Jerry Joseph Feiertag
| Decision Date | 05 May 1986 |
| Docket Number | CA85-09-053,86-LW-1239 |
| Parties | Jerry Joseph FEIERTAG, Appellant, v DEPARTMENT OF LIQUOR CONTROL and State Personnel Board of Review, Appellees. |
| Court | Ohio Court of Appeals |
Jim Rimedio, Cincinnati, Ohio, for appellant.
Anthony J. Celebrezze, Ohio Attorney General, Nathan Gordon Assistant Attorney General, Columbus, Ohio, for appellees.
This cause came on to be heard upon an appeal, transcript of the docket, journal entries and original papers from the Court of Common Pleas of Warren County, Ohio, and the briefs and arguments of counsel.
Now therefore, the assignments of error having been fully considered, are passed upon in conformity with App.R. 12(A) as follows:
This is an appeal by appellant, Jerry Joseph Feiertag, from the decision of the Court of Common Pleas of Warren County which upheld a decision of appellee, State Personnel Board of Review, (hereinafter "board") dismissing appellant from employment with co-appellee, Department of Liquor Control, (hereinafter "department"). Appellant assigns six errors in the proceedings below:
Appellant's first four assignments of error relate to the filing of the record of the administrative proceedings with the court of common pleas below. In reviewing the appellate record concerning the filing of these documents, we find that on December 15, 1978, appellant filed his appeal from the board's decision. On December 21, 1978, the department filed a motion with the court of common pleas asking that the board be allowed an additional ten days beyond the normal twenty days provided by statute to certify the record.®1¯ In support of its motion, the department attached a letter from John W. Herbert, the deputy secretary of the board indicating the board received appellant's notice of appeal on December 13, 1978, but that the board's stenographer indicated there was an enormous backlog of transcribing to be completed, including an estimated eighty hours for appellant's transcript alone,®2¯ so he requested the department obtain the longest possible extension.®3¯ On December 28, 1978, appellant filed a memorandum opposing the extension but did not include any authority against granting it and made no request for a hearing on such motion.
On January 3, 1979, the court by an entry nunc pro tunc to January 2, 1979, granted the department's December 21st motion. On September 12, 1985,®4¯ after denying appellant's motion for a decision in his favor, the trial court found the board's decision was supported by the reliable, probative, and substantial evidence and was in accordance with law and affirmed the board's decision dismissing appellant. This appeal followed.
In his first assignment of error, appellant contends the trial court erred in granting the department ten additional days to certify the record. As we understand appellant's brief, he argues strict compliance with R.C. 119.12 is "jurisdictional" in administrative appeals. From this premise appellant further asserts:
The requirement that a complete certified record of the proceedings be certified to [the] court is "jurisdictional" in the sense that a reversal is mandated upon motion of the party adversely affected, Richmond v. Bd. of Review (1979), 64 Ohio App.2d 243, at 244.
We have examined the cited case and find the Franklin County Court of Appeals' reference to the requirement of filing of the record within the prescribed period as being "jurisdictional" was only a recounting of how the trial court viewed the thirty-day requirement in the case before it. After reviewing Richmond, we find the statute at issue there was different than that in the case sub judice and that the statute at issue in Richmond was not found to be jurisdictional.
We believe appellant's argument misapprehends the concept of jurisdiction. Jurisdiction refers to the power to hear and determine a cause. Fireproof Construction, Inc. v. Brenner-Bell, Inc. (1949), 152 Ohio St. 347, 348; see Garverick v. Hoffman (1970), 23 Ohio St.2d 74, 78-79. While it is generally the legislature's prerogative to define the jurisdiction of Ohio courts, Humphrys v. Putnam (1961), 172 Ohio St. 456, 460, it is well-settled that once a court of competent jurisdiction acquires jurisdiction over a particular matter, that court's jurisdiction over the case continues until it is fully disposed of. Weenink & Sons Co. v. Court of Common Pleas (1948), 150 Ohio St. 349; Was v. A.J.L.S., Inc. (1985), 21 Ohio App.3d 280. Further, the jurisdictional right so conferred is a substantive right, not a procedural one. Akron v. Gay (1976), 47 Ohio St.2d 164. The jurisdiction of the Court of Common Pleas of Warren County over this matter therefore does not turn on whether the board defaulted upon its statutory duty to file a certified record of the proceedings.®5¯ If the failure to file a certified copy of the proceedings within the twenty-day period caused the court to lose jurisdiction, it could not enter judgment for the adversely affected party as required by statute because it would be without authority to act as of the date the default occurred. Cf. R.C. 119.12.
To the extent appellant's first assignment of error contends the trial court erred in granting ten additional days for the board to file a certified record of the proceedings because it was without jurisdiction to do so if the record of proceedings was not certified by rule day, we overrule this assignment of error. We conclude that a failure to certify a record of proceedings before the board within the time provided by statute does not divest the common pleas court of jurisdiction over the matter.
Appellant's second assignment of error is closely related to his first and, in fact, would more properly be considered an argument in support of the first assignment of error. For his second assignment of error appellant claims the court of common pleas erred when, on January 3, 1979, it entered an order nunc pro tunc to January 2, 1979, allowing the board ten additional days to certify the record of proceedings. Appellant claims this order was beyond the court's nunc pro tunc authority. Since, as appellees point out, it is undisputed that the department filed a motion for ten additional days to certify the record well before the initial twenty days for certification passed, appellant's argument claims nothing less than the common pleas court divested itself of authority to rule on the motion by its own inaction until a day beyond the initial twenty-day period. We cannot agree.
Nunc pro tunc means "now for then." An examination of the common pleas court's nunc pro tunc entry reveals its only nunc pro tunc effect was to make the ten additional days granted begin running on January 2 rather than January 3, 1979, when the motion was granted. Upon examining a calendar, we find the initial twenty-day period for certification of the record ended January 2, 1979. We have ruled in the first assignment of error that the failure to certify the record within the initial twenty-day period did not divest the court of common pleas jurisdiction over this appeal. Since the record reveals that a motion for a ten-day extension of the twenty-day period to certify the record of proceedings was filed before the initial twenty days passed, we find the trial court both had the authority to rule on a ten-day extension motion and was properly presented such a motion in timely fashion. That it entered its order nunc pro tunc to January 2, 1979, was not error as it represents only the trial court's strict adherence to R.C. 119.12 in limiting the additional period it granted the board to certify the record to the maximum ten days the statute allows from the twentieth day of the initial twenty-day certification period. We reject appellant's argument that by its own inaction on a timely motion the trial court ®6¯ divested itself of jurisdiction over this case.®7¯ Moreover, appellant has not demonstrated in the record that the court of common pleas did not, in fact, reach its decision on January 2 and merely fail to reduce it to writing until January 3. We overrule the second assignment of error.
For his third assignment of error appellant contends that the court of common pleas erred in ruling that the twenty-day period for certification of a record of proceedings commences with the filing of the copy of the notice of appeal with the court of common pleas. Appellant argues the twenty-day record certification period begins to run when the agency receives notice of the appeal. Appellees contend the twenty-day period runs from the date of the filing of a copy of the notice of appeal with the court. We agree with appellant.
R.C. 119.12 provides:
"Within twenty days after receipt of notice of appeal from an order in any...
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