Gibby's Auto Exchange v. Ohio Motor Vehicle Dealer Bd.

[Cite as Gibby's Auto Exchange v. Ohio Motor Vehicle Dealer Bd., 2024-Ohio-5618.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Gibby’s Auto Exchange, :

Appellant-Appellant, :

No. 24AP-245

v. : (C.P.C. No. 23CV-6238)

Ohio Motor Vehicle Dealer Board, : (ACCELERATED CALENDAR)

Appellee-Appellee. :

D E C I S I O N

Rendered on November 26, 2024

On brief: Sybert Rhoad Lackey & Swisher, Zachery M.

Swisher, and Allison L. Harrison, for appellant.

Argued: Zachery M. Swisher.

On brief: Dave Yost, Attorney General, Heather N. Williams,

and Maggie M. McKenzie, for appellee.

Argued: Heather N. Williams.

APPEAL from the Franklin County Court of Common Pleas

MENTEL, P.J.

{¶ 1} Appellant, Gibby’s Auto Exchange (“Gibby’s”), appeals from a March 28,

2024 decision and judgment entry affirming the August 21, 2023 order of the appellee, Ohio

Motor Vehicle Dealer Board (“Board”), which revoked its used motor vehicle dealer’s

license. For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On October 9, 2018, Gibby’s filed an application to renew its used motor

vehicle dealer’s license. On January 29, 2019, the Board issued a notice of opportunity for

hearing. The Board alleged that Gibby’s violated R.C. 4517.03 and Ohio Adm.Code 4501:1-

3-08(A)(3) when it did not have a special use permit from the City of Grove City Planning

No. 24AP-245 2

Commission to operate its dealership at the licensed location. A notice of opportunity for

hearing was hand-delivered and signed by Gibby’s on February 25, 2019. Gibby’s did not

file a request for an administrative hearing within 30 days of receiving the notice. A hearing

was held in this matter on June 27, 2019. On July 10, 2019, the Board issued an

adjudication order revoking Gibby’s license. An amended order was issued on August 14,

2019, which extended the date of license revocation. Gibby’s filed a timely appeal with the

Franklin County Court of Common Pleas.

{¶ 3} On May 1, 2020, the Franklin County Court of Common Pleas (“common

pleas court”) issued a decision finding that while the Board had hand-delivered a notice of

opportunity for hearing, the subsequent hearing date notices were sent to the incorrect

addresses. The common pleas court vacated the August 14, 2019 amended adjudication

order and remanded the matter “for further proceedings initiated by issuance and service

of a hearing notice that complies with R.C. 119.07.” Gibby’s Auto Exchange v. Ohio Motor

Vehicle Dealers Bd., Franklin C.P. case No. 19CV-6960 (May 1, 2020).

{¶ 4} By certified letter dated April 18, 2023, the Board notified Gibby’s that a

hearing was scheduled for May 4, 2023. Upon Gibby’s request for a continuance, the Board

continued the hearing date to August 10, 2023. The Board issued its second adjudication

order on August 21, 2023. The order revoked Gibby’s used motor vehicle dealer’s license

effective September 21, 2023. Gibby’s filed a timely appeal to the common pleas court.

{¶ 5} On March 28, 2024, the common pleas court affirmed the revocation of

Gibby’s license. Relevant to the instant case, the common pleas court first found that

Gibby’s forfeited its opportunity to raise the argument that the three-year delay in holding

a hearing violated its due process rights. The common pleas court also found that even if

Gibby’s had not forfeited its due process argument, the delay was reasonable as all hearings

were halted at the time due to the COVID-19 pandemic. (Mar. 28, 2024 Decision and Jgmt.

Entry at 8.) The common pleas court explained that “[a]fter hearings resumed, there was

a backlog of cases to be heard. Additionally, once a hearing date was issued, Mr. Gibson

requested a continuance.” (Decision and Jgmt. Entry at 8.)

{¶ 6} Gibby’s filed a timely appeal in this case.

No. 24AP-245 3

II. ASSIGNMENT OF ERROR

{¶ 7} Appellant assigns the following as error:

[I.] THE TRIAL COURT ERRED WHEN IT REFUSED TO

CONSIDER WHETHER A THREE[-]YEAR DELAY IN

HEARING THE CHARGES VIOLATED APPELLANT’S

RIGHT TO DUE PROCESS.

III. STANDARD OF REVIEW

{¶ 8} An administrative appeal, pursuant to R.C. Chapter 119, is a special statutory

proceeding. Nippon Sushi & Steak, L.L.C. v. Ohio Liquor Control Comm., 10th Dist. No.

23AP-527, 2024-Ohio-2341, ¶ 24, citing State ex rel. CannAscend Ohio, L.L.C. v. Williams,

10th Dist. No. 18AP-820, 2020-Ohio-359, ¶ 45. In such an appeal brought under R.C.

119.12, the common pleas court must “consider the entire record to determine whether

reliable, probative, and substantial evidence supports the agency’s order and whether the

order is in accordance with law.” Omni Energy Group, L.L.C. v. Vendel, 10th Dist. No.

23AP-361, 2024-Ohio-2439, ¶ 11, citing Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108,

110-11 (1980).

{¶ 9} The Supreme Court of Ohio has defined reliable, probative, and substantial

evidence as follows:

(1) “Reliable” evidence is dependable; that is, it can be confidently trusted. In

order to be reliable, there must be a reasonable probability that the evidence

is true. (2) “Probative” evidence is evidence that tends to prove the issue in

question; it must be relevant in determining the issue. (3) “Substantial”

evidence is evidence with some weight; it must have importance and value.

Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992).

{¶ 10} When reviewing an administrative appeal, the common pleas court does not

provide a trial de novo, but rather it must give due deference to the administrative

resolution of evidentiary matters. Katsande v. Ohio Dept. of Medicaid, 10th Dist. No. 19AP-

375, 2020-Ohio-5488, ¶ 17, citing Capital Care Network of Toledo v. Ohio Dept. of Health,

153 Ohio St.3d 362, 2018-Ohio-440, ¶ 25, citing Univ. of Cincinnati at 110-11.

{¶ 11} Appellate review of an administrative decision is even more restricted. Omni

Energy Group, L.L.C. at ¶ 13, citing Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621

(1993). We are limited to determining whether the common pleas court’s decision was an

abuse of discretion. Id., citing Lorain City School Dist. Bd. of Edn. v. State Emp. Relations

Bd., 40 Ohio St.3d 257, 261 (1988). An unreasonable, arbitrary, or unconscionable ruling

No. 24AP-245 4

is an abuse of discretion. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). However,

“[a]n appellate court’s scope of review on issues of law is plenary, including the issue of

whether the common pleas court applied the proper standard of review.” Bartchy v. State

Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826, ¶ 43, citing Univ. Hosp., Univ. of

Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339, 343 (1992).

IV. LEGAL ANALYSIS

A. Appellant’s Sole Assignment of Error

{¶ 12} In Gibby’s sole assignment of error, it contends that the “trial court erred

when it refused to consider whether a three[-]year delay in hearing the charges violated

Appellant’s right to due process.” (Emphasis omitted.) (Appellant’s Brief at 6.)

{¶ 13} Upon review, we find that the common pleas court did, in fact, consider

Gibby’s argument that the three-year delay in hearing the charges violated its due process

rights. In its March 28, 2024 decision, the common pleas court first found that Gibby’s

forfeited its argument that the three-year delay in holding a hearing was unreasonable and

violated its due process rights as this argument could have been asserted at the hearing.

The common pleas court explained that “[b]y not requesting a hearing, Appellant forfeited

its opportunity to raise this argument before the Board and waived its right to raise the

issue on appeal to this Court.” (Decision and Jgmt. Entry at 7-8.) The common pleas court

went on to write “[e]ven if this issue was not waived,” the Board’s explanation was

reasonable “based on the well-known disruption the COVID Pandemic caused on all

adjudications.” (Decision and Jgmt. Entry at 8.) Curiously, Gibby’s repeatedly

acknowledges that the court of common pleas addressed the due process argument in its

brief. See Appellant’s Brief at 5 (“The Common Pleas court then found that even if the issue

had been raised, the agency’s explanation for the delay was reasonable.”); Appellant’s Brief

at 8 (“The trial court compounded its error when, after finding that the 2019 waiver

preemptively waived future due process violations, it went on to find Appellee’s untested

explanation ‘not unreasonable.’ ”).

{¶ 14} We note that Gibby’s makes several additional arguments in its brief. Gibby’s

contends that the common pleas court erred by finding that it waived its argument that its

due process rights were violated based on the three-year delay after the first administrative

appeal. (Appellant’s Brief at 7.) Gibby’s also argues that the common pleas court erred by

No. 24AP-245 5

finding that the Board’s explanation for the three-year delay was reasonable. (Appellant’s

Brief at 8.) However, we find that these arguments fall outside the parameters of Gibby’s

sole assignment of error.

{¶ 15} As set forth in App.R. 16(A)(3), an appellant’s brief must contain “[a]

statement of the assignments of error presented for review, with reference to the place in

the record where each error is reflected.” (Emphasis added.) App.R. 16(A)(7) requires that

appellant include “[a]n argument containing the contentions of the appellant with respect

to each assignment of error presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes, and parts of the record on which

appellant relies.” (Emphasis added.) Assignments of error are vital as reviewing courts are

generally limited in its appellate review to the “merits on the assignments of error set forth

in the briefs under App. R. 16.” (Emphasis added.) App.R. 12(A)(1)(b).

{¶ 16} It is well established that appellate courts rule on assignments of error and

not mere arguments. Cardinal Health 108, L.L.C. v. Columbia Asthma & Allergy Clinic,

L.L.C., 10th Dist. No. 21AP-460, 2022-Ohio-2018, ¶ 17, citing JP Morgan Chase Bank, N.A.

v. Cloyes, 10th Dist. No. 20AP-107, 2021-Ohio-3316, ¶ 10, citing App.R. 16(A)(3); see also

Blakeman v. Pelloski, 10th Dist. No. 19AP-772, 2021-Ohio-560, ¶ 23, citing Mun. Tax

Invest., L.L.C. v. Northup Reinhardt Corp., 10th Dist. No. 19AP-26, 2019-Ohio-4867, ¶ 24,

citing Huntington Natl. Bank v. Burda, 10th Dist. No. 08AP-658, 2009-Ohio-1752, ¶ 21,

citing App.R. 12(A)(1)(b). Without assignments of error to consider, an appellate court has

nothing to review. Habtemariam-Brown v. Christensen, 10th Dist. No. 23AP-517, 2024-

Ohio-4464, ¶ 22, citing Luke v. Roubanes, 10th Dist. No. 16AP-766, 2018-Ohio-1065, ¶ 16,

citing Pack v. Hilock Auto Sales, 10th Dist. No. 12AP-48, 2012-Ohio-4076, ¶ 13; see also

Kemba Fin. Credit Union v. Covington, 10th Dist. No. 20AP-487, 2021-Ohio-2120, ¶ 7. It

is not the role of this court to “ ‘ “conjure up questions never squarely asked or construct

full-blown claims from convoluted reasoning.” ’ ” Jabr v. Burger King, 10th Dist. No. 21AP-

463, 2022-Ohio-773, ¶ 10, quoting Columbus v. Wynn, 10th Dist. No. 20AP-479, 2021-

Ohio-3934, ¶ 7, quoting State ex rel. Karmasu v. Tate, 83 Ohio App.3d 199, 206 (4th

Dist.1992); see also Williams v. Barrick, 10th Dist. No. 08AP-133, 2008-Ohio-4592, ¶ 28

(declining to review arguments that were not connected to an assignment of error).

No. 24AP-245 6

{¶ 17} Accordingly, we decline to consider the arguments in Gibby’s brief that do not

correspond with its assignment of error. At bottom, if Gibby’s wished for us to determine

whether the common pleas court erred by finding that Gibby’s waived its argument that its

due process rights were violated based on a three-year delay, or the finding that the three-

year delay was reasonable, it should have assigned such as error. Price v. Evans Auto.

Repair, Inc., 10th Dist. No.23AP-401, 2024-Ohio-5108, ¶ 43.

{¶ 18} For the foregoing reasons, Gibby’s sole assignment of error is overruled.

V. CONCLUSION

{¶ 19} Having overruled Gibby’s sole assignment of error, we affirm the judgment

of the Franklin County Court of Common Pleas.

Judgment Affirmed.

BEATTY BLUNT and BOGGS, JJ., concur.