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

2012 Ohio 2459

• Court: Ohio Court of Appeals
• Decided: May 24, 2012
• Docket: 11AP100040
• Status: Published

Opinion

[Cite as Huth v. Ohio Dept. of Job & Family Servs., 2012-Ohio-2459.]

9COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IRVIN W. HUTH : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellant : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. -vs- : : Case No. 11AP100040 OHIO DEPARTMENT OF JOB AND : FAMILY SERVICES, et al. : : Defendants-Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2011 AA 04 0437

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: May 24, 2012

APPEARANCES:

For Appellant: For Defendant-Appellee ODJFS SUSAN SHEFFIELD JOSEPH I. TRIPODI 20 W. Federal St., 3rd Fl. 114 East High Avenue Youngstown, OH 44503 New Philadelphia, OH 44663 For Defendant-Appellee Canton Calvary Mission BETH A. RAIES Tzangas, Plakas, Mannos & Raies 220 Market Ave. S., 8th Fl. Canton, OH 44702 [Cite as Huth v. Ohio Dept. of Job & Family Servs., 2012-Ohio-2459.]

Delaney, J.

{¶1} Appellant Irvin W. Huth appeals from the September 27, 2011 judgment

entry of the Tuscarawas County Court of Common Pleas affirming the March 23, 2011

decision of the State of Ohio Unemployment Compensation Review Commission.

Appellees are the Director of the Ohio Department of Job and Family Services

(“ODJFS”) and Canton Calvary Mission (“Employer”).

FACTS AND PROCEDURAL HISTORY

{¶2} This case began when appellant filed an application for unemployment

compensation benefits in 2006. A number of administrative hearings were held and

the matter was eventually appealed to the Tuscarawas County Court of Common

Pleas. The court remanded the matter for a hearing on January 22, 2010.

{¶3} The procedural history relevant to this appeal begins with this hearing.

On March 12, 2010, appellant was notified that a telephonic hearing on his claim was

scheduled for March 24, 2010. On March 17, 2010, a postponement notice was

issued which indicated that a new hearing date would be set.

{¶4} On November 22, 2010, appellant was notified that an in-person hearing

was set for December 7, 2010 at 1:00 p.m. at the Horizon Building in Richmond

Heights, Ohio.

{¶5} At approximately 8:11 a.m. on December 7, 2010, appellant’s

representative, Michela Huth, telephoned the hearing officer to ask that the hearing be

continued in light of inclement weather. The request was denied because the hearing

was not until 1:00 p.m., giving appellant ample time to travel, and the matter had been

postponed previously because appellant requested an in-person hearing. Tuscarawas County, Case No. 11AP100040 3

{¶6} At 1:00 p.m., the hearing officer, the employer’s representative, and two

of her clients appeared for the hearing. Appellant, however, did not appear.

{¶7} On December 9, 2010, the Hearing Officer issued a dismissal notice

pursuant to R.C. 4141.281(D)(5).

{¶8} On December 16, 2010, appellant filed a statement of good cause for

failure to appear with the Unemployment Compensation Review Commission and

requested a hearing. A telephone hearing was held on March 14, 2011.

{¶9} On March 23, 2011, the commission found that appellant did not have

substantial reason put forth in good faith, sufficient to excuse his failure to appear at

the hearing, and therefore had not established good cause. The commission thereby

affirmed the dismissal of appeal.

{¶10} Appellant appealed the commission’s decision to the Tuscarawas County

Court of Common Pleas, which affirmed the commission’s decision September 27.

2011.

{¶11} Appellant now appeals from the decision of the Tuscarawas County

Court of Common Pleas.

{¶12} Appellant raises two Assignments of Error:

{¶13} “I. THE COURT OF COMMON PLEAS ERRED AND ABUSED IT’S (sic)

DISCRETION WHEN IT AFFIRMED THE OHIO UNEMPLOYMENT COMPENSATION

REVIEW COMMISSION’S MARCH 23, 2011 DECISION FINDING THAT APPELLANT

DID NOT DEMONSTRATE GOOD CAUSE FOR FAILURE TO APPEAR AT THE

DECEMBER 7, 2010 HEARING.” Tuscarawas County, Case No. 11AP100040 4

{¶14} “II. THE OHIO UNEMPLOYMENT COMPENSATION REVIEW

COMMISSION ERRED AND ABUSED ITS DISCRETION WHEN IT FOUND THAT

APPELLANT DID NOT HAVE GOOD CAUSE FOR FAILING TO APPEAR AT THE

DECEMBER 7, 2010 HEARING.”

{¶15} This case comes to us on the accelerated calendar. App.R. 11.1

governs accelerated-calendar cases and states in pertinent part:

(E) Determination and judgment on appeal.

The appeal will be determined as provided by App.R. 11.1. It shall

be sufficient compliance with App.R. 12(A) for the statement of the

reason for the court’s decision as to each error to be in brief and

conclusionary form.

The decision may be by judgment entry in which case it will not be

published in any form.

{¶16} One of the most important purposes of the accelerated calendar is to

enable an appellate court to render a brief and conclusory decision more quickly than

in a case on the regular calendar where the briefs, facts, and legal issues are more

complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463

N.E.2d 655 (10th Dist.1983).

{¶17} This appeal shall be considered with the foregoing rules in mind.

I., II.

{¶18} In his first and second assignments of error, appellant argues that the

trial court erred in finding that the commission’s decision was supported by the Tuscarawas County, Case No. 11AP100040 5

evidence and was not unlawful, unreasonable, or against the manifest weight of the

evidence.

{¶19} 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, 73 Ohio St.3d 694, 653

N.E.2d 1207 (1995), paragraph one of the syllabus. While appellate courts are not

permitted to make factual findings or to determine credibility of witnesses, they have

the duty to determine whether the commission’s decision is supported by the evidence

in the record. Id. at 696. The same standard of review applies at every level of

review, from the court of common pleas through the Ohio Supreme Court. Id.

{¶20} Further, we may not reverse the commission’s decision simply because

“reasonable minds might reach different conclusions.” Williams v. Ohio Dept. of Job

and Family Servs., 129 Ohio St.3d 332, 335, 2011-Ohio-2897, 951 N.E.2d 1031, citing

Irvine v. Unemp. Comp. Bd. of Review, 19 Ohio St.3d 15, 18, 482 N.E.2d 587 (1985).

{¶21} The process of filing applications for unemployment compensation

benefits with the ODJFS Director, and appeals from decisions thereof, is set forth in

R.C. 4141.28.

{¶22} We begin with R.C. 4141.28(D)(5), which states:

For hearings at either the hearing officer or review level, if the

appealing party fails to appear at the hearing, the hearing officer

shall dismiss the appeal. The commission shall vacate the

dismissal upon a showing that written notice of the hearing was

not sent to that party’s last known address, or good cause for Tuscarawas County, Case No. 11AP100040 6

appellant’s failure to appear is shown to the commission within

fourteen days after the hearing date.

If the commission finds that the appealing party’s reason for failing

to appear does not constitute good cause for failing to appear, the

commission shall send written notice of that finding, and the

appealing party may request a hearing to present testimony on the

issue of good cause for failing to appear. The appealing party

shall file a request for hearing on the issue of good cause for

failing to appear within ten days after the commission sends

written notice indicating a finding of no good cause for failing to

appear.

{¶23} The record establishes that the hearing was scheduled for December 7,

2011, at 1:00 p.m. in Richmond Heights, Ohio, an area affected that day with

inclement weather. Appellant’s representative called at 8:11 a.m. to seek a

postponement, stating that appellant could not drive. The postponement was denied

but appellant failed to appear at the hearing. The employer’s representatives and

witnesses did appear at the hearing, along with the hearing officer. No evidence was

admitted of any snow emergency on the date of the hearing, the roads were described

as passable, and appellant admitted that he made no attempt to travel to the hearing

but relied upon weather reports in the news that day. Evidence was admitted that

appellant received some medical treatment in 2007 for vision issues including difficulty

with night vision and blurriness. Tuscarawas County, Case No. 11AP100040 7

{¶24} Our purpose is not to re-evaluate the facts determined by the

commission, but rather to determine whether the conclusion that appellant failed to

demonstrate good cause for failure to attend the hearing is unlawful, unreasonable, or

against the manifest weight of the evidence. Tzangas, Plakas, and Mannos, supra, 73

Ohio St.3d at 697.

{¶25} “Good cause” for failure to attend a hearing, as described in R.C.

4141.28(D)(5), is different than “just cause” for leaving employment or termination of

employment, as described in R.C. 4141.29(D)(2). As appellant points out, at least one

appellate court has used the terms interchangeably. See, Wilson v. Ohio Dept. of Job

& Family Servs., 8th Dist No. 94692, 2010-Ohio-5611. We have followed the oft-cited

definition of “just cause” in Irvine, supra, which is “that which, to an ordinary intelligent

person, is a justifiable reason for doing or not doing a particular act.” Irvine v. Unemp.

Comp. Bd. of Review, 19 Ohio St.3d at 17, citing Peyton v. Sun T.V., 44 Ohio App.2d

10, 12, 335 N.E.2d 751 (10th Dist.1975).

{¶26} In the case at bar, the commission “consider[ed] good cause to mean a

substantial reason put forth in good faith that is not unreasonable, arbitrary, or

irrational and that is sufficient to create a reasonable excuse for an act or a failure to

act.” This definition is consistent with that used by the commission in Sciortino v.

Administrator, Ohio Bur. of Emp. Serv.: “that reason which would make an ordinary

intelligent individual follow the same procedure in the same or similar circumstances.”

4th Dist. No. 1727, 1992 WL 80064 (Apr. 14, 1992), appeal not allowed, 65 Ohio St.3d

1420, 598 N.E.2d 1171 (1992). Tuscarawas County, Case No. 11AP100040 8

{¶27} Each of these definitions, essentially, stresses reasonableness and

objectivity. When applied to the facts before the commission in this case, we must

affirm the commission’s determination that appellant failed to demonstrate good cause

for failure to attend the hearing. The commission’s determination is supported by the

record and is neither unlawful, unreasonable, nor against the manifest weight of the

{¶28} Appellant’s two assignments of error are overruled and the judgment of

the Tuscarawas County Court of Common Pleas is affirmed.

By: Delaney, P.J.

Hoffman, J. and

Wise, J. concur.

HON. PATRICIA A. DELANEY

HON. WILLIAM B. HOFFMAN

HON. JOHN W. WISE [Cite as Huth v. Ohio Dept. of Job & Family Servs., 2012-Ohio-2459.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IRVIN W. HUTH : : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : OHIO DEPARTMENT OF JOB AND : FAMILY SERVICES, et al. : : Case No. 11AP100040 Defendants-Appellees :

For the reasons stated in our accompanying Opinion on file, the judgment of the

Tuscarawas County Court of Common Pleas is affirmed. Costs assessed to

Appellant.

HON. JOHN W. WISE