Bird v. Ohio Racing Comm.

2023 Ohio 1213

• Court: Ohio Court of Appeals
• Decided: April 13, 2023
• Docket: 22AP-547
• Status: Published

Opinion

[Cite as Bird v. Ohio Racing Comm., 2023-Ohio-1213.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Danny Bird, :

Appellant-Appellant, : No. 22AP-547 v. : (C.P.C. No. 21CV-4415)

Ohio State Racing Commission, : (REGULAR CALENDAR)

Appellee-Appellee. :

D E C I S I O N

Rendered on April 13, 2023

On brief: Graff & McGovern, LPA, and Brandon M. Smith, for appellant.

On brief: Dave Yost, Attorney General, and Todd K. DeBoe, for appellee.

APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, P.J.

{¶ 1} Appellant, Danny Bird, appeals the judgment and order of the Franklin

County Court of Common Pleas overruling his objections and adopting the magistrate’s

decision that dismissed his R.C. Chapter 119 administrative appeal of the Ohio Racing

Commission’s (“Commission”), July 1, 2021 order.

{¶ 2} Bird was employed as a licensed horse trainer, and a permissible search of his

assigned barn area on September 15, 2020 uncovered a syringe and needle filled with an

unknown liquid. Bird was issued a six-month suspension and $1,000.00 fine by his barn’s

board of stewards on September 22, 2020 but he appealed that decision to the Commission.

Ultimately, the Commission upheld the board of stewards’ decision and imposed the same No. 22AP-547 2

fine and suspension in an adjudication order issued July 1, 2021. (See Ex. A (Notice of

Adjudication) attached to July 14, 2021 notice of appeal filed in Franklin C.P. No. 21CV-

4415.)

{¶ 3} Bird then filed a timely appeal of the Commission’s decision to the Franklin

County Court of Common Pleas pursuant to R.C. 119.12. Id. at 1. But in lieu of an answer

to the appeal, the Commission filed a motion to dismiss, arguing that Bird had failed to

comply with R.C. 119.12(D) because he did not file his notice of appeal with the agency as

required by the statute.

Any party desiring to appeal shall file a notice of appeal with the agency setting forth the order appealed from and stating that the agency’s order is not supported by reliable, probative, and substantial evidence and is not in accordance with law. * * * Unless otherwise provided by law relating to a particular agency, notices of appeal shall be filed within fifteen days after the mailing of the notice of the agency’s order as provided in this section.

(Emphasis added.) R.C. 119.12(D)

{¶ 4} The motion to dismiss was supported by affidavits from William Crawford,

the Commission’s Executive Director, Michael Rzymek, the Commission’s Deputy Director

and Legal Counsel, and Todd DeBoe, the assistant attorney general assigned to represent

the Commission. Mr. Rzymek averred that the Commission first received certified mail

notice reflecting the filing of the appeal on July 21, 2021, and that he immediately

forwarded the notice to Mr. Crawford and Mr. DeBoe. (See Aff. of Michael Rzymek attached

to Aug. 24, 2021 Mot. to Dismiss at ¶ 3-4.) Mr. Crawford averred that he did not receive an

emailed copy of the appeal on July 14, 2021 as the certificate of service attached to Bird’s

notice of appeal suggested. Id.; Aff. of William Crawford at ¶ 5. Mr. DeBoe similarly averred

that he had not received an emailed copy of the appeal, and that after he inquired, he No. 22AP-547 3

received an email from Bird’s attorney stating that he was “unable to locate the e-mail that

he allegedly sent to Mr. Crawford and me on July 14, 2021.” Id.; Aff. of Todd DeBoe at ¶ 5-

7. Based on these affidavits, the Commission argued that Bird had not “file[d] a notice of

appeal with the agency * * * within fifteen days after the mailing of the notice of the agency’s

order” as required by R.C. 119.12(D), that there was in fact no evidence that Bird ever filed

a notice of appeal with the Commission as required by the statute, and that this failure to

file was a jurisdictional defect requiring dismissal of Bird’s appeal to the common pleas

court.

{¶ 5} The case was referred to a trial magistrate to rule upon the motion, and

following a hearing on March 8, 2022, the magistrate dismissed Bird’s appeal for failure to

comply with the statute. Upon consideration of the affidavits, the hearing testimony of Mr.

Rzymek, and the hearing testimony of Bird’s former counsel, the magistrate made factual

findings that Bird’s lawyer “never made a direct statement that the Notice of Appeal was in

fact ‘received’ ” by the Commission, that Mr. Rzymek’s testimony “was consistent with his

prior affidavit,” that the Commission was not served with the notice of appeal until “the

Clerk of this Court sent notice on July 21, 2021,” and that “[t]he notice of appeal was not

timely filed” with the Commission. (Mar. 8, 2022 Mag.’s Decision at 3.) Based on these

findings, the magistrate concluded that Bird “has not shown that he complied with R.C.

119.12 (D)” and recommended granting the motion to dismiss. Id. at 4.

{¶ 6} Bird then objected the magistrate’s decision, but the trial court overruled his

objection because Bird had failed to provide the court a transcript of the magistrate’s

hearing.

Civ.R. 53(D)(3)(b)(iii) requires that parties shall support any objections to factual findings with a transcript of all evidence submitted to the magistrate relevant to that finding or an No. 22AP-547 4

affidavit of that evidence if a transcript is not available. If the objecting party fails to provide the court with a transcript of the magistrate’s hearing to support their objections, the trial court may properly adopt a magistrate’s factual findings without any further consideration. A transcript must be filed with the court within thirty days after the filing of objections to a magistrate’s decision unless the court allows an extension.

Here, [Bird] did not file a transcript of the March 8, 2022 hearing, nor did [he] request an extension of time to do so. Since Bird’s sole objection is to a finding of fact, and that objection would require the Court to review the Magistrate’s assessment of the credibility of witnesses and weight of the evidence provided at hearing, the failure to produce a transcript prohibits such review.

Accordingly, the Court OVERRULE’S [sic] Bird’s sole objection and adopts the Magistrate’s March 8, 2022 Decision.

(Internal quotations and citations omitted.) (Aug. 10, 2022 Decision & Entry at 1-2.) Bird

now appeals to this Court and asserts a single assignment of error.

The lower court erred as a matter of law when it dismissed the appeal for failure to comply with R.C. 119.12(D).

{¶ 7} We overrule Bird’s assignment of error and affirm the trial court’s judgment.

Bird’s assigned error and argument fault with the rationale of the magistrate’s decision, but

as we describe below, Bird’s failure to preserve the record by providing the trial court with

a transcript of the magistrate’s hearing renders the merits of the magistrate’s decision

outside this court’s review.

{¶ 8} Pursuant to Civ.R. 53, the trial court reviews the decisions of a magistrate de

novo, and the trial court must independently review any matters objected to and decide

whether “the magistrate has properly determined the factual issues and appropriately

applied the law.” Civ.R. 53(D)(4)(d). See also Black v. Columbus Sports Network, L.L.C.,

10th Dist. No. 13AP-1025, 2014-Ohio-3607, ¶ 14. Our review on appeal is far more limited

and is restricted to considering whether the trial court abused its discretion in ruling on No. 22AP-547 5

those objections and the magistrate’s report. “Claims of error by the trial court must be

based on the trial court’s actions, rather than on the magistrate’s findings.” (Emphasis

added.) Id.

{¶ 9} And as the trial court correctly held, Civ.R. 53(D)(3)(b)(iii) generally requires

the objecting party to support objections to factual findings with a transcript of all evidence

submitted to the magistrate relevant to that finding. While a transcript is not necessarily

required to support objections based solely on conclusions of law, see id. at ¶ 15, if “the

required support for objections is not provided, a trial court is required to accept the

magistrate’s findings of fact and may examine only the magistrate’s legal conclusions based

upon those facts.” Dale v. Ohio State Hwy. Patrol, 10th Dist. No. 04AP-639, 2005-Ohio-

3383, ¶ 18. And “where a party files objections to a magistrate’s decision in the trial court

but, does not support those objections with a transcript * * *, that party is precluded from

arguing on appeal that the trial court erred in its factual determinations.” Black at ¶ 15,

quoting Gill v. Grafton Corr. Inst., 10th Dist. No. 09AP-1019, 2010-Ohio-2977, ¶ 14.

{¶ 10} The only issue presented in Bird’s merit brief is one of fact—“whether Mr.

Bird’s prior counsel timely filed the notice of appeal with the Commission as required by

R.C. 119.12(D).” (Brief of Appellant at 2.) And Bird candidly admits that the “sole fact

relevant to this appeal is in dispute.” Id. But because Bird failed to provide the trial court

with a transcript of the hearing before the magistrate, in ruling on Bird’s objection it was

“required to accept the magistrate’s findings of fact” that the notice of appeal was not timely

filed with the commission. Compare id. with Dale at ¶ 18 and Black at ¶ 14-15. And the

magistrate’s factual finding that the notice of appeal was not timely filed compels the legal

conclusion that Bird’s appeal did not comply with R.C. 119.12(D). “It is well-settled that the

failure to file a notice of appeal with the appropriate agency within the 15-day limit provided No. 22AP-547 6

for in R.C. 119.12 results in a divestiture of subject-matter jurisdiction.” Brass Pole v. Ohio

Dept. of Health, 10th Dist. No. 08AP-1110, 2009-Ohio-5021, ¶ 7 (citing cases). Bird’s failure

to file a transcript with the trial court left it with no option but to conclude that it lacked

subject-matter jurisdiction to determine Bird’s appeal. Moreover, this court is limited to

analyzing whether the trial court abused its discretion in accepting the findings of fact and

overruling Bird’s objection. See Dale at ¶ 18 and Black at ¶ 14-15 (holding that if the

appellant does not support its objections with a transcript in the trial court, “an appellate

court’s review of an appellant’s assignments of error is limited to whether the trial court

abused its discretion in applying the law to the magistrate’s findings of fact.”)

{¶ 11} Because the trial court was required to accept the magistrate’s factual

findings and therefore ultimately found it lacked jurisdiction to determine the merits of

Bird’s appeal, it is nonsensical for Bird to now suggest that the trial court abused its

discretion by doing what it was required to do. Bird has therefore ignored that issue entirely

and jumped straight to arguing the merits of the magistrate’s findings of fact—an argument

that we cannot consider. See Dale at ¶ 18 and Black at ¶ 14-15.

{¶ 12} The trial court correctly overruled Bird’s objection and adopted the

magistrate’s decision. We accordingly overrule Bird’s sole assignment of error and affirm

the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

DORRIAN and LELAND, JJ., concur.