Zidian v. Dept. of Commerce , 2012 Ohio 1499 ( 2012 )

[Cite as Zidian v. Dept. of Commerce, 2012-Ohio-1499.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
CHARLES ZIDIAN, )
) CASE NO. 11 MA 39
PLAINTIFF-APPELLANT, )
)
- VS - ) OPINION
)
DEPARTMENT OF COMMERCE, )
)
DEFENDANT-APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 10CV2850.
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellant: Attorney Robert Rohrbaugh
4800 Market Street, Suite A
Boardman, Ohio 44512
For Defendant-Appellee: Attorney Michael DeWine
Ohio Attorney General
Attorney Jennifer Croskey
Assistant Attorney General
30 East Broad Street, 26th Floor
Columbus, Ohio 43215-3428
JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: March 30, 2012
VUKOVICH, J.
{¶1} Plaintiff-appellant Charles Zidian appeals the decision of the Mahoning
County Common Pleas Court granting defendant-appellee Ohio Department of
Commerce, Division of Real Estate and Professional Licensing’s motion to dismiss the
appeal from the Ohio Real Estate Commission’s decision to revoke Zidian’s real estate
license and issue a $1,000 civil penalty.
{¶2} The common pleas court provided three reasons for dismissing the
appeal. First, it indicated that Zidian failed to appear at the formal hearings before the
Division of Real Estate and, thus, did not exhaust his administrative remedies.
Second, it held the notices of appeal were not timely filed with both the common pleas
court and the Department of Commerce in accordance with R.C. 119.12. Lastly, it
stated that the notices of appeal failed to state the grounds for the appeal as is
required by R.C. 119.12. Zidian disagrees with all of these findings.
{¶3} For the reasons expressed below, the trial court’s dismissal of the appeal
is reversed and the case is remanded with instructions to reinstate Zidian’s appeal
from the decision of the Ohio Real Estate Commission. Upon remand, the trial court is
advised that the doctrine of waiver may apply to certain arguments presented by
Zidian since he did not appear at the administrative hearings.
STATEMENT OF CASE
{¶4} In 2005, Gregory Everett was selling his house (for sale by owner) in
Mahoning County, Ohio. Zidian approached Everett requesting a one time showing for
one of Zidian’s clients. Everett and Zidian agreed on a $4,000 commission if the
house sold and such agreement was memorialized in a written contract. Zidian’s client
purchased the house within 30 days of the showing. Zidian received the $4,000
commission, but also took a $1,000 bonus. He did this by putting his fee of $4,000
and the $1,000 bonus in the title work. According to Zidian, Everett contacted him
prior to the sale and indicated if the house sold within 30 days, Zidian would get a
$1,000 bonus. This alleged agreement was not made in writing.
{¶5} After discovering that Zidian took an extra $1,000, Everett attempted to
get that money back from Zidian. Everett claimed that there was no agreement
concerning a $1,000 bonus. It appears his attempts were futile so he filed a complaint
with the Ohio Department of Commerce, Real Estate Division.
{¶6} The Real Estate Division investigated the allegations and charged Zidian
with:
{¶7} “1. Inserted a materially inaccurate term into the ‘title work order’
concerning the $1,000.00 selling bonus from the seller of the subjected property, in
violation of R.C. 4735.18(A)(35).
{¶8} “2. With respect to the $1,000.00 selling bonus from the seller of the
subject property, demanded a commission to which you were not entitled in violation of
R.C. 4735.18(A)(10).
{¶9} “3. The above conduct described in Charges #1-2 also constitutes a
failure to protect the public against fraud, misrepresentation or unethical practices in
real estate transactions and failed to endeavor to eliminate in the community, any
practices which could be damaging to the public or to the integrity of the real estate
profession. This constitutes a violation of R.C. 4735.18(A)(6), as that section
incorporates the Canons of Ethics, Section I, Article 2.
{¶10} “4. Failed to obtain sellers’ signature on the consumer guide to agency
prior to showing the subject property in violation of R.C. 4725.181(A) as that section
incorporates R.C. 4735.56(C) and/or failed to keep complete and accurate records of
all transactions for a period of three years from the date of the transaction in violation
of R.C. 4735.18(A)(24).
{¶11} “5. Failed to obtain purchasers’ signature on the consumer guide to
agency prior to showing the subject property in violation of R.C. 4725.181(A) as that
section incorporates R.C. 4735.56(D) and/or failed to keep complete and accurate
records of all transactions for a period of three years from the date of the transaction in
violation of R.C. 4735.18(A)(24).”
{¶12} Thereafter, Zidian was served with a subpoena duces tecum. However,
he failed to produce all of the documents requested. The matter went before a
Hearing Officer; testimony was taken from Mr. Schirtzinger, an investigator with the
division. Zidian, who did receive prior notice of the hearing through certified mail,
failed to appear and defend the charges.
{¶13} After hearing the evidence, the Hearing Officer issued a report and
concluded that the Division of Real Estate provided sufficient evidence to demonstrate
the alleged violations. It then recommended that the Ohio Real Estate Commission
find violations of R.C. 4735.18(A)(10); R.C. 4735.18(A)(35); R.C. 4735.181 as that
section incorporates R.C. 4735.56(C) and 4735.56(D); and R.C. 4735.18(A)(6) as that
section incorporates the Cannons of Ethics, Section I, Article 2.
{¶14} Following that report, the matter was set for review by the Ohio Real
Estate Commission. Zidian was notified of that date and was informed that he could
attend and present his case. Prior to the hearing date, Zidian requested a
continuance, which was granted and the case was set for a later date. The case was
then heard by the Commission on June 2, 2010. Neither Zidian nor his counsel
appeared at the hearing. The Commission agreed with the Hearing Officer and found
violations. As a penalty for the first three violations (concerning the improper $1,000
bonus) it revoked Zidian’s real estate license. For the four and fifth violations (for
failing to obtain signatures on the consumer guide to agency indicating that he was
representing both the buyer and seller) it imposed a $500 civil penalty for each; thus
an aggregate civil penalty of $1,000.
{¶15} The decision was sent by certified mail on July 14, 2010. Zidian was
notified that he could appeal the decision within 15 days by filing notices of appeal with
the agency and the common pleas court. Zidian attempted to file notices of appeal
within that time limit. Zidian filed a notice of appeal with the Department of Commerce
on July 26, 2010. That notice was not filed with the Mahoning County Common Pleas
Court. Zidian then filed a different notice of appeal with Mahoning County Common
Pleas Court on July 28, 2010. That notice of appeal was sent to the Department of
Commerce but was not received until August 2, 2010.
{¶16} On August 24, 2010, the Department of Commerce filed a motion to
dismiss asserting the notices of appeal did not comply with R.C. 119.12. Specifically,
that it was not timely and did not contain the statutory mandated language. It also
asserted that Zidian’s failure to appear at any of the hearings meant that he did not
exhaust his administrative remedies. Zidian opposed the motion.
{¶17} A common pleas court magistrate concluded that the court was without
jurisdiction to hear the appeal because the notice was not timely, it did not contain the
statutory mandated language, and Zidian did not exhaust his administrative remedies.
Zidian filed timely objections and the Department of Commerce timely opposed those
objections.
{¶18} After considering the arguments, the trial court found that the
administrative remedies were not exhausted and also concluded that the notices of
appeal were not timely and did not contain the statutory mandated language. Thus, it
dismissed the appeal for lack of jurisdiction.
FIRST ASSIGNMENT OF ERROR
{¶19} “THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
ADMINISTRATIVE APPEAL.”
{¶20} When a statute confers the right to appeal, an appeal can be perfected
only in the mode prescribed by that statute. Ramsdell v. Ohio Civ. Rights Comm., 56
Ohio St.3d 24, 27, 563 N.E.2d 285 (1990). R.C. 119.12 confers the right to appeal an
administrative decision from the Department of Commerce. Thus, a party must strictly
adhere to the filing requirements in R.C. 119.12 in order to perfect an administrative
appeal and invoke the common pleas court's jurisdiction. Hughes v. Ohio Dept. of
Commerce, 114 Ohio St.3d 47, 2007-Ohio-2877, 868 N.E.2d 246, ¶ 17.
{¶21} A trial court’s determination regarding its subject matter jurisdiction
inherently raises a question of law, which must be reviewed independently without
deference to a trial court's decision. In re Campbell, 7th Dist. No. 05MA10, 2006–
Ohio–1764, ¶ 7. Consequently, we review the trial court's determination that it lacked
subject matter jurisdiction to review the appeal under a de novo standard of review.
Fifth Third Bank, N.A. v. Maple Leaf Expansion, Inc., 188 Ohio App.3d 27, 2010–
Ohio–1537, 934 N.E.2d 366, ¶ 10 (7th Dist.).
{¶22} Each of the trial court’s grounds for dismissing the administrative appeal
(timeliness of the notices of appeal, content of the notices of appeal and exhaustion of
administrative remedies) will be addressed in turn.
Timeliness
{¶23} The time limit within which to file a notice of appeal from the
administrative order is enumerated in R.C. 119.12:
{¶24} “Any party adversely affected by any order of an agency * * * revoking or
suspending a license * * * may appeal from the order of the agency to the court of
common pleas of the county in which the place of business of the licensee is located
or the county in which the licensee is a resident, except that appeals from decisions of
the liquor control commission, the state medical board, state chiropractic board, and
board of nursing shall be to the court of common pleas of Franklin county. If any party
appealing from the order is not a resident of and has no place of business in this state,
the party may appeal to the court of common pleas of Franklin county.
{¶25} “* * *
{¶26} “Any party desiring to appeal shall file a notice of appeal with the agency
* * *. 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.” R.C.
119.12.
{¶27} Filing the notices of appeal within the 15 days after the mailing of the
order is a jurisdictional requirement, which if not followed will deprive the common
pleas court of jurisdiction to hear the appeal. Nibert v. Ohio Dept. of Rehab. & Corr.,
84 Ohio St.3d 100, 702 N.E.2d 70 (1998), syllabus.
{¶28} Both parties agree and the record reflects that the agency’s order was
mailed to Zidian on July 14, 2010. Fifteen days following that is July 29, 2010.
{¶29} Zidian filed a notice of appeal with the common pleas court on July 28,
2010. A copy of that notice of appeal was sent to the division. However, it was not
received until August 2, 2010.
{¶30} Zidian argues that the notice of appeal filed with the common pleas court
and the copy that was forwarded to the Department of Commerce were both timely
since the certification attached to the notice of appeal states that the copy was sent on
July 29, 2010, to the Department of Commerce. He asserts that under R.C. 119.12 he
had until July 31, 2010, to effectuate service. Since July 31, 2010, was a Saturday, he
contends that he had until Monday, August 2, 2010, for the Department of Commerce
to receive his notice. Therefore, he is arguing that mailing constitutes filing and that a
three day mailing rule applies.
{¶31} We disagree with his arguments. The statute clearly indicates that the
notices of appeal must be filed with both the agency and the court of common pleas
within the 15 day period. The notice of appeal filed in the common pleas court was
timely since it was received within the 15 day filing period. However, the copy of the
notice that was sent to the Department of Commerce was received after the 15 day
period and as such, was untimely. The fact that his certification indicates that it was
mailed on July 29, 2010, the last day for filing the notices is not sufficient to comply
with the statute. The notices of appeal must be filed, not just mailed, by the 15 day
deadline. Austin v. Ohio FAIR Plan Underwriting Assn., 10th Dist. No. 10AP-895,
2011-Ohio-2050, ¶ 9; Leonard v. Ohio Bd. of Nursing, 10th Dist. No. 99AP-1154, 2000
WL 739442 (June 8, 2008) (stating that depositing the notice of appeal in the mail
does not constitute a filing under R.C. 119.12); Hickey v. Ohio State Medical Bd., 8th
Dist. No. 50520, 1986 WL 6713 (June 12, 1986) (same); Townsend v. Bd. of Bldg.
Appeals, 49 Ohio App.2d 402, 361 N.E.2d 271 (9th Dist.1976) (same).
{¶32} That said, on July 26, 2010, within the 15 day filing period, Zidian did file
a notice of appeal with the Department of Commerce. A copy of that notice of appeal
was never sent to the common pleas court. Zidian contends that if this court considers
the timely July 26, 2010 notice of appeal filed with the Department of Commerce in
conjunction with the timely July 28, 2010 notice of appeal filed with the common pleas
court, he has satisfied the requirements of R.C. 119.12.
{¶33} The July 26, 2010 notice of appeal that was timely filed with the
Department of Commerce states:
“DEPARTMENT OF COMMERCE
“DIVISION OF REAL ESTATE &
“PROFESSIONAL LICENSING
{¶34} “* * *
{¶35} “Notice is hereby given that Charles P Zidian, et. [sic] al., hereby appeals
the Adjudication Order entered into the ninth (9) day of June, 2010. As grounds for
said appeal, the Department of Commerce improperly determined that Mr. Zidian
engaged in acts requiring discipline.” 07/26/10 Notice of Appeal.
{¶36} The July 28, 2010 notice of appeal that was timely filed with the common
pleas court states:
“IN THE COURT OF COMMON PLEAS
“MAHONING COUNTY, OHIO
{¶37} “* * *
{¶38} “Now comes the Plaintiffs by and through undersigned counsel Attorney
Robert J. Rohrbaugh II and pursuant to R.C. 2506.01 hereby files this appeal of case
no. 2008-237 of the Department of Commerce, Division of Real Estate’s determination
of June 9, 2010 adjudication order.” 07/28/10 Notice of Appeal.
{¶39} As can be seen these notices of appeal are not copies of each other.
However, both notices timely informed its respective recipients of Zidian’s intent to
appeal the Department of Commerce, Division of Real Estate’s June 9, 2010 order.
Since, the purpose of a notice of appeal is to inform the parties and the court of the
appeal, the July 26, 2010 and July 28, 2010 notices timely achieved that purpose.
State of Ohio, Bd. of Pharmacy v. Evankovich, 7th Dist. No. 10MA153, 2011-Ohio-
3172, ¶ 32 (stating the purpose of a notice of appeal is to inform the parties and the
court of the taking of an appeal). We acknowledge that R.C. 119.12 discusses the
filing of the original notice and/or a copy of the original notice. However, that does not
mean that the filing of two different, but substantially similar, versions of a notice of
appeal fails to invoke the common pleas court’s jurisdiction. See Morrison v. Dept. of
Ins., 4th Dist. No. 01CA13, 2002-Ohio-5986, ¶ 18 (indicating that although two notices
of appeal bore different signatures and thus were not photocopies of each other, they
were sufficient to invoke the common pleas court’s jurisdiction where the notices were
filed within fifteen days of the order appealed. The appellate court stated it was unable
to discern from the notices whether they were “photocopies of phantom ‘original’
notices of appeal or signed original documents.”). While we do not encourage
appellants to file a different version of the notice of appeal with the agency than it filed
with the common pleas court, in this instance, considering the language of the notices
that were filed, we find that Zidian complied with R.C. 119.12’s filing requirement and
the spirit of the statute.
{¶40} Therefore, although the July 26, 2010 and July 28, 2010 notices of
appeal were not an original and a duplicate, they were timely and they informed the
court and Department of Commerce of the appeal taken from the June 9, 2010 order.
Taken together we find that they sufficiently invoked the common pleas court’s
jurisdiction.
Content
{¶41} The current version of R.C. 119.12 states, in pertinent part:
{¶42} “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 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 is not in accordance with law. * * *
The amendments made to this paragraph by Sub. H.B. 215 of the 128th general
assembly are procedural, and this paragraph as amended by those amendments shall
be applied retrospectively to all appeals pursuant to this paragraph filed before the
effective date of those amendments but not earlier than May 7, 2009, which was the
date the supreme court of Ohio released its opinion and judgment in Medcorp, Inc. v.
Ohio Dep't. of Job and Family Servs. (2009), 121 Ohio St.3d 622, [2009-Ohio-2058,]
906 N.E.2d 1125.”
{¶43} The notices of appeal in the case at hand, which are quoted above, do
not contain the statutory language that “the agency's order is not supported by reliable,
probative, and substantial evidence and is not in accordance with law.” However, that
deficiency does not deprive the common pleas court of jurisdiction. Recently we have
held that the requirement to put the standard of review in the notice of appeal is
redundant and the failure to do so does not render the common pleas court without
jurisdiction to hear the appeal. Evankovich, 7th Dist. No. 10MA153, 2011-Ohio-3172.
{¶44} In coming to this determination, we explained that the Ohio Supreme
Court has indicated that “when a party files an appeal from an order of an
administrative agency, it is already making an affirmative statement that it believes that
the underlying order ‘is not supported by reliable, probative, and substantial evidence,
and/or is not in accordance with law’ because it must meet that standard to succeed
on appeal under the plain language of R.C. 119.12.” Id. at ¶ 31, quoting Medcorp at ¶
14. Furthermore, we noted that the Ohio Supreme Court has consistently indicated
that the purpose of the notice of appeal is to inform the opposing party of the taking of
an appeal. Evankovich at ¶ 32.
{¶45} Evankovich is controlling, and as such, the notices of appeal were
adequate to inform the court and the Department of Commerce that Zidian was
appealing the commission’s order. Thus, the common pleas court erred in determining
that the content of the notice of appeal was inadequate to invoke its jurisdiction.
Exhaustion
{¶46} Although failure to exhaust administrative remedies is not a jurisdictional
defect per se, under Ohio law a complainant must exhaust any administrative
remedies before invoking the common pleas court's jurisdiction. Jones v. Chagrin
Falls, 77 Ohio St.3d 456, 462, 674 N.E.2d 1388 (1997).
{¶47} Zidian did not appear at the administrative hearings held on February 2,
2010, and June 2, 2010. He did participate slightly in the administrative process by
filing a motion to continue one of the hearings, which was granted. However, he did
not appear for the rescheduled hearing. He also complied in part with the subpoena
duces tecum. It was only partial compliance because he did not produce all
documents requested; the hearing officer concluded that the documents he did not
produce must not exist. In complying with the subpoena, he did send a letter
explaining why he believed he was entitled to the $1,000 bonus.
{¶48} Regardless of that minimal participation, it is the Department of
Commerce’s position that Zidian did not exhaust his administrative remedies when he
failed to appear at the February 2, 2010 and June 2, 2010 hearings. This position is
based on the Eighth Appellate District’s case holding that the failure to attend the
hearing constituted a failure to exhaust administrative remedies. Capital L. Corp. v.
City of Cleveland Bd. of Zoning Appeals, 8th Dist. No. 76795, 2000 WL 504109 (Apr.
27, 2000). It is also based on the reasoning that exhaustion is necessary because an
administrative agency utilizes its special expertise in hearing the issue and rendering a
decision. Turner v. Goldberg, 7th Dist. No. 96CA252, 1999 WL 61050 (Feb. 3, 1999).
As such, judicial deference is given to that decision. Id. If the interested parties are
not required to exhaust administrative remedies “there is the possibility that frequent
and deliberate flouting of administrative processes could weaken the effectiveness of
any agency by encouraging people to ignore its procedures.” Daniel v. Williams, 10th
Dist. No. 10AP-797, 2011-Ohio-1941, ¶ 15.
{¶49} Capital is a zoning appeals case in which the Zoning Board granted a
variance to Oriana House. Capital owned property next to Oriana House, but did not
attend the administrative hearing on the variance to argue why it should not be
granted. The Eighth Appellate District found that Capital had not exhausted its
administrative remedies based on an Ohio Supreme Court case which held:
{¶50} “The order of a village planning commission granting a use variance is
appealable pursuant to R.C. Chapter 2506. A person owning property contiguous to
the proposed use who has previously indicated an interest in the matter by a prior
court action challenging the use, and who attends a hearing on the variance together
with counsel, is within that class of persons directly affected by the administrative
decision and is entitled to appeal under R.C. Chapter 2506.” Capital, quoting
Schomaeker v. First Natl. Bank of Ottawa, 66 Ohio St.2d 304, 421 N.E.2d 530 (1981),
paragraph two of the syllabus.
{¶51} Schomaeker dealt with the granting of a variance and an abutting
property owner opposing the variance. It is clear from the syllabus of that opinion that
in the situation of a property owner seeking to prevent an adjoining property owner
from obtaining a variance there must be participation in the administrative proceeding
for there to be exhaustion. The holding in Schomaeker, which the Capital court relied
on, is very specific in its application to zoning appeals. Thus, we cannot find that the
holding is applicable to all administrative proceedings.
{¶52} Furthermore, neither the Turner case nor the Daniel case stands for the
direct proposition that the failure to attend the administrative proceeding means that
Zidian did not exhaust his administrative remedies. In Turner, we stated that “the party
must exhaust the administrative appeal system.” Turner, 7th Dist. No. 96CA252, 1999
WL 615050. In holding as such, we cited the Ohio Supreme Court’s Nemazee
decision that states:
{¶53} “In Ohio, the exhaustion-of-administrative-remedies doctrine is a court-
made rule of judicial economy. See G.S.T. v. Avon Lake (1976), 48 Ohio St.2d 63, 65.
As the United States Supreme Court has stated, ‘[e]xhaustion is generally required as
a matter of preventing premature interference with agency processes, so that the
agency may function efficiently and so that it may have an opportunity to correct its
own errors, to afford the parties and the courts the benefit of its experience and
expertise, and to compile a record which is adequate for judicial review.’” Nemazee v.
Mr. Sinai Medical Ctr., 56 Ohio St.3d 109, 111, 564 N.E.2d 477 (1990).
{¶54} Thus, our statement in Turner stands for the proposition that a party
cannot appeal the matter to the common pleas court prior to appealing the matter
through the administrative agency. Likewise, Daniel also addressed whether Daniel
had exhausted all the appeals through the administrative process that were available.
It was a worker’s compensation case and there are multiple appeals that occur
through the administrative process prior to the matter getting appealed to the common
pleas court. Daniel, 10th Dist. No. 10AP-797, 2011-Ohio-1941, at ¶ 17. It was not a
case dealing with Daniel failing to appear at the administrative hearings.
{¶55} In the matter at hand, there are not multiple appeals through the
administrative process. Rather, the matter is heard by a hearing officer for a
recommendation and then that recommendation is presented to the Ohio Real Estate
Commission for acceptance, rejection or modification. It is from that decision that an
appeal is taken to the common pleas court. R.C. 119.12. Zidian followed that
procedure and therefore there was exhaustion of administrative appeals. The trial
court’s determination to the contrary is overruled.
{¶56} That said, the Department of Commerce does have a point about the
accused participating in the administrative proceedings. However, we believe the
Department confuses the doctrine of exhaustion with the doctrine of waiver. A
reviewing court, typically, can only review arguments that were raised in the trial court.
The common pleas court would only be able to review the arguments raised to the
commission and hearing officer. All other arguments would be waived. Thus, Zidian’s
action of failing to appear or argue below severely limits the arguments he can raise to
the common pleas court in an appeal. For instance, failing to participate in the
hearings waives any issue Zidian has with the factual determination made by the
agency; Zidian cannot argue that a factual determination is not supported by
competent reliable evidence. Rather, his arguments are limited to questions of law, i.e.
application of the factual findings to the law. Applying the doctrine of waiver to this
situation does not detract from the administrative proceeding because not only does
the use of that doctrine discourage deliberate flouting of the administrative processes,
but it also maintains judicial deference to the special expertise of the agency.
Likewise, it preserves the right of the party disputing the agency’s finding to argue
questions of law.
{¶57} For the reasons expressed above, this assignment of error has merit.
SECOND ASSIGNMENT OF ERROR
{¶58} “THE TRIAL COURT ERRED IN FAILING TO APPLY THE
APPROPRIATE LEGAL STANDARD TO APPELLEE’S MOTION TO DISMISS.”
{¶59} Due to our resolution of the first assignment of error, the argument made
under this assignment of error is moot. As such, it will not be addressed.
CONCLUSION
{¶60} The first assignment of error has merit. Although the July 26, 2010
notice of appeal timely filed with the Department of Commerce and the July 28, 2010
notice of appeal timely filed with the common pleas court are not an original and copy,
but rather are different versions of a notice of appeal, they did timely inform the
respective parties of the intent to appeal. Thus, the appeal was timely under R.C.
119.12. Likewise, in accordance with our recent decision in Evankovich, the content of
the notice of appeal was adequate to comply with R.C. 119.12. Furthermore, although
Zidian did not attend the administrative hearings, he did exhaust his administrative
remedies. Thus, the trial court erred in dismissing the administrative appeal.
{¶61} For the foregoing reasons, the judgment of the trial court is hereby
reversed and the matter is remanded with instructions to reinstate the administrative
appeal. However, in doing so, we note that the doctrine of waiver is applicable to
certain arguments that may be raised by Zidian.
Waite, P.J., concurs.
DeGenaro, J., concurs.