Capparell v. Love
| Citation | 651 N.E.2d 484,99 Ohio App.3d 624 |
| Decision Date | 30 December 1994 |
| Docket Number | No. 94APE05-639,94APE05-639 |
| Parties | CAPPARELL, Appellee, v. LOVE et al., Appellant; Ohio Department of Commerce, Division of Real Estate, Appellant. |
| Court | United States Court of Appeals (Ohio) |
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.
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 a motion to dismiss, arguing that appellee was not a proper party to bring an R.C 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:
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:
* * *" 1 (Emphasis added.)
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 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, 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.
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 not sufficient to overcome the presumption that the notice of appeal was constructively received by the agency within the fifteen-day limit.
The record in the instant action contains the following: a certified mail receipt dated December 27, 1993, addressed to the Division of Real Estate, and an affidavit which states that the notice of appeal was mailed to the court of common pleas via ordinary United States mail. Absent from this record is any signed receipt from the Division of Real Estate indicating, in fact, when the division received the notice of appeal. Also absent from this record is any testimony regarding the usual and customary mail procedures to show when the notice of appeal should have arrived at the Division of Real Estate and the court of common pleas.
Appellee has offered no explanation for why the notice of appeal filed with the Division of Real Estate has a time stamp indicating that it was received on January 3, 1994. Presumably, January 3 is the date of the filing, absent evidence to the contrary. Thus, we find that the Gingo case is neither binding nor persuasive, as it is factually distinguishable from the instant action. Rather, we find the reasoning articulated in Zier v. Ohio Bur. of Unemp. Comp. (1949), 151 Ohio St. 123, 38 O.O. 573, 84 N.E.2d 746, and Hart v. Ohio Bd. of Liquor Control (1953), 96 Ohio App. 128, 54 O.O. 217, 121 N.E.2d 257, to be more persuasive. See, also, In re Claim of King (1980), 62 Ohio St.2d 87, 16 O.O.3d 73, 403 N.E.2d 200.
Although appellee has presented no evidence via affidavit or otherwise, appellee speculates that the notice of appeal that was mailed to the...
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