COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69539 STATE OF OHIO EX REL. : ORIGINAL ACTION MARLENE COHN, ET AL. : : JOURNAL ENTRY RELATORS : : and -vs- : : OPINION SHAKER HEIGHTS CITY SCHOOL : DISTRICT BOARD OF EDUCATION : : RESPONDENT : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 1, 1996 CHARACTER OF PROCEEDING: WRIT OF MANDAMUS JUDGMENT: WRIT GRANTED. (MOTION NOS. 68884, 68885) DATE OF JOURNALIZATION: APPEARANCES: FOR RELATORS: FOR RESPONDENT: MARK B. COHN, ESQ. DAVID J. MILLSTONE, ESQ. 1800 Midland Building MICHAEL F. O'BRIEN, ESQ. 101 Prospect Avenue, W. WILLIAM J. EVANS, ESQ. Cleveland, Ohio 44115-1088 Squire, Sanders & Dempsey 4900 Society Center 127 Public Square JERRY BRODSKY, ESQ. Cleveland, Ohio 44114-1304 23605 East Baintree Road Beachwood, Ohio 44122 - 2 - O'DONNELL, J.: On September 11, 1995, the relators, Marlene Cohn and Cindy Brodsky, who are tutors for the Shaker Heights schools, commenced this mandamus action against the respondent, the Shaker Heights City School District Board of Education to compel the Board to grant them continuing service contracts and to pay them according to the salary schedules adopted pursuant to R.C. 3317.13 and 3317.14. The parties filed Joint Stipulations of Fact in mid- November, 1995, followed by cross-motions for summary judgment, reply briefs and affidavits. Accordingly, the matter is now ripe for disposition. For the following reasons, this court grants both relators' claims. Factual Background Since at least 1981 the teachers in the Shaker Heights City School District have been represented by the Shaker Heights Teachers' Association. The Board and the Association have entered into collective bargaining agreements, governing the wages, hours, and terms and conditions of employment for the teachers, including salary schedules which increase compensation for levels of education and years of experience. These salary schedules generally commence with the start of the calendar year, as compared to the academic year. The 1981-1985 collective bargaining agreement recognized the Association as the exclusive representative of "classroom teachers." At that time all the concerned parties, the Board, the - 3 - Association, the teachers and the tutors, agreed that the Association did not represent the tutors. Subsequent agreements clarified this point by enumerating those individuals and groups of employees who are and are not covered by the agreement; this provision explicitly excludes tutors. Marlene Cohn is certified by the State of Ohio in severe behavior handicapped, specific learning disabled and elementary education. She received her professional certificate in handicapped education in September 1991. As of March 1, 1989, Ms. Cohn held a bachelor's degree plus more than fifteen hours of post- bachelor's course work. The parties could not stipulate as to her teaching experience as of that date. She claims six years of experience; while the Board contends she had only five and a half years. The Board has employed her since November 1985. Cindy Brodsky is certified by the State of Ohio in developmental handicapped, severe behavior handicapped, specific learning disabled and elementary education. She received her professional certificate in handicapped education in July 1993. As of March 1, 1989, she had a masters degree in education, and the parties agreed that she had five years of teaching experience. The Board has employed her since November 1988. The parties further stipulated that both Ms. Cohn and Ms. Brodsky have worked as tutors and that both have served as "teachers" as that term is defined in R.C. 3319.09(A). During the relevant years the Board paid both relators an hourly rate, ranging from $15.00 an hour to $18.00 an hour. The parties kept close - 4 - account of the hours the relators actually worked, and generally, this was between 900 to 1000 hours a year. The evidence presented indicates that 1387.5 hours constitutes a full year of teaching. R.C. 3317.13 and R.C. 3317.14 require each teacher to be paid according to a salary schedule with provision for increments based upon training and years of service. If a school district participates in funds distributed under R.C. Chapter 3317, then it must annually adopt such a teacher's salary schedule. Indeed, R.C. 3317.14 requires each such district to file the schedule in effect for that year with the superintendent of public instruction and the county superintendent of schools "[o]n the fifteenth day of October of each year." R.C. 3317.13 provides a minimum salary schedule, and no school district may use a schedule which pays a teacher less than the statutory schedule. During each of the school years from 1988-89 through 1995-96, the Shaker Heights School District participated in funds distributed under R.C. Chapter 3317. In late 1994 both relators became aware through newspaper 1 reports and the advice of counsel that they may be entitled to continuing contracts and payment pursuant to the statutorily required salary schedules. The parties quickly began negotiations, during which the Board waived any statute of limitations defense up to March 9, 1989. In a March 20, 1995 letter between counsel, the Board agreed it would "not raise any statute of limitation defense 1 On November 23, 1994, the Supreme court of Ohio decided State ex rel. Chavis v. Sycamore City School District Board of Education (1994), 71 Ohio St.3d 26, 641 N.E.2d 26. - 5 - it did not have as of that date ***." However, that parties were not able to settle this matter. In an effort to comply with R.C. 3317.13 and .14, the Board on April 11, 1995, adopted non-bargaining, certificated staff salary schedules (hereinafter the "tutor salary schedules") for the following periods: March 1, 1989 through June 30, 1989; July 1, 1990 through June 30, 1991; July 1, 1991 through June 30, 1992; July 1, 1992 through June 30, 1993; July 1, 1993 through June 30, 1994; and July 1, 1994 through June 30, 1995. These schedules increased the rate of pay for the tutors, including the relators, and paid more than the minimum salary schedule of R.C. 3317.13. The Board filed these schedules with the State Superintendent of Public Instruction on April 17, 1995, and retroactively paid all its tutors pursuant to these schedules. The relators deny that these schedules have retroactive effect. Initially the parties had stipulated that for the 1988-89 through 1994-95 school years the Board had adopted and filed teacher salary schedules with the State Superintendent of Public Instruction pursuant to R.C. 3317.14. However, the record reflects that relators then requested the filed salary schedules from the Ohio Department of Education, and questions arose as to statutory compliance by the Board regarding those filings. Lorna Gantzler, a programmer analyst, stated by affidavit that, "Where no salary schedule is filed, the report will repeat the numbers from the most recently filed teacher salary schedule," and further stated in her affidavit, "The reports for school years 1991-92 1992-93 1993-94 - 6 - and 1994-95 repeat the numbers of the 1990-91 report." Thus, it appears that no schedules were filed for school years 1991-92 through 1994-95. For purposes of the continuing contract issue, the parties agreed that the Board has rehired the relators for each year since they began employment with the Board, including the current academic year. Additionally, neither the Board nor the Shaker Heights School District Superintendent provided either relator with written notice of a recommendation for a limited contract with reasons directed at either's professional improvement. The Salary Schedule Claim The relators argue that they have a statutory right under R.C. 3317.13 and 3317.14 to be paid pursuant to the salary schedules in effect for the school district, those contained in the collective bargaining agreement. Specifically, they submit that the case of State ex rel. Chavis v. Sycamore City School District Board of Education (1994), 71 Ohio St.3d 26, 641 N.E.2d 188 is binding authority on this court. Of the fourteen relators in Chavis, eleven were tutors providing supplemental instruction to learning disabled students and three provided that instruction in English as a second language. They were paid not according to a schedule providing for increments based on training and experience, but at an hourly rate and on an "as needed basis." They were not covered by the collective bargaining agreement, but explicitly excluded therefrom. - 7 - The Supreme Court of Ohio ruled that the tutors were teachers for purposes of R.C. Chapters 3317 and 3319. Because the tutors were teachers, they had to be paid in accordance with the board's teachers' salary schedules for the subject school years. Since the board had shared in funds distributed under R.C. Chapter 3317, it had the duty to prepare and file salary schedules. "The teachers' salary schedules adopted by the board and incorporated in the collective bargaining agreements were the only schedules containing provisions for `increments based upon training and years of service' as required by R.C. 3317.14." See Chavis, supra, at 32- 33. Although the evidence was not conclusive that the salary schedules had been filed with the Superintendent of Public Instruction, sufficient evidence existed that they had been filed with the Ohio Department of Education and, therefore, the court ruled that the schedules from the collective bargaining agreement substantially complied with R.C. 3317.14 and were to be used for purposes of paying the tutors. At page 33 in its opinion, the court stated: Therefore, [the relators] possessed a statutory right to be paid in accordance with those schedules during school years 1986- 1987 through 1990-1991. The fact that the schedules were also contained in the collective bargaining agreements from which [the relators] were excluded does not vitiate this result, since [the relators] claim is premised on R.C. 3317.14 rather than the agreements. [The relators] thus have a clear legal right to the difference between the amounts they were paid as tutors and the amounts they should have been paid under the board's duly adopted teachers' salary schedule. The board has a corresponding legal - 8 - duty to pay this compensation. See also Tapo v. Columbus Board of Education (1987), 31 Ohio St.3d 105, 509 N.E.2d 419; State ex rel. Madden v. Windham Exempted Village School District Board of Education (1989), 42 Ohio St.3d 86, 573 N.E.2d 646; State ex rel. Gingrich v. Fairfield City Board of Education (1985), 18 Ohio St.3d 244, 480 N.E.2d 485; and State ex rel. Tavenner v. Indian Lake Local School District Board of Education (1991), 62 Ohio St.3d 88, 578 N.E.2d 464. In the instant case the analogy to Chavis is compelling. Ms. Cohn and Ms. Brodsky are tutors, who were paid an hourly rate and apparently on an "as needed basis." The parties have agreed they are teachers for purposes of R.C. Chapters 3317 and 3319. Thus, they have a statutory right to be paid according to the salary schedules adopted by the Board. Because the only salary schedules existent during the relevant time periods were the salary schedules in the collective bargaining agreements, the relators have the right to be paid pursuant to those schedules. The Board on the other hand argues that the requisites for mandamus have not been fulfilled: The relators have adequate remedies at law, they have no clear, legal right to be paid according to the schedules in the collective bargaining agreement, and the board has no corresponding clear legal duty to pay them. Under its adequate remedies at law argument, the Board asserts that the relators could bring an action for money damages. This argument fails because of the repeated - 9 - rulings of the Supreme Court of Ohio, which we are obligated to follow, that "a claim by a public employee of entitlement to wages or benefits which are granted by statute or ordinance is actionable in mandamus." Gingrich, 18 Ohio St.3d at 245, citing State ex rel. Villari v. Bedford Heights (1984), 11 Ohio St.3d 222, 223. See, also, State ex rel. Britton v. Scott (1983), 6 Ohio St.3d 268, 452 N.E.2d 1312; Madden, supra. Moreover, the cases cited by the Board, State ex rel. Russell v. Duncan (1992), 64 Ohio St.3d 538 and State ex rel. Lakeland Anesthesia Group, Inc. v. Ohio State Medical Board (1991), 74 Ohio App.3d 643, are inapplicable, because they involved private persons seeking relief for something other than wages or benefits conferred by statute. Next, the Board submits that a declaratory judgment action would provide an adequate remedy at law. In addition to the authorities already cited in support of the position that mandamus is appropriate, this argument fails because declaratory judgment is not necessarily an adequate remedy at law. In State ex rel. Fenske v. McGovern (1984), 11 Ohio St.3d 129, 464 N.E.2d 525, at paragraph two of the syllabus, the court held that a declaratory judgment action does not bar a mandamus claim, if the relator demonstrates a clear legal right; rather the availability of declaratory judgment may be considered by the court in the exercise of its discretion in deciding the writ action. Furthermore, declaratory judgment is not an adequate remedy if it must be coupled with other relief, such as a mandatory - 10 - injunction. See State ex rel. Scripps Howard Broadcasting Company v. Cuyahoga County Court of Common Pleas, Juvenile Division (1995) 73 Ohio St.3d 19, 652 N.E.2d 179. In the present case additional relief would be required to render a complete remedy. Although State ex rel. Berry v. Wadsworth City School District (Nov. 24, 1993), Medina Cty. App. No. 2141-M, unreported, upon which the Board relies, concerns the same subject matter as the present case, it is not controlling. That decision rests more on insufficiency of evidence and the court's discretion, than on adequate remedy. Thus, this argument is not persuasive. As a variant of these arguments, the Board asserts that the relators' prayer for declaratory judgment and for money damages are beyond this court's jurisdiction in extraordinary writs. However, R.C. 2731.11 explicitly provides that a relator may recover damages in a mandamus action. Although this court does not have jurisdiction in declaratory judgment, the gravamen of this case is to obtain statutory benefits in mandamus, over which this court does have subject matter jurisdiction. Accordingly, we decline to grant summary judgment for the Board on these bases. The Board's next argument is that the grievance procedure in the collective bargaining agreement provides the relators with an adequate remedy at law. The Board reasons as follows: In the 1981-1985 collective bargaining agreement, the recognition clause provided that the Association represented the "classroom - 11 - teachers" without further limitation. In 1984, R.C. Chapter 4117 was enacted and preserved all existing bargaining units; the only way to change such a unit is through another union election. Under State ex rel. Brown v. Milton-Union Exempted Village Board of Education (1988), 40 Ohio St.3d 21, 531 N.E.2d 1297, the supreme court ruled that tutors are teachers. Therefore, the tutors by operation of law were included in the bargaining unit in 1981. Because no union challenges have occurred since then, they are still part of the bargaining unit by operation of law and had an adequate remedy through the grievance procedure. This argument also is not persuasive. Merely because the supreme court has held and we conclude that tutors are teachers for purposes of R.C. Chapters 3317 and 3319, does not mean they are necessarily teachers subject to the provisions of any given collective bargaining agreement. The Board has cited no authority for that proposition, nor any case in which a bargaining unit has been expanded in similar fashion. Moreover, after reviewing R.C. Chapter 4117, this court declines to retroactively force these litigants into a bargaining unit, especially when all parties agree that at the time, they were not part of a labor union. The Board next submits that an unfair labor practice charge with the State Employment Relations Board provides an adequate remedy at law. As a variant the Board asserts that this court lacks subject matter jurisdiction because the State Employment Relations Board has exclusive jurisdiction over the allegations - 12 - raised in the complaint. These arguments are not well taken. Public employees have a remedy in mandamus to obtain statutory benefits. The recent, repeated and consistent holdings of the Supreme Court of Ohio establish that this case has been properly presented to this court. Moreover, as the supreme court stated in Lorain County Board of Education v. State Employment Relations Board (1988), 40 Ohio St.3d 257, 533 N.E.2d 264, the General Assembly's intention was to vest SERB with the authority to administer and enforce R.C. Chapter 4117. If this case had involved the right of the tutors to engage in collective bargaining or if the tutors were members of a collective bargaining unit, then an unfair labor practice charge might provide an adequate remedy. However, this case involves individuals who have not engaged in collective bargaining but rather seek statutory relief. Thus, R.C. Chapter 4117 and its remedies are not applicable in this case. The Board's next position is that the relators have no clear legal right to be paid according to the salary schedules in the collective bargaining agreements because the tutor salary schedules remedied any deficiency. Also the collective bargaining agreement salary schedules are not effective because 2 they do not comply with R.C. 3317.14. 2 The Board also argues that the relators have no clear legal right under Chavis because the collective bargaining agreement's grievance procedure provides an adequate remedy. This reasserts the position that the relators are members of the union by operation of law. This court has already rejected this argument. - 13 - In Chavis the tutors had the right to be paid according to the collective bargaining agreement schedules because they were the only schedules adopted and filed by that board of education which complied with R.C. 3317.14's requirement for "increments based upon training and years of service." The Board here contends that Chavis is inapplicable because it paid the relators pursuant to the tutor salary schedules, which fulfill the requirements of R.C. 3317.14 and were duly adopted and filed in April 1995 retroactive to March 1989. Thus, the issue is whether these retroactively adopted salary schedules fulfill the Board's duty to pay the tutors according to proper salary schedules as required by law. We conclude this attempt by the Board to correct its omission does not cure the failure to timely file the schedules. Pursuant to the first paragraph of R.C. 3317.14 the Board had the duty to "annually adopt a teacher salary schedule with provisions for increments based upon training and years of service" so that the teachers could be paid pursuant to R.C. 3317.13. The second paragraph of R.C. 3317.14 reemphasizes the timely nature of this duty: "On the fifteenth day of October of each year the salary schedule in effect on that date in each school district shall be filed with the superintendent of public instruction." The Board failed in its duty to adopt and timely file salary schedules for its tutors. The tutors, as teachers under R.C. Chapter 3317, had the statutory right to be paid according to proper salary schedules. That right accrued each year by October 15. When no salary schedule was adopted covering - 14 - the tutors, their right to be paid pursuant to a proper salary schedule defaulted to the then existing salary schedule in this case, the one contained in the collective bargaining agreement. The Board argues that R.C. 3317.13(B) permits retroactive salary schedules. That subsection provides that if a written complaint is made to the superintendent of public education that a school district has not adopted a salary schedule or has refused to pay salaries in accordance with the statutory schedule, then the superintendent will investigate the complaint. If the complaint is valid, the superintendent shall order the board to correct such conditions within ten days of the date of the finding. The subsection further provides that the state will not distribute moneys to the district under R.C. Chapter 3317 until it has fully complied with the superintendent's order. The Board submits that this section, especially the language "he shall order the board to correct such conditions", implicitly authorizes retroactive salary schedules. We are not persuaded. First, the statutory procedure was not invoked; no written complaint was filed with the superintendent of public instruction, and the statutory penalty, withholding of state funds, was never imposed. Second, the statute does not explicitly authorize a board to retroactively correct its omissions. The statute is silent as to whether any correction is to be retroactive or prospective, with the teachers being able to bring a mandamus action for the moneys they should have been paid. Indeed, in Chavis the Supreme Court of Ohio cited with - 15 - approval the analysis of the Court of Appeals that R.C. 3317.13(B) provided tutors with no adequate remedy at law. More importantly, the Supreme Court of Ohio has clearly held that when a board of education has adopted salary schedules and a teacher has not been paid accordingly, the teacher has the clear, legal right to be paid pursuant to the then existing salary schedules. Chavis, and Brown v. Milton-Union; Cf. Madden, Tapo, Gingrich and Tavenner. The statutory mandate to adopt and file salary schedules annually affirms that the right to be so paid accrues annually, and thus may not be retroactively corrected. The Board next argues that for academic years 1991-1992 through 1994-1995, the relators have no clear, legal right to be paid under the collective bargaining agreement schedules because those schedules were never filed with the Superintendent of Public Instruction or the Ohio Department of Education. The Board contends that because the tutors' right to be paid is pursuant to statute, the failure of the Board to file the then existing salary schedule as required by the statute, abrogates its duty to pay them under those salary schedules. To support this argument the Board cites the language in Chavis in which the supreme court noted with approval that the schedules were filed in substantial compliance with R.C. 3317.14. Because its schedules were not properly filed in this case, the Board argues that the tutors should be only paid according to the schedules filed, i.e., the retroactively filed tutor salary schedules. In other words the Board argues it should benefit from its failure - 16 - to comply with the duty to file its salary schedules annually. We do not agree. Relators had the statutory right to be paid pursuant to salary schedules which should have been adopted and filed annually. When the Board did not adopt a salary schedule for tutors, their right to be paid emanated from the then existing salary schedules, not those adopted retroactively. The then current salary schedule embodied in the collective bargaining agreement was the schedule by which the Board was paying its teachers, and the schedule under which the tutors had the right to be paid. The Board next raises the statute of limitations. It argues that any damages should be calculated from March 9, 1989, but that the relators are seeking back pay from September 1988. The complaint does reference the beginning of the 1988-1989 school year; however, the prayer seeks damages from only 1989 forward. Moreover, a review of the submitted materials establishes that both sides agree that the relevant period begins in March 1989. Thus, the statute of limitations is not an issue in this case. The Board also asserts that equitable estoppel bars the claims for back pay. The Board maintains that the relators' acceptance of their pay and their failure to object induced the Board to proceed with its course of action. Otherwise, the Board "could have considered consolidation of tutoring responsibilities", or it "may have reduced the number of tutors." This argument is not persuasive. The Board presents no evidence that it actually relied on the relators' silence to maintain its - 17 - tutor program. Although it is reasonable to speculate that increased tutor salaries might have led the Board to curtail the program, it is also true that such reductions would have risked compromising the Board's educational goals. On the record before this court, it is by no means certain that the Board would have reduced the tutor program. Moreover, the Supreme Court of Ohio rejected very similar arguments in Chavis and Madden. In Chavis the court noted that equitable estoppel requires actual or constructive fraud which induces the other party to change its position to its detriment. The court then ruled that there was no evidence that the relators by continuing to accept the tutors' compensation misled that board. Similarly in Madden the court rejected the argument that prejudice is inherent in a multi-year delay in asserting such a claim. It concluded that there was "no evidence showing that [the board] relied on relator's actions or inactions to its detriment." State ex rel. Madden v. Windham Exempted Village School Dist. Bd. of Edn., supra, at 90. After reviewing all the submitted materials, this court concludes that the supreme court's rulings in those cases are fully applicable to the instant matter. The Board also argues that the salary claims are barred by laches. The Board cites Stevens v. National City Bank (1989), 45 Ohio St.3d 276 for the elements of laches: (1) conduct on the part of the defendant giving rise to the claim, (2) delay in asserting the claim with knowledge of the claim, (3) lack of - 18 - knowledge or notice on the part of defendant that the claimant would assert his right and (4) actual prejudice to the defendant. The Board concedes the first element and then argues that the relators had full knowledge of the pay schedules and could have instituted suit at any time. The Board suggests it "was unaware of relators' claims until pre-suit correspondence in December 1994 and January 1995" and argues it was prejudiced because it is "locked into" its funding: In 1995 it secured passage of a levy by promising not to seek another levy and by promising to cap the growth in expenses; by their delay the tutors increased their claim to several hundred thousand dollars. Thus, the Board argues the delay caused prejudice because it will have to cut other educational programs to meet the tutors' demands. Initially, we note that both the relators and the Board knew the tutor salaries, knew the collective bargaining agreement schedules and knew the requirements of R.C. Chapter 3117. Addi- tionally, in Chavis and Madden the supreme court rejected laches arguments. In Madden the court ruled that whether the delay is sufficient to bar a writ depends on the character and circumstances of a particular case. Here, we conclude relators acted diligently to pursue their claims. Therefore, the laches argument is not well taken. Accordingly, in the years in issue, pursuant to R.C. 3317.13 and 3317.14, the relators have a clear, legal right to be paid in accordance with the adopted salary schedules, i.e., those contained in the collective bargaining agreements, and that the - 19 - Board has the clear, legal duty to pay them according to those schedules with appropriate credit for salary already paid to relators by respondent. Continuing Contract Claim The relators' second claim is that they are entitled to continuing contracts. R.C. 3319.11 establishes the procedures for granting continuing contracts and provides that the teachers eligible for continuing contracts are those who are qualified as to certification and who within the last five years have taught for at least three years in the school district. While under a limited contract, the teacher should be evaluated in accordance with R.C. 3319.111, and the superintendent should make recommendations concerning tenure to the board. That statute further provides that a teacher under an extended limited contract who is eligible for a continuing contract is deemed reemployed under a continuing contract unless the evaluation procedure is completed and the board gives the teacher timely notice of termination. If the evaluation procedure is not fulfilled or timely notice is not given, then a continuing contract is presumed. In Brown, the Supreme Court of Ohio recognized a tutor's entitlement to a continuing contract because she had been eligible and reemployed by the school board for several years after her eligibility. These relators have been eligible for continuing contracts for several years and have been reemployed by the Board each year. Ms. Cohn received her professional - 20 - certificate in 1991. At that time she had taught for at least three of the previous five years in the Shaker Heights School District. Her repeated and continual reemployment since then entitles her to a continuing contract. Similarly, Ms. Brodsky received her professional certificate in July 1993. She too at that time had taught for at least three of the last five years in the Shaker Heights School District. Her repeated and continual reemployment with the district since that time also entitles her to a continuing contract. The Board argues that relators should not be granted tenure because they did not undergo the statutory evaluation process established in R.C. 3319.11 and 3319.111. Granting continuing contracts without evaluations would undermine the statutory process, which was enacted to ensure that only teachers who had proven themselves would be granted tenure and would be unfair to those teachers who had earned continuing contracts pursuant to the statutory process. However, R.C. 3319.11 provides for granting continuing contracts to teachers in instances where statutory evaluations have not been completed. Furthermore, the supreme court recognized this principle in State ex rel. Martines v. Cleveland City School District Board of Education (1994), 70 Ohio St.3d 416, 417: "R.C. 3319.11 specifically provides that a board's failure to comply with the teacher evaluation requirement of R.C. 3319.111 results in the reemployment of the teacher." Accordingly, the relators are entitled to continuing contracts. - 21 - Conclusion This court grants the writ of mandamus in favor of the relators, Marlene Cohn and Cindy Brodsky, on both of their claims. Relators have a clear legal right to the difference between the amounts they were paid as tutors and the amounts they should have been paid under the Board's adopted teachers' salary schedules for a period encompassed by the six-year statute of limitations and the period of time waived by the Board commencing March 6, 1989 through June, 1995 and the Board has a corresponding legal duty to pay this compensation to them. In accordance with Biefuss v. Westerville (1988), 37 Ohio St.3d 187, 525 N.E.2d 20, this back pay compensation is to be paid without an award of prejudgment Writ granted. Respondents to pay costs. BLACKMON, J., CONCURS; DYKE, J., CONCURS IN PART AND DISSENTS IN PART (See Concurring and Dissenting Opinion Attached) TERRENCE O'DONNELL JUDGE COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69539 STATE OF OHIO, EX REL. : MARLENE COHN, ET AL. : : Relators : : C O N C U R R I N G : A N D -vs- : D I S S E N T I N G : O P I N I O N : SHAKER HEIGHTS CITY SCHOOL : DISTRICT BOARD OF EDUCATION : : : Respondent : : DATE: JULY 1, 1996 DYKE, J. CONCURRING IN PART AND DISSENTING IN PART: I respectfully concur in part and dissent in part. I fully concur in granting the writ for both relators on both their claims. This concurrence includes the majority's reasons why the Board's arguments are not persuasive. However, I dissent from the majority's decision not to calculate damages on the salary claim. In their prayer the relators explicitly demand damages, i.e., the back pay owed to them. Ruling for the relators and ordering the Board to pay them the difference between what they were paid and what they should -2- have been paid pursuant to the adopted salary schedules without specifying the amount of damages only determines liability and leaves the issue of damages unresolved. By not calculating damages this entry does not fully adjudicate the case and does not present a final, appealable order. Fireman's Fund Insurance Companies v. BPS Company (1982), 4 Ohio App.3d 3, 446 N.E.2d 181; The Mayfred Company v. City of Bedford Heights (1980), 70 Ohio App.2d 1, 433 N.E.2d 620; Cammack v. V. N. Holderman & Sons (1973), 37 Ohio App.2d 79, 307 N.E.2d 38; Jones v. Jones (1952), 72 Ohio Law Abs. 259, 134 N.E.2d 735. The parties agreed to submit this matter to the court on stipulations. Those filings included the hours worked by the parties per academic year, the amount the Board paid them, their experience and the salary schedules. Therefore, given the .