# Woerner v. Mentor Exempted Village School District Board of Education

> Ohio Court of Appeals · January 4, 1993 · 84 Ohio App. 3d 844

URL: https://www.frixlaw.com/law-library/cases/3692320

## Case

- **Full name:** WOERNER, Appellant, v. MENTOR EXEMPTED VILLAGE SCHOOL DISTRICT BOARD OF EDUCATION, Appellee
- **Court:** Ohio Court of Appeals
- **Decided:** January 4, 1993
- **Citations:** 84 Ohio App. 3d 844; 619 N.E.2d 34; 1993 Ohio App. LEXIS 6507
- **Precedential status:** Published
- **Opinion:** Concurrence by Nader
- **Judges:** Mahoney, Basinger, Nader, County, Pleas
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3692320

## Opinion text

*848
Nader, Judge,
concurring.
While I concur in the judgment upon reconsideration that this case must be remanded to the trial court for further proceedings, I write in order to shine a light upon a procedure which is endorsed by the judiciary, but not warranted under statutory law. Specifically, I refer to the application of the procedure found in R.C. Chapter 2506 to appeals taken pursuant to R.C. 3319.081. Significantly, the issue impacts the jurisdiction of the trial court and may, therefore, be raised in the lower court
on
remand. The majority of this court has not addressed the issue which is raised in this opinion; thus, there is no law of the case on this point.
Appeals taken pursuant to R.C. Chapter 2506 are fundamentally different from those taken under favor of R.C. 3319.081. Our previous opinion relied on
In re Appeal of Sergent
(1976), 49 Ohio Misc. 36 , 3 O.O.3d 308 , 360 N.E.2d 761 , for the proposition that an appeal taken pursuant to R.C. 3319.081 is “governed by R.C. Chapter 2506.”
Woerner v. Mentor Exempted Village School Dist. Bd. of Edn.
(May 29, 1992), Lake App. No. 91-L-085, unreported, at 3, 1992 WL 121665 . Clearly,
Sergent
is not
binding
authority on this court; it is from a court of common pleas (Montgomery County). Neither is
Sergent persuasive
because it fails to note that an appeal brought pursuant to R.C. Chapter 2506 is “ * * *
in addition to
any other remedy of appeal provided by law.”
1
R.C. 2506.01.
Sergent
erroneously concludes that, because an R.C. Chapter 2506 appeal is
available
from the final order of a school board, the procedures of R.C. Chapter 2506
must
be applied in an R.C. 3319.081 appeal. This is a
non-sequitur;
it should not be regarded as mandating that there is an R.C. Chapter 2506 appeal in the instant case.
In order to understand the differences between an appeal brought pursuant to R.C. 3319.081 and one brought under R.C. Chapter 2506, it is necessary to look at the statutes which are applicable.
The procedure which governs an R.C. Chapter 2506 appeal is found in R.C. Chapter 2505, “except as modified by” R.C. Chapter 2506. R.C. Chapter 2506.01. The procedure for an R.C. 3319.081 appeal is set forth in R.C. 2505.03(B):
“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. When an administrative-related appeal is so governed, if it is necessary in applying the rules of Appellate Procedure to such an appeal, the administrative officer, agency, board, department, tribunal, commission, or other
*849
instrumentality shall be treated as if it were a trial court whose final order, judgment, or decree is the subject of an appeal to a court of appeals or as if it were the clerk of such a trial court.”
The time for filing a notice of appeal pursuant to R.C. 3319.081 is
ten days
after an employee receives a termination notice via certified mail. R.C. 3319.-081(C). The notice must be filed in writing in
the common pleas court
of the county in which the school board is located.
Id.
By contrast, an R.C. Chapter 2506 notice of appeal must be
filed
with the
administrative board,
R.C. 2505.04, within thirty days of the entry of the final order of the board. R.C. 2505.07. Mere service of a summons is not sufficient.
Guysinger v. Chillicothe Bd. of Zoning Appeals
(1990), 66 Ohio App.3d 353 , 584 N.E.2d 48 ;
Patrick Media Group, Inc. v. Cleveland Bd. of Zoning Appeals
(1988), 55 Ohio App.3d 124 , 562 N.E.2d 921 .
A review of R.C. 3319.081 reveals no standard of review for the common pleas court to apply to such an appeal. Neither does R.C. Chapter 2505. Pursuant to R.C. 2505.03(B), I believe the appropriate standard of review for an R.C. 3319.081 appeal is found in App.R. 12. This is a very different review from that found at R.C. 2506.04. Most important, there is no provision in the Appellate Rules (analogous to R.C. 2506.03) which allows for the common pleas court to take additional evidence. Thus, no additional evidence may be taken in an R.C. 3319.081 appeal, and the trial court is confined to the transcript of the school board.
Another clear difference between an R.C. Chapter 2506 appeal and an R.C. 3319.081 appeal is the triggering mechanism by which a board is required to file a transcript. In an R.C. Chapter 2506 appeal, the appellant is required to file a praecipe before the board has a duty to file the transcript. R.C. 2506.02;
Wickliffe Firefighters v. Wickliffe
(1990), 66 Ohio App.3d 681 , 586 N.E.2d 133 .
Under R.C. 2505.08 (made applicable to an R.C. 3319.081 appeal by R.C. 2505.03[B]), the board has a duty,
sua sponte,
to file the transcript within forty days of the filing of the notice of appeal.
As a praecipe
was
filed by appellant, the board has the duty to file the record in this case, whether it is an R.C. Chapter 2506 appeal or an R.C. 3319.081 appeal. R.C. 2505.44 gives the common pleas court the authority to
compel
the furnishing, completion, or perfection of the transcript. Pursuant to R.C. 3313.26, the treasurer of the board has a statutory duty to maintain the transcript. Irrespective of the nature of the appeal to the lower court, I believe the trial court may not go forward without the transcript. It must not be forgotten that this action is
an appeal,
not an original action.
*850
Finally, it should be reiterated that if the appellant did not
file
a notice of appeal with the school board within thirty days of the final appealable order, this
cannot
be an R.C. Chapter 2506 appeal. This act, the filing with the board, is jurisdictional and, therefore, can be raised at any time.
On the other hand, it is clear that appellant properly filed an R.C. 3319.081 appeal. If it is determined that the R.C. Chapter 2506 appeal was not timely filed, the trial court ought to consider the matter under the Appellate Rules, as required by R.C. 2505.03(B).
1
. An example of an "other remedy” is R.C. 3319.081., as will be explained
infra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3692320. Public record. Not legal advice.