Richmond v. Board of Review

• Court: Ohio Court of Appeals
• Writing for the Court: WHITESIDE
• Citation: Richmond v. Board of Review, 412 N.E.2d 418, 64 Ohio App.2d 243, 18 O.O.3d 180 (Ohio App. 1979)
• Decision Date: 15 March 1979
• Parties: , 18 O.O.3d 180 Quentin B. & Patricia RICHMOND, d.b.a. Kettering-Oakwood Accounting Service & Answering Service, Appellees, v. BOARD OF REVIEW, Ohio Bureau of Employment Services et al., Appellants.

Page 243

64 Ohio App.2d 243

412 N.E.2d 418, 18 O.O.3d 180

Quentin B. & Patricia RICHMOND, d.b.a. Kettering-Oakwood Accounting Service & Answering Service, Appellees, v. BOARD OF REVIEW, Ohio Bureau of Employment Services et al., Appellants.

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

March 15, 1979.

Syllabus by the Court

1. Although the requirement in R.C. 4141.26 that the Board of Review shall file with the clerk a certified transcript of the record of the proceedings before the Board within thirty days after the filing of a written demand by the appellant is mandatory, when the Board files the transcript beyond the thirty-day time limit, the issue is the sanction, if any, to be imposed, not whether the requirement is mandatory.

2. Thus, where the transcript is not timely filed, the trial court may, within the exercise of its discretion, order either such transcript, not filed within rule, stricken from the record, or allow the late filing where excusable neglect is demonstrated pursuant to Civ.R. 6(B).

Fontana, Ward & Kaps and David S. Bloomfield, Columbus, for appellees.

William J. Brown, Atty. Gen., and Raymond A. Stegmeier, Asst. Atty. Gen., for appellants.

WHITESIDE, Judge.

Appellants, the Administrator and Board of Review, Ohio Bureau of Employment Services, appeal from a judgment of the Court of Common Pleas of Franklin County reversing an order of the Board of Review. In support of their appeal, appellants raise a single assignment of error as follows:

"The Court of Common Pleas erred in granting summary judgment as a matter of law for failure of the Board to file the transcript within 30 days."

Appellees herein (appellants in the Court of Common Pleas) filed their notice of appeal in the Court of Common Pleas on November 24, 1976, and, at the same time, apparently filed a demand for a written transcript. However, the record of proceedings was not filed with the Court of Common Pleas until January 5, 1977. On January 11, 1977, the appellees herein (appellants below) filed a motion for summary judgment, predicated solely upon the grounds that the transcript had not been timely filed and supported by an affidavit that a demand for the transcript had been filed on November 24, 1976. Eventually, the Court of Common Pleas sustained the motion for summary judgment, finding that it had no choice but to reverse the order appealed from since the transcript was not timely filed in accordance with mandatory statutory requirements. A motion for reconsideration was filed and overruled subsequent to the entry of judgment on September 28, 1978, and prior to the notice of appeal, which was timely filed.

The notice of appeal to the Court of Common Pleas states that the appeal is pursuant to R.C. 4141.26, which provides, in part, as follows:

"The board upon written demand filed by the appellant shall within thirty days after the filing of such demand file with the clerk a certified transcript of the record of the proceedings before the board pertaining to the determination or order complained of, and the appeal shall be heard upon such record certified to the board. A bill of exceptions shall not be required at any level of appellate review. * * * "

The record reflects that the Board of Review (hereinafter the "Board") failed to comply with this statute by not filing the certified transcript of the record until January 5, 1977; whereas, it should have been filed on or before December 24, 1976. The trial court found the statutory provision not only to be mandatory, but also to be "jurisdictional" in the sense that a reversal is mandated unless the statutory time limitation is complied with.

R.C. 119.12 contains such a provision with respect to administrative appeals subject thereto. This appeal, however, is not subject to R.C. 119.12. Appellees herein refer to Stephan v. State Veterinary Medical Bd. (1960), 113 Ohio App. 538, 173 N.E.2d 389, as supporting their position. In that case, it was determined that the provision in R.C. 119.12 was mandatory, prior to the addition of the statutory sanction to that section. We agree that the statutory provision in R.C. 4141.26 is mandatory; however, this determination is not dispositive of the issues.

The issue is whether the trial court had jurisdiction to permit the appeal to proceed, even though the Board did not timely file the transcript. To put it in different terms, the issue is whether the trial court had jurisdiction to grant leave to the Board to file the transcript out of rule. Obviously, filing requirements are mandatory; but the issue...