State ex rel. Zimmerman v. Tompkins

Zimmerman asserts that the court of appeals erred in granting Tompkins’s motion for summary judgment and denying the requested writ of mandamus. Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

In order to be entitled to a writ of mandamus, Zimmerman had to establish a clear legal right to the requested relief, a clear legal duty on the part of Tompkins to provide such relief, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Cassels v. Dayton City School Dish Bd. of Edn. (1994), 69 Ohio St.3d 217, 218-219, 631 N.E.2d 150, 152. The court of appeals determined that as to Zimmerman’s claim for a restoration of compensation, the collective bargaining agreement constituted an adequate legal remedy precluding a writ of mandamus.

Zimmerman contends that the allegations of his complaint were deemed admitted when Tompkins failed to timely file his answer. However, the dismissal motion filed by Tompkins which was subsequently converted by the court of appeals to a summary judgment motion tolled the time to file an answer until the summary judgment motion was resolved. Civ.R. 12(A) and (B); see, generally, 6 Moore’s Federal Practice (2 Ed.1988) 56-83 to 56-84, Paragraph 56.08, fn. 9 (Fed.R.Civ.P. 12[b][6] motion to dismiss converted into motion for summary judgment tolls time to file answer until adverse ruling on converted motion). In addition, when the respondent is a state officer like Tompkins who is sued in his representative capacity, courts must look beyond simple admissions resulting from the failure to timely serve a responsive pleading. State ex rel. Shimola v. Cleveland (1994), 70 Ohio St.3d 110, 112, 637 N.E.2d 325, 326.

Summary judgment is appropriate where the nonmoving party does not produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus; State ex rel. Morley v. Lordi (1995), 72 Ohio St.3d 510, 513, 651 N.E.2d 937, 940. When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmov-ing party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine triable issue. Civ.R. 56(E); Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52, 567 N.E.2d 1027, 1031.

Tompkins supported his motion for summary judgment with an affidavit and incorporated exhibit establishing that the collective bargaining agreement provided a grievance and arbitration procedure. To the extent that Zimmerman alleged violations of the collective bargaining agreement, the grievance and arbitration procedure provided therein constituted an adequate remedy at law which precluded extraordinary relief in mandamus. State ex rel. Johnson v. Cleveland Hts./Univ. Hts. School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 189, 192-193, 652 N.E.2d 750, 752; State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn. (1994), 71 Ohio St.3d 26, 34, 641 N.E.2d 188, 196. The fact that this procedure may no longer be available to Zimmerman due to the time limits set forth in the collective bargaining agreement does not render this remedy inadequate. Johnson, 73 Ohio St.3d at 193, 652 N.E.2d at 753. Where a plain and adequate remedy at law has been unsuccessfully invoked, a writ of mandamus will not lie to relitigate the same issue. State ex rel. Nichols v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities (1995), 72 Ohio St.3d 205, 209, 648 N.E.2d 823, 827.

Zimmerman also alleged violations of Section 1983, Title 42, U.S.Code and the United States and Ohio Constitutions as to his alleged reduction in compensation. Yet, Zimmerman failed to introduce summary judgment evidence to raise a genuine issue of material fact, instead relying on the conclusory allegation of his unsworn complaint that he had “no plain and adequate remedy in the ordinary course of the law.” Zimmerman did not adduce evidence that these violations were any different from the alleged violations of the collective bargaining agreement.

In addition, Zimmerman possessed an adequate remedy at law as to his federal civil rights and federal constitutional claims by a Section 1983 action in state common pleas court or federal district court. State ex rel. Peeples v. Anderson (1995), 73 Ohio St.3d 559, 560-561, 653 N.E.2d 371, 373; see Weinfurtner v. Nelsonville-York School Dist. Bd. of Edn. (1991), 77 Ohio App.3d 348, 355-356, 602 N.E.2d 318, 323. Further, as to the alleged state constitutional violation, it is evident that Zimmerman alleged only a de minimis deprivation of property and that the agreement’s grievance and arbitration procedure provided sufficient notice and opportunity to contest the administrative action. See, generally, Ohio Assn. of Pub. School Emp., AFSCME, AFL-CIO v. Lakewood City School Dist. Bd. of Edn. (1994), 68 Ohio St.3d 175, 624 N.E.2d 1043; Green Local Teachers Assn. v. Blevins (1987), 43 Ohio App.3d 71, 77-78, 539 N.E.2d 653, 659-660. The court of appeals properly granted summary judgment on Zimmerman’s compensation claim.

Zimmerman’s complaint also contained a claim for a writ of mandamus compelling Tompkins to report the alleged criminal violations committed by ODHS employees in connection with his leave forms. Zimmerman informed Tompkins of these alleged violations, but Tompkins refused to report them to law-enforcement officials. Zimmerman can report these alleged violations to law enforcement officials himself. See R.C. 124.341(A) (“If the employee reasonably believes that a violation or misuse of public resources is a criminal offense, the employee, in addition to or instead of filing a written report with the supervisor or appointing authority, may report it to a prosecuting attorney, director of law, village solicitor, or similar chief legal officer of a municipal corporation, to a peace officer * * * or * * * to the inspector general * * *.”). This remedy is complete, beneficial, and speedy as to Zimmerman’s assertion that Tompkins violated R.C. 2921.22(A) by failing to report the alleged criminal conduct. Therefore, Zimmerman was not entitled to a writ of mandamus on this claim either. See, e.g., State ex rel. Tipton v. Schisler (Sept. 24, 1991), Scioto App. No. 90CA1926, unreported, 1991 WL 192733 (Harsha, J., concurring) (mandamus does not lie to compel city solicitor and city prosecutor to file criminal charges where relator possesses adequate remedy by filing criminal charges himself under Crim.R. 3).

Accordingly, for the foregoing reasons, the court of appeals properly granted summary judgment in favor of Tompkins and denied the requested mandamus relief. The judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Pfeifer and Cook, JJ., concur.

Douglas, J., concurs in judgment only.

Resnick and F.E. Sweeney, JJ., concur in judgment only.

Wright, J., not participating.