State ex rel. Moore v. Sanders

Per Curiam.

The appellant sets forth the following propositions of law: (1) that delay in asserting a right does not of itself constitute laches where a deputy, who is unlawfully removed by the sheriff, brings an action for reinstatement shortly after learning of his rights as a classified civil servant and where the sheriff has not been materially prejudiced by the delay, and (2) that an action by a classified civil servant whose removal was contrary to R. C. 124.34 is governed by the six-year statute of limitations in R. C. 2305.07 and not by the doctrine of laches where the delay in question was excusable and the appointing authority was not materially prejudiced thereby.

The determinative issue herein is whether the Court of Appeals abused its discretion in denying the writ of manda *74 mus for the reason that appellant had allowed an unreasonable time to elapse from the date of his discharge, January-30, 1976, to September 21, 1977, the date of filing the first mandamus action; and finding that such delay was prejudicial to Sheriff Sanders.

Appellant argues that any delay in his bringing the first mandamus action may be excused because of his reliance upon the “faulty” advice given to him by two different attorneys. Appellant cites State, ex rel. Sheets, v. Portsmouth (1944), 143 Ohio St. 302, in support of this argument.

Additionally, as further reasons for his delay in bringing any legal action, appellant sets forth the time spent in his unsuccessful candidacy for sheriff and the successful candidate’s (Sanders) promise of reinstatement.

Upon a review of the totality of the facts and circumstances of this case, we hold that the Court of Appeals did not abuse its discretion in denying the writ.

Here, the Court of Appeals, while acknowledging that the appellant was an employee within the civil service of the state and, farther, that he had not been discharged according to the provisions of R. C. Chapter 124, nevertheless held that:

“ * * * A court, in the exercise of its discretion, may refuse to issue a writ of mandamus, in favor of a relator who has allowed an unreasonable time to elapse before bringing the action, especially where such delay may be prejudicial to the rights of the respondent.”

The court cited and relied upon State, ex rel. Stoer, v. Raschig (1943), 141 Ohio St. 477 (civil servant who waited 11 months after dismissal precluded from restoration by writ of mandamus because of laches), and State, ex rel. Smith, v. Witter (1926), 114 Ohio St. 357 (civil service employee who waited more than two years after removal before bringing a mandamus action for restoration and salary held barred by laches).

The appellant argues that this court’s ruling in State, ex rel. Sheets, v. Portsmouth, supra, is supportive of his position. We note that in State, ex rel. Sheets, this court did suggest, at page 304, that the defense of improper legal advice “would have appeal” in a case where there was a “valid subsisting cause of action.” However, here, the defense of im *75 proper legal advice does not have “appeal,” since the appellant’s actions subsequent to receiving that advice waived his right of restoration to office. Basically, the same situation prevailed in Sheets. In that case, the relator-employee, based upon faulty advice, had voluntarily retired and accepted a pension. Here, the appellant ran for the office of sheriff subsequent to receiving the faulty advice, and we view such act as constituting an act of waiver of his right of restoration. Such facts viewed in their totality bring us to the conclusion that appellant has failed to overcome the assertion of laches.

Appellant further argues that R. C. 2305.07 would authorize the bringing of this mandamus action any time within six years. However, we hold that laches may be a bar to the bringing of this action even in light of this statute. As set forth in 35 Ohio Jurisprudence 2d, Mandamus, Section 40, at pages 289-290:

“Irrespective of whether a mandamus action is barred by a statute of limitations, it is well settled that an application for the writ must be made within a reasonable time after the alleged fault or neglect of duty, and that laches or delay in making an application may afford sufficient cause for its denial, especially if the delay has been prejudicial to the rights of the respondent or to those of other persons. The relator must be diligent in applying for- this extraordinary remedy, and inasmuch as mandamus lies within the sound discretion of the court to which application for the writ is made, the question whether laches has barred the claim of the relator rests in the sound discretion of the court * * * .”

We hold that the Court of Appeals had before it sufficient evidence to conclude that the appellant was in fact guilty of laches in bringing his first mandamus action, and that such delay was prejudicial to the appellee, Sheriff Sanders. Under these circumstances, we cannot say that the Court of Appeals abused its discretion in reaching such conclusion.

Therefore, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

W. Brown, P. Brown, Sweeney, Locher and Holmes, JJ., concur. *76 Celebrezze, C. J., concurs separately. C. Brown, J., dissents.