[Cite as Cleveland Fire Fighters, Local 93 of the I.A.F.F. v. Cleveland, 2020-Ohio-4751.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

CLEVELAND FIRE FIGHTERS, 

LOCAL 93 OF THE I.A.F.F., : 

 Relator-Appellant, : 

 No. 109136 

 v. : 

 

CITY OF CLEVELAND, : 

 

 Respondent-Appellee. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: October 1, 2020

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-14-823955 

 

Appearances: 

 Diemert & Associates Co., L.P.A., Joseph W. Diemert, 

Jr., Thomas M. Hanculak, and Mark V. Guidetti, for 

appellant. 

Zashin & Rich Co., L.P.A., Jon M. Dileno, and Jessi L. 

Ziska; Barbara Langhenry, Cleveland Director of Law, 

and William Menzalora, Assistant Director of Law, for 

appellee. 

LARRY A. JONES, SR., J.: 

In this appeal, relator-appellant, Association of Cleveland Fire 

Fighters, Local 93 of the I.A.F.F. (“the Union” or “Local 93”), appeals from two 
September 24, 2019 trial court orders: the first, its “judgment entry and opinion” 

disposing of the parties’ motions for summary judgment, and the second, its “order 

issuing writ.” For the reasons that follow, we affirm. 

Procedural and Factual Background 

This case was initiated by the Union in March 2014, when it 

challenged respondent-appellee’s, the city of Cleveland, use of a noncompetitive 

exam to fill vacancies in the city’s division of fire. The vacancies were for the highlevel ranks of battalion chief and assistant chief. Historically, those positions were 

filled by applicants who took a competitive, rather than a noncompetitive, exam. 

In its complaint, the Union sought a declaratory judgment and injunctive relief; it 

also filed for a temporary restraining order and preliminary injunction ─ it sought 

to enjoin the city from administering the noncompetitive exam. In April 2014, the 

trial court dismissed the case on the ground that it lacked jurisdiction; Local 93 

appealed and the city cross-appealed. 

From January 2015 through March 2015, the city promoted six 

captains to battalion chief and one battalion chief to assistant chief through the 

noncompetitive exam process ─ a process the city contends was proper because 

Local 93 did not seek a stay of execution pending the outcome of the appeal. In 

April 2015, this court reversed the trial court’s judgment dismissing the Union’s 

case. Assn. of Cleveland Firefighters v. Cleveland, 2015-Ohio-1538, 31 N.E.3d 

1285, ¶ 1 (8th Dist.). 
On remand, in August 2015, the trial court granted Local 93’s 

request for injunctive relief and prohibited the city from making any further 

promotions through the noncompetitive process; it ordered the city to “maintain 

the status quo.” 

Thereafter, Local 93 was permitted to file an amended complaint, 

which included a writ of mandamus. In its writ, the Union requested that the city 

[i]mmediately administer competitive examinations, certify eligibility 

lists which would expire on July 2016, and make promotional 

appointments therefrom to fill (through the competitive promotional 

process) all vacancies created since the expiration of the last certified 

civil service eligibility list as well as all vacancies which are created 

during the life of the eligibility list certified through the competitive 

promotional process. 

The parties filed motions for summary judgment, and in September 

2016, the trial court dismissed the case, and the Union appealed again. In 2017, 

this court reversed the trial court a second time, and remanded the case to the trial 

court to consider the case on its merits. Assn. of Cleveland Firefighters Local 93 

I.A.F.F. v. Cleveland, 8th Dist. Cuyahoga No. 105033, 2017-Ohio-6887. 

On remand for a second time, and as instructed by this court, the 

trial court ruled on the parties’ motions for summary judgment. The court granted 

Local 93’s declaratory judgment claim in part, and declared that the 

noncompetitive process the city used in 2014 was unlawful. However, the trial 

court denied Local 93’s request for a declaratory judgment that all current 

assistant chief and battalion chief vacancies as well as any future vacancies be filled 

through the competitive exam process. Further, the trial court denied the city’s 
motion for summary judgment on the Union’s request in its writ that the city 

immediately administer competitive exams, and allowed the parties to submit 

additional briefing on that issue. In its supplemental briefing, the Union proposed 

a promotional process, which was a revised proposal to the one previously 

advocated for by the Union. The Union also sought, for the first time, back pay and 

other benefits for those who would be promoted subject to the court’s order (i.e., 

those who were not promoted because of the city’s noncompetitive testing system). 

On September 24, 2019, the trial court issued the two orders that are 

the subject of this appeal. In its judgment entry and opinion, the trial court stated 

that Local 93 “possesses a clear legal right to have all current vacancies in the 

Assistant Chief and Battalion Chief ranks filled by competitive exam.” Likewise, 

the court found that the city has a “corresponding legal duty to administer a 

competitive exam to fill all current vacancies for the position of Assistant Chief and 

Battalion Chief and that [Local 93] has no adequate remedy in the ordinary course 

of law.” 

However, the trial court denied Local 93’s request for back pay and 

benefits, finding that it failed to establish the amount of damages with certainty, as 

required by law. The court also denied Local 93’s request for attorney fees because 

it did not find the city’s conduct to be “bad faith, vexatious, wanton, obdurate, or 

oppressive.” The trial court further found that there was no “clear legal right to 
negatively affect the position of the five captains1 the City promoted to Battalion 

Chief during the course of the litigation.” 

The writ order required the following of the city: 

To immediately administer competitive examinations, certify 

eligibility lists to restore the promotional cycle, and make promotional 

appointments therefrom to fill all current vacancies in the Assistant 

Chief and Battalion Chief ranks of the Division of Fire within six 

months of this order. 

The Union filed this appeal, raising the following three assignments 

of error for our review: 

I. The trial court erred by failing to order two separate civil service 

promotional examinations ─ one for the battalion chief rank and one 

for the assistant chief rank ─ and failing to divide the resultant 

eligibility lists by the qualified candidates in each promotional period. 

II. The trial court erred by failing to award back pay, seniority and 

other benefits to the eventual appointees. 

III. The trial court erred by failing to award attorneys’ fees to Local 93. 

Law and Analysis 

When reviewing a trial court’s decision regarding a summary 

judgment motion, an appellate court conducts a de novo review. Doe v. Shaffer, 

90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000); Grafton v. Ohio Edison Co., 77 

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Thus, we must independently review 

the record to determine if summary judgment was appropriate and need not defer 

to the trial court’s decision. Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 

711, 622 N.E.2d 1153 (4th Dist.1993); Morehead v. Conley, 75 Ohio App.3d 409, 

 

1As mentioned, six captains were promoted to battalion chief, but one since retired, 

leaving five at issue. 
411-12, 599 N.E.2d 786 (4th Dist.1991). In determining whether a trial court 

properly granted a summary judgment motion, an appellate court must review the 

standard for granting a summary judgment motion as set forth in Civ.R. 56, as well 

as the applicable law. 

Under its first assignment of error, the Union contends that the two 

subject orders issued by the trial court create an inconsistency and, therefore, we 

should remand this case to the trial court so that it can do the following: 

Order the City to abide by the Ohio Revised Code’s mandatory 

competitive promotional examination procedure, clarify the specific 

components of Local 93’s proposed writ that the Trial Court rejects, 

require two competitive promotional exams (1 for each rank) be 

conducted, with the test results divided into two categories based on 

test takers’ eligibility to fill vacancies for the two promotional periods 

involved, and allow the five already-promoted individuals to remain 

in their positions but without accumulating seniority or [being] 

eligible for promotion without subsequent competitive examination. 

According to Local 93, although the trial court granted its writ of 

mandamus, the court “fail[ed] to set forth the proper procedure that the City 

should follow.” The Union maintains that the lack of specificity is particularly 

troubling in this case because “[t]he City’s past actions demonstrate its 

unwillingness to follow Chapter 124 of the Ohio Revised Code absent a clear and 

explicit court order.” 

Local 93 points to the following in the trial court’s orders as being 

unclear or contradictory: (1) the judgment entry and opinion states that the city 

has a “corresponding duty to administer a competitive exam to fill all current 

vacancies for the positions of Assistant Chief and Battalion Chief”; (2) but the 
judgment also states that the court “does not find a clear legal right and 

corresponding duty supporting the promotion process identified in [Local 93’s] 

proposed writ”; and (3) the writ “indicates a somewhat different determination” 

than the judgment order because it orders the city to “immediately administer 

competitive examinations” ─ which is different from the singular “exam” abovereferenced in the judgment entry. (All emphases added.) 

Upon review, we do not find that the trial court’s orders are 

ambiguous or unclear and, therefore, we find there is no need to remand this case 

for clarification. After determining that the Union has a “clear legal right to have 

all current vacancies in the Assistant Chief and Battalion Chief ranks filled by 

competitive exam,” the judgment entry states that the court “will issue the subject 

writ by separate order.” The writ order makes it clear what the city is to do: 

“immediately administer competitive examinations, certify eligibility lists to 

restore the promotional cycle, and make promotional appointments therefrom to 

fill all current vacancies in the Assistant Chief and Battalion Chief ranks of the 

Division of Fire within six months of this Order.” 

We are not persuaded by Local 93’s contention that the case should 

be remanded for clarification on whether the court’s order means the city should 

administer the same exam for the two separate positions, or whether, as 

historically has been done, administer two exams, one for each respective position. 

In our view, the writ order makes it clear that two exams, one for each respective 

position, are to be administered. 
Further, the record indicates that that was the city’s understanding 

as well: in its November 6, 2019 brief in opposition to the Union’s motion to stay 

and set bond filed in the trial court, the city represented that it “has already begun 

its implementation of the Court’s clear order, by preparing and presenting 

legislation for bids from testing companies to prepare two separate tests ─ one for 

Assistant Chiefs and one for Battalion Chiefs.” 

We are likewise not persuaded by Local 93’s contention that there is 

an inconsistency between the language in the trial court’s stating that the vacancies 

for the assistant chief and battalion chief positions must be filled through the 

competitive exam process and the language stating that the court “does not find a 

clear legal right and corresponding duty supporting the promotion process 

identified in [Local 93’s] proposed writ.” (Emphasis added.) The “proposed writ” 

that the court referred to was the Union’s proposal set forth in its summary 

judgment motion, which differed from what it originally proposed in its amended 

complaint. The court granted a writ, albeit not as the Union had revised its 

request. Moreover, the trial court detailed how the city was to proceed under the 

writ. 

In light of the above, the Union’s first assignment of error is 

overruled. 

In its second assignment of error, Local 93 challenges the trial 

court’s decision to deny its request for back pay and other benefits. In response, 

the city contends that the Union failed to request that relief in its original filing ─
its 2015 writ (the Union requested the relief for the first time in its 2019 motion for 

summary judgment) ─ and that that failure was fatal to its request. The Union, on 

the other hand, maintains that it was not precluded from such a request because its 

2015 amended complaint sought in its prayer for relief “any and all other relief, 

both legal and equitable that this Court is empowered to grant.” 

Under Civ.R. 54(C), except in the cases of default judgments, the 

trial court may award damages other than those requested in the pleading. 

Specifically, the rule provides as follows: 

A judgment by default shall not be different in kind from or exceed in 

amount that prayed for in the demand for judgment. Except as to a 

party against whom a judgment is entered by default, every final 

judgment shall grant the relief to which the party in whose favor it is 

rendered is entitled, even if the party has not demanded the relief in 

the pleadings. 

Civ.R. 54(C). 

However, this case was a writ of mandamus. A writ of mandamus is 

“an extraordinary writ which may be issued only where relators establish a clear 

legal right to the relief prayed for; a clear legal duty upon respondents to perform 

the act requested; and that relators have no plain and adequate remedy in the 

ordinary course of the law.” (Emphasis added.) Morgan v. Cincinnati, 25 Ohio 

St.3d 285, 496 N.E.2d 468 (1986), citing State ex rel. Butler v. Demis, 66 Ohio 

St.2d 123, 124, 420 N.E.2d 116 (1981). Notwithstanding that the Union failed to set 

forth a request for the specific relief it sought in its writ petition, for the reasons 
that follow, we agree with the trial court’s decision to deny Local 93 back pay and 

other benefits. 

In State ex rel. Gibbons v. Cleveland, 9 Ohio St.3d 216, 459 N.E.2d 

892 (1984), the Ohio Supreme Court stated the rule for public employees’ requests 

for back pay. In Gibbons, the relators, police officers, sought back pay after certain 

ordinances enacted by the city were declared invalid; the relators requested back 

pay for time during which the city acted in reliance on the ordinances. The Ohio 

Supreme Court held that a police officer “has no legal right to the salary and 

benefits incidental to a rank prior to his [or her] appointment to that rank, 

regardless of the reasons for the failure to make the appointment.” (Quotations 

omitted.) Id. at 287. Two years later, the court created an exception to this 

holding in Morgan. 

In Morgan, the plaintiffs (Robert Morgan and Michael Hines) were 

classified civil service employees and police officers for the city of Cincinnati. 

Morgan and Hines sued the city, alleging that each had been delayed in his 

promotion to the rank of police captain due to actions taken knowingly and in bad 

faith by the city’s safety director. Both sought restoration of lost seniority and back 

pay. 

The parties stipulated to the following relevant facts. On November 

8, 1975, a vacancy in the rank of police captain was created as the result of the 

incumbent’s resignation. Four days later, a request to fill the vacancy was 

transmitted to the city’s safety director for forwarding to the civil service 
commission. At the time, there was no existing eligible list from which to make a 

promotion to the vacant position. Under R.C. 124.44, therefore, the civil service 

commission would have been required to hold a competitive examination for the 

rank of captain within 60 days of the vacancy, or by January 7, 1976. When the 

request to fill the vacancy was made, Morgan and Hines each had sufficient time in 

grade as police lieutenants to qualify to take a timely administered competitive 

promotional examination for the rank of police captain. 

Notwithstanding the above, on November 12, 1975, two police 

lieutenants who did not have sufficient time in grade to qualify sent a joint request 

to delay the examination until after March 10, 1976, so that they could establish the 

requisite time in grade requirements. The competitive examination was delayed 

until March 18, 1976, or 131 days after the vacancy occurred. As a result of the 

delay, the two previously ineligible lieutenants became eligible to take the exam, 

along with Morgan and Hines (and others) who would have been eligible to take 

the exam if it had been timely administered. 

On May 27, 1976, the civil service commission posted the 

promotional eligibility list that resulted from the delayed examination. Prior to 

that date, two additional vacancies had occurred in the rank of police captain, so 

there were three vacancies immediately available. Jeffrey Butler, one of the 

lieutenants who would have been ineligible to take a timely administered 

examination, ranked second on the eligibility list; plaintiff Morgan ranked fourth, 

and plaintiff Hines ranked fifth. Both plaintiffs were eventually promoted to the 
rank of police captain as additional vacancies occurred. However, the parties 

stipulated to the following: 

Had the competitive promotional examination for the classification 

(rank) of Police Captain been administered within sixty (60) days of 

the vacancy created by the November 8, 1975 retirement * * * Jeffrey 

L. Butler [who placed second on the eligibility list] could not have 

been certified for promotion to the rank of Police Captain * * *. 

If plaintiff Morgan [who placed fourth on the eligibility list] had 

received promotion to the rank of Police Captain on May 30, 1976, the 

date Jeffrey L. Butler was promoted to the rank of Police Captain, he 

would have been entitled to increased earnings totalling [sic] * * * 

[$244.59] and his date of appointment as a Police Captain for 

seniority purposes would have been May 30, 1976. * * * 

If Plaintiff Hines had received promotion to the rank of Police Captain 

on July 8, 1976, the date Robert L. Morgan was promoted to the rank 

of Police Captain, he would have been entitled to increased earnings 

totalling [sic] * * * [$2,651.88] and his date of appointment as a Police 

Captain for seniority purposes would have been July 8, 1976 * * *. 

Id. at 286. 

The trial and appellate courts found that even though the city’s delay 

of testing constituted “bad faith,” the Ohio Supreme Court’s holding in Gibbons, 9 

Ohio St.3d 216, 459 N.E.2d 892, precluded the plaintiffs from obtaining back pay 

and other benefits. Morgan at 287. 

On appeal to the Ohio Supreme Court, the Morgan court held that 

“where a civil service employee shows that a promotion to which he [or she] was 

entitled was delayed as the result of actions taken by a municipality in violation of 

R.C. 124.44, that employee is entitled to recover back pay and seniority for the 

period of delay.” Id. at 289. The Morgan court stated, however, that, “Gibbons is 

entirely different from the case at bar.” Morgan at id. Specifically, the court noted 
that the city’s actions in Morgan were in violation of state law and were found to 

be in bad faith. Id. 

We find the facts of this case to be more on par with Gibbons than 

Morgan. Specifically, there was no determination that the city was per se 

precluded from administering noncompetitive exams for the battalion chief and 

assistant chief positions. And some of the trial court’s decisions seem to indicate 

that there is no such per se preclusion. For example, the trial court denied the 

Union’s request for a permanent injunction prohibiting the use of noncompetitive 

exams. The court also denied the Union’s request for a broad declaratory 

judgment that the vacancies for all the battalion chief and assistant chief police 

positions, including those yet to be created, be filled through the competitive civil 

service examination process. 

Local 93 also cites to two other Ohio Supreme Court cases in 

support of its request for back pay and other benefits: State ex rel. Crockett v. 

Robinson, 67 Ohio St.2d 363, 423 N.E.2d 1099 (1981), and State ex rel. Dean v. 

Huddle, 45 Ohio St.2d 234, 344 N.E.2d 138 (1976). We find Crockett and Dean

distinguishable from this case. Specifically, they involve situations where the 

employee was reinstated after discharge because of the city’s violation of the Ohio 

Revised Code (Crockett) or reinstated after illegally being laid off (Dean). 

Moreover, the employees in Crockett and Dean were able to prove with certainty 

that, but for the unlawful acts of their employers, they would have been the 

employees working in the respective positions; thus, their damages were 
ascertainable with certainty. The trial court here found Local 93’s request for back 

pay and other benefits lacking the requisite certainty and, therefore, denied the 

Union’s request. We agree with the trial court’s finding. 

In its decision denying the Union’s request for back pay and other 

benefits, the trial court relied on the seminal case on this issue, State ex rel. 

Bednar v. N. Canton, 69 Ohio St.3d 278, 631 N.E.2d 621 (1994). In Bednar, the 

Ohio Supreme Court held that the relator “must first establish that the dismissal or 

denial of promotion was wrongful. * * * Then, the relator must prove a clear right 

to relief by establishing the amount due with certainty.” Id. at 283, citing State ex 

rel. Martin v. Columbus, 58 Ohio St.2d 261, 389 N.E.2d 1123 (1979), and Crockett. 

The Bednar court did not define what “wrongful” means in this 

context. However, for the reasons discussed above, we do not find that the city’s 

action in this case was “wrongful.” But more importantly, we agree with the trial 

court’s assessment that the Union’s members did not establish with any certainty 

that the city’s noncompetitive testing process denied any of the members a 

promotion. We note that this case is distinguishable from Bednar, where the 

employee had already taken a competitive examination, was scored, and an 

eligibility list was created. Id. at 278. In contrast, here, the Union was asking the 

trial court to find that had the city administered a competitive examination in 

2014, and if members had taken it, they would have scored high enough to earn a 

promotion. That type of speculation does not fulfill the requirement that a relator 
“prove a clear right to relief by establishing the amount due with certainty.” 

Bednar at id. 

In light of the above, we find no error in the trial court’s denial of 

Local 93’s request for back pay and other benefits. The second assignment of error 

is therefore overruled. 

In its final assignment of error, the Union challenges the trial court’s 

decision to deny its request for attorney fees. 

In Ohio, the general rule is that, absent a statutory provision 

allowing attorney fees as costs, the prevailing party is not entitled to an award of 

attorney fees unless the party against whom the fees are taxed was found to have 

acted in bad faith. State ex rel. Kabatek v. Stackhouse, 6 Ohio St.3d 55, 55-56, 451 

N.E.2d 248 (1983). Bad faith can involve conduct during litigation, but can also 

involve conduct giving rise to a party’s claim. See, e.g., Brooks v. Dayton, 70 Ohio 

App.3d 722, 723, 591 N.E.2d 1352 (2d Dist.1990). Trial court decisions on attorney 

fees are within the court’s sound discretion and are reviewed for abuse of 

discretion. SST Bearing Corp. v. Twin City Fan Cos., Ltd., 1st Dist. Hamilton No. 

C-110611, 2012-Ohio-2490, ¶ 29. 

The trial court in this case found “no bad faith, vexatious, wanton, 

obdurate, or oppressive conduct necessary to allow attorney fees and therefore 

decline[d] to issue a writ ordering payment of attorney’s fees * * *.” We decline to 

disturb the court’s judgment. Deferring to the trial court’s judgment, as we must 

under an abuse-of-discretion review, we do not find the court’s decision denying 
the Union’s request for attorney fees was unreasonable or arbitrary. For the 

reasons discussed earlier in this opinion, we agree with the trial court that the 

city’s actions in this case did not amount to bad faith. 

In light of the above, the third assignment of error is without merit 

and is overruled. 

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 said 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. 

 

LARRY A. JONES, SR., JUDGE 

ANITA LASTER MAYS, P.J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR