[Cite as Black v. Chiropractic Assocs. of Zanesville, L.L.C., 2014-Ohio-192.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: DAVID C. BLACK Hon. W. Scott Gwin, P. J. Hon. Sheila G. Farmer, J. Appellant Hon. John W. Wise, J.
-vs- Case No. CT2013-0012 CHIROPRACTIC ASSOCIATES of ZANESVILLE, LLC, et al.
Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. CF2012-0323
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 16, 2014
APPEARANCES:
For Appellant For Appellee Chiropractic
DAVID C. BLACK MILES D. FRIES 1055 1/2 Blue Avenue GOTTLIEB JOHNSTON BEAM & Zanesville, Ohio 43701 DAL PONTE 320 Main Street, P. O. Box 190 Zanesville, Ohio 43702-0190
For Appellee ODJFS
MICHAEL DEWINE ATTORNEY GENERAL PATRIA V. HOSKINS ASSISTANT ATTORNEY GENERAL 30 East Broad Street, 26th Floor Columbus, Ohio 43215-3400 Muskingum County, Case No. CT2013-0012 2
Wise, J.
{¶1} Appellant (Claimant) David C. Black appeals from the decision of the
Court of Common Pleas, Muskingum County, which affirmed a decision by the Ohio
Unemployment Review Commission to disallow appellant's application for
unemployment compensation. The relevant facts leading to this appeal are as follows.
{¶2} Prior to the events leading to the present dispute, appellant was employed
as a chiropractor at Zanesville Chiropractic, Inc. (“ZCI”).1 In June 2011, appellant
commenced employment as a chiropractor at Appellee Chiropractic Associates of
Zanesville (“CAZ”). CAZ, a business competitor of ZCI, is owned and operated by Dr.
Rusty Myers.
{¶3} ZCI thereafter asserted that appellant’s employment at CAZ was in
violation of a non-competition agreement between appellant and ZCI. On October 5,
2011, appellant was served with a temporary restraining order in that regard. Dr. Myers
thereupon offered appellant work opportunities at CAZ to avoid a conflict with the
restraining order, such as preparing insurance documentation and report writing, until
the temporary restraining order could be resolved in court. Appellant nonetheless
stopped reporting for work at CAZ upon his receipt of the aforesaid restraining order.
{¶4} On October 8, 2011, appellant filed an application for unemployment
compensation with the director of the Ohio Department of Job and Family Services
("ODJFS").
{¶5} On November 22, 2011, ODJFS allowed appellant's initial application for
unemployment benefits.
1 In order to alleviate any confusion over the names of the two chiropractic entities involved, we are creating acronyms for purposes of our opinion. Muskingum County, Case No. CT2013-0012 3
{¶6} On November 28, 2011, CAZ appealed the initial determination to the
Redetermination Unit of ODJFS.
{¶7} On December 14, 2011, the Redetermination Unit affirmed the initial
determination to allow benefits to appellant.
{¶8} On December 20, 2011, CAZ appealed the decision of the
Redetermination Unit to the Ohio Unemployment Review Commission. On December
27, 2011, ODJFS transferred jurisdiction to the Commission.
{¶9} On March 1, 2012, the Commission conducted a telephonic hearing,
during which Appellant appeared and offered sworn testimony. Chiropractic Associates
of Zanesville also appeared and was represented by its owner, Dr. Rusty Myers.
{¶10} On March 15, 2012, the Commission’s hearing officer reversed the
ODJFS redetermination with regard to appellant's separation from employment from
CAZ. The hearing officer held that appellant's application was disallowed, because he
was not involuntarily totally or partially unemployed at the time that he applied for
unemployment compensation benefits.
{¶11} Appellant's subsequent request for review was disallowed.
{¶12} Appellant then appealed the Commission's decision to the Muskingum
County Court of Common Pleas. In its judgment of February 11, 2013, the Common
Pleas Court affirmed the Commission's decision.
{¶13} On March 13, 2013, appellant filed a notice of appeal. He herein raises the
following two Assignments of Error:
{¶14} “I. THE JUDGE DID NOT REVIEW THE CASE LAW AND DID NOT
PROVIDE ANY REASONING FOR HIS DECISION. Muskingum County, Case No. CT2013-0012 4
{¶15} “II. HEARING OFFICER PATTERSON'S DECISION IS PREDICATED IN
LARGE PART ON NOT ALLOWING ME DUE PROCESS OF LAW.”
I., II.
{¶16} In his First and Second Assignments of Error, appellant essentially
contends the trial court improperly affirmed the Commission's denial of benefits without
reviewing the law, without providing adequate reasoning, and without ensuring due
process of law by the hearing officer. We disagree.
{¶17} The process of filing applications for determination of benefit rights and
claims for unemployment compensation benefits with the ODJFS Director is set forth in
R.C. 4141.28. As a reviewing court, we may reverse an unemployment board
determination if it is unlawful, unreasonable, or against the manifest weight of the
evidence. Tzangas, Plakas & Mannos v. Administrator (1995), 73 Ohio St.3d 694, 653
N.E.2d 1207, paragraph one of the syllabus. While appellate courts are not permitted to
make factual findings, or to determine the credibility of witnesses, they have the duty to
determine whether the board's decision is supported by the evidence in the record. Id.
at 696, 653 N.E.2d 1207. The same standard of review is shared by all reviewing
courts, from the common pleas court through the Ohio Supreme Court. Id. Therefore,
the duty of this Court is to review the decision of the Review Commission to determine
whether it is unlawful, unreasonable, or against the manifest weight of the evidence.
Cardani v. Olsten Home Health Care (March 22, 1999), Tuscarawas App.No.
1998AP110118. As a reviewing court, we may neither substitute our judgment for that of
the Commission on questions of fact nor reassess the credibility of the witnesses. Muskingum County, Case No. CT2013-0012 5
Kilgore v. Bd. of Rev., Bur. of Unemp. Comp. (1965), 2 Ohio App.2d 69, 72, 206 N.E.2d
423.
{¶18} In the case sub judice, the hearing officer determined that appellant's
unemployment was not involuntary, finding that “ *** Dr. Myers generously offered
Claimant several different options to allow him to continue working in a more
administrative capacity”, but that “Claimant denied the employer's offer without
reasonable explanation and voluntarily chose to not work at all during his settlement
negotiations.” UCRC Decision at 4. The common pleas court thereafter determined the
hearing officer’s decision was supported by competent, credible evidence. Appellant
presently alleges that Dr. Myers of CAZ was aware of the non-competition clause with
ZCI, and that Dr. Myers promised to open a new office should legal complications arise
because of the clause. He essentially urges that the temporary restraining order put him
in an untenable position without CAZ facilitating a way for him to work off-site. However,
the common pleas court, as a reviewing court, was not permitted to reverse the
Commission's decision simply because reasonable minds might reach different
conclusions. See Williams v. Ohio Dept. of Job and Family Services, 129 Ohio St.3d
332, 951 N.E.2d 1031, 2011-Ohio-2897, ¶ 20, citing Irvine v. Unemp. Comp. Bd. of
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[Cite as Black v. Chiropractic Assocs. of Zanesville, L.L.C., 2014-Ohio-192.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: DAVID C. BLACK Hon. W. Scott Gwin, P. J. Hon. Sheila G. Farmer, J. Appellant Hon. John W. Wise, J.
-vs- Case No. CT2013-0012 CHIROPRACTIC ASSOCIATES of ZANESVILLE, LLC, et al.
Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. CF2012-0323
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 16, 2014
APPEARANCES:
For Appellant For Appellee Chiropractic
DAVID C. BLACK MILES D. FRIES 1055 1/2 Blue Avenue GOTTLIEB JOHNSTON BEAM & Zanesville, Ohio 43701 DAL PONTE 320 Main Street, P. O. Box 190 Zanesville, Ohio 43702-0190
For Appellee ODJFS
MICHAEL DEWINE ATTORNEY GENERAL PATRIA V. HOSKINS ASSISTANT ATTORNEY GENERAL 30 East Broad Street, 26th Floor Columbus, Ohio 43215-3400 Muskingum County, Case No. CT2013-0012 2
Wise, J.
{¶1} Appellant (Claimant) David C. Black appeals from the decision of the
Court of Common Pleas, Muskingum County, which affirmed a decision by the Ohio
Unemployment Review Commission to disallow appellant's application for
unemployment compensation. The relevant facts leading to this appeal are as follows.
{¶2} Prior to the events leading to the present dispute, appellant was employed
as a chiropractor at Zanesville Chiropractic, Inc. (“ZCI”).1 In June 2011, appellant
commenced employment as a chiropractor at Appellee Chiropractic Associates of
Zanesville (“CAZ”). CAZ, a business competitor of ZCI, is owned and operated by Dr.
Rusty Myers.
{¶3} ZCI thereafter asserted that appellant’s employment at CAZ was in
violation of a non-competition agreement between appellant and ZCI. On October 5,
2011, appellant was served with a temporary restraining order in that regard. Dr. Myers
thereupon offered appellant work opportunities at CAZ to avoid a conflict with the
restraining order, such as preparing insurance documentation and report writing, until
the temporary restraining order could be resolved in court. Appellant nonetheless
stopped reporting for work at CAZ upon his receipt of the aforesaid restraining order.
{¶4} On October 8, 2011, appellant filed an application for unemployment
compensation with the director of the Ohio Department of Job and Family Services
("ODJFS").
{¶5} On November 22, 2011, ODJFS allowed appellant's initial application for
unemployment benefits.
1 In order to alleviate any confusion over the names of the two chiropractic entities involved, we are creating acronyms for purposes of our opinion. Muskingum County, Case No. CT2013-0012 3
{¶6} On November 28, 2011, CAZ appealed the initial determination to the
Redetermination Unit of ODJFS.
{¶7} On December 14, 2011, the Redetermination Unit affirmed the initial
determination to allow benefits to appellant.
{¶8} On December 20, 2011, CAZ appealed the decision of the
Redetermination Unit to the Ohio Unemployment Review Commission. On December
27, 2011, ODJFS transferred jurisdiction to the Commission.
{¶9} On March 1, 2012, the Commission conducted a telephonic hearing,
during which Appellant appeared and offered sworn testimony. Chiropractic Associates
of Zanesville also appeared and was represented by its owner, Dr. Rusty Myers.
{¶10} On March 15, 2012, the Commission’s hearing officer reversed the
ODJFS redetermination with regard to appellant's separation from employment from
CAZ. The hearing officer held that appellant's application was disallowed, because he
was not involuntarily totally or partially unemployed at the time that he applied for
unemployment compensation benefits.
{¶11} Appellant's subsequent request for review was disallowed.
{¶12} Appellant then appealed the Commission's decision to the Muskingum
County Court of Common Pleas. In its judgment of February 11, 2013, the Common
Pleas Court affirmed the Commission's decision.
{¶13} On March 13, 2013, appellant filed a notice of appeal. He herein raises the
following two Assignments of Error:
{¶14} “I. THE JUDGE DID NOT REVIEW THE CASE LAW AND DID NOT
PROVIDE ANY REASONING FOR HIS DECISION. Muskingum County, Case No. CT2013-0012 4
{¶15} “II. HEARING OFFICER PATTERSON'S DECISION IS PREDICATED IN
LARGE PART ON NOT ALLOWING ME DUE PROCESS OF LAW.”
I., II.
{¶16} In his First and Second Assignments of Error, appellant essentially
contends the trial court improperly affirmed the Commission's denial of benefits without
reviewing the law, without providing adequate reasoning, and without ensuring due
process of law by the hearing officer. We disagree.
{¶17} The process of filing applications for determination of benefit rights and
claims for unemployment compensation benefits with the ODJFS Director is set forth in
R.C. 4141.28. As a reviewing court, we may reverse an unemployment board
determination if it is unlawful, unreasonable, or against the manifest weight of the
evidence. Tzangas, Plakas & Mannos v. Administrator (1995), 73 Ohio St.3d 694, 653
N.E.2d 1207, paragraph one of the syllabus. While appellate courts are not permitted to
make factual findings, or to determine the credibility of witnesses, they have the duty to
determine whether the board's decision is supported by the evidence in the record. Id.
at 696, 653 N.E.2d 1207. The same standard of review is shared by all reviewing
courts, from the common pleas court through the Ohio Supreme Court. Id. Therefore,
the duty of this Court is to review the decision of the Review Commission to determine
whether it is unlawful, unreasonable, or against the manifest weight of the evidence.
Cardani v. Olsten Home Health Care (March 22, 1999), Tuscarawas App.No.
1998AP110118. As a reviewing court, we may neither substitute our judgment for that of
the Commission on questions of fact nor reassess the credibility of the witnesses. Muskingum County, Case No. CT2013-0012 5
Kilgore v. Bd. of Rev., Bur. of Unemp. Comp. (1965), 2 Ohio App.2d 69, 72, 206 N.E.2d
423.
{¶18} In the case sub judice, the hearing officer determined that appellant's
unemployment was not involuntary, finding that “ *** Dr. Myers generously offered
Claimant several different options to allow him to continue working in a more
administrative capacity”, but that “Claimant denied the employer's offer without
reasonable explanation and voluntarily chose to not work at all during his settlement
negotiations.” UCRC Decision at 4. The common pleas court thereafter determined the
hearing officer’s decision was supported by competent, credible evidence. Appellant
presently alleges that Dr. Myers of CAZ was aware of the non-competition clause with
ZCI, and that Dr. Myers promised to open a new office should legal complications arise
because of the clause. He essentially urges that the temporary restraining order put him
in an untenable position without CAZ facilitating a way for him to work off-site. However,
the common pleas court, as a reviewing court, was not permitted to reverse the
Commission's decision simply because reasonable minds might reach different
conclusions. See Williams v. Ohio Dept. of Job and Family Services, 129 Ohio St.3d
332, 951 N.E.2d 1031, 2011-Ohio-2897, ¶ 20, citing Irvine v. Unemp. Comp. Bd. of
Review (1985), 19 Ohio St.3d 15, 18, 19 OBR 12, 482 N.E.2d 587.
{¶19} Upon review, we are unable to conclude that the decision of the Review
Commission, and the trial court in affirming same, was unlawful, unreasonable, or
against the manifest weight of the evidence.
{¶20} In regard to appellant’s specific allegation in the text of his first assigned
error that the trial court failed to “review the case law,” we note that a presumption of Muskingum County, Case No. CT2013-0012 6
regularity attaches to all trial court proceedings. See, e.g., Chari v. Vore (2001), 91 Ohio
St.3d 323, 325, 744 N.E.2d 763. Appellant fails to articulate his assertion or otherwise
demonstrate that the trial court failed to follow Ohio law regarding unemployment
compensation. See App.R. 16(A)(7). In regard to appellant’s claim that the trial court
failed to provide reasoning for its decision, we recite R.C. 4141.282(H), which succinctly
states that if a common pleas court, in considering an appeal from the UCRC, “finds that
the decision of the commission was unlawful, unreasonable, or against the manifest
weight of the evidence, it shall reverse, vacate, or modify the decision, or remand the
matter to the commission. Otherwise, the court shall affirm the decision of the
commission.” Thus, there is no direct legislative requirement in R.C. 4141.282(H) that a
common pleas court state findings or reasons in its decision. A reviewing court in such
cases is actually directed not to make factual findings or weigh witness credibility. See,
e.g., Isenberg v. Artcraft Memorials, Trumbull App.No. 2011–T–0093, 2012-Ohio-2564,
¶ 11, citing Williams, supra. Lastly, appellant fails to persuade us that the hearing
officer’s apparent conclusion in her decision that appellant had effectively taken a leave
of absence (see UCRC Decision at 4) constitutes a violation of his due process rights. Muskingum County, Case No. CT2013-0012 7
{¶21} Appellant’s First and Second Assignments of Error are therefore
overruled.
{¶22} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Muskingum County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.