State ex rel. Francu v. Windham Exempted Village School District Bd. of Edn.

Per Curiam. Appellant first argues that it was improper for the court of appeals to grant appellee’s motion for summary judgment when a genuine issue of fact existed as to whether appellee had avoided service of notice of his non-renewal. The issue was timely raised as an affirmative defense in appellant’s answer and evidence on this issue was presented by appellant. However, even appellant’s version of the facts of this case is very similar to the one in State, ex rel. Peake, v. Bd. of Edn. (1975), 44 Ohio St. 2d 119 [73 O.O.2d 437], where the court held that the teacher had not avoided service. There, the relator had attended the board meeting and the question of his non-renewal was not addressed. Id. at 119. On or after April 29, the mailman attempted to deliver a certified letter to relator’s address which letter advised him of the non-renewal, and relator picked the letter up at the post office on May 2. Id. at 119-120. The court held that the board of education’s attempt to effectuate notice by certified mail was insufficient under the circumstances, stating, “* ** [u]nder this circumstance, Ohio has long followed the rule set forth in the second paragraph of the syllabus in Moore v. Given (1884), 39 Ohio St. 661, which states, ‘[w]here a statute requires notice of a proceeding, but is silent concerning its form or manner of service, actual notice will alone satisfy such requirement.’ * * * Thus it would appear that where, as in this case, certified mail was employed to attempt the required notice, it became effective only at the time it was received.” Id. at 122. Thus, even accepting appellant’s version of the facts as true, the holding in State, ex rel. Peake, supra, compels the conclusion that this conduct does not constitute intentional avoidance of notice. Appellant also argues that the arbitrator’s decision constitutes an adequate remedy precluding the relief sought by appellee. First of all, there is no authority that a remedy by way of arbitration is an “adequate legal [353] remedy” sufficient to bar the issuance of a writ of mandamus. The award of the arbitrator was never confirmed or challenged in court as authorized by law. Regardless of the arbitrator’s award, however, it does not affect appellee’s entitlement to a continuing contract under R.C. 3319.11. In the case at bar, the arbitrator agreed that the non-renewal was improperly achieved. In such a case a teacher is entitled to a continuing contract under the express terms of R.C. 3319.11. Any additional action concerning potential reductions in force or layoffs under the contract is not relevant to that determination. Appellant’s argument in this regard lacks merit as well. Accordingly, we affirm the judgment of the court of appeals. Judgment affirmed. Celebrezze, C.J., Sweeney, Locher, C. Brown and Douglas, JJ., concur. Holmes and Wright, JJ., dissent.