employment and that the claim was therefore barred by
laches.     As part of that argument, the county stated that Walsh, as county
prosecutor, had statutory authority to set the salaries for unclassified employees,
not the county council.
          {¶ 34} Manley responded by filing a brief in opposition and a motion to
disqualify Walsh and her staff as counsel for the county, on the grounds of an
alleged conflict of interest. Thereafter, the county voluntarily withdrew Section
III.A of the motion to dismiss. The county indicated that it agreed with Manley




                                          10
                               January Term, 2014




that dismissal based on laches would not be appropriate at that stage of the
proceedings. The county reserved the right to reassert laches at the appropriate
juncture.
       {¶ 35} Based on the county’s withdrawal of the laches argument, the
appellate court denied the motion for disqualification.
       {¶ 36} In Manley’s view, the county acted improperly by removing the
argument from the motion to dismiss as a means to avoid an adverse
disqualification ruling, only to resurrect the issue in the motion for summary
judgment.
       {¶ 37} The appellate court denied Manley’s motion for sanctions.
       {¶ 38} This court reviews a lower court’s decision whether to award
sanctions for an abuse of discretion. State ex rel. Striker v. Cline, 130 Ohio St.3d
214, 2011-Ohio-5350, 957 N.E.2d 19, ¶ 11 (applying R.C. 2323.51); Toney v.
Berkemer, 6 Ohio St.3d 455, 458, 453 N.E.2d 700 (1983). “Abuse of discretion”
“ ‘connotes an unreasonable, arbitrary, or unconscionable decision.’ ” State ex
rel. Cincinnati Enquirer v. Hunter, 138 Ohio St.3d 51, 2013-Ohio-5614, 3 N.E.3d
179, ¶ 21, quoting State ex rel. Stine v. Brown Cty. Bd. of Elections, 101 Ohio
St.3d 252, 2004-Ohio-771, 804 N.E.2d 415, ¶ 12.
       {¶ 39} We find no abuse of discretion. Manley’s accusations of bad faith,
willful delay, and gamesmanship are unconvincing. What he describes as bad
faith is nothing more than an energetic defense.
       {¶ 40} As to Manley’s allegation that the county sought reconsideration of
an interlocutory ruling under App.R. 26 solely for purposes of delay, we are not
persuaded. Manley is correct that App.R. 26 does not apply to an original action
in an appellate court. But it appears to be a common error for parties in original
actions before the courts of appeals to invoke that rule. See, e.g., State ex rel.
Andrews v. Chardon Police Dept., 137 Ohio St.3d 468, 2013-Ohio-4772, 1
N.E.3d 333, ¶ 3; Brock v. Moore, 135 Ohio St.3d 188, 2013-Ohio-70, 985 N.E.2d




                                         11
                              SUPREME COURT OF OHIO




465, ¶ 1; Phillips v. Irwin, 96 Ohio St.3d 350, 2002-Ohio-4758, 774 N.E.2d 1218,
¶ 5. It was certainly not an abuse of discretion for the appellate court to conclude
that the App.R. 26 motion was filed in error and not as a willful act of
misconduct.
       {¶ 41} Finally, we reject Manley’s argument that the county engaged in
misconduct by withdrawing an argument from its motion to dismiss in order to
avoid disqualification, only to reassert the argument in its summary-judgment
motion. Nothing prevented Manley from renewing his disqualification motion as
soon as the county reasserted the argument.
       {¶ 42} For these reasons, we affirm the appellate court’s decision denying
the motion for sanctions.
                                     Conclusion
       {¶ 43} Based on the foregoing, we affirm the judgment of the court of
appeals.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and O’NEILL,
JJ., concur.
       PFEIFER, J., dissents and would remand the case to the court of appeals for
a hearing on the issue of damages.
                              ____________________
       Toma & Associates, L.P.A., Inc., Timothy N. Toma, and Stephen S.
Ellsesser, for appellant.
       Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Marvin
D. Evans, Assistant Prosecuting Attorney, for appellees.
                            _________________________




                                         12
