Nicoll v. Ohio Dept. of Job & Family Servs.

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-5207

Case Date: 10/07/2011

Plaintiff: Nicoll

Defendant: Ohio Dept. of Job & Family Servs.

Preview:[Cite as Nicoll v. Ohio Dept. of Job & Family Servs., 2011-Ohio-5207.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
KIMBERLY J. NICOLL                                                                          :
Plaintiff-Appellant                                                                         :     C.A. CASE NO.         24509
v.                                                                                          :     T.C. NO.              10CV8834
OHIO DEPARTMENT OF JOB & FAMILY                                                             :     (Civil appeal from
SERVICES, et al.                                                                                  Common Pleas Court)
Defendant-Appellee                                                                          :
:
O P I N I O N
Rendered on the                                                                             7th   day of                October    , 2011.
THOMAS J. MANNING, Atty. Reg. No. 0059759, P. O. Box 751484, Dayton, Ohio 45475
Attorney for Plaintiff-Appellant
ROBIN A. JARVIS, Atty. Reg. No.  0069752, Assistant Attorney General,  1600 Carew
Tower, 441 Vine Street, Cincinnati, Ohio 45202
Attorney for Defendant-Appellee
DONOVAN, J.
{¶ 1}  This matter is before the Court on the Notice of Appeal of Kimberly J. Nicoll,
filed March 1, 2011.   The facts herein are not in dispute, and the issues for review are
procedural in nature.

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{¶ 2}  On November 8, 2010, in the court of common pleas, Nicoll filed a “Notice
of Appeal Pursuant to O.R.C. 4141.282,” in which she appealed the Ohio Unemployment
Review  Commission’s                                                                             (“Commission”)                                                                 “Decision  Disallowing  Request  for  Review”
(“Decision”).    The Commission had previously determined, in September,  2010,    that
Nicoll was discharged from her employment with just cause.   The Decision denying her
request for review provided, in a section entitled “Appeal Rights,” that “[a]n appeal from
this                                                                                             [D]ecision may be filed to the Court of Common Pleas of the county where the
appellant, if an employee, is [a] resident or was last employed, * * * within thirty (30) days
from the date of mailing of this [D]ecision, as set forth in Section 4141.282(A)(B)(B) (sic),
Revised Code of Ohio.”   The Decision provided that it was mailed on October 6, 2010.
{¶ 3}  The succeeding paragraph stated, “If your appeal is filed more than thirty (30)
days from the date of mailing, then you may ask the Court of Common Pleas to determine
the timeliness of your appeal.   The court may find the appeal to be timely if you did not
receive this [D]ecision within thirty (30) days after it was mailed to you. * * * .”   On
November  16,  2010, the Director of the Ohio Department of Job and Family Services
(“Director”), filed a   motion to dismiss for failure to timely appeal.
{¶ 4}  Nicoll opposed the motion to dismiss.   In her memorandum in support, she
conceded that the Decision was mailed on October 6, 2010, and she asserted that the 30 day
period within which she must file her notice of appeal began to run on October 7, 2010, and
that 30 days from that date is Saturday, November 6, 2010.   Nicoll asserted, in reliance
upon Civ.R. 6(A), and R.C. 4141.281(D)(9),   that her notice of appeal was then due on
Monday, November 8, 2010, and that it was timely filed.

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{¶ 5}  The Director filed a reply in which he argued that “the time begins to run
from the time the board mails the decision and not the day after under Civ.R.  6(A).”
Further, the director asserted, the Civil Rules of Procedure “do not apply to special statutes
such as the Ohio Unemployment Compensation Act,” in reliance upon Civ.R.  1(C)(7).
According to the Director, even if the Civil Rules did apply, Civ.R. 821 “disallows the Ohio
Civil Rules to be used to extend the jurisdiction of the court.”   The Director asserted that
the trial court lacked jurisdiction to decide the appeal.
{¶ 6}  On February  2,  2011, the trial court sustained the Director’s motion to
dismiss.   According to the trial court, “Under the plain language of the statute, thirty days
from October  6,  2010 is Friday November  5,  2010.  *  *  * Plaintiff filed her appeal on
November 8, 2010, three days late.”   In a footnote, the trial court observed, “The Ohio
Rules  of  Civil  Procedure  do  not  apply  to  cases  concerning  the  Ohio  Unemployment
Compensation  Act.    Civ.R.                                                                       1(C)(7).    More  importantly,  Civ.R.   6  and  R.C.  Section
4141.282 provide the identical method for computing the period of time prescribed for
Plaintiff’s filing her appeal: ‘* * * the date of the act * * * from which the designated period
of time begins to run shall not be included.’   The date of the act in this case was October 6,
2010.   Thus, the first day of the appeal period under Civ.R. 6(A) and R.C. Section 4141.282
was October 7, 2010 and the thirtieth day was therefore Friday November 5, 2010.”
{¶ 7}  Nicoll asserts two assignments of error.   Her first assignment of error is as
follows:
1Civ.R. 82 provides: “These rules shall not be construed to extend or limit
the jurisdiction of the courts of this state.”

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{¶ 8}                                                                                                “THE  TRIAL  COURT  ERRED  WHEN  IT  SUSTAINED  APPELLEE’S
MOTION TO DISMISS, WHEN THE APPEAL WAS TIMELY FILED.”
{¶ 9}                                                                                                “An appellate court reviews a trial court’s granting of a motion to dismiss
pursuant to Civ.R. 12(B)(1) de novo.”     Fowler v. Summa Health Systems, Summit App.
No. Civ.A 22091, 2004-Ohio-6740,¶ 6.
{¶ 10} R.C. 4141.282 (A) provides: “Any interested party, within thirty days after
written notice of the final decision of the unemployment compensation review commission
was sent to all interested parties, may appeal the decision of the commission to the court of
common pleas.”
{¶ 11} “It is elementary that an appeal, the right to which is conferred by statute, can
be perfected only in the mode prescribed by statute. * * * Compliance with a requirement
that a notice of appeal be filed within the time specified, in order to invoke jurisdiction, is no
more essential than that the notice be filed at the place designated and that it be such in
content as the statue requires.”   Zier v. Bureau of Unemployment Compensation (1949), 151
Ohio St. 123.   The timely filling of a notice of appeal is the only act necessary to vest
jurisdiction in the court of common pleas.   R.C. 4141.282(C).
{¶ 12} R.C. 4141.282(I) provides, “If an appeal is filed after the thirty-day period,
the court of common pleas shall conduct a hearing to determine whether the appeal was
timely filed under division (D)(9) of section 4141.281 of the Revised Code.   At the hearing,
additional evidence may be introduced and oral arguments may be presented regarding the
timeliness of the filing of the appeal.
{¶ 13} “If the common pleas court determines that the appeal was filed within the

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time allowed, the court shall after that make its decision on the merits of the appeal. * * * .”
(emphasis added).
{¶ 14} R.C. 4141.281(D)(9) provides: “The time for filing * * * a court appeal under
section 4141.282 of the Revised Code shall be extended in the manner described in the
following * * * sentences. When the last day of an appeal period is a Saturday, Sunday, or
legal holiday, the appeal period is extended to the next work day after the Saturday, Sunday,
or legal holiday. * * * When an interested party provides evidence, which evidence may
consist of testimony from the interested party, that is sufficient to establish that the party did
not actually receive a decision within the thirty-day appeal period provided in section
4141.282 of the Revised Code, and a court of common pleas finds that the interested party
did not actually receive the decision within that thirty-day appeal period, then the appeal
period is extended to thirty days after the interested party receives the decision.”
{¶ 15} The Decision provides that it was mailed on October 6, 2010, a fact conceded
by  Nicoll.  Civ.R.                                                                                  6(A),  upon  which  Nicoll  relied  in  her  memorandum  opposing  the
Commission’s motion to dismiss, provides,                                                            “In computing any period of time prescribed or
allowed by these rules, * * * or by any applicable statute, the day of the act * * * from which
the designated period of time begins to run shall not be included.   The last day of the period
so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which
event the period runs until the end of the next day which is not a Saturday, a Sunday, or a
legal holiday.”
{¶ 16} The trial court determined   that, pursuant to Civ.R. 1(C)(7), the Civil Rules
do not apply to the dispute herein, in reliance upon Civ.R. 1(C), which   provides:

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{¶ 17} “These  rules,  to  the  extent  that  they  would  by  their  nature  be  clearly
inapplicable, shall not apply to procedure * * * (7) in all other special statutory proceedings;
provided, that where any special statute provides for procedure by a general or specific
reference to all the statutes governing procedure in civil actions such procedure shall be in
accordance with these rules.”
{¶ 18} The final day of the period within which Nicoll was required to file her
appeal was a Friday and not, as she asserts, a Saturday.   As the trial court noted, Civ.R.
6(A), and R.C. 4141.281(D)(9), provide the identical method for computing the time period
for appeal, and whether or not the Civil Rules apply to the Unemployment Compensation
Act is a distinction without a difference herein.2     We agree with the trial court that the
thirty-day period in which to appeal began to run on October 7, 2010, such that Nicoll’s
notice of appeal was due Friday, November 5, 2010.   Since it was filed on November 8,
2010, it was untimely.   Nicoll’s first assignment of error is overruled.
{¶ 19} Nicoll’s second assignment of error is as follows:
{¶ 20} “THE TRIAL COURT ERRED BY FAILING TO HOLD A HEARING ON
APPELLEE’S MOTION TO DISMISS, AS REQUIRED BY O.R.C. § 4141.282(I).”
{¶ 21} In her second assignment, Nicoll contends that the trial court erred when it
2We note that the Ohio Supreme Court has specifically determined that
Civ.R.  6(E), which extends the period of time within which an act is required,
after service of notice by mail, by three days, does not apply to  “extend the
thirty-day time limitation for filing a notice of appeal from the determination of
the” Commission.    Fowler v. Summa Health Systems, citing Proctor v. Giles
(1980), 61 Ohio St.2d 211, 214 (“Since, under [Zier], the time limitation for the
filing of a notice of appeal is   jurisdictional, an extension of this limitation by the
application of Civ.R. 6(E) * * * would serve to expand the jurisdiction of the Court
of Common Pleas, in direct violation of Civ.R. 82.”)

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failed to hold a hearing regarding the Director’s motion to dismiss.    In support of her
assertion, Nicoll relies on R.C. 4141.282(I), which states in pertinent part:
{¶ 22} “(I) FAILURE TO FILE APPEAL WITHIN THIRTY DAYS
{¶ 23} “If an appeal is filed after the thirty-day appeal period, the court of common
pleas shall conduct a hearing to determine whether the appeal was timely filed under
division                                                                                         (D)(9) of section   4141.281  of the Revised Code.    At the hearing, additional
evidence may be introduced and oral arguments may be presented regarding the timeliness of
the filing of the appeal. ***”
{¶ 24} In her memorandum in opposition to the Director’s motion to dismiss, Nicoll
argued that she was entitled to a filing extension pursuant to R.C. 4141.281(D)(9), because
the last day of the appeal period fell on Saturday, November 6, 2010, which was thirty days
from October 7, 2010, the date upon which the appeal first began to run.   As discussed in
the first assignment, however, thirty days from October 7, 2010, actually fell on Friday,
November 5, 2010.   Accordingly, Nicoll’s notice of appeal filed on the following Monday,
November 8, 2010, was clearly out of time, and she was not entitled to an extension in
which to file her appeal.
{¶ 25} Nicoll now argues that she is entitled to a hearing before the trial court
pursuant to R.C. 4141.282(I), wherein she should be allowed to present additional evidence
regarding the alleged timeliness of her appeal.   Nicoll, however, failed to raise any other
grounds before the trial court to support extending the time for appeal.   We note that Nicoll
never argued before the trial court that she did not receive timely notice of the Director’s
decision of October 6, 2010.   In fact, in her memorandum in opposition to the motion to

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dismiss, Nicoll did not dispute that the thirty-day time period began to run on October 7,
2010.
{¶ 26} Nicoll’s failure to object or raise any additional issues before the trial court
waives the opportunity for appellate review of any issue not preserved. State v. Eversole, 182
Ohio  App.3d  290,                                                                                   294,   2009-Ohio-2174.    Accordingly,  any  new  issues  will  not  be
considered for the first time on appeal. Id.; State v. Self (1990), 56 Ohio St.3d 73, 81; State v.
Awan (1986), 22 Ohio St.3d 120.   Upon a thorough review of the record, we find that Nicoll
did not properly preserve any issues regarding additional grounds upon which the trial court
could extend the time for filing an appeal pursuant to R.C. 4141.281(D)(9).
{¶ 27} Nicoll’s second assignment of error is overruled.
{¶ 28} Both of Nicoll’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
FAIN, J. and HALL, J., concur.
Copies mailed to:
Thomas J. Manning
Robin A. Jarvis
Hon. Steven K. Dankof

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