COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61111 MARILYN R. NICHOLS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CUYAHOGA COUNTY BOARD OF : MENTAL RETARDATION AND : DEVELOPMENTAL DISABILITIES : : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : NOVEMBER 12, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CP 140,028 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: BARRY L. SWEET, ESQ. RICHARD A. GOULDER, ESQ. 22408 Lake Shore Blvd. ASST. COUNTY PROSECUTOR Euclid, Ohio 44123 Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 GREGORY A. JACOBS, ESQ. 1100 National City Bank Bldg. Cleveland, Ohio 44114 - 2 - JOHN F. CORRIGAN, J., Appellant, Marilyn Nichols, appeals from the order of the trial court affirming the decision of the State Personnel Board of Review (SPBR) denying appellant's claim on the basis that the SPBR lacked subject matter jurisdiction. For the reasons set forth below, we affirm. I. In the case, sub judice, we are once again called upon to review the propriety of an SPBR decision concerning the termination of appellant's employment. A portion of this case was reviewed by this court in Nichols v. Cuyahoga County Board of Mental Retardation (September 25, 1986), Cuyahoga App. No. 50877, unreported. In that case, we reversed the SPBR's determination that it had no jurisdiction to hear appellant's appeal because she voluntarily resigned her position. We found that appellant had been terminated and remanded for further proceedings 1 consistent with our opinion. On remand, the SPBR once again denied appellant's appeal based upon its lack of subject matter jurisdiction. This time the Board rejected appellant's claim on the authority of R.C. 4117.10(A) and Article IV of the collective bargaining agreement which provide that no appeal is allowed when a case is taken to 1 A copy of our decision in Nichols v. Cuyahoga County Board of Mental Retardation is attached hereto as Appendix A. - 3 - final and binding arbitration. That decision was affirmed by the Common Pleas Court on November 30, 1990. This appeal timely follows. II. Appellant's first two assignments of error share a common basis in law and fact and will, therefore, be dealt with simultaneously. These assignments of error are: "THE COMMON PLEAS COURT AFFIRMANCE OF THE SPBR FINAL ORDER OF DISMISSAL FOR LACK OF JURISDICTION WAS UNREASONABLE, UNSUPPORTED BY SUBSTANTIAL, RELIABLE, OR PROBATIVE EVIDENCE, AND NOT IN ACCORDANCE WITH LAW. "BY FAILING TO CARRY INTO EXECUTION THE JUDGMENT AND SPECIAL MANDATE OF NICHOLS V. CCBMR (CA8, 9/25/86), NO. 50877, THE COMMON PLEAS COURT ERRED, ABUSED ITS DISCRETION, AND DENIED DUE PROCESS AND EQUAL PROTECTION UNDER THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO." In reviewing a decision of a Court of Common Pleas on an appeal from an administrative agency, an appellate court's role is more limited than that of the trial court reviewing the same order. While it is incumbent upon the trial court to examine the evidence, such is not the charge of the appellate court. Lorain Cty. Bd. of Edn. v. SERB (1988), 40 Ohio St.3d 257, 261. The appellate court is to determine only if the trial court has abused its discretion. Id. Absent an abuse of discretion on the part of the trial court, a Court of Appeals must affirm the trial court's judgment. See Rohde v. Farmer (1970), 23 Ohio St.2d 82. - 4 - Article IV of the collective bargaining agreement is titled "Grievance Procedure" and provides three procedural levels. Appellant reached level three of the procedure when she appealed to the arbitration panel for hearing. Under Article IV, level three of the grievance procedure provides that: "arbitrator shall be governed by the rules and regulations of AAA and render an award which shall be final and binding on both parties." (Emphasis added.) Furthermore, R.C. 4117.10(A) provides in pertinent part that: "If the [collective bargaining] agreement provides for final and binding arbitration of grievances, public employers, employees, and employee organizations are subject solely to that grievance procedure and the state personnel board of review or civil service commissions have no jurisdiction to receive and determine any appeals relating to matters that were the subject of a final and binding grievance procedure." The SPBR denied appellant's claim on the basis of Article IV and R.C. 4117.10(A). It is clear from the record of previous rulings we have before us that this issue was not addressed by the SPBR, Common Pleas Court, or this court in the previous appeal. As such, the "law of the case" doctrine is not applicable. Our previous decision addressed only the issue of appellant's non-voluntary termination and was remanded so that she could be given a pre-termination hearing. The SPBR's latest ruling that appellant has waived her right to appeal the denial - 5 - of said hearing is not a "failure to carry into execution" our previous ruling as appellant claims. In addition, although under Cleveland Bd. of Educ. v. Loudermill (1985), 470 U.S. 532, the Supreme Court has stated that the due process clause requires some kind of a hearing prior to discharge of an employee who has a constitutionally protected property interest in her employment, such a right may be waived by the employee. As a general rule, the doctrine of waiver is applicable to all personal rights and privileges, whether secured by contract, conferred by statute, or guaranteed by the constitution, provided that the waiver does not violate public policy. Sanitary Services v. Shank (1991), 57 Ohio St.3d 178, 181; State ex rel. Hess v. Akron (1937), 132 Ohio St. 305. Further, it is the policy of the Ohio Supreme Court to favor and encourage arbitration as an alternative method of dispute resolution. See Findlay Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d 129. On this basis, we find that appellant waived her right to appeal to the SPBR by submitting her claim to final and binding arbitration. Finally, we find that Article IV is the most specific section of the collective bargaining agreement dealing with the issues raised in the case, sub judice. Appellant's arguments that Articles XVIII and XXI control this case are not persuasive as Article XVIII covers probationary employees and Article XXI covers disciplinary actions. Appellant was not a probationary - 6 - employee, nor was she disciplined, therefore, the remedies set forth in these sections cannot take precedent over the formal grievance procedure employed by appellant under Article IV. For these reasons, we find that the lower court did not abuse its discretion in affirming the SPBR's decision, and appellant's first and second assignments of error are not well taken. III. For her third assignment of error, appellant argues that: "THE COMMON PLEAS COURT ABUSED ITS DISCRETION BY DENYING APPELLANT'S APPLICATION FOR WRIT OF MANDAMUS." Appellant moved for a Writ of Mandamus in Cuyahoga County Common Pleas Case No. 85663. That motion wad denied on June 22, 1987. In the case, sub judice, appellant filed her notice of appeal from Cuyahoga County Common Pleas case no. 140028 on January 2, 1991, three and one-half years after the denial of her motion in case no. 85663. The issue of the trial court's denial of appellant's motion for a Writ of Mandamus is not one that we may address as it was not properly appealed in the pending action. Furthermore, such an appeal would be untimely as the application was denied on June 22, 1987. This court lack jurisdiction to address appellant's third assignment of error. - 7 - Judgment affirmed. - 8 - It is ordered that appellee recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. NAHRA, P.J., and JAMES D. SWEENEY, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. (See Case No. 50877, released 9/25/86 attached as appendix.) .