The opinion
[This decision has been published in Ohio Official Reports at 93 Ohio St.3d 449.]
THE STATE EX REL. CHAPNICK, APPELLEE AND CROSS-APPELLANT, v. EAST
CLEVELAND CITY SCHOOL DISTRICT BOARD OF EDUCATION, APPELLANT AND
CROSS-APPELLEE.
[Cite as State ex rel. Chapnick v. E. Cleveland City School Dist. Bd. of Edn.,
2001-Ohio-1585.]
Schools—Appeal from court of appeals’ grant writ of mandamus, compelling East
Cleveland City School District Board of Education to issue an employment
contract to relator and to pay him all back pay and benefits to which he is
entitled, dismissed as moot—Denial of relator’s request for attorney fees
affirmed.
(No. 01-90—Submitted September 19, 2001—Decided October 17, 2001.)
APPEAL and CROSS-APPEAL from the Court of Appeals for Cuyahoga County, No.
78088.
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Per Curiam.
{¶ 1} From September 1990 through July 2000, appellant and cross-
appellee, East Cleveland City School District Board of Education (“board”),
employed appellee and cross-appellant, Stephen Chapnick, in the position of
business manager under a series of two-year contracts. These contracts contained
the caption “Administrator’s Contract” and included the following language:
“WHEREAS, the Board of Education has determined it necessary to
contract for the employment of an administrative officer pursuant to Section
3319.02, Ohio Revised Code, * * * the Board of Education has approved such
recommendation and has authorized this contract.”
{¶ 2} While employed as a business manager for the district, Chapnick
performed various duties, including negotiating, preparing, and executing contracts
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concerning food, transportation, maintenance, and security services, and
recommending the hiring, termination, and discipline for classified staff, which
included food service workers, transportation employees, custodial staff, and
maintenance employees.
{¶ 3} Chapnick’s last contract with the district covered the period from
August 1998 through July 2000. The board did not give written notice of its
intention not to reemploy Chapnick on or before the last day of March 2000 as
required by R.C. 3319.02(C) in the contractual employment of certain school
administrators.
{¶ 4} After the board failed to reemploy Chapnick, he filed a complaint in
the Court of Appeals for Cuyahoga County. In the complaint as subsequently
amended, Chapnick requested a writ of mandamus to compel the board to employ
him for a term of two years commencing in August 2000 and ending in July 2002
at the same salary plus any increments to which he may be entitled, a writ of
prohibition to prevent the board from transferring him to a position of lesser
responsibility during the two-year period, and an award of reasonable attorney fees.
{¶ 5} The parties filed motions for summary judgment, and the court of
appeals subsequently granted a writ of mandamus to compel the board to issue an
“other administrator’s” employment contract to Chapnick pursuant to R.C. 3319.02
and to pay him all back pay and benefits to which he is entitled. The court of
appeals also denied Chapnick’s requests for a writ of prohibition and for attorney
fees.
{¶ 6} This cause is now before the court upon the board’s appeal and
Chapnick’s cross-appeal from the judgment of the court of appeals.
Appeal
{¶ 7} In its appeal, the board asserts that the court of appeals erred in
granting the writ of mandamus because Chapnick was not entitled to notice under
R.C. 3319.02 and he had an adequate remedy in the ordinary course of law. Amicus
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January Term, 2001
curiae Ohio School Boards Association filed an appellate brief in support of the
board’s appeal.
{¶ 8} By letter dated June 12, 2001, however, the board informed Chapnick
that it had voted to reinstate him to the business manager position, to compensate
him for back pay for the period from August 1, 2000, to credit him with a year of
service for his pension, and to suspend his contract without pay pending
termination. On June 20, Chapnick moved to dismiss the board’s appeal as moot
because of the board’s reinstatement of him.
{¶ 9} We grant Chapnick’s motion and dismiss the board’s appeal as moot.
According to Chapnick, the board has now afforded him the extraordinary relief in
mandamus that the court of appeals ordered. See Miner v. Witt (1910), 82 Ohio St.
237, 92 N.E. 21, syllabus; cf. State ex rel. Jones v. O’Connor (1999), 84 Ohio St.3d
426, 704 N.E.2d 1223, 1224 (“Mandamus does not lie to compel an act that has
already been performed”). Nor is any exception to the mootness doctrine
implicated here. See, e.g., State ex rel. Calvary v. Upper Arlington (2000), 89 Ohio
St.3d 229, 231, 729 N.E.2d 1182, 1185. The board, in fact, did not file any timely
response opposing Chapnick’s motion.
{¶ 10} Therefore, the board’s appeal is moot and is dismissed.
Cross-Appeal
{¶ 11} In his cross-appeal, Chapnick asserts that the court of appeals erred
in denying his request for attorney fees. Chapnick claims that he is entitled to
attorney fees because they constitute damages related to his mandamus action under
R.C. 2731.11 and the board’s bad faith necessitated his prosecution of the writ
action.
{¶ 12} Chapnick’s assertions are meritless. His attorney fees are not
recoverable as damages under R.C. 2731.11. State ex rel. Murphy v. Indus. Comm.
(1980), 61 Ohio St.2d 312, 313, 15 O.O.3d 386, 387, 401 N.E.2d 923, 924; State
ex rel. Grosser v. Boy (1976), 46 Ohio St.2d 184, 185, 75 O.O.2d 228, 347 N.E.2d
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539, 540; State ex rel. Gerchak v. Tablack (1997), 117 Ohio App.3d 222, 226-227,
690 N.E.2d 93, 96.
{¶ 13} Regarding Chapnick’s remaining contention, “ ‘[t]he general rule in
Ohio 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 (1983), 6 Ohio St.3d 55, 55-56, 6 OBR 73, 74, 451 N.E.2d
248, 249, quoting State ex rel. Crockett v. Robinson (1981), 67 Ohio St.2d 363,
369, 21 O.O.3d 228, 232, 423 N.E.2d 1099, 1103. Chapnick did not introduce any
evidence or argument in the court of appeals to support his contention that the board
acted in bad faith. Murphy, 61 Ohio St.2d at 313, 15 O.O.3d at 387, 401 N.E.2d at
924. Further, no evidentiary hearing on the motion is required. See, e.g., In re
Removal of Osuna (1996), 116 Ohio App.3d 339, 342, 688 N.E.2d 42, 44 (“[T]he
trial court followed the overwhelming weight of authority in Ohio in deciding that
a hearing is not always necessary before overruling a motion for attorney fees”).
{¶ 14} Based on the foregoing, we affirm the judgment of the court of
appeals denying Chapnick’s request for attorney fees.
Appeal dismissed in part
and judgment affirmed in part.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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Dinn, Hochman, Potter & Levy LLC and Steven B. Potter, for appellee and
cross-appellant.
Baker & Hostetler LLP and Tom A. King, for appellant and cross-appellee.
Bricker & Eckler LLP and Kimball H. Carey, urging reversal for amicus
curiae, Ohio School Boards Association.
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