IN THE SUPREME COURT OF OHIO

HARVEY WORTHAM, et al.

Appellants.

On Appeal from Montgomery CountyCourt of Appeals, Second AppellateDistrict

V. Court of AppealsCase No. CA22540

STATE OF OHIO, EX REL AUTO-OWNERS INSURANCE, et al. Case No. ® ^I '̂^ 15 ; 2 ^+

Appellees.

NOTICE OF APPEAL OF APPELLEES HARVEY WORTHAM, CITY OF DAYTONHUMAN RELATIONS COUNCIL AND JANE/JOHN DOE, CHAIRPERSON OF

THE CITY OF DAYTON HUMAN RELATIONS COUNCIL

Danyelle S.T. Wright (0072000)SEBALY SHILLITO + DYERA Legal Professional Association40 N. Main Street, Suite 1900Dayton, OH 45423937/222-2500/937/222-6554 (fax)DWright@ssdlaw.comAttorney for Appellees Harvey Wortham, City ofDayton Human Relations Council andJane/John Doe, Chairperson of The City of Dayton Human Relations Council

F

CLERK OF COURTSUPREME COURT OF OHIO

NOTICE OF APPEAL OF APPELLEES HARVEY WORTHAM, CITY OF DAYTONHUMAN RELATIONS COUNCIL AND JANE/JOHN DOE, CHAIRPERSON OF THE

CITY OF DAYTON HUMAN RELATIONS COUNCIL

Appellees Harvey Wortham, City of Dayton Human Relations Council and Jane/John

Doe, Chairperson of the City of Dayton Human Relations Council hereby give notice of appeal

to the Supreme Court of Ohio from the Decision of the Montgomery County Court of Appeals,

Second Appellate District entered in the Court of Appeals, Case No. CA22540 on June 13, 2008.

See, Exhibit A.

This case raises a substantial question of first impression, and or is one of public or great

importance.

A copy of the Appellees' motion to stay the Court of Appeals' decision is attached as

Exhibit B.

,DaiiyellgS.T. J(VVright (0072000)SEBALY SHILLITO + DYERA Legal Professional Association40 N. Main Street, Suite 1900Dayton, OH 45423937/222-2500937/222-6554 (fax)DWright@ssdlaw.comAttorney for AppelleesHarvey Wortham, City of Dayton HumanRelations Council and Jane/John Doe,Chairperson of the City of Dayton HumanRelations Council

2

CERTIFICATE OF SERVICE

I certify that a true copy of the foregoing was sent via regular U.S. Mail, postageprepaid, to:

Hon. Dennis J. LangerMontgomery County Common Pleas Court41 N. Perry StreetDayton, Ohio 45422

Cheryl R. Washington, Esq.Jones & Washington Co. LPA1308 Talbott Tower118 West First StreetDayton OH 45402Attorney forAppellants, AutoOwners Insurance, Dannis Black, and

Kimrey-Black Agency, Inc.

This 3rd day of July, 2008.

Dwight Washington, Esq.Cooper, Gentile & Washington Co.850 Talbott Tower118 W. First StreetDayton, OH 45402Hearing Officer

Michael Murphy, Esq.Wright & Vannoy32 N. Main StreetSuite 801Dayton, Ohio 45402Attorney for Appellee,Magdalene Boyd

766242.2

3

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO, EX REL., AUTO- :

OWNERS INSURANCE, et al.

Relators-Appellants C.A. CASE NO. 22540

vs. T.C. CASE NO. 07CV10040

HARVEY WORTHAM, et al. (Civil Appeal from

Common Pleas Court)

Respondents-Appellees

O P I N I O N

Rendered on the ^J^ day of JMU, , 2008.

Cheryl R. Washington, 1308 Talbott Tower, 118 W. First Street,Dayton, OH 45402

Attorney for Relators-Appellants

Danyelle S.T. Wright, 40 N. Main Street, Suite 1900, Dayton,

OH 45423andMichael Murphy, One First National Plaza, Suite 1600, 130 W.Second Street,

AttorneysDayton, OH 45402for Respondents-Appellees

GRADY, J.:

This is an appeal from a judgment of the court of common.

pleas that denied relief requested in a petition for a writ of

prohibition.

On March 12, 2007, the City of Dayton Human Relations

Council ("Council") filed a complaint on its own docket

against Auto Owners Mutual Insurance Company and its local

agent and agency ("Auto Owners"). The complaint alleged that,

on or about March 10, 2005, the respondents discriminated

against Magdalene Boyd on account of her race when respondents

declined to renew Boyd's policy of homeowners insurance.

Auto Owners moved to dismiss the complaint, arguing that

the Council lacked jurisdiction to proceed on the complaint

because it was not timely filed. A hearing officer denied the

motion.

Auto Owners next filed a petition in the court of common

pleas, seeking a writ of prohibition that would bar the

Council from proceeding on its complaint. Auto Owners relied

on the same jurisdictional argument.

The Council filed a Civ.R. 12(B) (6) motion to dismiss

Auto Owner's petition. The trial court granted the motion on

a finding that the section of the Revised Code of General

Ordinances of The City of Dayton ("RCGO") on which Auto Owners

relied is akin to a statute of limitations, which is not

jurisdictional. Auto Owners filed a timely notice of appeal.

ASSIGNMENT OF ERROR

"THE TRIAL COURT ERRED IN GRANTING THE RESPONDENTS'

MOTION TO DISMISS RELATORS' COMPLAINT FOR WRIT OF

3

PROHIBITION."

There are three prerequisites for the issuance of a writ

of prohi.bition. First, the court or officer against whom it

is sought must be about to exercise judicial or quasi-judicial

power. Second, the exercise of such power must be clearly

unauthorized by law. Third, it must appear that the refusal

of the writ would result in injury for which there is no

adequate remedy in the ordinary course of law. State ex rel.

La Bo.fteaux Co., Inc. v. Court of Common Pleas, FiaaxiSton

County (1980), 61 Ohio St.2d 60.

Prohibition will issue if there is a patent lack of

jurisdiction on the part of a court or tribunal, or where a

particular dispute is clearly outside its jurisdiction, or

where it proposes to exercise some power it does not have,

even though the remedy of appeal may be available, State ex

rel. Gilla v. Fel2erhoff (1975), 44 Ohio St. 2d 86; State ex

rel. Johnson v. County Court of Perry County (1986), 25 Ohio

St.3d 53.

The complaint the Council filed, a copy of which is

attached to its brief (Tab 6), alleges a violation of RCGO §

32.05(A)(5). That section prohibits discrimination ". . . in

furnishing facilities, services, or privileges in connection

with the ownership, occupancy, or use of any housing because

4

of race . . ."

RCGO 32.20(A) authorizes the Council to investigate

charges that a respondent "has engaged or is engaging in any

unlawful discriminatory practices as defined in §§ 32.01

through 32.07" of the City's ordinances. RCGO 32.20(C)

provides that if the Council fails to effect the elimination

of an unlawful discriminatory practice that was charged, the

Council may file a complaint. That section concludes: "Any

complaint issued pursuant to the provisions of this section

must be so issued within one year after the alleged unlawful

discriminatory practices were committed."

The Council's complaint was filed on March 12, 2007. It

alleged that Auto Owners had committed a discriminatory

practice on March 10, 2005. Clearly, on its face, the

complaint fails to satisfy the one-year filing requirement in

RCGO § 32.20(C).

The Council argues that RCGO 32.20(C) does not apply,

because procedures on housing complaints are instead governed

by RC6O § 32.21(F), which authorizes the Council to file a

complaint but contains no one-year limitation.

We do not construe the lack of a one-year or other time

limit in RCGO § 32.21(F) as creating an exception to the one-

year time limit on filing complaints imposed by RCGO

§32.20(C). The former section, RCGO § 32.21, is largely

concerned with how a private person files a complaint with the

Council and its investigation and conciliation services. RCGO

§ 32.21(F) authorizes the Council to file a complaint when its

non-coercive efforts fail. However, there is no reason to

find that the complaint is not governed by the one-year filing

limit in RCGO § 32.20(C). Reading those provisions in pari

materia, we find that the one year requirement applies to the

complaint the Commission filed against Auto Owners.

The trial court likewise found that the one-year filing

time limit in RCGO S 32.20(C) applies, but the court went on

to find that the Council's failure to satisfy that requirement

does not deprive the Council of jurisdiction to proceed on its

complaint. Likening the requirement to a statute of

limitations, the court reasoned that because statutes of

limitations violations are affirmative defenses, and not

jurisdictional defects, the Council's failure to satisfy the

one-year limit in the complaint it filed against Auto Owners

did not deprive the Council of jurisdiction.

The trial court relied on State ex re.l. Z'abbs Jones v.

Suster, 84 Ohio St.3d 70, 1998-Ohio-275, in which the Supreme

Court wrote:

"[T]he expiration of the statute of limitations is an

6

affirmative defense that may deprive a litigant of his or her

right to recover, but it is not a jurisdictional defect. The

statute of limitations is a defense to a matter over which the

court has subject matter jurisdiction. Lewis v. Trimble

(1997), 79 Ohio St.3d 231, 680 N.E.2d 1207. A statute of

limitations is an affirmative defense that is waived unless

pled in a timely manner. id. If it is not so pled, a court

with subject matter jurisdiction can proceed with the case.

The appellate court in Collins v. Nurre (1969), 20 Ohio App.2d

53, 54, 49 0.0.2d 70, 71, 251 N.E.2d 621, 622, put it well:

`The running of a pure statute of limitations does not

extinguish the right nor extinguish the jurisdiction of the

court over the subject matter but merely bars the remedy which

in certain cases is subject to being revived, and subject to

being waived.'

"Consequently, the expiration of a statute of limitations

does not deprive a court of jurisdiction. To hold otherwise

would elevate the defense of statute of limitations to the

status of subject matter jurisdiction. This would mean that

the defense of statute of limitations, as well as subject

matter jurisdiction, could be asserted at any point in the

proceedings. We are unwilling to make this leap." Id., at 75.

Classification of a statute of limitations violation as

7

an affirmative defense reflects the express classification in

that respect made by Civ.R. 8(C). However, Civ.R. 1(C)

provides that the Rules of Civil Procedure shall not apply to

special statutory proceedings. The Complaint Procedure in

RCGO § 32.20 and Housing Complaint Procedures in RCGO § 32.21,

which were adopted by the City of Dayton in the exercise of

its local police powers, are special statutory proceedings.

Therefore, Civ.R. 8(C) has no application to them.

RCGO § 32.20(C) and the one-year time limit it imposes on

the Council for filing a complaint is not "pure statute of

limitations" that operates to bar an action which a private

party is otherwise authorized by law to commence. It is,

instead, a limitation the City of Dayton imposed on procedures

available to an agency the City created and to which it has

delegated certain specific powers, including the power to

commence quasi-judicial proceedings. To hold that the Council

may ignore an express requirement the City imposed on it would

violate a fundamental precept of administrative law that an

agency has only such jurisdiction and powers it is authorized

to exercise, and no more. Ohio Central Te2ephone Corp. v.

Pnb2.ic Utilities Commission (1957), 166 O.S. 180; City of

Cincinnati v. PubZic Uti.lities Commission (1917) , 96 O.S. 270.

Such an express statutory prerequisite to quasi-judicial

Q

action an agency is authorized to undertake has been held to

likewise be a jurisdictional prerequisite to the issuance of

a complaint on which the action is commenced. State ex rel

Republic Steel Corp. v. Ohio Civil Rights Commission (1975),

44 Ohio St.2d 178.

The trial court erred when it held that the one-year

filing requirement of RCGO § 32.20(C) is not a jurisdictional

bar to the quasi-judicial proceeding commenced on the

complaint filed by the Council against Auto Owners. Because

the Council patently and unambiguously lacks jurisdiction to

proceed on the causes alleged in its complaint, the trial

court erred when it dismissed the petition for a writ of

prohibition that Auto Owners filed.

The assignment of error is sustained. The case will be

remanded to the trial court for further proceedings consistent

with this opinion.

BROGAN,J. And FAIN, J., concur.

Copies mailed to:

Cheryl R. Washington, Esq.Danyelle S.T. Wright, Esq.Michael Murphy, Esq.Hon. Dennis J. Langer

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO, EX REL., AUTO- :

OWNERS INSURANCE, et al.

Relators-Appellants

vs.

HARVEY WORTHAM, et al.

Respondents-Appellees

C.A. CASE NO. 22540

T.C. CASE NO. 07CV10040

FINAL ENTRY

Pursuant to the opinion of this court rendered on the

day of .tiUkXQ. , 2008, the judgment of the trial

court is Reversed and the matter is Remanded to the trial

court for further proceedings consistent with the opinion.

Costs are to be paid as provided in App.R. 24.

JAMES/A/ SROGAN,

MIKE FAIN, JUDGE

Copies mailed to:

Cheryl R. Washington, Esq.1308 Talbott Tower

118 W. First Street

Dayton, OH 45402

Danyelle S.T. Wright, Esq.40 N. Main StreetSuite 1900Dayton, OH 45423

Michael Murphy, Esq.One First National PlazaSuite 1600130 W. Second StreetDayton, OH 45402

Ron. Dennis J. Langer

10: 53

ao

THE COURT OF APPEALS OF OHIO; u. Oiu SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY, OHIO

STATE OF OHIO, EX REL AUTO- APPELLATE CASE NO. CA22540

OWNERS INSURANCE, et W. (Trial Court Case No. 07CV10040)Relators/Appellants.

v.

HARVEY WORTHAM, et al.

Respondents/Appeilees.

MOTION OF RESPONDENTS/APPELLEESTO STAY EXECUTION OF JUDGMENT AND MANDATE PENDING APPEAL

Pursuant to Ohio R. App. P. 7, 27, and Ohio Civ. R. 62, Respondents/Appellees Harvey

Wortham, City of Dayton Human Relations Council, Jane/John Doe, and Chairperson of the City

of Dayton Human Relations Council (hereinafter "HRC") respectfully move this Court to stay

the decision in this matter pending appeal to the Ohio Supreme Court.

Res lly submi ed,

ye e . Wri t (007200SEBAL HILLITO + DYERA Legal Professional Association40 N. Main Street, Suite 1900Dayton, OH 45423937/222-2500/937/222-6554 (fax)DWright@ssdlaw.comAttorney for Respondents/AppelleesHarvey Wortham, City of Dayton HumanRelations Council and Jane/John Doe,Chairperson of the City of Dayton HumanRelations Council

MEMORANDUM

A decision was entered in this matter on June 13, 2008. HRC now moves under the

provisions of Ohio R. App. P. 71, 27z, and Ohio Civ. R. 623 for a stay of this Court's June 13,

I Rule 7. Stay or injunction pending appeal -- civil and juvenile actions(A) Stay must ordinarily be sought in the first instance in trial court; motion for stay in court of appeals.

Application for a stay of the judgment or order of a trial court pending appeal, or for the determination of theamount of and the approval of a supersedeas bond, must ordinarily be made in the first instance in the trial court. Amotion for such relief or for an order suspending, modifying, restoring or granting an injunction during the pendencyof an appeal may be made to the court of appeals or to a judge thereof, but, except in cases of injunction pendingappeal, the motion shall show that application to the trial court for the relief sought is not practicable, or that the trialcourt has, by joutnal entry, denied an application, or failed to afford the relief which the applicant requested. Themotion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject todispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motionshall be filed such parts of the record as are relevant and as are reasonably available at the time the motion is filed.Reasonable notice of the motion and the intention to apply to the court shall be given by the movant to all parties.The motion shall be filed with the clerk of the court of appeals and normally will be considered by at least twojudges of the court, but in exceptional cases where the attendance of two judges of the court would be impracticabledue to the requirements of time, the application may be made to and considered by a single judge of the court onreasonable notice to the adverse party, provided, however, that when an injunction is appealed from it shall besuspended only by order of at least two of the judges of the court of appeals, on reasonable notice to the adverseparty.(B) Stay may be conditioned upon giving of bond; proceedings against sureties.Relief available in the court of appeals under this rule may be conditioned upon the filing of a bond or otherappropriate security in the trial court. If security is given in the form of a bond or stipulation or other undertakingwith one or more sureties, each surety submits himself or herself to the jurisdiction of the trial court and 'urevocablyappoints the clerk of the trial court as the surety's agent upon whom any process affecting the surety's liability on thebond or undertaking may be served. Subject to the limits of its monetary jurisdiction, this liability may be enforcedon motion in the trial court without the necessity of an independent action. The motion and such notice of the motionas the trial court prescribes may be served on the clerk of the trial court, who shall forthwith mail copies to thesureties if their addresses are known.(C) Stay in javenile actions.No order, judgment, or decree of a juvenile court, conceming a dependent, neglected, unruly, or delinquent child,shall be stayed upon appeal, unless suitable provision is made for the maintenance, care, and custody of thedependent, neglected, unruly, or delinquent child pending the appeal.

2 Rule 27. Execution, mandateA court of appeals may remand its final decrees, judgments, or orders, in cases brought before it on appeal, to thecourt or agency below for specific or general execution thereof, or to the court below for further proceedings therein.A certified copy of the judgment shall constitute the mandate. A stay of execution of the judgment mandate pendingappeal may be granted upon motion, and a bond or other security may be required as a condition to the grant orcontinuance of the stay.

3 Rule 62. Stay of proceedings to enforce a judgment

(A) Stay on motion for new trial or for judgment.In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay theexecution of any judgment or stay any proceedings to enforce judgment pending the disposition of a motion for anew trial, or of a motion for relief from a judgment or order made pursuant to Rule 60, or of a motion for judgmentnotwithstanding the verdict made pursuant to Rule 50.

2008 decision pending appeal to the Ohio Supreme Court. Under Ohio App. P. 7, 27 and Ohio

Civ. R. 62 (B) an appellant may obtain a stay of execution pending appeal, conditioned upon

posting of an adequate supersedeas bond. A supersedeas bond requirement is not required,

however, when an appeal is taken by a state, political subdivision, or administrative agency of

either, or by any officer thereof acting in his representative capacity. Ohio Civ. R. 62 (C); see

generally State Fire Marshal, (2002) 87 Ohio St.3d 568, 722 N.E.2d 73. Here, the HRC serves

as an administrative atm of the City of Dayton, Ohio, therefore, it should not be required to file a

supersedeas bond and its motion of stay should be granted.

(B) Stay upon appeal.When an appeal is taken the appellant may obtain a stay of execution of a judgment or any proceedings to enforce ajudgment by giving an adeqbate supersedeas bond. The bond may be given at or after the time of filing the notice ofappeal. The stay is effective when the supersedeas bond is approved by the court

(C) Stay in favor of the government.When an appeal is taken by this state or political subdivision, or administrative agency of either, or by any officerthereof acting in his representative capacity and the operation or enforcement of the judgment is stayed, no bond,obligation or other security shall be required from the appellant.

(D) Power of appellate court not limited.The provisions in this rule do not limit any power of an appellate court or of a judge or justice thereof to stayproceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during thependency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of thejudgment subsequently to be entered.

(E) Stay of judgment as to multiple claims or multiple parties.When a court has ordered a final judgment under the conditions stated in Rule 54(B), the court may stayenforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe suchconditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.

CONCLUSION

For these reasons, HRC respectfully requests that a stay of this Court's June 13, 2008

decision be granted pending appeal to the Ohio Supreme Court.

97knye7le S6r. Wrigh( (00720005SEBALY SHILLITO + DYERA Legal Professional Association40 N. Main Street, Suite 1900Dayton, OH 45423937/222-2500937/222-6554 (fax)DWright@ssdlaw.comAttorney for Respondents/AppelleesHarvey Worthan4 City of Dayton HumanRelations Council and Jane/John Doe,Chairperson of the City of Dayton HumanRelations Council

CERTIFICATE OF SERVICE

I certify that a true copy of the foregoing was sent via regular U.S. Mail, postageprepaid, to:

Hon. Dennis J. LangerMontgomery County Common Pleas Court41 N. Perry StreetDayton, Ohio 45422

Cheryl R. Washington, Esq.Jones & Washington Co. LPA1308 Talbott Tower118 West First StreetDayton OH 45402Attorney for Relators/Appellants, AutoOwners Insurance, Dannis Blacly andKimrey-Black Agency, Inc.

This 2nd day of July, 2008.

Dwight Washington, Esq.Cooper, Gentile & Washington Co.850 Talbott Tower118 W. First StreetDayton, OH 45402Hearing Officer

Michael Murphy, Esq.Wright & Vannoy32 N. Main StreetSuite 801Dayton, Ohio 45402Attorney for Respondent/Appellee,Magdalene Boyd

765990.2