Capparell v. Love, No. 94APE05-639

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtJOHN C. YOUNG; DESHLER; WHITESIDE
Citation651 N.E.2d 484,99 Ohio App.3d 624
PartiesCAPPARELL, Appellee, v. LOVE et al., Appellant; Ohio Department of Commerce, Division of Real Estate, Appellant.
Docket NumberNo. 94APE05-639
Decision Date30 December 1994

Page 624

99 Ohio App.3d 624
651 N.E.2d 484
CAPPARELL, Appellee,
v.
LOVE et al., Appellant;
Ohio Department of Commerce, Division of Real Estate, Appellant.
No. 94APE05-639.
Court of Appeals of Ohio,
Tenth District, Franklin County.
Decided Dec. 30, 1994.

Michael E. Grove, for appellee Shirley E. Capparell, c/o Capparell Real Estate.

James M. Brutz, for appellants Kathleen Love and Robert Love, c/o Jeffers Realty Co.

Lee Fisher, Atty. Gen., and Christopher S. Cook, Asst. Atty. Gen., for appellant Dept. of Commerce, Div. of Real Estate.

JOHN C. YOUNG, Judge.

This matter is before this court upon the appeal of Kathleen Love, Robert Love, and the Ohio Division of Real Estate, appellants, from the April 11, 1994 judgment entry of the Franklin County Court of Common Pleas, vacating the finding and order of the Ohio Division of Real Estate.

The history of this case is as follows: On February 22, 1993, the Ohio Division of Real Estate ("appellant") received a letter of complaint from appellee, Shirley E. Capparell, regarding the conduct of Kathleen and Robert Love. The letter of complaint alleged that the Loves had violated real estate license laws. Thereafter, appellant assigned the complaint and the case to an investigator of the Division of Real Estate in order to determine whether or not there was reasonable and substantial evidence to find the Loves in violation of R.C. 4735.18.

The investigator concluded that reasonable and substantial evidence did not exist and the superintendent concurred with this conclusion. Thereafter, on October 21, 1993, the Division of Real Estate sent appellee a letter, informing appellee that the investigation was completed and the file was "closed."

Appellee was then notified that she could request a review of the case by the entire Real Estate Commission, pursuant to R.C. 4735.051(D). Appellee did so, and on December 8, 1993, the Ohio Real Estate Commission listened to testimony from appellee and Robert and Kathleen Love. The commission voted that no further action be taken, and a finding and order to this effect were issued on December 15, 1993.

On January 3, 1994, a notice of appeal from the commission's order was received by the Division of Real Estate. On January 5, 1994, this notice of appeal was filed in the Franklin County Court of Common Pleas pursuant to R.C. 119.12. On February 2, 1994, the Division of Real Estate certified the record of proceedings to the common pleas court. The Division of Real Estate also filed [651 N.E.2d 485] a motion to dismiss, arguing that appellee was not a proper party to bring an R.C.

Page 626

119.12 appeal, and that, in any event, the appeal was not timely. The trial court never ruled on this motion.

Appellee then filed a motion to vacate the commission's order, arguing that the Division of Real Estate had failed to timely certify a complete record to the court of common pleas. The trial court granted this motion to vacate and appellant appeals from that judgment.

On appeal, appellant asserts the following assignments of error:

"Assignment of Error No. 1

"The trial court erred and abused its discretion in finding that the Department of Commerce, Division of Real Estate did not timely certify the record to the trial court pursuant to Ohio Revised Code Section 119.12.

"Assignment of Error No. 2

"The trial court erred and abused its discretion when it failed to dismiss this case due to appellee's lack of standing to bring said appeal pursuant to Ohio Revised Code 119.12.

"Assignment of Error No. 3

"The trial court erred and abused its discretion when it failed to dismiss this case due to appellee's lack of timely filing in the court below and by failing to rule that it lacked jurisdiction to hear the case on its merits."

We will address appellant's third assignment of error, as it is dispositive of this case. Appellant argues that appellee failed to file her notices of appeal with the Division of Real Estate and the court of common pleas within fifteen days of the Ohio Real Estate Commission's order. Therefore, appellant argues that appellee's appeal was untimely and that, as a result, the court of common pleas did not have jurisdiction to hear the R.C. 119.12 appeal. R.C. 119.12 provides, in pertinent part:

"Any party desiring to appeal shall file a notice of appeal with the agency setting forth the order appealed from and the grounds of his appeal. A copy of such notice of appeal shall also be filed by the appellant with the court. Unless otherwise provided by law * * * such 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. * * *" 1 (Emphasis added.)

Page 627

It is undisputed that the order of the commission was mailed by certified mail, on December 15, 1993. Thus, the fifteen-day deadline articulated in R.C. 119.12 expired on December 30, 1993. As previously stated, the notice of appeal sent to the Division of Real Estate was presumably filed on January 3, 1994, as reflected by the time stamp. Two days later, on January 5, 1994, this notice of appeal was filed with the court of common pleas. Thus, both the notice of appeal filed with the Division of Real Estate and the notice of appeal filed with the court of common pleas were untimely.

Appellee argues that her notices of appeal were mailed on December 27, 1993, and were, therefore, timely for purposes of R.C. 119.12. See Gingo v. Ohio State Med. Bd. (1989), 56 Ohio App.3d 111, 564 N.E.2d 1096. In Gingo, the court found that a notice of appeal is presumptively timely delivered when it is shown to have been mailed within a sufficient time for it to have arrived at the agency before the fifteen-day limit. The court further held that the party contesting the timeliness has the burden of rebutting this presumption, and the agency could not merely introduce its own time stamp to overcome this presumption. Id.

The Gingo court relied on Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 12 O.O.3d 198, 389 N.E.2d 1113, for the proposition that a notice of appeal is presumptively timely delivered when it is shown to have been sent within a sufficient time for it to have arrived at the agency before the expiration of the applicable time limit. A closer analysis of Dudukovich reveals[651 N.E.2d 486] that no evidence of late delivery was presented by the appellant in that case. Id. at 205, 12 O.O.3d at 200, 389 N.E.2d at 1115. Thus, the Supreme Court held that the presumption of timely delivery controlled.

"Filing" was defined by the Ohio Supreme Court in Dudukovich as follows:

" * * * 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 [5 O.O. 142, 200 N.E. 636]. 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, [31 O.O.2d 351, 353] 201 N.E.2d 305, , 'any method productive of certainty of accomplishment is countenanced.' * * * " (Emphasis added.) Id., 58 Ohio St.2d at 204, 12 O.O.3d at 200, 389 N.E.2d at 1115.

This court would also note that the Dudukovich case involved the construction of R.C. 2505.04 and 2505.07(B), and not R.C. 119.12. The fact that another court of appeals applied the Dudukovich case to an R.C. 119.12 appeal is not binding on this court.

Page 628

Even though this court is not bound by the Gingo decision, we find it is distinguishable from the facts of the instant action. The Gingo court discussed rather extensively the evidence and affidavits that had been presented: what time the letter was mailed, from where; what time the letter would arrive in Columbus; how the Labor Day holiday affected its delivery; and the times of the two daily deliveries to the board's mail room. A series of affidavits outlined the usual and customary procedures to demonstrate that the notice of appeal should have been received before the filing deadline, if the board had picked up its mail. Based upon all the evidence presented, the court found that the board's time stamp was...

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7 practice notes
  • Namey, In re, No. 94APE09-1386
    • United States
    • United States Court of Appeals (Ohio)
    • May 9, 1995
    ...See, also, Holley v. Gallipolis Dev. Ctr. (Aug. 17, 1984), Gallia App. No. 83 CA 7, unreported, 1984 WL 5605; Capparell v. Love (1994), 99 Ohio App.3d 624, 651 N.E.2d 484. Similarly, the Court of Appeals for Montgomery County held that the statutory requirement, that a party seeking appeal ......
  • Lucy v. Jarmon v. Ford Motor Co. and Administrator, Bureau of Workers' Compensation, 96-LW-2708
    • United States
    • United States Court of Appeals (Ohio)
    • April 30, 1996
    ...notice outside the sixty-day time period, the common pleas court lacks jurisdiction over the appeal.(fn1) Capparell v. Love (1994), 99 Ohio App.3d 624, 629. Under R.C. 4123.512(B), a valid notice of appeal must contain the following: "The notice of appeal shall state the names of claimant a......
  • Pole v. Ohio Dept. of Health, 2009 Ohio 5021 (Ohio App. 9/24/2009), No. 08AP-1110.
    • United States
    • United States Court of Appeals (Ohio)
    • September 24, 2009
    ...agency before the 15-day limit. Id. This court, however, has previously refused to follow Gingo. See Frasca; Capparell v. Love (1994), 99 Ohio App.3d 624, 627. And, given that the Supreme Court of Ohio has mandated strict compliance with the statutory requirements for initiating an appeal u......
  • Johnny Shane Chadwell v. Ohio State Racing Commission, 99-LW-4416
    • United States
    • United States Court of Appeals (Ohio)
    • September 30, 1999
    ...statute and the provision under R.C. 119.12 relating to the time for filing a notice of appeal is mandatory. Capparell v. Love (1994), 99 Ohio App.3d 624, 629. Appellant also contends that R.C. 119.12 as applied is "unconstitutionally unfair" because it "punishes those who live farther away......
  • Request a trial to view additional results
7 cases
  • Namey, In re, No. 94APE09-1386
    • United States
    • United States Court of Appeals (Ohio)
    • May 9, 1995
    ...See, also, Holley v. Gallipolis Dev. Ctr. (Aug. 17, 1984), Gallia App. No. 83 CA 7, unreported, 1984 WL 5605; Capparell v. Love (1994), 99 Ohio App.3d 624, 651 N.E.2d 484. Similarly, the Court of Appeals for Montgomery County held that the statutory requirement, that a party seeking appeal ......
  • Lucy v. Jarmon v. Ford Motor Co. and Administrator, Bureau of Workers' Compensation, 96-LW-2708
    • United States
    • United States Court of Appeals (Ohio)
    • April 30, 1996
    ...notice outside the sixty-day time period, the common pleas court lacks jurisdiction over the appeal.(fn1) Capparell v. Love (1994), 99 Ohio App.3d 624, 629. Under R.C. 4123.512(B), a valid notice of appeal must contain the following: "The notice of appeal shall state the names of claimant a......
  • Pole v. Ohio Dept. of Health, 2009 Ohio 5021 (Ohio App. 9/24/2009), No. 08AP-1110.
    • United States
    • United States Court of Appeals (Ohio)
    • September 24, 2009
    ...agency before the 15-day limit. Id. This court, however, has previously refused to follow Gingo. See Frasca; Capparell v. Love (1994), 99 Ohio App.3d 624, 627. And, given that the Supreme Court of Ohio has mandated strict compliance with the statutory requirements for initiating an appeal u......
  • Johnny Shane Chadwell v. Ohio State Racing Commission, 99-LW-4416
    • United States
    • United States Court of Appeals (Ohio)
    • September 30, 1999
    ...statute and the provision under R.C. 119.12 relating to the time for filing a notice of appeal is mandatory. Capparell v. Love (1994), 99 Ohio App.3d 624, 629. Appellant also contends that R.C. 119.12 as applied is "unconstitutionally unfair" because it "punishes those who live farther away......
  • Request a trial to view additional results

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