[Cite as Assn. of Cleveland Firefighters, Local 93 I.A.F.F. v. Cleveland, 2018-Ohio-2049.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 106472

ASSOCIATION OF CLEVELAND 

FIREFIGHTERS, LOCAL 93 I.A.F.F. 

PLAINTIFF 

vs. 

CITY OF CLEVELAND, ET AL. 

DEFENDANTS-APPELLEES 

[Appeal by Deberra 

Schroeder, et al., Appellants] 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

 Cuyahoga County Court of Common Pleas 

Case No. CV-14-823955 

BEFORE: Boyle, J., Stewart, P.J., and Celebrezze, J. 

 

RELEASED AND JOURNALIZED: May 24, 2018 
ATTORNEYS FOR APPELLANTS

Timothy D. Smith 

Karen Lefton 

The Lefton Group, L.L.C. 

3480 W. Market Street, Suite 304 

Akron, Ohio 44333 

ATTORNEYS FOR APPELLEES

For City of Cleveland, Frank Jackson, and City of Cleveland 

Civil Commission 

Barbara Langhenry 

Director of Law 

City of Cleveland 

William M. Menzalora 

Chief Assistant Director of Law 

601 Lakeside Avenue, Room 106 

Cleveland, Ohio 44114 

Jon M. Dileno 

Jessi L. Ziska 

Zashin & Rich Co., L.P.A. 

950 Main Avenue 

Cleveland, Ohio 44113 

For Angelo Calvillo, Captain Christopher Posante, and 

Kenneth Drost 

Bradric T. Bryan 

Goodwin & Bryan, L.L.P. 

22050 Mastick Road 

Fairview Park, Ohio 44126 

For John Coughlin, et al. 

Scott C. Essad 

721 Boardman-Poland Road, Suite 201 

Boardman, Ohio 44512 

For Battalion Chief Anthony P. Luke 

Edward Richard Stege 
Stege & Michelson Co., L.P.A. 

30799 Pinetree Road, Suite 302 

Cleveland, Ohio 44124 

ALSO LISTED

For Association of Cleveland Firefighters, Local 93 I.A.F.F. 

Joseph W. Diemert 

Mark V. Guidetti 

Thomas M. Hanculak 

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

1360 S.O.M. Center Road 

Cleveland, Ohio 44124 

MARY J. BOYLE, J.: 

{¶1} Eight fire captains of the Cleveland Fire Department have been seeking to 

intervene in a case filed over four years ago by the firefighters’ union against the city of 

Cleveland. The eight fire captains contend that they were eligible for promotion to the ranks of 

battalion chief and assistant chief within the fire department but were deprived of the opportunity 

to take a competitive promotional examination designed to test for merit and fitness as required 

by the Ohio Constitution, Ohio Revised Code, Cleveland City Charter, and Cleveland Civil 

Service Rules. 

{¶2} These eight fire captains, the proposed intervenors and appellants in this case 

(hereinafter referred to as “appellants”) appeal the trial court’s denial of their motion to 

intervene. Specifically, the appellants wish to intervene in the lawsuit filed on March 20, 2014, 

by the Association of Cleveland Firefighters, Local 93 I.A.F.F. (“union” or “Local 93”) against 

the city of Cleveland. In its complaint, the union seeks to stop the city from administering 
noncompetitive examinations for promotion to the positions of assistant chief and battalion chief. 

{¶3} The appellants raise one assignment of error for our review, namely, that “[t]he 

trial court abused its discretion in denying [their] motion to intervene.” We find no merit to 

their arguments and affirm the judgment of the trial court. 

I. Procedural History and Factual Background

{¶4} The procedural history and factual background of this case is not in dispute and is 

largely compiled from the parties’ briefs and from previous appeals filed with this court and the 

Ohio Supreme Court. 

A. March 2014 Announcement

{¶5} On March 14, 2014, the city issued a “civil service announcement” that it would 

conduct a “noncompetitive examination” for the positions of assistant chief and battalion chief. 

The noncompetitive process used by the city consisted of the submission of a resume and an 

interview by a group of panelists. The application filing period was set from March 17, 2014 

through March 22, 2014.1

{¶6} This was the first time the city ever used noncompetitive testing to promote 

individuals in the fire department. Prior to this, the city used a competitive examination for 

promotions. 

B. The Dismissal of the Union’s Complaint and its 

 Initial Appeal

{¶7} The trial court sua sponte raised the issue of subject matter jurisdiction. It held a 

hearing on the matter on April 17, 2014. Both the union and the city argued that the trial court 

had proper jurisdiction because the issue of noncompetitive exams was not addressed in their 

 

1

On March 20, 2014, the same day the union filed its complaint, the trial court entered an order allowing the city to 

continue to accept applications through the city’s set deadline. 
collective bargaining agreement. On April 25, 2014, the trial court issued a decision finding 

that it lacked jurisdiction to hear the matter in light of the union’s failure to exhaust its remedies 

under the collective bargaining agreement. The court sua sponte dismissed the union’s claims 

as a matter of law. 

{¶8} The union appealed, and the city cross-appealed. See Assn. of Cleveland 

Firefighters, Local 93 I.A.F.F. v. Cleveland, 8th Dist. Cuyahoga No. 101369, 2015-Ohio-1538. 

Both parties argued the trial court erred when it dismissed the union’s complaint for lack of 

subject matter jurisdiction. On April 23, 2015, this court reversed the trial court’s decision and 

remanded the matter for the trial court to adjudicate the union’s complaint and injunction 

motions. Id. at ¶ 24. 

C. The City Promoted Six Fire Captains through the 

 Noncompetitive Examination Process

{¶9} The union did not request a stay of execution pending the outcome of the appeal. 

Thus, while the matter was pending before this court, the city administered the noncompetitive 

promotional exam in December 2014. Through this noncompetitive examination, the city 

promoted six fire captains to fill the battalion-chief positions in the early months of 2015. 

D. The Trial Court Grants the Union’s Motion for 

 Preliminary Injunction

{¶10} According to the city, additional vacancies arose for the positions of battalion chief 

and assistant chief in March and April 2015. But after this court reversed and remanded the 

union’s first appeal (which was on April 23, 2015), the trial court granted the union’s preliminary 

injunction in August 2015, prohibiting the city from promoting any other fire captains through 

the noncompetitive examination process. 

{¶11} In its order granting the union’s preliminary injunction, the trial court found that 
the city’s administrative decision to change to noncompetitive testing was not supported by the 

evidence and there was a substantial likelihood that the union would prevail on the merits of its 

declaratory judgment. The trial court further found that if the injunction was not granted, the 

potential of irreparable harm to the union was “quite real” because “[t]he decisions for which 

battalion and assistant chiefs are responsible are often life and death decisions.” 

E. The Union’s Amended Complaint

{¶12} In September 2015, the union moved for leave to amend its complaint, which the 

trial court granted in December 2015. In its amended complaint, the union again sought a 

declaratory judgment, a preliminary injunction, and permanent injunction and also sought a 

petition for a writ of mandamus. The union maintained that because the March 14, 2014 

announcement violated the Ohio Constitution, both state and local law, and the city’s charter it 

was entitled to 

a declaratory judgment that all vacancies in the promoted ranks of Division of Fire 

created since the expiration of the most recent certified civil service eligibility 

lists, as well as any such vacancies which have yet to be created in the promoted 

ranks, must be filled by a competitive examination process in compliance with 

applicable law. 

{¶13} The union also sought preliminary and permanent injunctions prohibiting the 

administration of noncompetitive promotional exams for any promoted rank in the fire 

department and sought a writ of mandamus “as a result of the city’s failure to comply with its 

clear legal duties with regard to promotional examinations within the Division of Fire[.]” The 

union sought a writ directing the city to immediately administer competitive exams, certify 

eligibility lists to restore the promotional cycle, and fill all promotional vacancies created since 

the expiration of the most recent certified civil service eligibility lists with firefighters from the 

newly administered competitive exams. 
F. Motions to Intervene

{¶14} Numerous firefighters moved to intervene in the case. The intervenors and 

proposed intervenors can be divided into three groups. The first group includes four firefighters 

who moved to intervene in the case because they asserted that they completed the noncompetitive 

examination and wished to preserve their spots on the promotion list generated by that process. 

These firefighters argued that their interests were in direct conflict with the union’s interests. 

The city did not oppose these motions because they were aligned with the city’s position. The 

trial court granted these firefighters’ motions to intervene. 

{¶15} The second group of intervenors includes five firefighters who were actually 

promoted as a result of the noncompetitive testing process. The city did not oppose these 

motions either because, again, their positions were directly aligned with the city’s position. 

{¶16} The third group of “proposed intervenors” includes 12 fire captains who wished to 

intervene in the case to challenge the noncompetitive examination process. Eight of these 

original 12 fire captains are the appellants in this appeal (4 of the original 12 have since retired). 

These 12 fire captains filed their motion to intervene on September 8, 2015. They argued that 

they were denied the opportunity to compete fairly for the position of battalion chief through a 

competitive examination test for merit and fitness, which they contend is required by law. The 

city opposed these fire captains’ motion to intervene. 

{¶17} As of November 12, 2015, two months after they filed their motion, the trial court 

had not yet ruled on the proposed intervenors’ motion to intervene, so they withdrew it. 

Subsequently, they filed a writ of mandamus in the Ohio Supreme Court. With respect to their 

reason for withdrawing their motion to intervene, appellants contend the following in their brief 

to this court: 
[T]he trial court had granted a preliminary injunction and temporary restraining 

order, determining that the union had a high likelihood of success on the merits. 

That led the attorneys — including representatives for the city, the union, all nine 

intervenors and the eight captains [the proposed-intervenors appellants] — to 

determine that mediation might be fruitful. They selected a mediator and set 

November 19 as the date for mediation. The trial court set a case management 

conference for October 29, at which time it “was informed that the parties have 

agreed on a private mediator and have set a date for that mediation: 11/19/2015.” 

(Oct. 29, 2015, judgment entry.) Counsel for the eight captains had asked to 

participate in that telephonic CMC and was told she would be conferenced in “as 

long as no one objected.” She was not conferenced in; the city had objected. 

The parties — the union, the city and the nine intervenors who wanted to uphold 

their spots on the noncompetitive application list — prepared for mediation. 

There would be no seat at the table for the eight captains. Their motion to 

intervene had been pending for more than two months. The six intervenors who 

filed later had already been allowed in. Mediation was imminent. The eight 

captains made the calculated, strategic decision to stop the train until they could 

get on, determining that there should be no resolution without their interests 

represented. 

{¶18} Appellants assert that their filing the writ of mandamus in the Ohio Supreme Court 

“had the desired impact of halting the mediation.” The trial court issued a judgment entry on 

November 23, 2015, stating 

The court has been informed that the private mediation that was scheduled in this 

matter did not go forward and has been indefinitely suspended. The parties are 

hereby advised that this matter will proceed under the case management schedule 

established by this court. 

G. 12 (8 Remaining) Fire Captains’ Writ of Mandamus

{¶19} The day after the 12 fire captains withdrew their motion to intervene, they filed a 

complaint for a writ of mandamus with the Ohio Supreme Court in State ex rel. Schroeder v. 

Cleveland, 150 Ohio St.3d 135, 2016-Ohio-8105, 80 N.E.3d 417. The 12 fire captains (relators 

in the Schroeder case) asserted that they had a clear legal right to require that the city 

choose battalion chiefs and assistant chiefs from among the three highest scores in 

a competitive promotional exam, that they have no adequate remedy in the 

ordinary course of the law, and that [the city] has no lawful reason for refusing to 
offer a competitive exam or for filling the positions with firefighters who do not 

rank among the top three scores in a competitive exam. 

Id. at ¶ 11. 

{¶20} They requested that the Ohio Supreme Court order the city 

to immediately offer a competitive promotional exam to all firefighters who were 

eligible to sit for such a test when the noncompetitive examination process was 

announced in March 2014, fill all battalion-chief and assistant-chief positions 

available since March 2014 with firefighters who rank in the top three of that 

competitive test, make those promotions retroactive to the date each would have 

been effective if [the city] had complied with the law, and provide back pay and 

benefits to the firefighters promoted under the new competitive process. 

Id. 

{¶21} The Supreme Court found that the relators challenged the noncompetitive 

examination process on the same grounds as the union did in its amended complaint and sought 

the immediate return of the competitive examination process. Id. at ¶ 21. The Supreme Court 

dismissed the relators’ writ, finding that they had an adequate remedy in the ordinary course of 

law by way of intervention. Id. at ¶ 24. The Supreme Court further stated that although the 

trial court would not rule on the 12 fire captains’ motion to intervene and had “scheduled 

mediation without having allowed their intervention,” the 12 fire captains should have filed a 

writ of procedendo “to force the trial court to grant or deny their motion to intervene.” Id. at ¶ 23, 

25. 

{¶22} The Supreme Court issued its decision on the 12 fire captains’ writ on December 

14, 2016. The appellants (8 remaining of the original 12 fire captains) now assert that when the 

Supreme Court dismissed their writ, they could not move to intervene again in the case because it 

had been pending on appeal for the second time at that point, as explained in the next section. 

H. The Union’s and the City’s Motions for Summary 

 Judgment and the Union’s Second Appeal 
{¶23} Meanwhile, in March 2016, the union and the city each filed motions for summary 

judgment. The union opposed the city’s motion. The city, however, did not file a response in 

opposition to the union’s motion for summary judgment. In September 2016, the trial court 

dismissed the action for a second time, finding that there was no justiciable issue or controversy 

because the positions had already been filled through the noncompetitive examination process. 

{¶24} The union appealed this decision. See Assn. of Cleveland Firefighters, Local 93 

I.A.F.F. v. Cleveland, 8th Dist. Cuyahoga No. 105033, 2017-Ohio-6887 (“second appeal”). On 

July 20, 2017, this court found that the trial court erred when it dismissed the union’s complaint, 

noting that “[o]n its face, the record appears to support [the union’s] position that the city’s 

decision to use a noncompetitive examination appears to be a violation of the Ohio Constitution, 

state and local law, and the city’s Charter.” Id. at ¶ 37. We reversed the trial court’s decision 

and remanded the case, instructing the trial court to rule on the merits of the parties’ summary 

judgment motions. Id. 

I. Appellants File a Second Motion to Intervene

{¶25} On July 28, 2017, about a week after this court reversed the trial court’s decision in 

the second appeal, the appellants again moved to intervene in the case, which the trial court 

denied on October 23, 2017. 

{¶26} In its judgment denying the motion to intervene, the trial court stated that it 

“initially” denied the appellants’ motion because they failed to attach a pleading as required by 

Civ.R. 24(C).2

 The trial court then stated: 

Second, the court finds the motion to intervene is not timely. The present case 

was filed more than three years before the intervenors’ most recent motion to 

 

2

‘The trial court incorrectly stated Civ.R. 26(C), but it is clear that it meant Civ.R. 24(C). 
intervene was filed, and one and a half years before the prior motion to intervene, 

which was voluntarily withdrawn on 11/12/2015. The court has conducted 

lengthy hearings and the parties have briefed multiple motions for summary 

judgment. Furthermore, the Eighth District’s latest opinion in this matter 

instructed the court to consider the merits of plaintiff’s motion for summary 

judgment. * * * Consistent with the Eighth District’s opinion, this court is 

ready to proceed in adhering to the Eighth District’s directive. The time for new 

pleadings and claims has clearly passed. Furthermore, the proposed intervenors 

have not simply re-filed their prior motion to intervene. In their prior motion to 

intervene, filed on 09/08/2015, the intervenors sought to participate as defendants, 

and with that motion, an answer was properly submitted. However, the motion 

was withdrawn on 11/12/2015 and the proposed intervenors now seek to intervene 

as plaintiffs. In light of these circumstances, the motion to intervene is not 

timely and must be denied. 

{¶27} It is from this judgment that the appellants appeal, contending that the trial court 

erred in doing so. The trial court agreed to stay the proceedings pending appeal. 

II. Law and Analysis

A. Standard of Review for Motion to Intervene

{¶28} The appellants contend that the trial court abused its discretion when it denied their 

motion to intervene as a matter of right under Civ.R. 24(A)(2).3 

{¶29} To intervene in a case as a matter of right, the movant must file a timely 

application and show, pursuant to Civ.R. 24(A)(2), that: (1) the movant “claims an interest 

relating to the property or transaction that is the subject of the action”; (2) “disposition of the 

action may as a practical matter impair or impede the applicant’s ability to protect that interest”; 

and that (3) the applicant’s interest is not “adequately represented by existing parties.” Civ.R. 

24(C) also requires that the motion “be accompanied by a pleading, as defined in Civ.R. 7(A), 

setting forth the claim or defense for which intervention is sought.” Generally, courts construe 

 

3

In their motion, they argued that they had a right to intervene under Civ.R. 24(A) and, alternatively, that they should 

be permitted to intervene under Civ.R. 24(B). On appeal, however, they only argue that they had a right to 

intervene. 
Civ.R. 24(A) liberally to allow intervention. State ex rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d 

245, 247, 594 N.E.2d 616 (1992). 

{¶30} We review a trial court’s decision on a motion to intervene for abuse of discretion.

 State ex rel. N.G. v. Cuyahoga Cty. Court of Common Pleas, 147 Ohio St.3d 432, 

2016-Ohio-1519, 67 N.E.3d 728, ¶ 21, citing State ex rel. Merrill v. Ohio Dept. of Natural 

Resources, 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935. 

B. “Profound Miscarriage of Justice”

{¶31} The appellants first argue that the trial court abused its discretion in denying their 

motion to intervene because “a profound miscarriage of justice” will occur without them in the 

case because it would “result in litigation progressing without the fundamental rights of 

interested and necessary parties being represented.” 

{¶32} The appellants rely heavily on State ex rel. N.G. in support of their argument. At 

the outset, we find that State ex rel. N.G. is not analogous to the facts in the present case and does 

not help the appellants. The procedural history of State ex rel. N.G. is complicated and not 

relevant here, but the case involved a custody dispute between a mother and father where the 

father was attempting to prevent the mother from intervening in a prohibition case that would 

affect the custody of their child. Id. at ¶ 1-3. Suffice it to say, State ex rel. N.G. was an 

extraordinary case involving a mother’s “fundamental constitutional right to make decisions 

concerning the care, custody, and control of her children.” Id. at ¶ 22, citing Troxel v. 

Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). 

{¶33} The appellants appear to argue that in State ex rel. N.G., the Ohio Supreme Court 

set forth a new standard for determining abuse of discretion when reviewing a trial court’s 

decision on a motion to intervene. They claim in their brief that the Supreme Court 
concluded that discretion is abused where (1) the prejudice to the original parties 

due to the proposed intervention in minimal; (2) the respondent judge and court 

certainly were not prejudiced by the proposed intervention, since they have no 

personal stake in the outcome other than an additional case on the docket; and (3) 

the original parties can hardly claim prejudice where they should have reasonably 

expected the proposed intervenor to intervene at some point to protect her 

interests. 

{¶34} In actuality, however, the Supreme Court was merely discussing the specific 

factors in that case to determine whether the mother’s motion to intervene was timely. The 

Supreme Court analyzed the timeliness factors as follows: 

[Father] argues that under Civ.R. 24(A), [mother] did not file her motion to 

intervene “timely.” In State ex rel. First New Shiloh Baptist Church v. Meagher, 

82 Ohio St.3d 501, 1998-Ohio-192, 696 N.E.2d 1058 (1998), this court laid out 

five factors for determining whether a motion to intervene is timely: 

“(1) the point to which the suit had progressed; (2) the purpose for which 

intervention is sought; (3) the length of time preceding the application during 

which the proposed intervenor knew or reasonably should have known of his 

interest in the case; (4) the prejudice to the original parties due to the proposed 

intervenor’s failure after he knew or reasonably should have known of his interest 

in the case to apply promptly for intervention; and (5) the existence of unusual 

circumstances militating against or in favor of intervention.” 

Id. at 503, quoting Triax Co. v. TRW, Inc., 724 F.2d 1224, 1228 (6th Cir.1984). 

The factors as applied to this case do not lead to a clear result. On the one hand, 

the purpose of intervention was to protect [mother’s] right to the care and custody 

of her children and to present evidence about the false basis for Virginia’s 

jurisdiction to the court; these are obviously important purposes. The prejudice 

to the original parties due to the proposed intervention is minimal. The 

respondent judge and court certainly were not prejudiced by the proposed 

intervention, since they have no personal stake in the outcome other than an 

additional case on the docket. [Father] can hardly claim prejudice when he filed 

a prohibition case as part of lengthy litigation regarding the custody of the 

children and did not name [mother], the children’s mother, as a party. He should 

have reasonably expected [mother] to intervene at some point to protect her 

interests. 

On the other hand, the case had already progressed to judgment, and as [father] 

points out, courts rarely allow intervention after judgment. First New Shiloh, 82 

Ohio St.3d at 503-504, 696 N.E.2d 1058. The parties disagree as to when S.F. or 
her attorneys became aware of the prohibition case. [Mother] claims that neither 

she nor her counsel was notified of the writ proceedings, and the writ was 

captioned using only [father’s] initials, which concealed [father’s] identity. 

[Father] counters that [mother] or her counsel were aware of the prohibition action 

in plenty of time for her to have intervened before the court decided the case. 

Evidence in the record on this issue is contradictory, but [mother] and her Ohio 

counsel assert under oath that they had no knowledge of the prohibition action 

until after the writ was issued. Virginia counsel asserts under oath that he was 

never given a copy of the prohibition pleading. 

State ex rel. N.G., 147 Ohio St.3d 432, 2016-Ohio-1519, 67 N.E.3d 728, at ¶ 23-25. 

{¶35} The Supreme Court went on to hold that not only should the trial court have 

allowed mother to intervene as a matter of right, but that father should have joined mother as a 

necessary party under Civ.R. 19(A) as well. Id. at ¶ 26, 28. 

{¶36} After reviewing State ex rel. N.G., we conclude that it did not change the standard 

for reviewing courts when determining whether a trial court abused its discretion. We further 

find that State ex rel. N.G. has no applicability to the facts in the present case. 

C. Civ.R. 24(C) 

{¶37} The trial court first denied the appellants’ motion to intervene because they failed 

to attach the required pleading that is mandated by Civ.R. 24(C). This statute provides, “[t]he 

motion and any supporting memorandum shall state the grounds for intervention and shall be 

accompanied by a pleading, as defined in Civ.R. 7(A), setting forth the claim or defense for 

which intervention is sought.” 

{¶38} “Motions to intervene are regularly denied (and/or the denial upheld) due to the 

failure to attach a pleading as required by Civ.R. 24(C).” Yemma v. Reed, 7th Dist. Mahoning 

No. 16 MA 0015, 2017-Ohio-1015, ¶ 46 (upholding trial court’s denial of motion to intervene in 

a tax foreclosure action where intervenor who ultimately sought relief from the foreclosure 

decree failed to attach a pleading to his motion to intervene); see also State ex rel. Sawicki v. 
Court of Common Pleas of Lucas Cty., 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, 

¶ 21-22 (affirming denial of the motion to intervene on the ground that the intervenor failed to 

comply with Civ.R. 24(C) even though trial court did not rely on this rule provision when 

denying the motion); State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106, 2003-Ohio-2506, 789 

N.E.2d 203, ¶ 12, fn. 1 (denied motion to intervene because proposed intervenors failed to 

comply with Civ.R. 24(C)); State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 

143, 144, 656 N.E.2d 1277 (1995) (denied motion to intervene because proposed intervenors 

failed to comply with Civ.R. 24(C)). 

{¶39} The appellants contend that “within hours” of receiving the trial court’s judgment 

entry, they filed their “accompanying pleading” pursuant to “Civ.R. 60(B)(1).” This motion 

was captioned, “Motion to Correct the Record.” The body of the motion was only one 

paragraph, stating that under Civ.R. 60(B)(1), the appellants were submitting the required 

pleading “which was inadvertently omitted from their motion to intervene filed on July 28, 

2017.” The appellants, however, did not include any law or argument in their “Motion to 

Correct the Record” regarding the requirements of Civ.R. 60(B) or GTE Automatic Elec., Inc. v. 

ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), the seminal case setting forth 

the Civ.R. 60(B) standard. 

{¶40} The appellants assert that although they inadvertently forgot to attach their pleading 

to their second motion to intervene, they did file “the required pleading with [their] initial motion 

to intervene in September 2015.” While this is true, the appellants originally sought to 

intervene as party defendants and filed an answer with their motion. But in their second motion 

to intervene filed on July 28, 2017, they sought to intervene as party plaintiffs. In their motion 

to correct the record with the required pleading (which they did not file until November 1, 2017), 
they attached their proposed complaint. The appellants maintain that although their proposed 

interevenor status and pleading has changed, the substance of their first and second motions to 

intervene was the same. Again, while that may be true, their proposed pleadings are 

significantly different. Thus, we find the appellants’ argument — that because they filed the 

required pleading with their original motion, their inadvertent failure to file one with their new 

motion is less prejudicial — to be wholly without merit. 

{¶41} We further note that the trial court has not yet ruled on the appellants’ “Civ.R. 

60(B)(1) motion.” As we indicated, however, this was not even a proper Civ.R. 60(B) motion 

because the appellants failed to include any law or argument in their motion. Even if they had, 

the appellants concede that the filing of their motion to correct the record “had no effect, of 

course, because in addition to denying the [appellants’] intervention due to the inadvertently 

omitted pleading,” the trial court also found it to be untimely. 

D. Timeliness

{¶42} The appellants next argue that the trial court abused its discretion when it denied 

their motion to intervene due to untimeliness. “The timeliness of a motion to intervene 

pursuant to Civ.R. 24(A) is a matter within the sound discretion of the trial judge.” Univ. 

Hosps. of Cleveland, Inc. v. Lynch, 96 Ohio St.3d 118, 2002-Ohio-3748, 772 N.E.2d 105, ¶ 47. 

We set forth the timeliness factors in the previous section, but they bear repeating here: 

(1) the point to which the suit had progressed; (2) the purpose for which 

intervention is sought; (3) the length of time preceding the application during 

which the proposed intervenor knew or reasonably should have known of his 

interest in the case; (4) the prejudice to the original parties due to the proposed 

intervenor’s failure after he knew or reasonably should have known of his interest 

in the case to apply promptly for intervention; and (5) the existence of unusual 

circumstances militating against or in favor of intervention. 

State ex rel. N.G., 147 Ohio St.3d 432, 2016-Ohio-1519, 67 N.E.3d 728, at ¶ 23, quoting Triax 
Co., 724 F.2d 1224. 

{¶43} When looking at the timeliness factors in this case, we agree with the appellants 

that their motion was not as untimely as the trial court indicated. The trial court found that their 

second motion (the one at issue) was filed more than three years after the case had begun and that 

their first motion, which they voluntarily withdrew in November 2015, had been filed nearly one 

and a-half years after the case had been filed. But due to the union filing two appeals in the 

case, it had been pending on appeal for a significant portion of that time (nearly 20 months). 

{¶44} Nevertheless, when looking at all of the factors, what actually occurred, and the 

trial court’s reasoning, we simply cannot say that the trial court’s decision was “so palpably and 

grossly violative of fact or logic that it evidences not the exercise of will but the perversity of 

will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but 

instead passion or bias.” Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 

(1996) (setting forth what it takes to find an abuse of discretion). 

{¶45} The appellants contend that it was an abuse of discretion for the trial court to grant 

the other firefighter-intervenors’ motions to intervene in the summer and fall of 2015, but ignore 

theirs. The city, however, did not oppose the other firefighters’ motions to intervene and, thus, 

there was no reason to delay granting them. But once the city opposed the appellants’ motion to 

intervene, the trial court had to consider opposing motions before it determined which way it 

would rule. Before the trial court did so, however, the appellants voluntarily withdrew their 

motion to file their writ of mandamus in the Ohio Supreme Court. At that point, their motion 

had been pending for just over two months. 

{¶46} The appellants further argue that “[i]t was an abuse of discretion for the trial court 

to expect the eight captains to sit idly while their union, the city, and the nine intervenors who 
wanted to protect their spots on the noncompetitive promotion list mediated this dispute,” and to 

“proceed with the underlying litigation well into the fall, setting a case management conference 

for the parties while continuing to ignore the eight captains’ [motion to intervene].” But again, 

when looking at what actually occurred, their motion had only been pending for just over two 

months when they “made a calculated, strategic decision” to voluntarily withdraw it. 

{¶47} The appellants filed their first motion to intervene on September 8, 2015. 

According to the appellants, their attorney, along with the attorneys for the city, the union, and all 

nine intervenors (who wanted to protect their spots on the noncompetitive promotion list) agreed 

to mediate the dispute. They informed the trial court that they hired a private mediator and set 

the date for mediation on November 19, 2015. The trial court then held a telephonic case 

management conference on October 29, 2015, excluding the appellants from the conference 

because the city opposed their participation. The trial court issued a judgment that same day, 

stating that it “was informed that the parties have agreed on a private mediator and have set a 

date for that mediation: 11/19/2015.” 

{¶48} The appellants maintain that they decided to file a writ of mandamus in the Ohio 

Supreme Court to halt the mediation occurring without them. They claim that their filing the 

writ “had the desired effect” of halting the mediation. The trial court issued a judgment entry 

on November 23, 2015, indicating as much. That judgment entry stated, “[t]he court has been 

informed that the private mediation that was scheduled in this matter did not go forward and has 

been indefinitely suspended. The parties are hereby advised that this matter will proceed under 

the case management schedule established by this court.” While the appellants’ writ of 

mandamus was pending in the Ohio Supreme Court, however, the union’s case proceeded in the 

trial court without them. 
{¶49} In denying the appellants’ July 2017 motion to intervene, the trial court explained 

that it had held “lengthy hearings and the parties have briefed multiple motions for summary 

judgment.” The trial court further noted that it was prepared to rule on the parties’ multiple 

summary judgment motions as directed to do so by this court in the second appeal. See Local 

93, 8th Dist. Cuyahoga No. 105033, 2017-Ohio-6887, at ¶ 39. 

{¶50} In its decision denying the appellants’ motion to intervene, the trial court also 

found that the “time for new pleadings and claims has clearly passed.” The trial court stated 

that 

the proposed intervenors have not simply re-filed their prior motion to intervene. 

In their prior motion to intervene, filed on 09/08/2015, the intervenors sought to 

participate as defendants, and with that motion, an answer was properly 

submitted. However, the motion was withdrawn on 11/12/2015 and the 

proposed intervenors now seek to intervene as plaintiffs. 

{¶51} After review, we simply cannot say that the trial court abused its discretion. If 

permitted to intervene in the case at this point, the trial court could not rule on the summary 

judgment motions as directed by this court and it would have to hold additional hearings. The 

defendants would have to respond to the appellants’ complaint. The parties would likely have 

to file new summary judgment motions or at least respond to the appellants’ motion for summary 

judgment. 

{¶52} Simply put, after the appellants withdrew their first motion to intervene and filed 

their writ of mandamus in the Supreme Court, the case proceeded without them from November 

2015 until September 2016, when the trial court dismissed the case. After the Supreme Court 

denied their writ in December 2016, the appellants could not move to intervene at that point 

because the case was pending on appeal for the second time. Although appellants assert that 

this fact — that the case was pending on appeal — mitigates their delay in filing their second 
motion to intervene, this still does not change the fact that they voluntarily withdrew their 

original motion to intervene in the first place. 

{¶53} Thus, we find no abuse of discretion on the part of the trial court for denying 

appellants’ motion to intervene due to untimeliness. 

E. Interests Adequately Represented by Another Party

{¶54} Finally, the appellants strongly argue that their interests are not adequately 

represented by the union and, thus, under Civ.R. 24(A), they have a right to intervene in the case. 

 They claim that they “are challenging the positions already filled” by the noncompetitive exam, 

but that the union is not. They cite to a footnote in this court’s July 20, 2017 decision in support 

of this argument where we stated: 

At appellate oral argument, both parties conceded that they were not challenging 

the positions already filled by the city’s noncompetitive examination process. 

Moore [v. Agin], 12 Ohio St.3d 173, 465 N.E.2d 1293 (1984). 

Local 93, 8th Dist. Cuyahoga No. 105033, 2017-Ohio-6887, ¶ 39, fn. 3. 

{¶55} The city, however, maintains that despite what was said at oral argument in the 

second appeal, the union is seeking to fill all battalion chief and assistant chief vacancies with 

firefighters who take a competitive exam — including those six firefighters who were promoted 

through the noncompetitive procedures. We agree. 

{¶56} Contrary to what the union said at oral argument in the last appeal and what the 

appellants now claim, the union’s demands include (1) “declaring that all vacancies in the 

promoted ranks of [the fire department] created since the expiration of the most recent civil 

service eligibility list, as well as any such vacancies which have yet to be created in the promoted 

ranks, must be filled by a competitive examination process in compliance with applicable law,” 

(2) declaring that the March 2014 bulletin “and any non-competitive promotional process 
administered pursuant thereto” were in violation of the Ohio Constitution, Ohio Revised Code, 

the city charter, and the city civil service rules, (3) a permanent injunction against the city 

prohibiting the city from administering a noncompetitive promotional exam and prohibiting the 

city from “effectuating any promotions” without first administering a competitive exam 

ascertaining the merit and fitness of the candidates, and (4) issue a writ of mandamus 

to immediately administer competitive examinations, certify eligibility lists which 

would expire in 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. 

(Emphasis added.) Union’s complaint at 19. 

{¶57} The “last certified civil service eligibility list” expired at the end of 2013. Thus, 

the union’s demands that “all vacancies created since the expiration of the last certified civil 

service eligibility list” be filled with firefighters who take a competitive exam means that the 

union wants past and future vacancies to be filled with firefighters who take a competitive exam. 

 Stated another way, the union wants all vacancies since the end of 2013, which would include 

the positions occupied by the six firefighters who were promoted by the noncompetitive process, 

to be filled by the highest scores on a competitive exam. This is the exact relief the appellants 

seek in their complaint. 

{¶58} Accordingly, we conclude that the appellants have not established they have a right 

to intervene in the action because the union adequately represents their interests. Civ.R. 

24(A)(2). 

{¶59} After finding no merit to any of appellants’ arguments, we find that the trial court 

did not abuse its discretion when it denied their motion to intervene. 
{¶60} The appellants’ sole assignment of error is overruled. 

{¶61} Judgment affirmed. 

It is ordered that appellees recovers from appellants 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. 

 

 

MARY J. BOYLE, JUDGE 

MELODY J. STEWART, P.J., and 

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