Geroc v. Ohio Veterinary Medical Bd.

• Decision Date: 06 April 1987
• Docket Number: No. 51830,51830
• Citation: 525 N.E.2d 501,37 Ohio App.3d 192
• Parties: GEROC, Appellant, v. OHIO VETERINARY MEDICAL BOARD, Appellee.
• Court: Ohio Court of Appeals

Page 192

37 Ohio App.3d 192

525 N.E.2d 501

GEROC, Appellant, v. OHIO VETERINARY MEDICAL BOARD, Appellee.

No. 51830.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 6, 1987.

Syllabus by the Court

1. Because the actual mailing of the order is the event which triggers the fifteen-day appeal period set forth in R.C. 119.12, the agency issuing the order bears the burden of establishing the actual date of mailing of the agency order.

2. The total failure by an agency to timely certify its record in compliance with R.C. 119.12 places a mandatory duty upon the court of common pleas, upon motion, to enter a finding in favor of the party adversely affected.

3. An appellant in an R.C. 119.12 appeal to the court of common pleas is entitled to a hearing and that hearing is mandatory. However, the court may, in its discretion, limit the hearing to a review of the record, the acceptance of briefs, oral argument and newly discovered evidence.

4. It is error for an agency to set the date for an administrative hearing more than fifteen days after a request for a hearing made in accordance with R.C. 119.06 and 119.07.

Jack N. Turoff, Cleveland, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Barbara A. Serve, Columbus, for appellee.

PATTON, Judge.

Andrej Geroc, D.V.M., appeals the March 6, 1986 judgment of the Cuyahoga County Court of Common Pleas affirming the decision of the State Veterinary Medical Board which revoked his license to practice veterinary medicine in Ohio. Dr. Geroc additionally appeals from other judgments entered by the court on that same date which included the denial of his motion to dismiss because the State Veterinary Medical Board failed to timely certify the record. The facts giving rise to this appeal are as follows.

Dr. Geroc was licensed by the State Veterinary Medical Board (hereinafter "board") to practice veterinary medicine in Ohio. On February 13, 1984, the board sent Dr. Geroc a notice of proceedings against him. These proceedings were initiated as the result of complaints received by the board regarding Dr. Geroc's alleged substandard and questionable treatment of two dogs. This notice alleged that Dr. Geroc's treatment constituted gross incompetence and gross negligence. The notice also informed Dr. Geroc of his right to a hearing on the allegations; however, Dr. Geroc failed to request a hearing. The board proceeded without a hearing and revoked Dr. Geroc's license on March 23, 1984.

Dr. Geroc appealed the revocation of his license to the Cuyahoga County Court of Common Pleas, but the appeal was dismissed by agreement of the parties on July 18, 1984. On the next day, Dr. Geroc sent a letter to the board requesting a hearing. The board sent Dr. Geroc a letter dated September 4, 1984 setting the requested hearing for September 19, 1984.

The hearing began on September 19, 1984. Dr. Geroc was absent for medical reasons but was represented by counsel. In order to obtain Dr. Geroc's testimony, the hearing was continued twice, but both rescheduled dates were cancelled at Dr. Geroc's request. Dr. Geroc's testimony was never obtained. However, he submitted a written response which was read and considered by the board members. The hearing was concluded on February 28, 1985. Neither Dr. Geroc nor his attorney was present. Despite their absence, the written closing arguments of Dr. Geroc were presented.

On June 10, 1985, the board announced its decision to revoke Dr. Geroc's license to practice veterinary medicine in Ohio. Dr. Geroc filed a petition for reconsideration with the board on June 19, 1985. Dr. Geroc also filed a notice of appeal in the Cuyahoga County Court of Common Pleas on June 24, 1985. The board acknowledged that, on June 28, 1985, it received the notice of appeal that had been filed with the trial court. The board disputed the court's jurisdiction to hear Dr. Geroc's appeal because of Dr. Geroc's alleged failure to timely file his notice of appeal with the board as required by R.C. 119.12. The board thus filed a motion to dismiss on August 6, 1985, contesting the court's jurisdiction. Dr. Geroc opposed the board's motion and also filed his own motion to dismiss, alleging that the board had failed to timely certify the record. Dr. Geroc then sought a finding in his favor pursuant to R.C. 119.12.

Attached to Dr. Geroc's brief in opposition to the board's motion to dismiss was his affidavit in which he stated that he had received the board's order on June 14, 1985. He further averred that he believed that the order was mailed to him on June 13, 1985. On September 25, 1985, the board certified its record of the proceedings involving Dr. Geroc to the court.

On March 6, 1986, the court denied the board's motion to dismiss for lack of subject matter jurisdiction. In addition, the court denied Dr. Geroc's motion to dismiss. On that same date, the court, upon consideration of the entire record, found that the board's revocation of Dr. Geroc's license was supported by reliable, probative and substantial evidence and was in accordance with the law and thereby affirmed the board's decision.

On April 1, 1986, Dr. Geroc filed a notice of appeal from the various judgments rendered by the court on March 6, 1986.

Dr. Geroc has assigned five errors for this court's review:

"I. The court erred in failing to grant appellant's motion to dismiss for appellee's failure to certify the record of proceedings within thirty days of receipt of appellant's notice of appeal, as required by O.R.C. Section 119.12.

"II. The court's failure to permit appellant to brief the issues on appeal from an agency's order is a violation of the requirements of O.R.C. Section 119.12.

"III. The Ohio Veterinary Medical Board (appellee) erred by failing to hold administrative hearings within fifteen days of appellant's requests, as required by Ohio Revised Code Section 119.07.

"IV. The board erred by failing to provide appellant with notice of the charges against him sufficient to allow him to prepare a defense.

"V. The trial court erred in determining that the decision of appellee board was supported by reliable, probative and substantial evidence."

I

Dr. Geroc filed a motion to dismiss in the trial court, claiming that the board failed to timely certify the record as required by R.C. 119.12. For his first assignment of error, Dr. Geroc argues that the court erred in failing to grant his motion to dismiss and that he is entitled to judgment in his favor.

The board, on the other hand, maintains that Dr. Geroc did not file a notice of appeal with the board within the time limits allowed under R.C. 119.12. The board argues that this failure is a jurisdictional defect and that its own failure to certify the record until September 25 was irrelevant because the court lacked jurisdiction to hear the appeal. ¹

R.C. 119.12 sets forth the procedure to be followed in appealing adverse orders of administrative agencies:

"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 relating to a particular agency, 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. * * * " (Emphasis added.)

In the instant case, Dr. Geroc filed his notice of appeal with the trial court on June 24, 1985. The board received this notice on June 28, 1985. The record indicates that Dr. Geroc filed an affidavit with the trial court stating that he did not receive notice of the board's order until June 14, 1985. He additionally averred that he believed that the order was mailed by the board on June 13, 1985. Thus, Dr. Geroc contends that the board's receipt of his notice of appeal on June 28, 1985 was timely pursuant to R.C. 119.12 to invoke the jurisdiction of the court.

The board claims that it mailed its June 10, 1985 order to Dr. Geroc in a timely fashion and, thus, the trial court did not have jurisdiction. This contention does not have merit.

Because the actual mailing of the order is the event which triggers the fifteen-day appeal period, the agency issuing the order bears the burden of establishing the actual date of mailing. Cf. King v. Garnes (1973), 36 Ohio St.2d 187, 65 O.O.2d 404, 305 N.E.2d 798; Wycuff v. Fotomat Corp. (1974), 38 Ohio St.2d 196, 67 O.O.2d 205, 311 N.E.2d 657; Proctor v. Giles (1980), 61 Ohio St.2d 211, 15 O.O.3d 227, 400 N.E.2d 393. Unless the board can prove that its adjudication order was actually mailed to Dr. Geroc more than fifteen days prior to its receipt of the notice of appeal, then this court must presume that the notice of appeal was timely filed with the board.

In the instant case, the board argued in its briefs before this court and in open court that June 12, 1985 was the actual date of mailing. The board admitted that it failed to submit any proof of this date to the trial court. Although App.R. 9(A) usually precludes an appellate court from considering evidence not in the trial court record, the time allotted for filing a notice of appeal under R.C. 119.12 is jurisdictional, and issues pertaining to subject matter jurisdiction are nonwaivable. See Proctor, supra, at 212-213, 15 O.O.3d at 228, 400 N.E.2d at 395, fn. 1.

The issue then becomes whether a certificate of mailing presented at this level is sufficient evidence to support a finding that the board's decision was mailed on June 12, 1985. In McCruter v. Bd. of Review (1980), 64 Ohio St.2d 277, 279, 18 O.O.3d 463, 464, 415 N.E.2d 259, 260, the court stated that a certificate of mailing signed by an employee of the Bureau of Employment Services is sufficient evidence of the date of mailing. Likewise, in Moscow v. Unemp. Comp. Bd. of Review (1985), 23 Ohio Misc.2d 15, 23 OBR 180, 491 N.E.2d 744, the court, citing to...