[Cite as State ex rel. Powell v. Mt. Healthy, 2013-Ohio-4873.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO EX REL. JOSEPH R. 

POWELL, 

 Relator-Appellant, 

 vs. 

CITY OF MOUNT HEALTHY, 

JOSEPH T. ROETTING, 

WILLIAM KOCHER, 

 and 

MOUNT HEALTHY CIVIL SERVICE 

COMMISSION, 

 Respondents-Appellees. 

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APPEAL NO. C-130116 

TRIAL NO. A-1205217 

 O P I N I O N.

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: November 6, 2013 

FOP/Ohio Labor Council, Inc., Douglas J. Behringer, General Counsel, and Paul L. 

Cox, Chief Counsel, for Relator-Appellant, 

Schroeder, Maundrell, Barbiere & Powers and Lawrence E. Barbiere, for 

Respondents-Appellees. 

 Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS 

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HILDEBRANDT, Judge. 

{¶1} Relator-appellant Joseph R. Powell appeals the judgment of the 

Hamilton County Court of Common Pleas granting the motion for judgment on the 

pleadings filed by respondents-appellees City of Mt. Healthy, Mayor Joseph T. 

Roetting, Safety Service Manager William Kocher, and Mt. Healthy Civil Service 

Commission (collectively, “Mt. Healthy”) in a mandamus action. 

Powell’s Asserted Right to Promotion 

{¶2} Powell is a police officer for Mt. Healthy. In 2012, he filed a 

mandamus action seeking promotion to the rank of sergeant. 

{¶3} In his complaint, Powell alleged that the Mt. Healthy Civil Service 

Commission had conducted an examination for the rank of sergeant. According to 

the complaint, the commission had graded the examination and had certified an 

eligibility list containing three officers. Of those three, Powell had scored second. 

{¶4} Powell further alleged that, in July 2011, Greg Nolte had been 

promoted to sergeant from the eligibility list, thus making Powell the highest rated 

officer on the list. Then, in March 2012, Sergeant John Wert retired. Powell 

maintained that Mt. Healthy had a duty under R.C. 124.44 to promote him to 

sergeant after Wert’s retirement. 

{¶5} Mt. Healthy refused to make the appointment, contending that the 

city did not need another sergeant in the force. It filed an answer and attached a 

copy of its collective-bargaining agreement (“CBA”) with the police union. 

{¶6} Section 8.1 of the CBA stated that “[t]he Employer’s exclusive rights 

include[d],” but were not limited to, a number of enumerated items. Among those 

were the right to: 
OHIO FIRST DISTRICT COURT OF APPEALS 

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[d]etermine matters of inherent managerial policy, which include, but 

are not limited to areas of discretion or policy such as functions and 

programs, standards of service, overall budget, use of technology and 

organization structure * * *. 

{¶7} The CBA then listed various managerial rights, including the right to 

“[s]uspend, discipline, demote, or discharge, for just cause, or lay off, transfer, 

assign, schedule, promote, or retain employees * * *.” Based on this contractual 

language, Mt. Healthy filed a motion for judgment on the pleadings, contending that 

it had retained the right to determine the appropriate complement of sergeants in 

the police force. The trial court granted the motion, and Powell has appealed. 

{¶8} In three related assignments of error, Powell argues that the trial 

court erred in granting Mt. Healthy’s motion for judgment on the pleadings. We 

address the assignments together. 

The Trial Court’s Consideration of the CBA 

{¶9} Powell first argues that the court erred in considering the CBA when it 

ruled on the Civ.R. 12(C) motion. We find no merit in this argument. 

{¶10} Under Civ.R. 12(C), a judgment on the pleadings is proper where the 

court construes all material allegations in the complaint, along with all reasonable 

inferences, as true and in favor of the plaintiff and concludes, beyond doubt, that the 

plaintiff can prove no set of facts to support the claim for relief. Sullivan v. 

Anderson Twp., 1st Dist. Hamilton No. C-070253, 2009-Ohio-6646, ¶ 7. 

{¶11} In ruling on a motion under Civ.R. 12(C), the trial court is permitted 

to consider both the complaint and answer. State ex rel. Midwest Pride IV, Inc., v. 

Pontious, 75 Ohio St.3d 565, 569, 664 N.E.2d 931 (1996). The court may also 

consider any material attached to the pleadings or incorporated by reference in the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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pleadings. See Am. Tax Funding, LLC v. Miamisburg, 2d Dist. Montgomery App. 

No. 24494, 2011-Ohio-4161, ¶ 22. Under Civ.R. 10(C), a copy of a “written 

instrument attached to a pleading is a part of the pleading for all purposes.” 

{¶12} In this case, Mt. Healthy attached a copy of the CBA to its answer and 

incorporated it by reference in the pleading. Therefore, the trial court did not err in 

considering the contract when ruling on Mt. Healthy’s motion. 

Mandamus and the CBA’s Provisions Regarding Promotions 

{¶13} Powell next argues that the court erred in concluding that Mt. Healthy 

had no duty to promote him. To be entitled to a writ of mandamus, the relator must 

show (1) that he has a clear legal right to the requested relief, (2) that the respondent 

has a clear legal duty to perform the act, and (3) that the relator has no plain and 

adequate remedy in the ordinary course of the law. State ex rel. Berger v. 

McMonagle, 6 Ohio St.3d 28, 29, 451 N.E.2d 225 (1983). An appellate court reviews 

a decision under Civ.R. 12(C) de novo. Mallory v. Cincinnati, 1st Dist. Hamilton No. 

C-110563, 2012-Ohio-2861, ¶ 9. 

{¶14} Powell contends that the trial court erred in concluding that the issue 

of promotions was covered in the CBA and in holding that the CBA prevailed over the 

provisions of R.C. Chapter 124. 

{¶15} R.C. 4117.10(A) addresses the relationship between collectivebargaining agreements and laws governing the terms of public employment. The 

statute provides: 

An agreement between a public employer and an exclusive representative 

entered into pursuant to this chapter governs the wages, hours, and 

terms and conditions of public employment covered by the agreement. * * 

* Where no agreement exists or where an agreement makes no 
OHIO FIRST DISTRICT COURT OF APPEALS 

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specification about a matter, the public employer and public employees 

are subject to all applicable state or local laws or ordinances pertaining to 

the wages, hours, and terms and conditions of employment for public 

employees. * * * [T]his chapter prevails over any and all other conflicting 

laws, resolutions, provisions, present or future, except as otherwise 

specified in this chapter or as otherwise specified by the general 

assembly. 

{¶16} As the Supreme Court of Ohio has stated, “[e]xcept for laws 

specifically exempted, the provisions of a collective bargaining agreement entered 

into pursuant to R.C. Chapter 4117 prevail over conflicting laws.” State ex rel. 

Parsons v. Fleming, 68 Ohio St.3d 509, 513, 628 N.E.2d 1377 (1994), citing 

Cincinnati v. Ohio Council 8, American Fedn. of State, Cty., and Mun. Emp., AFLCIO, 61 Ohio St.3d 658, 576 N.E.2d 745 (1991), paragraph one of the syllabus. 

{¶17} In the case at bar, we find no error in the trial court’s judgment. 

There was no dispute that the issue of promotions was a permissive subject of 

collective bargaining. See generally Cincinnati at 664; R.C. 4117.08(C)(5). But 

Powell argues that the inclusion of promotions in Section 8.1 of the CBA was merely 

an acknowledgement that the parties could have chosen to alter the statutory 

scheme. He contends that Mt. Healthy and the union did not in fact bargain over the 

issue and that the provisions of R.C. Chapter 124 must therefore govern promotions 

in this case. 

{¶18} We find no merit in this contention. Contrary to Powell’s argument, 

the CBA did not merely list promotions as a permissive subject of bargaining; it 

affirmatively granted Mt. Healthy the management right to determine the necessity 
OHIO FIRST DISTRICT COURT OF APPEALS 

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or propriety of promotions. Under R.C. 4117.10(A), that grant of rights in the CBA 

prevailed over any conflicting statute. 

{¶19} Still, Powell emphasizes that Mt. Healthy continues to maintain a civil 

service commission and continues to conduct competitive examinations for police 

promotions. This course of conduct, Powell argues, demonstrates that the parties 

have intended to adhere to the procedures set forth in R.C. Chapter 124 and that 

management did not retain plenary power over promotions. 

{¶20} Again, we are not persuaded by this argument. Even though Mt. 

Healthy admittedly employed the statutory mechanism for deciding whom to 

promote, it nonetheless explicitly reserved the right to determine whether to 

promote. Accordingly, we overrule the assignments of error. 

Conclusion 

{¶21} We affirm the judgment of the trial court. 

Judgment affirmed. 

HENDON, P.J., and CUNNINGHAM, J., concur. 

Please note: 

 The court has recorded its own entry this date.