Genoa Banking Co. v. Mills

• Decision Date: 24 February 1983
• Citation: 9 Ohio App.3d 237,459 N.E.2d 584
• Parties: , 9 O.B.R. 410 GENOA BANKING COMPANY, Appellant, v. MILLS, Supt. of Banks, et al., Appellees. *
• Court: Ohio Court of Appeals

Page 237

9 Ohio App.3d 237

459 N.E.2d 584, 9 O.B.R. 410

GENOA BANKING COMPANY, Appellant, v. MILLS, Supt. of Banks, et al., Appellees. ^*

Court of Appeals of Ohio, Tenth District, Franklin County.

Feb. 24, 1983.

Syllabus by the Court

1. The failure of the Superintendent of Banks to certify the record of administrative proceedings within thirty days after receipt of a notice of appeal to the court of common pleas does not require the court to render judgment for the adversely affected party unless the party demonstrates he was actually prejudiced.

2. To demonstrate actual prejudice, the adversely affected party must show that the superintendent's failure to certify the record within thirty days prejudiced the party's presentation of his case or that the trial court made some prejudicial error as a direct result of the late certification.

Douglas V. Austin, Toledo, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., Timothy R. Parry and Roger P. Sugarman, Asst. Attys. Gen., for appellee State of Ohio.

Thomas W. Palmer, Toledo, for appellee Bank of Elmore Co.

MOYER, Judge.

This matter is before us on the appeal of plaintiff, Genoa Banking Company, from a judgment of the Court of Common Pleas of Franklin County finding that the decision of defendant, Superintendent of Banks ("superintendent"), approving a branch application of intervenor, the Bank of Elmore Company, was supported by reliable, probative and substantial evidence and was in accordance with law. The trial court's judgment also dismissed plaintiff's motion for declaratory relief. This appeal is taken only from that part of the judgment overruling plaintiff's motion for declaratory relief, as there is no assignment of error challenging the trial court's decision on the merits.

On November 23, 1979, the superintendent approved an application filed by the intervenor to establish a branch bank in Genoa, Ohio. Plaintiff, which had an established bank in the same county, appealed the superintendent's order to the Court of Common Pleas of Franklin County. The superintendent did not certify the record of the administrative hearing within thirty days after the plaintiff's notice of appeal to the court of common pleas was received as required by R.C. 119.12. Rather, the superintendent filed a motion to dismiss plaintiff's appeal on the ground that the court of common pleas had no jurisdiction to hear plaintiff's appeal. The superintendent's motion was sustained and the trial court's judgment was affirmed by this court. The Supreme Court, 67 Ohio St.2d 106, 423 N.E.2d 161, subsequently reversed our judgment and remanded the case to the trial court for a decision on the merits. The superintendent's motion for a rehearing in the Supreme Court was denied on September 1, 1981, and the superintendent certified the record of the administrative proceedings on September 30, 1981. The case then proceeded in the court of common pleas on its merits and on plaintiff's motion for declaratory relief.

Plaintiff asserts the following assignment of error in support of its appeal:

"The lower court erred in not granting plaintiff-appellant's motion for declaratory relief by failing to consider State, ex rel. Crockett v. Robinson, the current judicial stance on an administrative failure to certify the record of the proceedings before it, as required by ORC Section 119.12."

The sole issue presented by the assignment of error is whether the superintendent's failure to certify to the court of common pleas the record of his administrative proceedings within thirty days after he received plaintiff's notice of appeal required the trial court to find as a matter of law in favor of plaintiff on the merits. On September 20, 1979, when plaintiff's appeal to the trial court was filed, R.C. 119.12 provided in pertinent part as follows:

"Within thirty 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 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. Additional time, however, may be granted by the court, not to exceed thirty days, when it is shown that the agency has made substantial effort to comply. * * * "

Our disposition of this appeal is controlled by our application of two opinions of the Supreme Court that have considered the question. The first is Lorms v. State (1976), 48 Ohio St.2d 153, 357 N.E.2d 1067 , which, in its syllabus, states as follows:

"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."

In emphasizing that R.C. 119.12 is remedial in nature and should therefore be given a liberal construction to assist the parties in obtaining justice, the court held that, because Lorms was not prejudiced in his appeal from the Division of Real Estate by the exclusion from the agency's certified record of two letters supporting his application for a real estate brokerage license, the court of common pleas did not err by failing to render judgment for him pursuant to R.C. 119.12. While the court in Lorms was concerned with the omission from a certified record of only parts of the record rather than the agency's failure to certify any part of the record, the rationale of the opinion, and therefore the rule of law as stated in the syllabus, must apply to a case in which an agency fails to certify any part of the record within the statutory time.

The second case, which is the case upon which the plaintiff relies, is State, ex rel. Crockett v. Robinson (1981), 67 Ohio St.2d 363, 423 N.E.2d 1099 . In its per curiam decision, which unfortunately does not refer to Lorms, the Supreme Court stated that:

"The language of the statute [R.C. 119.12] is clear; if the agency fails to comply, then the court must enter a finding in favor of the party adversely affected. The statute entitles the party to be put in the same position as if the court had ruled on the merits. Under the facts of this case, the court was required to issue an order of reinstatement, which, in itself,...