Unemp. Comp. Rev. Comm. v. Blue Machine, L.L.C.

[Cite as Unemp. Comp. Rev. Comm. v. Blue Machine, L.L.C., 2017-Ohio-7495.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Unemployment Compensation :

Review Commission,

:

Appellee-Appellee, No. 17AP-176

: (C.P.C. No. 16CV-11400)

v.

: (ACCELERATED CALENDAR)

Blue Machine, LLC,

:

Appellant-Appellant.

:

D E C I S I O N

Rendered on September 7, 2017

On brief: Michael DeWine, Attorney General, and Alan

Schwepe, for appellee. Argued: Alan Schwepe.

On brief: Barron Peck Bennie & Schlemmer, LPA, Peter A.

Burr, and Steven C. Davis, for appellant. Argued: Peter A.

Burr.

APPEAL from the Franklin County Court of Common Pleas

BROWN, J.

{¶ 1} Blue Machine, LLC, appellant, has filed an appeal from the judgment of the

Franklin County Court of Common Pleas in which the court granted a motion to dismiss.

{¶ 2} The underlying facts in this case are not germane to the issues before us on

appeal. On October 14, 2016, appellee, the Unemployment Compensation Review

Commission ("UCRC"), which operates under the Ohio Department of Job and Family

Services ("ODJFS"), rendered a final decision adverse to appellant and mailed the order to

No. 17AP-176 2

appellant. On December 2, 2016, Margie Burke, who identified herself as a co-owner of

appellant and not an attorney, filed a notice of appeal on behalf of appellant.

{¶ 3} On December 19, 2016, ODJFS filed a motion to dismiss asserting that

appellant failed to perfect its appeal within the 30-day period set forth in R.C.

4141.26(D)(2), because the notice of appeal docketed on December 2, 2016, was filed by

Burke, who is not an attorney, and any notice of appeal filed on behalf of a limited liability

company must be made through counsel, pursuant to Campus Pitt Stop, L.L.C. v. Ohio

Liquor Control Comm., 10th Dist. No. 13AP-622, 2014-Ohio-227. On February 16, 2017,

the Franklin County Court of Common Pleas issued a decision and entry granting

ODJFS's motion to dismiss, finding that, pursuant to Campus Pitt Stop, Burke was

prohibited from filing an appeal on behalf of appellant because she was not an attorney.

Appellant appeals the judgment of the common pleas court, asserting the following

assignment of error:

The trial court erred as a matter of law by holding that

Appellant failed to timely file its Notice of Appeal of the

decision of the Unemployment Review Commission.

{¶ 4} In its sole assignment of error, appellant argues that the common pleas

court erred when it concluded that appellant failed to timely file its notice of appeal of the

UCRC's order. A trial court and an appellate court employ the same, well-established

standard of review in appeals involving the commission: "[A] reviewing court may reverse

the board's determination only if it is unlawful, unreasonable, or against the manifest

weight of the evidence." Tzangas, Plakas & Mannos v. Admr., Ohio Bur. of Emp. Servs.,

73 Ohio St.3d 694, 697 (1995); R.C. 4141.282(H). When a reviewing court (whether a trial

or appellate court) applies this standard, it may not make factual findings or determine

witness credibility. Irvine v. State Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 15, 18 (1985).

Factual questions remain solely within the commission's province. Tzangas at 696. An

appellate court in reviewing an administrative order, however, has plenary review of

purely legal questions. Big Bob's, Inc. v. Ohio Liquor Control Comm., 151 Ohio App.3d

498, 2003-Ohio-418, ¶ 15 (10th Dist.). See also Slats & Nails Pallets, Inc. v. Ohio Dept. of

Job & Family Servs., 10th Dist. No. 14AP-690, 2015-Ohio-1238, ¶ 8, citing Hayward v.

No. 17AP-176 3

Summa Health Sys., 139 Ohio St.3d 238, 2014-Ohio-1913, ¶ 23 (where an R.C.

4141.26(D)(2) appeal raises legal issues, our review is de novo).

{¶ 5} R.C. 4141.26(D)(2) provides, in pertinent part:

The employer and the director shall be promptly notified of

the commission's decision, which shall become final unless,

within thirty days after the mailing of notice of it to the

employer's last known address by certified mail, return receipt

requested, or, in the absence of mailing, within thirty days

after delivery of such notice, an appeal is taken by the

employer or the director to the court of common pleas of

Franklin county. Such appeal shall be taken by the employer

or the director by filing a notice of appeal with the clerk of

such court and with the commission. Such notice of appeal

shall set forth the decision appealed and the errors in it

complained of. Proof of the filing of such notice with the

commission shall be filed with the clerk of such court.

{¶ 6} In the present case, the common pleas court concluded that appellant failed

to comply with the 30-day appeal limitation set forth in R.C. 4141.26(D)(2) because

appellant's "co-owner," Burke, who is not an attorney, filed the notice of appeal, and this

court held in Campus Pitt Stop that any notice of appeal filed on behalf of a limited

liability company must be made through legal counsel. In Campus Pitt Stop, two

individuals, on behalf of a limited liability company, filed a notice of appeal of the Liquor

Control Commission's order with the Franklin County Court of Common Pleas. We found

that R.C. 1925.17 requires a notice of appeal on behalf of a corporation must be filed by an

attorney at law. Thus, because the two individuals who filed the notice of appeal were

non-attorneys, they could not file the notice of appeal on behalf of the limited liability

company. We followed Campus Pitt Stop in Navy Portfolio, L.L.C. v. Avery Place, L.L.C.,

10th Dist. No. 13AP-1071, 2014-Ohio-3401, finding that the sole owner of a limited

liability company, who was a non-attorney, could not file a notice of appeal from a trial

court's decision.

{¶ 7} Appellant provides no compelling reason to depart from our decision in

Campus Pitt Stop. Appellant does cite some authority for the general proposition that the

state of Ohio has relaxed the need for attorney representation for some purposes in

administrative proceedings before the Industrial Commission of Ohio. Appellant also

No. 17AP-176 4

cites Henize v. Gills, 22 Ohio St.3d 213 (1986), for the proposition that the Supreme Court

of Ohio has before permitted laypeople to represent employers in hearings before the

Bureau of Employment Services and the Unemployment Compensation Board of Review.

However, neither of these cases are on point and do not address the issue before this court

and directly addressed in Campus Pitt Stop; that is, whether a non-attorney can file a

notice of appeal on behalf of a limited liability company from an administrative order.

This court answered that question in the negative, and we are bound in this case by our

own controlling precedent. For these reasons, we find appellant's argument without

merit, and we overrule appellant's assignment of error.

{¶ 8} Accordingly, we overrule appellant's sole assignment of error and affirm the

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

DORRIAN and LUPER SCHUSTER, JJ., concur.

__________________________