Motion-Secondary: ROBERT TIPTON VS STEPHEN K. WOLTZ

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                                IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO

oo

ROBERT TIPTON, Case No. 2006 07 4192
Appellant, Judge Jane Bond
v.
STEPHEN K. WOLTZ, Appeal from Board of Building
State Fire Marshal, Appeals Case No. 05-669
Appellee.

MEMORANDUM IN OPPOSITION TO APPELLEE’S
MOTION TO DISMISS

The Appellee asks this court to dismiss the Appellant’s administrative appeal from a
decision of the Ohio Board of Building Appeals.

The Appellee contends that the Appellant’s notice of appeal must (1) state the
grounds for his appeal and (2) that the words in his notice of appeal that the “decision is not
supported by reliable, probative and substantial evidence and is not in accordance with law”
are insufficient to do so.

The Appellant appealed under both sections 3737.43 and 119.12 of the Ohio
Revised Code. A redundancy, as either section grants the Appellant a statutory right of
appeal. Section 3737.43 simply has fewer requirements than section 119.12. Section
3737.43 in part states:

“(B) If the responsible person is aggrieved by an order of the board, the

person may appeal to the court of common pleas where the property that is
the subject of the citation is located, within thirty days after the boardCOPY .

 

renders its decision.”

There is no requirement to state grounds, nor file the original with the agency and a
copy with the court and the time to file is expanded to 30 days. There is also no reference
that such an appeal be in accordance with 119.12 or governed by the requirements of
119.12. In fact there is no reference in (B) to 119.12, (as there is in 3737.43(A) which
governs appeals of a Fire Marshal’s citation to the State Board of Building Appeals).

In Zier v. Bureau of Unemployment Compensation (1949), 151 O.S.123 , the right of
appeal from the Unemployment Compensation Board of Review to the Common Pleas
Court was granted by section 1346-4 General Code ( now 4141.28.2 ORC) and did not
involve section 119.12 or any corresponding section of the ORC. The court stated in
syllabus one:

“1, An appeal, the right to which is conferred by statute, can be perfected
only in the mode prescribed by statute. The exercise of the right conferred
is conditioned upon compliance with the accompanying mandatory
requirements.

Although the court found that certain mandatory requirements stated in this appeal
section (1346-4) were not mentioned in this notice of appeal, the decision illustrates that
administrative statutory appeals to Common Pleas Court can be granted by statutes other
than 119.12 ORC. (Interesting 1346-4 GC was amended later to eliminate the mandatory
requirements found in Zier, supra. ORC 4141.28.2 (C) now reads: “The timely filing of the
notice of appeal shall be the only act required to perfect the appeal and vest jurisdiction in
the court.”)

In all of the cases cited by the Appellee, where it could be determined, the

Appellants had only 119.12 ORC as a right of appeal without any other statute also grantingCOPY .

such a right or if an independent statute granted a right of appeal it did so by specific
reference to 119.12. For example, in Green v. State Board of Registration for Professional
Engineers and Surveyors, 2d Dist, No. O5CA 121, 2006-Ohio-1581 the statute granting
appeal rights, 4733.20(G), stated: “may appeal such action (by the Board) to the proper
court under section 119.12 of the Ohio Revised Code.”

Thus in the present case there was a statutory right of appeal to Common Pleas
Court not dependant upon 119.12 ORC and the mandatory requirements of that section,
3737.43(B), were invoked by the Appellant in his notice of appeal. This was conceded by
the Appellee in their motion (timeliness, proper court). This section does not require that
grounds for appeal be stated. Therefore the Appellant’s notice of appeal should not be
dismissed for lack of jurisdiction.

In addition no case cited by the Apellee or known to the Appellant finds that a
notice of appeal under 119.12 ORC to the Common Pleas Court is insufficient if it states as
grounds that the decision is not supported by reliable, probative, and substantial evidence

and is not in accordance with law. In Green, supra, there is dicta to that effect but the court

 

found that the words “is adversely affected” by the Boards order did not amount to
“grounds” required by 119.12 ORC. The remaining cases cited, basically from the 10" Ohio
District Court of Appeals, ruled on notices of appeal where no grounds at all were stated.
Interestingly, in, CHS- Windsor Inc. v. Ohio Department of Job and Family Services 10"

District No. 04AP-1196, 2005-Ohio 3384 the Appellant amended his notice of appeal from

 

no statement as to grounds to add the words “and is not based on substantive, reliable orCOPY .

probative evidence.” But the court found this amendment was out of time and chose not to
rule on its sufficiency.

For the above reasons the Appellee’s motion to dismiss should be denied.

Ay bod J

Edwin C. Pierce
Attorney for Appellant
Robert Tipton

   

PROOF OF SERVICE

| hereby certify that a copy of this answer was mailed to Hilary R. Damaser,

Assistant Attorney General, 8895 E. Main St., Reynoldsburg, Ohio 43068 this 7 * gt

day of August, 2006.

 

Edwin C. Pierce