Summary
In Lorms v. State (1976), 48 Ohio St.2d 153 [2 O.O.3d 336], syllabus, we stated that a nonprejudicial omission of items from a certified record should not result in an automatic finding for appellant.
Summary of this case from Arlow v. Ohio Rehab. Serv. CommOpinion
No. 76-417
Decided December 8, 1976.
Administrative procedure — Appeal from agency to court — Record on appeal — R.C. 119.12 — Omissions not prejudicial, when.
An agency's omission of items from the certified record of an appealed administrative proceeding does not require a finding for the appellant, pursuant to R.C. 119.12, when the omissions in no way prejudice him in the presentation of his appeal.
CERTIFIED by the Court of Appeals for Franklin County.
Appellant, Paul E. Lorms, applied to appellee, The State of Ohio, Department of Commerce, Division of Real Estate (hereinafter referred to as the Ohio Real Estate Commission), in July of 1974, to become a licensed real-estate broker. The commission rejected his application on the grounds that Lorms did not have "sufficient experience" to qualify him to take a broker's examination pursuant to R.C. 4735.07.
Appellant then requested a public hearing on his application. At that hearing, he introduced as evidence a number of documents, including letters from two business associates who apparently had knowledge of his achievements as a salesman of electrical equipment and of his general selling ability. Subsequent to the public hearing, the commission reaffirmed its denial of Lorms' application.
Appellant appealed the commission's second rejection of his application to the Court of Common Pleas. Pursuant to R.C. 119.12, the commission certified the record of its administrative proceedings to the court. However, it failed to include in the record the two letters from appellant's business associates.
Lorms then moved for a finding in his favor on the ground that the commission had failed to certify the "complete record" as required by R.C. 119.12. The Court of Common Pleas found the letters to be adequately summarized in the record and overruled the motion.
Lorms appealed that ruling to the Court of Appeals, which affirmed the trial court on the authority of Checker Realty v. Ohio Real Estate Comm. (1974), 41 Ohio App.2d 37. Because the decision of the Court of Appeals was in conflict with a determination of the Court of Appeals for Union County in Young v. Bd. of Review (1967), 9 Ohio App.2d 25, the record was certified to this court for review and final determination.
Mr. Walter W. Grelle, Jr., and Mr. Robert C. Paxton II, for appellant.
Mr. William J. Brown, attorney general, and Mr. Patrick V. Kerrigan, for appellee.
The main issue raised in this cause is whether the nonprejudicial omission of two letters from the certified record of an appealed administrative hearing mandates a finding in favor of the appellant pursuant to R.C. 119.12.
R.C. 119.12 provides, in pertinent part:
"Within twenty days after receipt of notice of appeal from an order in any case wherein a hearing is required by Sections 119.01 to 119.13, inclusive, of the Revised Code, the agency shall prepare and certify to the court a complete record of the proceedings in the case. Failure of the agency to comply within the time allowed shall, upon motion, cause the court to enter a finding in favor of the party adversely affected."
Appellant argues that, under R.C. 119.12, "there can only be one consequence as the result of an incomplete record on appeal." In so contending, he argues, in effect, that even nonprejudicial omissions from the record mandate a finding in his favor under R.C. 119.12.
Appellant relies primarily on Matash v. State (1964), 177 Ohio St. 55, and McKenzie v. Racing Comm. (1966), 5 Ohio St.2d 229, to support his contention. Since the agency in Matash failed to certify any record within 34 days after receipt of notice of appeal, that case did not raise the issue of nonprejudicial omissions from a record under R.C. 119.12. The McKenzie court held that the "complete record" provision of R.C. 119.12 should be construed liberally to require only a certified copy, rather than the original, of the agency's final order.
That argument is not well taken. R.C. 119.12 only mandates a finding for the party "adversely affected" by an agency's failure to certify a "complete record" within the prescribed time.
To rule that appellant must be granted a finding in his favor even though the omissions in the record are not prejudicial would require this court to ignore the statutory phrase "adversely affected," to apply a "technical and strict construction" of R.C. 119.12 which has been criticized in past cases, and to ignore that R.C. 119.12 is remedial in nature and should, therefore, be given a liberal construction designed "to assist the parties in obtaining justice" under R.C. 1.11. (See McKenzie v. Racing Comm., 5 Ohio St.2d 229, 231.)
We, therefore, hold with the Court of Appeals that a finding for Lorms under the "complete record" provision of R.C. 119.12 is not in order when the omission "in no way prejudices the appellant in the presentation of his appeal." Checker Realty v. Ohio Real Estate Comm., supra.
To the extent that Young v. Bd. of Review (1967), 9 Ohio App.2d 25, stands for the proposition that nonprejudicial omissions from an R.C. 119.12 record require a finding for the appellant, we disapprove of that opinion.
The record does not indicate that Lorms was prejudiced by the omission of the letters from the record. The Court of Common Pleas found that they were adequately summarized in the record, and the portion of the transcript in which they are described makes it clear that they were letters from general business associates not qualified to testify in any specific manner about the sufficiency of Lorms' real estate experience.
Given the fact that Lorms was not prejudiced by the incomplete record certified to the Court of Common Pleas, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., CORRIGAN, STERN, CELEBREZZE and P. BROWN, JJ., cocnur.
HERBERT, J., concurs in the judgment.