[Cite as State ex rel. Holloway v. Personnel Appeals Bd., 2012-Ohio-628.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

STATE OF OHIO EX REL. : 

JOHNNY HOLLOWAY, JR. 

Plaintiff-Appellee : C.A. CASE NO. 24635 

vs. : T.C. CASE NO. 09CV1568 

PERSONNEL APPEALS BOARD, et al.: (Civil Appeal from 

 Common Pleas Court) 

Defendant-Appellant : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 17th day of February, 2012. 

 . . . . . . . . . 

Henry A. Arnett, Atty. Reg. No. 0011379, 135 Dublin Road, Suite 

108-B, Columbus, OH 43215 

Attorney for Plaintiff-Appellee 

Matthew D. Stokely, Atty. Reg. No. 0062611; Joshua M. Kin, Atty. 

Reg. No. 0086965, 2700 Kettering Tower, Dayton, OH 45423 

Attorneys for Defendant-Appellant 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} This appeal is brought by the Personnel Appeals Board 

of the City of Huber Heights (the “Board”) from a final order 

granting a motion for summary judgment filed by Johnny Holloway 

in an action Holloway commenced on a petition for a writ of mandamus. 

{¶ 2} In 2008, Holloway was terminated from his position of 

Battalion Chief in the City of Huber Heights’ Fire Division. 
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Holloway requested a review of his termination by the Board. 

Holloway’s counsel received a letter from the City Attorney for 

Huber Heights, stating that Holloway had no right of appeal to 

the Board. Holloway then filed a petition for a writ of mandamus 

in the court of common pleas, asking that the Board be ordered 

to hear an appeal of his termination. 

{¶ 3} The common pleas court granted a motion for summary 

judgment filed by the Board, finding that Holloway’s termination 

was not subject to an appeal to the Board under provisions of the 

Charter of the City of Huber Heights creating that right of appeal. 

 Therefore, the Board had no clear legal duty to hear an appeal, 

and Holloway had no clear legal right to an appeal to the Board. 

{¶ 4} Holloway appealed to this court from the final judgment 

of the common pleas court. On review, we found that Holloway did 

have a right of appeal to the Board from his termination under 

applicable provisions of the City’s Charter. We therefore held 

that the common pleas court erred when it granted summary judgment 

for the Board on the grounds on which the court relied, and we 

remanded the case to the common pleas court “for further 

proceedings, consistent with this opinion.” State of Ohio, ex 

rel. Johnny Holloway, Jr. v. Personnel Appeals Board, City of Huber 

Heights, 2d Dist. Montgomery No. 23836, 2010-Ohio-4754, ¶ 21. 

{¶ 5} Holloway had also filed a motion for summary judgment 

when the Board did. On remand, the common pleas court granted 
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Holloway’s motion, finding that Holloway has a clear legal right 

to an appeal to the Board, that the Board has a clear legal duty 

to hear and decide Holloway’s appeal, and that Holloway has no 

plain and adequate remedy for his termination from employment in 

the ordinary course of law. (Dkt. 1). 

{¶ 6} The Board filed a notice of appeal from the final order 

granting Holloway’s motion for summary judgment. The Board’s 

brief on appeal does not include a statement of the specific error 

or errors assigned for our review. See App.R. 16(A)(3). However, 

we construe the following “Statement of Issues” to encapsulate 

the error the Board assigns: 

{¶ 7} Issue 1: The trial court erred in granting Holloway’s 

motion for summary judgment without any evidence concerning the 

lack of a legal remedy and without conducting further proceedings, 

as this Court previously ordered, on the remaining elements 

required to grant the extraordinary relief in mandamus. 

{¶ 8} Civ.R. 56(C) provides that, upon motion, “[s]ummary 

judgment shall be rendered forthwith if the pleadings, deposition, 

answers to interrogatories, written admissions, affidavits, 

transcripts of evidence, and written stipulations of fact, if any, 

timely filed in the action, show that there is no genuine issue 

as to any material fact and that the moving party is entitled to 

judgment as a matter of law.” 

{¶ 9} To be entitled to a writ of mandamus compelling the 
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Board to hear his appeal, Holloway must establish a clear legal 

right to that relief, a corresponding clear legal duty on the part 

of the Board to provide it, and the lack of an adequate legal remedy 

in the ordinary course of the law. State ex rel. Am. Subcontractors 

Assn., Inc. v. Ohio State Univ., 129 Ohio St.3d 111, 2011-Ohio-2881, 

950 N.E.2d 535, ¶ 20. 

{¶ 10} In the prior appeal, we found that the first and second 

prongs of Holloway’s burden of proof were satisfied. The Board 

argues that the trial court erred when it granted Holloway’s motion 

for summary judgment because the record fails to support a finding 

in Holloway’s favor on the third prong, that Holloway has no 

adequate legal remedy in the ordinary course of law. On that point 

the Board contends that R.C. Chapter 2506 provides an adequate 

legal remedy. 

{¶ 11} R.C. 2506.01 states: 

{¶ 12} (A) Except as otherwise provided in sections 

2506.05 to 2506.08 of the Revised Code, and except as 

modified by this section and sections 2506.02 to 2506.04 

of the Revised Code, every final order, adjudication, 

or decision of any officer, tribunal, authority, board, 

bureau, commission, department, or other division of 

any political subdivision of the state may be reviewed 

by the court of common pleas of the county in which the 

principal office of the political subdivision is located 
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as provided in Chapter 2505. of the Revised Code. 

{¶ 13} (B) The appeal provided in this section is 

in addition to any other remedy of appeal provided by 

law. 

{¶ 14} (C) As used in this chapter, “final order, 

adjudication, or decision” means an order, adjudication, 

or decision that determines rights, duties, privileges, 

benefits, or legal relationships of a person, but does 

not include any order, adjudication, or decision from 

which an appeal is granted by rule, ordinance, or statute 

to a higher administrative authority if a right to a 

hearing on such appeal is provided, or any order, 

adjudication, or decision that is issued preliminary 

to or as a result of a criminal proceeding. 

{¶ 15} Holloway argues that he cannot invoke a right of appeal 

under R.C. 2506.01 because the Board never entered an “order, 

adjudication, or decision,” denying him a right of appeal. The 

Board responds that the letter Holloway received from the City 

Attorney notifying him that he lacked a right of appeal to the 

Board satisfies the requirement of R.C. 2506.01. 

{¶ 16} Holloway’s motion for summary judgment (Dkt. 13, Case 

No. 09CV01568, our Case No. 23836) is supported by his affidavit. 

 The affidavit attaches what Holloway represents are “true and 

correct copies” of documents relative to his claim. Page 28 is 
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a copy of Holloway’s notice of appeal to the Board and requesting 

a hearing, which also identifies Attorney Henry A. Arnett as 

Holloway’s legal representative for that purpose. Page 29 is a 

copy of a letter dated December 8, 2008, to Attorney Arnett from 

an attorney with the law firm whose senior partner is City Attorney 

for Huber Heights. The letter states: 

{¶ 17} Dear Mr. Arnett: 

{¶ 18} I have reviewed your letter of December 3, 

2008 and respectfully disagree with your conclusion that 

Battalion Chief Holloway is entitled to appeal his 

dismissal to the Personnel Appeals Board. Nowhere in 

the City Charter is the position of Battalion Chief 

designated as a position in the non-exempt service. 

However, Charter Section 8.02 specifically includes 

“directors of departments and their assistants, division 

heads and the Director of personnel” as constituting 

positions in the exempt service of the City. 

{¶ 19} Pursuant to Ordinance 2006-0-1617, adopted 

February 13, 2006, the fire Chief and Battalion Chief’s 

serve as assistants to the Director of Public Safety. 

 A copy of the Ordinance is attached for your review. 

{¶ 20} Thus, there is no inconsistency between the 

City Charter and Resolution No. 2008-R-4987 which 

designates the position of Battalion Chief as being in 

the exempt service. 
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{¶ 21} If you have any questions or wish to discuss 

this matter further, please feel free to contact me at 

your convenience at 937-223-1130. 

{¶ 22} Very truly yours, 

{¶ 23} Pickrel, Schaeffer & Ebeling, L.P.A. 

{¶ 24} Scott T. Stirling 

{¶ 25} In State ex rel. Lane v. City of Pickerington, 130 Ohio 

St.3d 225, 2011-Ohio-5454, 957 N.E.2d 29, on similar facts, the 

Supreme Court held that absent any authority for a city attorney 

to act on behalf of a board, a letter from a city attorney that 

did not say it was being issued on behalf of a board is not a final 

order, adjudication, or decision of the board for purposes of R.C. 

2506.01. The Court distinguished its prior decision in State ex 

rel. Henderson v. Maple Heights Civil Service Commission, 63 Ohio 

St.2d 39, 406 N.E.2d 1105 (1980), in which “there was no question 

that the civil service commission itself refused to hear the 

discharged employee’s appeal and that the commission’s legal 

counsel merely communicated the commission’s own decision to the 

employee.” Lane, ¶ 16. 

{¶ 26} At oral argument, counsel for the Board conceded that 

the letter to Holloway from the City Attorney contains no 

representation that the Board itself had acted to refuse or dismiss 

Holloway’s appeal. The Board argues that, nevertheless, the City 

Attorney is or may be authorized to act on behalf of the Board. 
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 The Board relies on Section 7.05 of the charter of the City of 

Huber Heights, a copy of which is attached to the Board’s brief. 

 Section 7.05 states: 

{¶ 27} DEPARTMENT OF LAW. 

{¶ 28} There shall be a Department of Law, the head 

of which shall be the City Attorney. The City Attorney 

shall be an attorney-at-law, qualified to practice law 

in the State of Ohio, appointed by and subject to the 

direction of the Council. 

{¶ 29 } A law firm, as well as an individual 

attorney, may serve as the City Attorney and in that 

case, the person designated by the law firm shall serve 

with the title of City Attorney, and other persons so 

designated by the law firm shall serve with the title 

of City Attorney, and other persons so designated may 

serve as Acting City Attorney with all the powers, duties 

and functions of the City Attorney when the person 

designated as City Attorney is not available. The City 

Attorney shall serve as the chief legal advisor to 

Council, the City manager, and all City departments, 

divisions, offices and other agencies, boards or 

commissions. The City Attorney shall represent the City 

in all legal proceedings and shall perform any other 

duties prescribed in this Charter, by ordinance or 

resolution or by the Administrative Code or the general 
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laws of Ohio, except that the person or firm holding 

the office of City Attorney shall not be required to 

represent any school district or any other unit of 

government other than the City, by virtue of holding 

the office of City Attorney. When necessary, the 

Council may appoint special legal counsel to represent 

the City, together with or in place of the City Attorney. 

{¶ 30} Section 7.05 provides that the City Attorney “shall 

serve as chief legal advisor to . . . agencies, boards, or 

commissions” of Huber Heights. That provision presents no basis 

to find that the City Attorney is authorized to act on behalf of 

those entities in the functions they are charged to perform. 

{¶ 31} Section 7.05 also provides that “[t]he City Attorney 

shall represent the City in all legal proceedings and shall perform 

any other duties prescribed in this Charter, by ordinance or 

resolution or the Administrative Code or the General Laws of Ohio.” 

{¶ 32} The Board, while unable to identify any other matters 

that would authorize the City Attorney to act on behalf of the 

Board, argues that the case should be remanded to determine whether 

any such provisions exist or apply, because whether any do presents 

a genuine issue of material fact that precludes the Civ.R. 56 

summary judgment for Holloway the trial court ordered. 

{¶ 33} The Board filed its notice of appeal to this court on 

May 11, 2011. Lane was decided on October 27, 2011, shortly after 
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the briefing in this case was complete. Holloway filed a Notice 

of Supplemental Authority, relying on Lane, on December 27, 2011. 

 The Board had filed no memorandum in response to that Notice when 

oral argument was held on January 31, 2012. 

{¶ 34} Whether any Charter provision, ordinance, 

Administrative Code or Revised Code section authorized the City 

Attorney to act on behalf of the Board presents not an issue of 

fact but an issue of law. Courts, including appellate courts, 

are authorized to take judicial notice of such matters. Indeed, 

the Board relied on that expedient in attaching a copy of Section 

7.05 of the City Charter to its brief on appeal. If any such 

authority exists, the Board could have done the same in opposing 

Holloway’s reliance on Lane, but didn’t. On this record, and 

concerning the possible existence of legal authority that would 

render the City Attorney’s letter a final order for purposes of 

R.C. 2506.01, no genuine issue of material fact remains for 

determination which precludes the summary judgment the trial court 

ordered is shown. 

{¶ 35} Construing the letter dated December 8, 2008 and its 

contents most strongly in favor of the Board, we find that 

reasonable minds could only conclude that the letter neither 

represents nor portrays a final order, adjudication, or decision 

of the Board to not hear Holloway’s appeal of his termination. 

The letter is no more than the stated opinion of the Board’s legal 
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advisor that the Board should not hear the appeal. There is no 

evidence that the City Attorney was authorized to act on behalf 

of the Board in that respect. 

{¶ 36} The trial court correctly found that Holloway has no 

right of appeal pursuant to R.C. Chapter 2506 from his termination. 

 The Board does not argue that Holloway had any other avenue of 

legal relief except for R.C. Chapter 2506, and we are aware of 

none. The trial court did not err when it granted summary judgment 

for Holloway on his motion. Our order of remand required the trial 

court to conduct no proceedings other than to decide the merits 

of the pleadings and motions before it, which the court did. 

{¶ 37} The assignment of error is overruled. The judgment 

from which the appeal is taken will be affirmed. 

FAIN, J., And DONOVAN, J., concur. 

Copies mailed to: 

Henry A. Arnett, Esq. 

Matthew D. Stokely, Esq. 

Joshua M. Kin, Esq. 

Hon. Gregory F. Singer