[Cite as Hambuechen v. 221 Market N., Inc., 2013-Ohio-3717.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
ANA M. HAMBUECHEN : JUDGES: : : Hon. W. Scott Gwin, P.J. Respondent- Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : -vs- : : 221 MARKET NORTH, INC. : Case No. 2013CA00044 DBA NAPOLI’S ITALIAN EATERY : Petitioner - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case Number 2012CV03644
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: August 26, 2013
APPEARANCES:
For Respondent-Appellee For Petitioner-Appellant Ohio Civil Rights Commission STANLEY R. RUBIN WAYNE D. WILLIAMS 437 Market Avenue North State Office Building, 11th Floor Canton, OH 44702 615 W. Superior Ave Cleveland, OH 44113-1899
For Respondent- Appellee Ana M. Hambuechen
TODD W. EVANS 4505 Stephen Circle, Suite 101 Canton, OH 44718 Stark County, Case No. 2013CA00044 2
Baldwin, J.
{¶1} Appellant 221 Market North, Inc., dba Napoli’s Italian Eatery, appeals a
judgment of the Stark County Common Pleas Court dismissing its petition for judicial
review of a decision of appellee Ohio Civil Rights Commission.
STATEMENT OF FACTS AND CASE
{¶2} In 2007, appellee Ana M. Hambuechen filed a charge with the Ohio Civil
Rights Commission alleging that appellant fired her because she was pregnant. The
Commission issued a complaint charging appellant with a violation of R.C. 4112.02(A).
The case proceeded to trial in front of an administrative law judge, who recommended
that the Commission find a violation by appellant. The Commission made such a
finding on November 15, 2012.
{¶3} On November 26, 2012, appellant filed a petition for judicial review in the
Stark County Common Pleas Court pursuant to R.C. 4112.06. Counsel for appellant
served appellees by regular mail rather than through the clerk of courts.
{¶4} The Commission moved to dismiss the petition for lack of subject matter
jurisdiction on December 28, 2012, arguing that appellant had to both file its petition and
initiate service through the clerk of courts within 30 days of the Commission’s decision.
On December 31, 2012, appellant filed a response to the motion to dismiss and also
filed a praecipe for the clerk of courts to serve the petition in accordance with the Civil
Rules.
{¶5} The trial court dismissed the petition, finding that appellant was required to
both file its petition and initiate service through the clerk of courts within 30 days of the
Commission’s decision. Appellant assigns one error to this Court on appeal: Stark County, Case No. 2013CA00044 3
{¶6} “THE TRIAL COURT ERRED IN DISMISSING NAPOLI’S APPEAL FROM
THE COMMISSION’S ORDER BECAUSE R.C. 4112.06 REQUIRES AN APPEAL BE
SERVED THROUGH THE CLERK OF COURTS WITHIN ONE YEAR, NOT 30 DAYS.”
{¶7} R.C. 4112.06 governs an appeal from a decision of the Ohio Civil Rights
Commission to the Common Pleas Court, and provides in pertinent part:
{¶8} “(A) Any complainant, or respondent claiming to be aggrieved by a final
order of the commission, including a refusal to issue a complaint, may obtain judicial
review thereof, and the commission may obtain an order of court for the enforcement of
its final orders, in a proceeding as provided in this section. Such proceeding shall be
brought in the common pleas court of the state within any county wherein the unlawful
discriminatory practice which is the subject of the commission's order was committed or
wherein any respondent required in the order to cease and desist from an unlawful
discriminatory practice or to take affirmative action resides or transacts business.
{¶9} “(B) Such proceedings shall be initiated by the filing of a petition in court
as provided in division (A) of this section and the service of a copy of the said petition
upon the commission and upon all parties who appeared before the commission. ***
{¶10} “(H) If no proceeding to obtain judicial review is instituted by a
complainant, or respondent within thirty days from the service of order of the
commission pursuant to this section, the commission may obtain a decree of the court
for the enforcement of such order upon showing that respondent is subject to the
commission's jurisdiction and resides or transacts business within the county in which
the petition for enforcement is brought.” Stark County, Case No. 2013CA00044 4
{¶11} The sole issue before this court is whether appellant was required to serve
all parties within 30 days pursuant to R.C. 4112.06(H), or whether the Civil Rules apply
to service, giving appellant one year to perfect service on all parties pursuant to Civ. R.
3(A), which states in pertinent part, “A civil action is commenced by filing a complaint
with the court, if service is obtained within one year from such filing upon a named
defendant[.]” Civ. R. 4(A) provides that upon the filing of the complaint, the clerk shall
issue a summons for service upon each defendant listed in the caption.
{¶12} None of the cases cited by the parties directly address the issue before
this Court. Nevertheless, it is clear from the case law that service is required to be
instituted with the Clerk of Courts in accordance with the Civil Rules. In finding that
service was not proper because it was sent by ordinary mail and not served through the
clerk within one year, the Court of Appeals for the Eighth District held:
{¶13} “The Rules of Civil Procedure apply to an action commenced in common
pleas court pursuant to R.C. 4112.06. Abbyshire Constr. Co. v. Civil Rights Comm.
(1974), 39 Ohio App.2d 125, 68 O.O.2d 319, 316 N.E.2d 893. R.C. 4112.06 is silent as
to whether the petition initiating the appeal must be served through the clerk of courts.
However, a de novo hearing of a Civil Rights Commission decision on the merits is
clearly adversarial in nature. Therefore, Civ.R. 3(A) and Civ.R. 4(A) and (B) apply
absent a good and sufficient reason not to apply those rules. We cannot find such good
and sufficient reason.” City of Cleveland v. Ohio Civil Rights Comm’n, 43 Ohio App.3d
153, 156, 540 N.E.2d 278 (1988).
{¶14} The Eighth District reaffirmed this holding in Donn, Inc. v. Ohio Civil Rights
Comm’n, 68 Ohio App. 3d 561, 565, 589 N.E.2d 110 (1991), stating that R.C. 4112.06 Stark County, Case No. 2013CA00044 5
requires service on all parties who appeared before the Commission, and “Civ.R. 3 and
4 further provide that a civil action is commenced by the filing of a complaint with the
court and service upon the defendant through the clerk of courts within one year of
filing.”
{¶15} If Civil Rules 3 and 4 apply to the commencement and service of a petition
filed pursuant to R.C. 4112.06, they apply in their entirety unless the statute clearly
indicates otherwise. R.C. 4112.06(H) provides only that the appeal be filed within thirty
days; the statute does not clearly require that service be initiated within thirty days.
Appellee’s reliance on Ramsdell v. Ohio Civ. Rights Comm’n, 56 Ohio St. 3d 24, 563
N.E.2d 285 (1990), is misplaced. In Ramsdell, the issue was whether Civ. R.
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[Cite as Hambuechen v. 221 Market N., Inc., 2013-Ohio-3717.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
ANA M. HAMBUECHEN : JUDGES: : : Hon. W. Scott Gwin, P.J. Respondent- Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : -vs- : : 221 MARKET NORTH, INC. : Case No. 2013CA00044 DBA NAPOLI’S ITALIAN EATERY : Petitioner - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case Number 2012CV03644
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: August 26, 2013
APPEARANCES:
For Respondent-Appellee For Petitioner-Appellant Ohio Civil Rights Commission STANLEY R. RUBIN WAYNE D. WILLIAMS 437 Market Avenue North State Office Building, 11th Floor Canton, OH 44702 615 W. Superior Ave Cleveland, OH 44113-1899
For Respondent- Appellee Ana M. Hambuechen
TODD W. EVANS 4505 Stephen Circle, Suite 101 Canton, OH 44718 Stark County, Case No. 2013CA00044 2
Baldwin, J.
{¶1} Appellant 221 Market North, Inc., dba Napoli’s Italian Eatery, appeals a
judgment of the Stark County Common Pleas Court dismissing its petition for judicial
review of a decision of appellee Ohio Civil Rights Commission.
STATEMENT OF FACTS AND CASE
{¶2} In 2007, appellee Ana M. Hambuechen filed a charge with the Ohio Civil
Rights Commission alleging that appellant fired her because she was pregnant. The
Commission issued a complaint charging appellant with a violation of R.C. 4112.02(A).
The case proceeded to trial in front of an administrative law judge, who recommended
that the Commission find a violation by appellant. The Commission made such a
finding on November 15, 2012.
{¶3} On November 26, 2012, appellant filed a petition for judicial review in the
Stark County Common Pleas Court pursuant to R.C. 4112.06. Counsel for appellant
served appellees by regular mail rather than through the clerk of courts.
{¶4} The Commission moved to dismiss the petition for lack of subject matter
jurisdiction on December 28, 2012, arguing that appellant had to both file its petition and
initiate service through the clerk of courts within 30 days of the Commission’s decision.
On December 31, 2012, appellant filed a response to the motion to dismiss and also
filed a praecipe for the clerk of courts to serve the petition in accordance with the Civil
Rules.
{¶5} The trial court dismissed the petition, finding that appellant was required to
both file its petition and initiate service through the clerk of courts within 30 days of the
Commission’s decision. Appellant assigns one error to this Court on appeal: Stark County, Case No. 2013CA00044 3
{¶6} “THE TRIAL COURT ERRED IN DISMISSING NAPOLI’S APPEAL FROM
THE COMMISSION’S ORDER BECAUSE R.C. 4112.06 REQUIRES AN APPEAL BE
SERVED THROUGH THE CLERK OF COURTS WITHIN ONE YEAR, NOT 30 DAYS.”
{¶7} R.C. 4112.06 governs an appeal from a decision of the Ohio Civil Rights
Commission to the Common Pleas Court, and provides in pertinent part:
{¶8} “(A) Any complainant, or respondent claiming to be aggrieved by a final
order of the commission, including a refusal to issue a complaint, may obtain judicial
review thereof, and the commission may obtain an order of court for the enforcement of
its final orders, in a proceeding as provided in this section. Such proceeding shall be
brought in the common pleas court of the state within any county wherein the unlawful
discriminatory practice which is the subject of the commission's order was committed or
wherein any respondent required in the order to cease and desist from an unlawful
discriminatory practice or to take affirmative action resides or transacts business.
{¶9} “(B) Such proceedings shall be initiated by the filing of a petition in court
as provided in division (A) of this section and the service of a copy of the said petition
upon the commission and upon all parties who appeared before the commission. ***
{¶10} “(H) If no proceeding to obtain judicial review is instituted by a
complainant, or respondent within thirty days from the service of order of the
commission pursuant to this section, the commission may obtain a decree of the court
for the enforcement of such order upon showing that respondent is subject to the
commission's jurisdiction and resides or transacts business within the county in which
the petition for enforcement is brought.” Stark County, Case No. 2013CA00044 4
{¶11} The sole issue before this court is whether appellant was required to serve
all parties within 30 days pursuant to R.C. 4112.06(H), or whether the Civil Rules apply
to service, giving appellant one year to perfect service on all parties pursuant to Civ. R.
3(A), which states in pertinent part, “A civil action is commenced by filing a complaint
with the court, if service is obtained within one year from such filing upon a named
defendant[.]” Civ. R. 4(A) provides that upon the filing of the complaint, the clerk shall
issue a summons for service upon each defendant listed in the caption.
{¶12} None of the cases cited by the parties directly address the issue before
this Court. Nevertheless, it is clear from the case law that service is required to be
instituted with the Clerk of Courts in accordance with the Civil Rules. In finding that
service was not proper because it was sent by ordinary mail and not served through the
clerk within one year, the Court of Appeals for the Eighth District held:
{¶13} “The Rules of Civil Procedure apply to an action commenced in common
pleas court pursuant to R.C. 4112.06. Abbyshire Constr. Co. v. Civil Rights Comm.
(1974), 39 Ohio App.2d 125, 68 O.O.2d 319, 316 N.E.2d 893. R.C. 4112.06 is silent as
to whether the petition initiating the appeal must be served through the clerk of courts.
However, a de novo hearing of a Civil Rights Commission decision on the merits is
clearly adversarial in nature. Therefore, Civ.R. 3(A) and Civ.R. 4(A) and (B) apply
absent a good and sufficient reason not to apply those rules. We cannot find such good
and sufficient reason.” City of Cleveland v. Ohio Civil Rights Comm’n, 43 Ohio App.3d
153, 156, 540 N.E.2d 278 (1988).
{¶14} The Eighth District reaffirmed this holding in Donn, Inc. v. Ohio Civil Rights
Comm’n, 68 Ohio App. 3d 561, 565, 589 N.E.2d 110 (1991), stating that R.C. 4112.06 Stark County, Case No. 2013CA00044 5
requires service on all parties who appeared before the Commission, and “Civ.R. 3 and
4 further provide that a civil action is commenced by the filing of a complaint with the
court and service upon the defendant through the clerk of courts within one year of
filing.”
{¶15} If Civil Rules 3 and 4 apply to the commencement and service of a petition
filed pursuant to R.C. 4112.06, they apply in their entirety unless the statute clearly
indicates otherwise. R.C. 4112.06(H) provides only that the appeal be filed within thirty
days; the statute does not clearly require that service be initiated within thirty days.
Appellee’s reliance on Ramsdell v. Ohio Civ. Rights Comm’n, 56 Ohio St. 3d 24, 563
N.E.2d 285 (1990), is misplaced. In Ramsdell, the issue was whether Civ. R. 6(E)
added three days to the thirty day time period within which a petition must be filed
pursuant to R.C. 4112.06(H). The case did not address the applicability of the Civil
Rules to service of a petition filed pursuant to R.C. 4112.06. Stark County, Case No. 2013CA00044 6
{¶16} The trial court erred in dismissing appellant’s petition for judicial review on
the basis that the service of the petition was not obtained through the Clerk of Courts
within thirty days. The assignment of error is sustained. The judgment of the Stark
County Common Pleas Court is reversed, and this case is remanded to that court for
further proceedings according to law and consistent with this opinion. Costs assessed
to appellee.
By: Baldwin, J.
Gwin, P.J. and
Wise, J. concur.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. JOHN W. WISE
CRB/rad [Cite as Hambuechen v. 221 Market N., Inc., 2013-Ohio-3717.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANA M. HAMBUECHEN : : Plaintiff - Appellee : : -vs- : JUDGMENT ENTRY : 221 MARKET NORTH, INC. : DBA NAPOLI’S ITALIAN EATERY : : Defendant - Appellant : CASE NO. 2013CA00044
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is reversed and
remanded. Costs assessed to appellee.