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Dudukovich v. Housing Authority

Supreme Court of Ohio
May 23, 1979
58 Ohio St. 2d 202 (Ohio 1979)

Summary

asserting that a court may assume jurisdiction over an appeal upon finding the aggrieved party properly filed notice with the agency and the court within the prescribed time limitations

Summary of this case from Horen v. Board of Education Oftoledo City School Dist

Opinion

No. 78-1071

Decided May 23, 1979.

Administrative procedure — Appeal to court — Notice of appeal — Timely filed, when — Court of Common Pleas — Scope of review.

APPEAL from the Court of Appeals for Lorain County.

Appellee, Marie Dudukovich, was employed by appellant, Lorain Metropolitan Housing Authority (LMHA), as an inspector of housing. On April 29, 1977, the board of directors of appellant, at a regular meeting, resolved to terminate the employment of appellee. Appellant listed five reasons for its dismissal of Dudukovich, which can be summarized as follows:

(1) Unsatisfactory performance of inspection;

(2) non-cooperation on eviction case bordering on insubordination;

(3) failure to show up for an inspection appointment with a tenant;

(4) miscalculation of rent owed by tenant; and

(5) errors in work performance.

Appellee appealed her dismissal to the board of directors of LMHA, and a hearing was held before that body on May 23, 1977, during which appellant was represented by counsel. The evidence presented at this hearing to support the charges against Dudukovich consisted of the unsworn testimony of the executive director of LMHA and a number of exhibits, all of which was offered without objection from appellee's counsel. At the conclusion of this hearing, appellant affirmed its dismissal of Dudukovich.

Although the record contains no explicit affirmance by the board of its dismissal of appellee herein, it is undisputed that an affirmance resulted from the May 23, 1977, hearing.

Appellee subsequently appealed the May 23 decision of the board to the Court of Common Pleas of Lorain County by filing a notice of appeal with that court on May 31, 1977, and by sending a copy of said notice to appellant by certified mail on May 28, 1977.

After reviewing the record compiled at the hearing, the Court of Common Pleas reversed the board's decision and ordered that appellee be reinstated in her position of inspector. The Court of Appeals thereafter affirmed the judgment of the Court of Common Pleas.

This cause is now before this court upon a motion to certify the record.

Messrs. Smith Smith and Mr. Kenneth P. Frankel, for appellee.

Messrs. Warhola O'Toole and Mr. Dennis M. O'Toole, for appellant.


Initially we are confronted with a challenge by appellant to the assumption of jurisdiction by the Court of Common Pleas in this cause. Specifically, appellant contends that Marie Dudukovich did not comply with the requirements of R.C. Chapter 2505, pertaining to the filing of a notice of appeal from an agency decision. R.C. 2505.04 provides, as follows:

Under the definition of R.C. 3735.50, LMHA is a political subdivision of the state of Ohio. R.C. 2506.01 provides for review in the Court of Common Pleas of a final decision of the board of a political subdivision, and refers to R.C. Chapter 2505 as controlling perfection of the appeal.

"An appeal is perfected when written notice of appeal is filed with the lower court, tribunal, officer, or commission. * * * [N]o step required to be taken subsequent to the perfection of the appeal is jurisdictional."

R.C. 2505.07(B) requires that such an appeal be perfected within ten days of the entry of a final order by the agency. Here, the final decision by LMHA was reached at the conclusion of the May 23, 1977, hearing. Appellee filed a notice of appeal with the Court of Common Pleas on May 31, 1977, and sent a copy of the notice to appellant by certified mail on May 28, 1977.

Although R.C. 2505.04 is, admittedly, not explicit on this point, it appears to require that written notice be filed, within the time limit prescribed by R.C. 2505.07(B), with the agency or board from which the appeal is being taken, in order for the appeal to be perfected. As a practical matter, such notice must also be filed, within the same time limit, with the Court of Common Pleas, in order for it to assume jurisdiction. This filing statute was similarly interpreted by the Court of Appeals for Franklin County in Bartlett v. Snouffer (1945), 44 Ohio Law Abs. 612, 64 N.E.2d 848. In construing the predecessor to R.C. 2505.04, that court, at page 613, stated: "In order to perfect the appeal it was necessary * * * to file the notice of appeal in the Justice's Court [the lower court] as well as in the Court of Common Pleas [the appellate court]. Since the * * * two notices were not filed, 12223-4 G.C., was not complied with and the Court of Common Pleas acquired no jurisdiction."

The issue thus becomes whether Dudukovich sufficiently complied with R.C. 2505.04 by mailing a copy of the notice of appeal to LMHA. It is established that the act of depositing the notice in the mail, in itself, does not constitute a "filing," at least where the notice is not received until after the expiration of the prescribed time limit. Fulton, Supt. of Banks, v. State, ex rel. General Motors Corp. (1936), 130 Ohio St. 494. Rather, "[t]he term `filed' * * * requires actual delivery * * *." Id., at paragraph one of the syllabus. However, no particular method of delivery is prescribed by the statute. Instead, as was aptly stated in Columbus v. Upper Arlington (1964), 94 Ohio Law Abs. 392, 397, 201 N.E.2d 305, "any method productive of certainty of accomplishment is countenanced." Having considered appellee's method of service, we find that simply "[b]ecause the manner of delivery is unusual does not make it illegal." Id.

Since there is evidence in the record that appellant did eventually receive the mailed copy of the notice, the question remains whether it received the notice within the ten-day time limit prescribed by R.C. 2505.07(B). In a situation such as this, a presumption of timely delivery, as first was expressed in Young v. Bd. of Review (1967), 9 Ohio App.2d 25, should control. (In that case the notice of appeal was mailed to the lower court six days prior to the expiration of the time limit. The exact date of its receipt was not known, the clerk of courts having found it "`under some books in her office'" nine days after mailing.) There, the appellate court took judicial notice of the ordinary course of the mails and concluded that, in the absence of evidence to the contrary, it is to be presumed that the notice of appeal was timely filed. Such a presumption is applicable in the instant cause. Here, a copy of the notice of appeal was sent by certified mail, to a destination within the same city, five days prior to the expiration of the statutory time limit. Appellant having presented no evidence of late delivery, a presumption of timely delivery controls; thus, the Court of Common Pleas correctly assumed jurisdiction in this cause.

The "Transcript of Docket and Journal Entries To Court of Appeals" shows that on September 21, 1977, appellant filed a transcript of the proceedings before it. R.C. 2506.02 requires that this be done after the notice of appeal has been filed with "the officer or body from which the appeal is taken." By complying with R.C. 2506.02, appealant thus admits eventual receipt of the notice of appeal.

The other major issue presented by the appeal is whether the Court of Common Pleas acted within its scope of review in reversing the decision of LMHA to dismiss appellee. Pursuant to its authority under R.C. 2506.04, that court held that "[u]pon review of the transcript and exhibits filed," the decision of appellant was "arbitrary, unreasonable and unsupported by the preponderance of substantial, reliable and probative evidence on the whole record." The Court of Common Pleas made no findings of fact in this regard.

R.C. 2506.04 reads as follows:
"The court may find that the order, adjudication or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication or decision, or remand the cause to the officer or body appealed from with instructions to enter an order consistent with the findings or opinion of the court. The judgment of the court may be appealed by any party on questions of law pursuant to sections 2505.01 to 2505.45, inclusive, of the Revised Code."

As a basis for affirming the judgment of that court, the Court of Appeals cited our decision in Arcaro Bros. Builders, Inc., v. Zoning Bd. of Appeals (1966), 7 Ohio St.2d 32. In that case we held that, since the board had refused permission to have any of the witnesses sworn, the record contained no evidence. Thus, R.C. 2506.04 sanctioned a reversal of the board's decision. However, that case was subsequently distinguished in the syllabus of Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, wherein we held: "The omission of administration of the oath to a witness in a trial or administrative hearing is waivable error. * * *"

In the hearing before the board of directors of appellant there was no objection raised to the unsworn character of the executive director's testimony, nor to the admission of any of the exhibits. Thus, contrary to the view of the Court of Appeals, we must assume that the Court of Common Pleas weighed all the evidence presented to the board in reaching its conclusion that the decision of the board was "arbitrary, unreasonable and unsupported by a preponderance of the substantial, reliable and probative evidence on the whole record."

The issue is thus narrowed to a question of whether the Court of Common Pleas properly conceived of its scope of review under R.C. 2506.04 as including a weighing of the evidence. In one of the few instances this court has had to consider the scope of review provided for by R.C. Chapter 2506, we stated that, "* * * [a]lthough a hearing before the Court of Common Pleas pursuant to R.C. 2506.01 is not de novo, it often in fact resembles a de novo proceeding. R.C. 2506.03 specifically provides that an appeal pursuant to R.C. 2506.01 `shall proceed as in the trial of a civil action,' and makes liberal provision for the introduction of new or additional evidence. R.C. 2506.04 requires the court to examine the `substantial, reliable and probative evidence on the whole record,' which in turn necessitates both factual and legal determinations. Clearly, the function of a Court of Common Pleas in a R.C. Chapter 2506 appeal differs substantially from that of appellate courts in other contexts." Cincinnati Bell v. Glendale (1975), 42 Ohio St.2d 368, 370. Similarly, in interpreting the scope of review of decisions of specific state agencies under analogous R.C. 119.12, we have held that "* * * the Court of Common Pleas * * * must give consideration to the entire record * * * and must appraise all such evidence as to the credibility of the witnesses, the probative character of the evidence and the weight to be given it * * *." (Emphasis added.) Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, paragraph one of the syllabus.

Thus, it is quite evident that the Court of Common Pleas must weigh the evidence in the record, and whatever additional evidence may be admitted pursuant to R.C. 2506.03, to determine whether there exists a preponderance of reliable, probative and substantial evidence to support the agency decision. We caution, however, to add that this does not mean that the court may blatantly substitute its judgment for that of the agency, especially in areas of administrative expertise. The key term is "preponderance." If a preponderance of reliable, probative and substantial evidence exists, the Court of Common Pleas must affirm the agency decision; if it does not exist, the court may reverse, vacate, modify or remand.

In determining whether the standard of review prescribed by R.C. 2506.04 was correctly applied by the Court of Common Pleas, both this court and the Court of Appeals have a limited function. R.C. 2506.04 provides, in part: "The judgment of the court [of common pleas] may be appealed by any party on questions of law pursuant to sections 2505.01 to 2505.45, inclusive, of the Revised Code."

Referring to R.C. 2505.31, we find that "[i]n a civil case or proceeding * * *, the supreme court need not determine as to the weight of the evidence." Thus, our inquiry is limited to a determination of whether, as a matter of law, we can say that there did exist a preponderance of reliable, probative and substantial evidence to support appellant's decision to dismiss appellee. If so, we should reverse the judgment of the Court of Appeals which affirmed the Court of Common Pleas; otherwise, we must affirm the Court of Appeals.

The sole testimony adduced at the hearing below was that of the executive director of LMHA. Appellee offered no testimony on her own behalf. As it related to the five reasons for appellee's dismissal, the testimony was completely hearsay. Likewise, the contents of the exhibits were hearsay, with none of them being authenticated or verified by their authors. Since the admission of this evidence was not objected to, it "may properly be considered and given its natural probative effect as if it were at law admissible, the only question being with regard to how much weight should be given thereto." State v. Petro (1947), 148 Ohio St. 473, paragraph eight of the syllabus. However, simply because such evidence had to be considered as admissible does not mean that the Court of Common Pleas was bound to find that it was reliable and substantial proof of the charges against appellee. In actuality, the evidence in the record that would support a finding of malfeasance by Dudukovich in her job performance is inconclusive, at best. The evidence pertaining to the first charge against her consists of subjective judgments of third parties, not present at the hearing. The inherent unreliability of such evidence should be apparent. The evidence relating to the other charges is even more circumspect.

Having examined the record, this court concludes that the Court of Common Pleas did not abuse its discretion in finding as it did. The judgment of the Court of Appeals is therefore affirmed.

Judgment affirmed.

CELEBREZZE, C.J., KEEFE, P. BROWN, SWEENEY and HOLMES, JJ., concur.

HERBERT and POTTER, JJ., dissent.

KEEFE, J., of the First Appellate District, sitting for W. BROWN, J.

POTTER, J., of the Sixth Appellate District, sitting for LOCHER, J.


I respectfully dissent for the reasons expressed by Judge Mahoney in his dissenting opinion in the Court of Appeals, to wit:

"There is no right of appeal in this case. Mrs. Dudukovich is employed by the Housing authority within the meaning of R.C. 3735.28. She serves at the pleasure of the Board. R.C. Chapter 2506.01 f.f. does not create a right of appeal for her. At best she could be considered a member of the classified civil service subject to what rights, if any, are created for her by R.C. Chapter 124.01. The judgment should be reversed and final judgment entered for the Board."


Summaries of

Dudukovich v. Housing Authority

Supreme Court of Ohio
May 23, 1979
58 Ohio St. 2d 202 (Ohio 1979)

asserting that a court may assume jurisdiction over an appeal upon finding the aggrieved party properly filed notice with the agency and the court within the prescribed time limitations

Summary of this case from Horen v. Board of Education Oftoledo City School Dist

In Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 206-207, 12 O.O.3d 198, 201-202, 389 N.E.2d 1113, 1116-1117, this court discussed the standard of review which the common pleas court should employ in reviewing an agency's order, stating that the common pleas court must weigh the evidence in the record and may consider new or additional evidence.

Summary of this case from Smith v. Granville Twp. Bd. of Trustees

emphasizing that "preponderance" is the "key term"

Summary of this case from Premier Dev., Ltd. v. Poland Twp. Bd. of Zoning Appeals

dealing with R.C. 2505.07(B) and the filing of a notice of appeal from a housing authority's decision terminating an employee

Summary of this case from Genesis Real Estate Holding Grp. v. Cuyahoga Cnty. Bd. of Revision

In Dudukovich [v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 207, 389 N.E.2d 1113 (1979)], the Court labeled the two standards "analogous."

Summary of this case from Furnas v. Clay Twp. Trs.

In Dudukovich, the court analogized the R.C. 2506.04 standard of review to the standard of review set forth in R.C. 119.12 appeals, stating, “ ‘ * * * the Court of Common Pleas * * * must give consideration to the entire record * * * and must [ a ] ppraise all such evidence as to the credibility of (the) witnesses, the probative character of the evidence and the [ w ] eight to be given it * * *.’ ” (Emphasis sic.)

Summary of this case from Harr v. Jackson Twp.

noting that R.C. 2506.03 "makes liberal provision for the introduction of new or additional evidence"

Summary of this case from Galli v. City of Columbus Board

In Dudukovich, the Ohio Supreme Court clearly explained the filing requirement of R.C. 2505.04, instructing that "no particular method of delivery is prescribed by the statute.

Summary of this case from Welsh Development v. Warren Cty. Planning Comm

In Dudukovich v. Housing Authority (1979), 58 Ohio St. 2d 202, the Supreme Court explained in an administrative appeal the court of common pleas weighs the evidence in the record and whatever evidence may be admitted in the common pleas court, to determine whether there exists a preponderance of the reliable, probative and substantial evidence to support the agency's decision.

Summary of this case from MAFI, L.L.C. v. CLINTON TWP. BD. OF ZONING

construing the filing requirements of R.C. 2505.04

Summary of this case from Stalter v. City of Cleveland

noting that if a preponderance of reliable, probative, and substantial evidence exists, the common pleas court must affirm the administrative agency's decision

Summary of this case from Franklin County Sheriff v. Frazier

In Dudukovich, the appellant filed a notice of appeal with the court of common pleas, and sent a copy of the notice to the agency by certified mail.

Summary of this case from Black-Dotson v. Obetz

In Dudukovich, the employee sought review of an administrative and arguably quasi-judicial hearing affirming her termination.

Summary of this case from Campbell v. Board of Trustees

In Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 12 O.O.3d 198, 389 N.E.2d 1113, the Supreme Court of Ohio considered whether a notice of appeal had been timely filed when the notice had been received by the administrative agency but the record did not reveal when it had been received.

Summary of this case from Gilbert v. Fifth Third Bancorp

applying the presumption of timely delivery in the absence of evidence of late delivery

Summary of this case from Gilbert v. Fifth Third Bancorp

In Dudukovich v. Lorain Metro. Housing Auth. (1979), 58 Ohio St.2d 202, the Ohio Supreme Court noted that placing a notice of appeal in the mail does not constitute "filing," which only occurs when there is "actual delivery" to the intended recipient.

Summary of this case from LEUR v. OHIO DEPT. OF COMMERCE

In Dudukovich, the plaintiff appealed the decision of the Lorain Metropolitan Housing Authority (LMHA) by filing a notice of appeal with the court of common pleas, and then sending by certified mail, a copy of the notice to the LMHA.

Summary of this case from Berea Music v. the City of Berea

In Dudukovich, the Ohio Supreme Court considered whether an appellant had sufficiently complied with R.C. 2505.04 by mailing a copy of the notice of appeal by certified mail to the administrative body.

Summary of this case from SKRZYPEK v. WOIO TV 19

In Dudukovich v. Loraine Metropolitan Housing Authority (1979), 58 Ohio St.2d 202, the Ohio Supreme Court reviewed a situation where the Housing Authority terminated one of its employees.

Summary of this case from Ross v. Tracy
Case details for

Dudukovich v. Housing Authority

Case Details

Full title:DUDUKOVICH, APPELLEE, v. LORAIN METROPOLITAN HOUSING AUTHORITY, APPELLANT

Court:Supreme Court of Ohio

Date published: May 23, 1979

Citations

58 Ohio St. 2d 202 (Ohio 1979)
389 N.E.2d 1113

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