 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Woodward v. Ohio Dep't of Mental Retardation & Developmental Disabilities3/31/2005
ll-settled law in Ohio that "the failure to file a copy of the notice of appeal within the fifteen day appeal as set forth in R.C. 119.12 deprives the common pleas court of jurisdiction over the appeal." Niebert, supra, 84 Ohio St.3d at 101.
{ } R.C. 119.12 requires that an appeal from an order of SPBR be filed in the Franklin County Court of Common Pleas within 15 days from the mailing of the agency's order. SPBR dismissed appellant's appeal on May 17, 2002. The filing of a notice of appeal in the Franklin County Court of Common Pleas did not occur until October 10, 2003. It is clear that this notice of appeal was filed well outside the statutory 15 days. We find on the authority of Niebert that the trial court appropriately determined that the Franklin County Court of Common Pleas lacked jurisdiction to hear the appeal herein because it was untimely filed. Appellant's first assignment of error is overruled.
{ } In her second assignment of error, appellant argues that the saving statute as prescribed in R.C. 2305.19 should apply to decisions of SPBR, thus saving this appeal from the jurisdictional defect. In her brief, appellant cites the following portion of R.C. 2305.19:
In an action commenced or attempted to be commenced, if in due time a judgment for plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff * * * may commence a new action within one year after such date.
{ } Appellant cites the case of Reese v. Ohio State Univ. Hosp. (1983), 6 Ohio St.3d 162, 60 OBR 221, 451 N.E.2d 1896, in support of her position that R.C. 2305.19 would apply to the appeal from an order of SPBR. As Reese involves a wrongful death complaint and not an appeal from an administrative agency, it can readily be distinguished from the instant facts. Thus, we find appellant's reliance on Reese to be misplaced.
{ } Appellant further relies on the case of Lewis v. Connor (1985), 21 Ohio St.3d 1, 21 OBR 266, 487 N.E.2d 285. In Lewis, the Ohio Supreme Court found that the saving statute applies to workers' compensation complaints filed in the common pleas court. Appellant argues that the administrative action in Lewis is analogous to an appeal from an SPBR decision and should be followed here.
{ } In Schmeig v. Ohio State Dept. of Human Serv. (Dec. 19, 2000), Franklin App. No. 00AP-561, 2000 WL 1847799, this court previously examined Lewis and found it to be "an exception to the general rule based on the unique procedures associated with an appeal from the Industrial Commission." Id., 2000 WL 1847799, at * 8. In Schmeig, we reviewed an appeal from a judgment of the Franklin County Court of Common Pleas that granted a motion to dismiss filed by the Ohio Department of Human Services, now Ohio Department of Job and Family Services. We held that R.C. 2305.19 does not apply to administrative appeals, which are more akin to an appeal and not procedurally initiated by the filing of a complaint in common pleas court.
{ } Unlike appeals involving the right to participate in a workers' compensation case, an appeal from a decision rendered by SPBR occurs when a notice of appeal is filed in the common pleas court. Therefore, an appeal from an SPBR decision is more akin to an appeal and not the initiation of a standard civil action. Therefore, we follow the rationale in Schmeig and find that the saving statute does not apply to this appeal. In conclusion, the common pleas court properly concluded that R.C. 2305.19 is not applicable to the decision of the SPBR. Therefore, we overrule appellant's second assignment of error.
Page 1 2 3 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|