COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67900 CHRISTINA GUK : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF CLEVELAND, CIVIL : SERVICE COMMISSION : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : OCT. 12, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-179837 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Edward G. Kramer, Esq. Sharon Sobol Jordan, Esq. 3214 Prospect Avenue, East Director of Law Cleveland, Ohio 44115 By: Dennis A. Matejka, Esq. Assistant Dir. of Law City of Cleveland Law Department Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 -2- HARPER, J.: Appellant, Christina Guk, appeals from the ruling of the Common Pleas Court granting summary judgement for appellee, City of Cleveland Civil Service Commission. A careful review of the record compels affirmance. I. Appellant was employed as a stock room clerk at Cleveland Hopkins International Airport. While appellant was serving as an Airport Operations Agent in 1986, appellant violated administrative protocol and asserted a false claim that a fellow worker was attempting to blow up the airport. In 1986, as well, appellant improperly sent a airport crash rescue unit off of airport property to a nearby suburb where they were not needed. As a result of this incident, Cleveland Hopkins International Airport lost their Federal Aviation Administration certification due to the absence of these units. Appellant submitted a report from a medical doctor indicating that she was suffering from "depression and anxiety" when she was absent from her employment from April 1986 through November 1987. Pursuant to Civil Service Rule 9.10(14), appellant submitted to a psychological evaluation. This evaluation revealed that she had "unusual difficulties coping with stress involved in her current position" and recommended that she be placed in a "less stressful position." Appellant returned to her work as a stock room clerk on November 17, 1987. When appellant returned to work, appellant -3- confided to fellow employees that she planned to "bomb" the Airport Commissioner and inflict physical harm upon him. Appellant also submitted documents to the Mayor's office outlining her proposed reorganization of the Airport which would place her in the chain of command. These documents included appellant's personal medical condition, emotional problems and the side effects of her medication. In December 1987 appellant was terminated. Appellant appealed her termination to appellee, Civil Service Commission for the City of Cleveland pursuant to Rule 9.22 of the Civil Service Rules. Following a hearing before a referee pursuant to Rule 9.40, the referee issued findings of fact and conclusions of law and a recommendation that plaintiff be discharged from the service of the city. Appellant, then, appealed the referee's recommendation to appellee. As a result of contractual problems with the court reporter, neither the appellee nor the appellant were able to obtain a transcript of the referee's hearing. However, the referee submitted a detailed, twenty-page outline of the hearing. Appellee proceeded with its hearing, without the transcript and on November 27, 1989, both parties were allowed to present their full case, including evidence previously presented to the referee. At the hearing, the appellant was informed she could add any additional evidence due to the absence of the referee's transcript. A transcript of the hearing was taken. On November 27, 1989, -4- appellee affirmed the director's decision to discharge appellant based on the evidence before it. Appellant appealed appellee's decision to the common pleas court, citing R.C. Sections 2506 and 124.34. The commission timely certified the record to the court. Appellant's appeal was consolidated with a civil rights action brought by appellant alleging that her discharge was a result of activities which were protected by the United States Constitution. Appellant filed for summary judgment on the administrative appeal, asserting that her appeal was governed by R.C. 119.12 and that she was entitled to judgment as a matter of law pursuant to the default provisions of R.C. 119.12, because the transcript of the pre-determination referee's hearing was not filed with the record of the appellee's hearing. The appellee responded that appellant's reliance on Section 119.12 was in error because an appeal from the Civil Service Commission was governed by Chapter 2506 of the Ohio Revised Code. Appellee also maintained the punitive provision of R.C. 119.12 was inappropriate, even if R.C. 119.12 was applicable to the appeal. Appellee maintain a default judgment is only proper when appellee has made no effort to file the record. In the instant case, appellee made efforts to file a complete record. Judge Lawther originally assigned to the case granted appellant's motion as to liability only, reserving a ruling on the issue of damages until a proper showing of relief was made. Judge Calabrese on April 9, 1991, granted leave for the appellant to file a motion for reconsideration. Appellee argued -5- that the appellant was not prejudiced by the lack of a referee's report. In addition, appellant had been provided with the opportunity to provide additional evidence at the commission hearing. Judge Calabrese, on July 19, 1991, overruled the commission's motion for reconsideration. Judge Lawther heard the liability and civil rights issue. On July 11, 1994, the trial was held on the civil rights claim. Judge Lawther granted a directed verdict under Civ.R. 50 (A), on the basis that appellant's activities did not involve matters of public concern and, therefore the discharge did not violate her constitutional right to free speech. On July 25, 1994, appellee submitted another motion for reconsideration to Judge Lawther to reconsider Judge Calabrese's denial of its motion for reconsideration and affirmance of the granting of appellee's summary judgment. Judge Lawther found merit to the reconsideration and entered judgment for the appellee. The appellant timely appeals from the ruling of Judge Lawther. Appellant maintains Judge Lawther lacked authority to overrule Judge Calabrese's decision regarding summary judgment and that Judge Lawther erred in finding merit to defendant's motion for reconsideration. Appellant assigns the following assignments of error: I. JUDGE LAWTHER, AS A VISITING JUDGE, LACKED AUTHORITY TO RECONSIDER AND REVERSE THE PRIOR DECISION OF THE COURT GRANTING SUMMARY JUDGMENT TO THE APPELLANT. II. UNDER O.R.C. SECTION 119.12 THE FAILURE BY THE APPELLEE TO FILE A TRANSCRIPT OF THE RECORD -6- MANDATES A DECISION GRANTING SUMMARY Judgment FOR THE APPELLANT. III. THE FINDING BY JUDGE LAWTHER THAT THERE IS NO PREJUDICE SHOWN BY THE PLAINTIFF IN THE FAILURE OF THE APPELLEE TO FILE THE TRANSCRIPT IS ERROR SINCE THERE WAS A MATTER OF LAW INJURY TO THE APPELLANT. II. In appellant's first assignment, appellant contends that Judge Robert Lawther, the visiting judge assigned to the case, lacked authority to rule on the motion for reconsideration which Judge Calabrese denied. We disagree. We find this court's opinion in National Insurance v. Halton (March 2, 1995), Cuyahoga App. No. 66990, unreported controlling with respect to this question. As this court noted: CMI asserts the motion for reconsideration was a nullity. Although motions for reconsideration after final appealable orders are nullities, motions for reconsideration after interlocutory orders are proper. Pitts v. Dept. of Transp. (1981), 67 Ohio St.2d 378, fn.1; Bodo v. Nationwide Ins. Co. (1991), 75 Ohio App.3d 499, 504; Civ. R. 54(B). CMI next argues that the ruling on the motion for reconsideration by the predecessor judge prevented the successor judge from reconsidering it. A successor judge, however may reconsider rulings made by predecessor judges. Couto v. Gibson (1990). 67 Ohio App.3d 407, 415; State ex rel. Ruth v. Hoffman (1947), 82 Ohio App. 266; Meyer v. Gulf Oil Corp. (May 7, 1980), Hamilton App. No. C-790081, unreported. Accordingly, this assignment of error lacks merit and is overruled. Appellant's second and third assignments of error will be combined as they are related in that appellant contends in both that provisions of R.C. 119.12 are applicable. Appellant -7- essentially maintains that R.C. 119.12 requires appellee to provide transcripts of the hearings and the failure to do so constitutes prejudicial error to the appellant. These assignments of error lack merit. In the instant case, appellant filed her appeal to the court of common pleas pursuant to R.C. 124 and R.C. 2506. However, "a municipal civil service commission, not being an agency as defined by Section 119.01(A), Revised Code, is not subject to the provisions of the Administrative Procedure Act." Jacobs v. Marion Civil Service Commission, (1985) 27 Ohio App.3d 194. This court in Harvey v. Civil Service Commission (April 19, 1993), Cuyahoga App. No. 62335, determined that proceedings brought in the court of common pleas on appeal from a decision by a municipal civil service commission are procedurally governed by the provisions of Chapter 2505 of the Ohio Revised Code. This court stated: The provisions of R.C. Chapter 2505, governing procedure on appeal, are applicable to proceedings brought in the court of common pleas on appeal from a decision by a municipal civil service commission pursuant to R.C. 124.34. In re Locke (1972), 33 Ohio App.2d 177. Moreover, in Harvey, this court refused to enter judgment based on a procedural error by the commission. This court stated: We believe this decision is in keeping with Supreme Court of Ohio decisions emphasizing that it is a fundamental tenet of judicial review in Ohio that courts should decide cases on the merits and that an outright dismissal of an administrative appeal on procedural grounds absent prejudice to the opposing party or the court constitutes an abuse of discretion. -8- Appellant's argument that summary judgment should be granted in her favor because the City of Cleveland failed to certify and provide a transcript, pursuant to R.C. 119 is not well taken. This court has previously held that if a party files an appeal from the commission pursuant to R.C. 2506, and the transcript is unavailable, then "the party is not entitled to a judgment against the agency on this basis alone, as in an appeal taken pursuant to R.C. 119.12." Ferguson v. City of Cleveland (1981), Cuyahoga App. Mo. 42987, unreported. Moreover, extensive findings of fact by the referee preclude the party from being prejudiced. Ferguson, supra. Assuming arguendo that R.C. 119 is applicable in the instant case, the punitive provision of R.C. 119 would be inappropriate. The punitive "default" provision of R.C. 119 is applicable only in cases where no action has been taken by the administrative agency towards producing the record. In Re Troiano (1986), 33 Ohio App.3d 316. As this court noted in In re Troiano: The Ohio Supreme Court in interpreting R.C. 119.12 has stated that the "language of the statute is clear; if the agency fails to comply, then the court must enter a finding in favor of the party adversely affected." *** When the record has been timely certified but is not complete because parts of it are missing, then the appellant must show that he or she was prejudiced by the omission. A nonprejudicial omission of items from a certified record should not result in an automatic finding for the appellant-movant. The facts of the instant case, however, are distinguishable from Troiano in that appellee made a timely certified filing of the record. Appellant, however, was not prejudiced when appellee conducted a hearing without a transcript of the referee's hearings. -9- Appellant was afforded the opportunity, at the hearing, to present additional evidence. More importantly, the referee submitted a detailed, twenty-page findings of fact and recommendations. Given the fact that appellant was not prejudiced, the lower court was correct in granting defendant's motion for reconsideration. Accordingly, these assignments of error are overruled. -10- It is ordered that appellee recover of appellant its 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 Cuyahoga County Common Pleas Court 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. JOHN T. PATTON, CHIEF JUSTICE JAMES M. PORTER, J., CONCUR JUDGE SARA J. HARPER 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 .