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Municipal Construction Equipment Operators' Labor Council v. City of Cleveland

October 27, 2011

MUNICIPAL CONSTRUCTION EQUIPMENT OPERATORS' LABOR COUNCIL PLAINTIFF-APPELLANT
v.
CITY OF CLEVELAND, OHIO DEFENDANT-APPELLEE



Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-735591

The opinion of the court was delivered by: Kenneth A. Rocco, J.:

Cite as Mun. Constr. Equip. Operators' Labor Council v. Cleveland,

JOURNAL ENTRY AND OPINION

JUDGMENT:

REVERSED AND REMANDED

BEFORE: Rocco, J., Kilbane, A.J., and E. Gallagher, J.

{¶1} Plaintiff-appellant, the Municipal Construction Equipment Operators' Labor Council ("the union"), appeals from orders entered in the Cuyahoga County Court of Common Pleas that transferred this case from one assigned judge to another, denied the union's motion to return the case to the first judge, and ultimately granted a motion filed by defendant-appellee, the city of Cleveland, to dismiss this case based upon the doctrine of res judicata.

{¶2} The union presents three assignments of error. It argues that the administrative judge lacked both justification and the authority to transfer the case from the first judge to the second judge, that the administrative judge thereafter improperly denied the union's motion to return the case to the first judge, and that the second judge's dismissal of the case violated Civ.R. 12 and Civ.R. 56.

{¶3} Upon a review of the record, this court is constrained to agree that the administrative judge committed procedural error. This necessitates reversal of the administrative judge's orders. The second judge's order of dismissal is voidable and, therefore, declared a nullity, and this court is compelled to remand this case for further proceedings.

{¶4} The union filed the instant action on August 31, 2010. On the case designation form, the union acknowledged the case was "related" to one "previously filed," i.e., Case No. CV-621029. The instant case was given Case No. CV-735591, and was assigned pursuant to Loc.R. 15(A)*fn1 to Judge Jose A. Villanueva.

{¶5} The union's complaint against Cleveland in this case alleged that the action was "for declaratory and injunctive relief." Specifically, the union alleged Cleveland violated Section 132 of the city charter by assigning two men, viz., Frank Hargrow and Ken Lewis, to perform the work of construction equipment operators without requiring them to take a "competitive test issued by the Cleveland Civil Service Commission for th[at] classified position * * * ." The union asked the trial court to declare that Cleveland's practice violated charter Section 132 and to issue an injunction against Cleveland to prevent such practices in the future.

{¶6} On November 5, 2010, the city filed a motion to dismiss the complaint in this case. The city addressed the motion to Judge Villanueva, and based it on the assertion that the complaint was "virtually identical" to the one the union filed in CV-621029, which had been "fully litigated," had "resulted in a judgment" for the city, and had been "affirmed by the Eighth District Court of Appeals." The city attached to its motion several exhibits.

{¶7} The exhibits included, inter alia, copies of: 1) the complaint in CV-621029; 2) the opinion and judgment entered in that case on October 2, 2009 by Judge Janet R. Burnside; 3) the opinion rendered by this court in Mun. Const. Equip. Operators' Labor Council v. Cleveland, Cuyahoga App. No. 94057, 2010-Ohio-5351 ("Mun. Const. Labor Council I"); and, 4) portions of Ken Lewis's deposition testimony.

{¶8} Contemporaneously with the foregoing motion, the city filed its answer to the complaint and, in addition, a request to transfer CV-735591 to Judge Burnside.

{¶9} In its request for a transfer, which, like the other motions, was addressed to Judge Villanueva, the city argued that since Judge Burnside was familiar with the related case, transfer of the instant case was consistent with both the decision in Brickman & Sons, Inc. v. Nat'l City Bank, 106 Ohio St.3d 30, 2005-Ohio-3559, 830 N.E.2d 1151, and Loc.R. 15(H).

{ΒΆ10} In its answer, the city denied the pertinent allegations of the complaint and raised several affirmative defenses. One of the ...


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