Everett v. Ohio Dept. of Job & Family Servs. , 2019 Ohio 4504 ( 2019 )

[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
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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
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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
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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.
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{¶ 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
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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):
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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
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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,
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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
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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.
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{¶ 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
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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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