Everett v. Ohio Dept. of Job & Family Servs.

2019 Ohio 4504

• Court: Ohio Court of Appeals
• Decided: November 1, 2019
• Docket: S-19-017
• Status: Published

Opinion

[Cite as Everett v. Ohio Dept. of Job & Family Servs., 2019-Ohio-4504.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

Laicey Everett v Court of Appeals No. S-19-017

Appellant Trial Court No. 19 CV 156

v.

The Ohio Department of Job and Family Services DECISION AND JUDGMENT

Appellee Decided: November 1, 2019

*****

Peter J. Wagner, for appellant.

Dave Yost, Ohio Attorney General, Theresa R. Dirisamer, Assistant Attorney General, for appellee.

OSOWIK, J.

{¶ 1} This is an accelerated appeal from a judgment of the Sandusky County Court

of Common Pleas which dismissed the appeal from an administrative decision for lack of subject-matter jurisdiction. For the reasons set forth below, this court affirms the

judgment of the trial court.

{¶ 2} The following facts are relevant to this appeal. On February 12, 2018,

petitioner-appellee, Ohio Department of Job and Family Services (ODJFS), notified

respondent-appellant, Laicey Everett, of its intent to revoke her Type B Home Provider

license for home child care pursuant to R.C. 5104.04(C) and applicable regulations.

Appellee alleged that since November 4, 2016, appellant violated regulations regarding:

(1) the length of time her boyfriend stayed in the home that changed the household

composition, (2) timely reporting to appellee of the change in household composition,

and (3) conducting background checks on the adult residents in the home. The hearing

was held on August 14, 2018. On November 16, 2018, the hearing examiner issued his

report and recommended revocation of appellant’s license, and appellant timely filed her

objections. On December 27, 2018, appellee mailed by certified mail a certified copy of

its adjudication order, in which appellee’s director addressed the objections, adopted the

hearing examiner’s findings of fact and conclusions of law, and revoked appellant’s

license effective immediately. The record includes a signed delivery confirmation receipt

for appellant dated December 29, 2018.

{¶ 3} The end of the December 27, 2018 Adjudication Order states the following

notice:

Hereby be advised that you may be entitled to appeal this

Adjudication Order to the Court of Common Pleas in the county of business

2. or residence pursuant to ORC Section 119.12. Any adversely affected arty

desiring to appeal this Order must file a notice of appeal with the ODJFS,

Hearing Coordinator, 30 East Broad Street, 31st Floor, Columbus, Ohio

43215-3414, setting forth the order appealed from and stating that the

department’s order is not supported by reliable, probative, and substantial

evidence and is not in accordance with law. The notice of appeal may, but

need not, set forth the specific grounds of the party’s appeal beyond the

statement that the agency’s order is not supported by reliable, probative,

and substantial evidence and are not in accordance with law. In order to be

determined filed with ODJFS, the notice of appeal must be received by

ODJFS, as evidenced by an ODJFS date and time stamp, no later than

fifteen (15) days after the mailing of this Adjudication Order to the affected

party. The affected party shall also file the notice of appeal with the court

of common pleas no later than fifteen days after the mailing of this

Adjudication Order to the affected party. In filing a notice of appeal with

ODJFS or the court, the notice that is filed may be the original notice or a

copy of the original notice.

{¶ 4} Appellant appealed the order by giving written notice to appellee, which it

received on January 16, 2019 and placed on it the date and time stamp of, “REC’D

ODJFS LEGAL 19JAN16 AM 0804.” The content of the notice was,

“Respondent/Provider Laicey Everett hereby appeals to the Sandusky County Court of

3. Common Pleas from a decision of the Ohio Department of Job and Family Services,

journalized on December 27, 2018. A copy of this decision is attached.” The certificate

of service attached to the notice of appeal states service was made “by ordinary mail” to

appellee’s “Office of Legal and Acquisition Services” and to counsel for appellee. The

second file stamp appearing on the notice of appeal in the record states, “Sandusky

County Court of Appeals Filed Jan. 14 2019 Tracy M. Overmyer, Clerk.”

{¶ 5} Then on February 15, 2019, appellant gave nunc pro tunc notice of appeal as

of January 14, 2019 to the Sandusky County Court of Common Pleas with a nearly

identical notice that added, “To Appellee: Please prepare a complete transcript of all the

original papers, testimony, evidence offered, heard, and taken into consideration in

issuing the adjudication order in this matter and file the same with the court, as provided

in R.C. 2506.02.” The certificate of service attached to the nunc pro tunc notice of appeal

states service was made “by ordinary mail” to appellee’s “Hearing Officer” and to

counsel for appellee.

{¶ 6} On February 15, 2019, appellant also filed a motion to correct the record

arguing that a copy of her January 14, 2019 notice to appellee was file stamped that day,

and the clerk erred by filing it with the court of appeals rather than common pleas court.

{¶ 7} Appellee moved to dismiss the appeal on February 20, 2019, as being

untimely and non-compliant with R.C. 119.12(D). On March 15, 2019, the common

pleas court journalized its judgment entry granting appellee’s motion, and dismissed the

appeal for lack of subject-matter jurisdiction.

4. {¶ 8} Appellant then filed this appeal setting forth one assignment of error:

I. The lower court erred in dismissing appellant’s administrative

appeal.

I. Standard of Review

{¶ 9} “We review a trial court’s decision regarding motions to dismiss for lack of

subject matter jurisdiction de novo.” State v. Caskey, 6th Dist. Lucas No. L-17-1166,

2018-Ohio-131, ¶ 10; State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St.3d

315, 2016-Ohio-478, 56 N.E.3d 913, ¶ 12.

II. Subject-Matter Jurisdiction

It is elementary that an appeal, the right to which is conferred by

statute, can be perfected only in the mode prescribed by statute. The

exercise of the right of appeal conferred is conditioned upon compliance

with the accompanying mandatory requirements. No one would contend

that a notice of appeal need not be filed within the time fixed by statute.

Compliance with a requirement that a notice of appeal shall be filed within

the time specified, in order to invoke jurisdiction, is no more essential than

that the notice be filed at the place designated and that it be such in content

as the statute requires.

Zier v. Bur. of Unemp. Comp., 151 Ohio St. 123, 125, 84 N.E.2d 746 (1949).

{¶ 10} “The rights of a party who wishes to appeal from an administrative order

are found in R.C. 119.12.” Hughes v. Ohio Dept. of Commerce, 114 Ohio St.3d 47,

5. 2007-Ohio-2877, 868 N.E.2d 246, ¶ 9; R.C. 5104.03(I)(1) and 5104.04(D) (any owner or

person whose type B home child care license is revoked may appeal in accordance with

R.C. 119.12).

{¶ 11} “A question of statutory construction presents an issue of law that we

determine de novo on appeal.” Lang v. Dir., Ohio Dept. of Job & Family Servs., 134

Ohio St.3d 296, 2012-Ohio-5366, 982 N.E.2d 636, ¶ 12. “When construing a statute, we

first examine its plain language and apply the statute as written when the meaning is clear

and unambiguous. The words used must be afforded their usual, normal, and/or

customary meanings.” Medcorp, Inc. v. Ohio Dept. of Job & Family Servs., 121 Ohio

St.3d 622, 2009-Ohio-2058, 906 N.E.2d 1125, ¶ 9. “Further, when interpreting a statute,

courts must ‘avoid an illogical or absurd result.’” (Citations omitted.) AT&T

Communications of Ohio, Inc. v. Lynch, 132 Ohio St.3d 92, 2012-Ohio-1975, 969 N.E.2d

1166, ¶ 18.

{¶ 12} Pursuant to R.C. 119.01(H), “‘Appeal’ means the procedure by which a

person, aggrieved by a finding, decision, order, or adjudication of any agency, invokes

the jurisdiction of a court.” “‘Jurisdiction over an administrative appeal does not vest in a

common pleas court unless and until an appeal is perfected.’” (Citation omitted.) AT&T

at ¶ 17. “When a statute confers a right to appeal, the appeal can be perfected only in the

mode the statute prescribes. Compliance with the specific and mandatory requirements

governing the filing of a notice of appeal ‘is essential to invoke jurisdiction of the Court

6. of Common Pleas.’” Pryor v. Dir., Dept. of Job & Family Servs., 148 Ohio St.3d 1,

2016-Ohio-2907, 68 N.E.3d 729, ¶ 12, quoting Zier at paragraph two of the syllabus.

{¶ 13} Strict compliance with R.C. 119.12 is necessary for a party aggrieved by an

administrative agency’s order to invoke the subject-matter jurisdiction of the trial court.

High Hopes Transp., Inc. v. Beasley, 6th Dist. Wood No. WD-09-021, 2009-Ohio-4064,

¶ 16, citing Hughes at ¶ 18. “Just as we require an agency to strictly comply with the

requirements of R.C. 119.09, a party adversely affected by an agency decision must

likewise strictly comply with R.C. 119.12 in order to perfect an appeal.” Hughes at ¶ 17;

Medcorp at ¶ 21. The Ohio Supreme Court has repeatedly “held that conditions for

pursuing an appeal are mandatory and jurisdictional.” Colonial Village Ltd. v.

Washington Cty. Bd. of Revision, 114 Ohio St.3d 493, 2007-Ohio-4641, 873 N.E.2d 298,

¶ 10.

A. Timeliness of Appeal

{¶ 14} It is undisputed on Thursday, December 27, 2018, appellee served

appellant (with a copy to her attorney) by certified mail, return receipt requested, a

certified copy of the notice of its adjudication order with “a statement of the time and

method by which an appeal may be perfected.” R.C. 119.09. That mailing event

triggered a 15-day period during which appellant must file her notice of appeal to both

the agency and to the common pleas court as specified in R.C. 119.12. Hughes at ¶ 10

and 16.

{¶ 15} According to R.C. 119.12(D):

7. 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. * * * The notice of appeal shall also be filed by

the appellant with the court. In filing a notice of appeal with the agency or

court, the notice that is filed may be either the original notice or a copy of

the original notice. 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.

{¶ 16} According to R.C. 1.14, “The time within which an act is required by law

to be done shall be computed by excluding the first and including the last day; except

that, when the last day falls on Sunday or a legal holiday, the act may be done on the next

succeeding day that is not Sunday or a legal holiday.”

{¶ 17} The common pleas court’s March 12, 2019 judgment entry found

appellant’s notice of appeal was untimely, stating:

The Adjudication Order appealed from was journalized on

December 27, 2018 and became effective on that date. * * * Proof of

mailing the Adjudication Order on December 27, 2018 by certified mail to

Appellant was submitted, to wit certified mail #7015 0640 003 2646 2714,

with this tracking number checked as being delivered and left with an

individual on December 29, 2018 at 10:04 A.M. In this case, the appeal

8. was filed with the Clerk of the Sandusky County Common Pleas Court on

January 14, 2019, a Monday. * * * Counsel for Appellant argues that ORC

1.14 should govern in this instance. However, even if excluding the first

day (the 27th) and including the last day (the 11th), the Notice was not filed

until the 14th – which is outside the 15 day limit.

{¶ 18} We agree with the common pleas court. The first day after appellee’s

December 27, 2018 mailing was Friday, December 28, 2018. R.C. 1.14. We calculated

the 15-day period from December 28, 2018, and determined appellant had until Friday,

January 11, 2019, in which to perfect her R.C. 119.12 appeal by filing the notice with

both appellee and the clerk of common pleas. Id.; Monica v. Dept. of Educ., 6th Dist.

Lucas No. L-88-195, 1989 WL 29844, *4 (Mar. 31, 1989). Appellant incorrectly argues

the 15-day period began on Saturday, December 29, 2018, and ended on Saturday,

January 12, 2019, making Monday, January 14, 2019, the next day the court was open for

business. We find no support in the statute for appellant’s argument that, “It is clear from

the court’s judgment entry that it used the wrong starting point in its application of R.C.

1.14. If the court would have excluded December 28, 201[8], the first day ‘after’ the

mailing * * *.” According to the record in this matter, the first day excluded under R.C.

1.14 was December 27, 2018, not December 28.

{¶ 19} The record shows the earliest date appellant argues she filed her notice of

appeal with appellee and the clerk of common pleas was Monday, January 14, 2019.

However, Friday, January 11, 2019, was the last day she could file to perfect her appeal,

9. and nothing in the record indicates the common pleas court was closed on January 11.

Appellant’s failure to strictly comply with the statute and file the required notice of

appeal by January 11, 2019, deprived the common pleas court with subject-matter

jurisdiction over the appeal she eventually filed with the required recipients on January

14, January 16, and, nunc pro tunc, February 15, 2019. Nibert v. Ohio Dept. of Rehab. &

Corr., 84 Ohio St.3d 100, 702 N.E.2d 70 (1998), syllabus.

B. Grounds for Appeal

{¶ 20} The common pleas court’s March 12, 2019 judgment entry states, “The

untimely filing being dispositive, the court does not address the lack of ‘magic words’

argument, or the failure to give Notice to the Appellee within the 15 day period.”

Appellee argues the lack of “magic words” in appellant’s notice of appeal is additional

evidence of the common pleas court’s lack of subject-matter jurisdiction. We agree.

{¶ 21} While the common pleas court correctly states untimely filing of the appeal

was dispositive, even if appellant had timely filed her notice of appeal with the required

recipients, we find she also did not strictly comply with the statute for stating the grounds

for her appeal that the agency’s order is not supported by reliable, probative, and

substantial evidence and is not in accordance with law. According to R.C. 119.12(D):

Any party desiring to appeal shall file a notice of appeal * * * stating

that the agency’s order is not supported by reliable, probative, and

substantial evidence and is not in accordance with law. * * * The notice of

appeal may, but need not, set forth the specific grounds of the party’s

10. appeal beyond the statement that the agency’s order is not supported by

reliable, probative, and substantial evidence and is not in accordance with

law.

{¶ 22} Not surprisingly, the Ohio Supreme Court interprets R.C. 119.12(D) for

appellant’s strict compliance for stating the grounds of appeal. Medcorp, 121 Ohio St.3d

622, 2009-Ohio-2058, 906 N.E.2d 1125, at ¶ 20 (interpreting R.C. 119.12(D) then in

effect for the required level of specificity of the grounds for appeal appearing in the

notice of appeal).

{¶ 23} Since the Ohio Supreme Court decided Medcorp, the General Assembly

amended R.C. 119.12(D) to “relax” the specific requirements. However, the minimum

requirement remains, even if appellant no longer must provide any further support for

that statement. Foreman v. Lucas Cty. Court of Common Pleas, 189 Ohio App.3d 678,

2010-Ohio-4731, 939 N.E.2d 1302, ¶ 15 (10th Dist.). “The recent amendments to R.C.

119.12 do not alter the necessity for strict adherence to the statutory requirements to

invoke the trial court’s jurisdiction over an administrative appeal.” Id.

{¶ 24} Since the statute clearly requires nothing “beyond the statement that the

agency’s order is not supported by reliable, probative, and substantial evidence and is not

in accordance with law,” that is the minimum required. R.C. 119.12(D). We reviewed

the December 27, 2018 adjudication order in the record and find appellee notified

appellant of the minimum requirements of R.C. 119.12(D). We reviewed appellant’s

notice of appeal in the record and find it fails to meet the minimum requirements.

11. {¶ 25} We find appellant failed to strictly comply with R.C. 119.12(D) when she

failed to state in her notice of appeal that appellee’s adjudication order is not supported

by reliable, probative, and substantial evidence and is not in accordance with law. Even

if appellant had timely filed her notice of appeal, the content of the notice deprived the

common pleas court with subject-matter jurisdiction over the appeal.

III. Conclusion

{¶ 26} We reviewed the entire record de novo and do not find the common pleas

court erred when it granted appellee’s motion to dismiss the administrative appeal for

lack of subject matter jurisdiction.

{¶ 27} Appellant’s assignment of error is not well-taken.

{¶ 28} On consideration whereof, the judgment of the Sandusky County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________________ JUDGE Christine E. Mayle, P.J. _______________________________ Gene A. Zmuda, J. JUDGE CONCUR. _______________________________ JUDGE

12. This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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