Tsiperson v. Ohio Dep't of Commerce Div. of Fin. Inst.
| Decision Date | 15 March 2012 |
| Docket Number | No. 96917,96917 |
| Citation | 2012 Ohio 1048 |
| Parties | STANISLAV TSIPERSON PLAINTIFF-APPELLEE v. OHIO DEPARTMENT OF COMMERCE DIVISION OF FINANCIAL INSTITUTIONS DEFENDANT-APPELLANT |
| Court | Ohio Court of Appeals |
ATTORNEYS FOR APPELLANT
Senior Assistant Attorney General
Executive Agencies Section
ATTORNEY FOR APPELLEE
Jonathan N. Garver
{¶1} Appellant, the Ohio Department of Commerce, Division of Financial Institutions (the "Division"), seeks review of the common pleas court's decision to overturn the denial of Stanislav Tsiperson's application for a loan officer's license. After a thorough review of the record and law, we reverse the lower court's decision and reinstate the Division's denial of the license.
{¶2} On September 4, 2003, Tsiperson applied for a state mortgage loan officer's license with the Division. The application, completed by Tsiperson, failed to list a 1999 conviction for disorderly conduct in response to a question regarding any prior criminal history. Tsiperson had checked the box for "No" regarding any past criminal history.
{¶3} After investigation, the Division found Tsiperson had a prior criminal conviction for disorderly conduct, a fourth-degree misdemeanor. On October 31, 2003, the Division sent notice to Tsiperson inquiring about his criminal history and requesting further information. Even though Tsiperson attempted to explain that he had simply forgotten about the conviction, the Division sent notice on January 23, 2004 that it was denying his request for a license.
{¶4} Tsiperson requested an administrative hearing, which was conducted on March 29, 2004. The hearing examiner found that the Division's decision was proper and affirmed the denial of a mortgage broker's license. It found specifically that Tsiperson had violated R.C. 1322.07(A), (B), and (C), by failing to disclose his conviction and making false statements in the application. The hearing examiner's recommendation was confirmed by the Division on November 3, 2004.
{¶5} Tsiperson then appealed that decision to the common pleas court, pursuant to his rights under R.C. 119.12. It is debated whether Tsiperson properly invoked the jurisdiction of the common pleas court by failing to file an original notice of appeal with the Division and a copy with the common pleas court, as the statute requires. The Division timely filed the record, and Tsiperson supplemented his notice of appeal after the time for filing such amendments had passed. The Division filed a motion to dismiss based on Tsiperson's alleged failure to properly file the notice of appeal. The common pleas court denied the motion and proceeded to review the decision of the Division.
{¶6} The common pleas court made its decision after considering the briefs of both parties and determined that the Division's decision to deny Tsiperson a license was not supported by competent, credible evidence. Specifically, the court found the ruling was "unlawful, unreasonable, and against the manifest weight of the evidence." The Division then appealed assigning five errors.
{¶7} The Division argues in its first two assignments of error1 that Tsiperson did not properly invoke the jurisdiction of the common pleas court to review the agency's decision.
{¶8} In order to properly appeal from the decision of an administrative agency pursuant to former R.C. 119.12, a person was required to:
[F]ile a notice of appeal with the agency setting forth the order appealed from and the grounds of the party's appeal. A copy of the notice of appeal shall also be filed by the appellant with the court. Unless otherwise provided by law relating to a particular agency, 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. For purposes of this paragraph, an order includes a determination appealed pursuant to division (C) of section 119.092 of the Revised Code.
{¶9} The Ohio Supreme Court interpreted this language to require that an original notice of appeal be filed with the agency and a copy be filed with the trial court. Hughes v. Ohio Dept. of Commerce, 114 Ohio St.3d 47, 2007-Ohio-2877, 868 N.E.2d 246, at paragraph two of the syllabus. It held that a party seeking review of an administrative decision must strictly comply with R.C. 119.12. The Hughes court determined that anagency must strictly comply with R.C. 119.09, and so, an appellant must also strictly comply with R.C. 119.12. As Justice Pfeifer pointed out in his concurring and dissenting opinion, the agency's duty to serve a certified copy of its decision on the other party serves an important function, while an appellant's duty to serve the original certified decision on the agency and a copy with the court serves no function other than to trip up the unwary. Id. at ¶ 22-23 (Pfeifer, J., concurring and dissenting.) The legislature ultimately agreed and amended R.C. 119.12 in 2010 to eliminate this requirement.
{¶10} On its face then, it would appear under Hughes that the trial court did not have jurisdiction over this case. But Hughes was not solely decided on the issue of filing the original versus a copy of the notice of appeal, and we find that fact significant. Specifically, in addition to the Division's contention that the common pleas court did not have jurisdiction over the director's (Hughes) appeal, the Ohio Supreme Court considered the director's contention that she was not served with a certified copy of the Department's order. The court agreed with both parties' contentions and stated:
Here, since the agency failed to properly serve Hughes with a certified copy of the removal order, her appeal period never started to run. Once Hughes is properly served, she may perfect an appeal by filing the original notice of appeal with the agency and a copy of the notice with the court of common pleas. Id.
{¶11} Thus, the director in Hughes was not foreclosed from her appellate rights. We do not believe that Tsiperson should have been foreclosed from his appellate rights either. Indeed, the Ohio Supreme Court has consistently indicated that the purpose of a notice of appeal is to inform the opposing party of the taking of an appeal. See MaritimeMfrs., Inc. v. Hi-Skipper Marina, 70 Ohio St.2d 257, 259, 436 N.E.2d 1034 (1982); Wells v. Chrysler Corp., 15 Ohio St.3d 21, 24, 472 N.E.2d 331 (1984) (); Couk v. Ocean Acc. & Guar. Corp., 138 Ohio St. 110, 116, 33 N.E.2d 9 (1941), quoting Capital Loan & Sav. Co. v. Biery, 134 Ohio St. 333, 339, 16 N.E.2d 450 (1938) ( ). Tsiperson's filings complied with this purpose.
{¶12} The Division also argues that the court allowed modification of the notice of appeal after the statutory period for filing the notice had elapsed. While R.C. Chapter 119 contains no provision for the amendment of a notice of appeal, R.C. 2505.03(B) provides, in pertinent part:
Unless, in the case of an administrative-related appeal, Chapter 119. or other sections of the Revised Code apply, such an appeal is governed by this chapter and, to the extent this chapter does not contain a relevant provision, the Rules of Appellate Procedure.
{¶13} R.C. Chapter 2505 contains two applicable provisions. R.C. 2505.04 provides that the only jurisdictional requirement necessary to perfect an appeal is the timely filing of the notice. R.C. 2505.05 allows a notice of appeal to be modified at the discretion of the court once the appeal has been timely perfected. These statutes provide an adequate basis for the common pleas court to grant a motion to amend.
{¶14} Addressing similar arguments, this court has held:
Moore v. Cleveland Civ. Serv. Comm., 11 Ohio App.3d 273, 465 N.E.2d 482 (8th Dist.1983), quoting Woods v. Cleveland Civ. Serv. Comm., 7 Ohio App.3d 304, 455 N.E.2d 709 (1983).
{¶15} Continuing, the court in Moore reaffirmed the proposition that procedures should be liberally construed so that cases are determined on their merits, and notice is sufficient if it substantially informs all parties of the appeal.
{¶16} The Division argues that Tsiperson's original notice of appeal failed to state the grounds on which the appeal was taken. R.C. 119.12 requires that such grounds be stated in the notice. For instance, a notice of appeal that a surveyor filed, which stated that he was "adversely affected" by the Board's order and sanctions imposed, was insufficient to invoke the jurisdiction of the reviewing court. Green v. State Bd. of Regis. for Prof. Engrs. & Surveyors, 2d Dist. No. 05CA121, 2006-Ohio-1581, 2006 WL 827374. The Second District held "[t]hat bare contention, coupled with only a reference to the statutory authority under which the Board acted, is insufficient to satisfy the 'grounds' requirement of R.C. 119.12." Id. at ¶ 14.
{¶17} Tsiperson's amended notice of appeal was not received until December 17,...
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