Khemsara v. Ohio Veterinary Med. Licensing Bd. ( 2022 )

[Cite as Khemsara v. Ohio Veterinary Med. Licensing Bd., 2022-Ohio-833.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
BHARAT K. KHEMSARA, DVM, :
Plaintiff-Appellant, : No. 110945
v. :
OHIO VETERINARY MEDICAL :
LICENSING BOARD,
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 17, 2022
Civil Appeal from the Cuyahoga County Common Pleas Court
Case No. CV-21-953348
Appearances:
Kubyn & Gaster and R. Russell Kubyn, for appellant.
David Yost, Ohio Attorney General, and Lydia Arko Zigler,
Senior Assistant Attorney General, for appellee.
EILEEN A. GALLAGHER, J.:
On September 9, 2021, appellee, the Ohio Veterinary Medical
Licensing Board (the “Board”), issued an adjudication order revoking the veterinary
license of appellant Bharat Khemsara. Khemsara filed an administrative appeal
with the Cuyahoga County Court of Common Pleas and moved to stay the revocation
of his veterinary license while the appeal was pending. That motion was denied by
the trial court. In this accelerated appeal, Khemsara appeals the denial of his motion
for stay. Khemsara argues that the common pleas court abused its discretion in
denying his motion for stay because he established that he would suffer unusual
hardship and significant, irreparable harm if his veterinary license was revoked
pending the determination of the appeal and that he was likely to prevail on appeal.
For the reasons that follow, we affirm.
Procedural and Factual Background
As set forth in R.C. Chapter 4741, the Ohio Veterinary Medical
Licensing Board (the “Board”) is charged with regulating the practice of veterinary
medicine in Ohio. It has the authority to initiate disciplinary action against a
licensee who violates the provisions of R.C. 4741.22(A), including the rules of the
Board and professional standards governing the proper methods to be used in the
care and treatment of animals. R.C. 4741.22(A)(1).
On April 20, 2021, the Board issued a Notice of Opportunity for
Hearing to Khemsara (the “notice”). The notice charged Khemsara with violations
of R.C. 4741.22(A)(1) and Ohio Adm.Code 4741-1-10 for providing veterinary
medical care that fell below the minimum standard of care and resulted in the death
of a cat owned by Barbara Petras. The notice also indicated that this was the seventh
disciplinary case before the Board in which Khemsara was being cited for standard
of care and/or medical records violations.
An administrative hearing was held on September 8, 2021. After
considering the evidence presented at the hearing, the Board determined that the
charges had been proven and voted to revoke Khemsara’s license to practice
veterinary medicine for the following reasons:
1. The [B]oard found that Dr. Khemsara provided inappropriate
medical therapy in face of the differential diagnosis and the poor
prognosis which contributed to the demise of the cat.
2. The Board also took into consideration the multitude of previous
violations and disciplinary action against Dr. Khemsara.
On September 9, 2021, the Board issued an adjudication order
revoking Khemsara’s veterinary license (the “adjudication order”). Khemsara filed
an administrative appeal with the common pleas court and an “emergency ex parte
motion for stay of administrative decision and adjudication order pending appeal
without bond” pursuant to R.C. 119.12 (the “motion for stay”). In his motion for stay,
Khemsara requested that the court enter an “immediate order” reinstating his
veterinary license while the appeal was pending because (1) he would suffer unusual
hardship and “significant, irreparable harm” if his license was revoked while the
appeal was pending, (2) he would have “no adequate remedy,” if he was successful
on appeal, because he would “have already lost [his] business, customers, and
reputation” and (3) the harm to Khemsara as a result of the revocation of his license
“far and greatly exceeds any alleged harm” to the Board “in continuing the
revocation of the subject license.” Khemsara further argued that he should be
granted a stay without posting a supersedeas bond because the Board has “no
monetary judgment or claim” and “does not have an interest that needs to be
secured by a bond pending the appeal.” Khemsara supported his motion with an
affidavit. The Board filed an opposition to the motion for stay.
On September 30, 2021, the common pleas court denied Khemsara’s
motion for stay. The court held that Khemsara had “failed to show that he would
suffer unusual hardship as a result of the agency’s order pending determination of
the appeal.” The court further found:
Appellant also failed to demonstrate the following factors to be
considered by this court: a strong or substantial likelihood of success
on the merits, whether the appellant has shown that he will suffer
irreparable injury, whether the issuance of a stay will cause harm to
others, and whether the public interest would be served by granting a
stay. Bob Krihwan Pontiac -GMC Truck, Inc. v. General Motors Corp.,
141 Ohio App.3d 777, 783, 753 N.E.2d 864 (10th Dist.2001).
On October 12, 2021, Khemsara filed a “motion for reconsideration of
denial of motion for stay of administrative decision.” In his motion for
reconsideration, Khemsara included citations to the transcript of the administrative
hearing and argued that the transcript established that (1) Khemsara would suffer
an unusual hardship if the Board’s revocation of his veterinary license was not
stayed pending appeal and (2) he was likely to succeed in his appeal of the Board’s
adjudication order. Once again, the Board filed an opposition.
On October 18, 2021, Khemsara appealed the common plea court’s
September 30, 2021 order denying his motion for stay. Later that day, the common
pleas court issued an order denying Khemsara’s motion for reconsideration.
In this appeal, Khemsara raises the following assignment of error for
review:
The lower appellate court erred and abused its discretion by denying
the Appellant’s Emergency Ex Parte Motion for Stay of Administrative
Decision and Adjudication Order Pending Appeal without Bond and
Motion for Reconsideration thereof, as such denial was
unconstitutional, arbitrary, unreasonable and unsupported by the
preponderance of substantial, reliable, and probative evidence.
Law and Analysis
As an initial matter, we note that although Khemsara references both
the common pleas court’s September 30, 2021 order denying his motion for stay and
its October 18, 2021 order denying his motion for reconsideration in his assignment
of error, only the common pleas court’s September 30, 2021 order denying his
motion for stay is properly before us.
In his notice of appeal, filed before the court issued a ruling on his
motion for reconsideration, Khemsara referenced only the common pleas court’s
September 30, 2021 order denying his motion for stay.1 Accordingly, this appeal is
1 Khemsara did not separately appeal the October 18, 2021 order denying his
motion for reconsideration and made no attempt to amend his previously filed notice of
appeal to include the October 18, 2021 order denying his motion for reconsideration.
However, we note that Khemsara’s notice of appeal, appealing the common pleas court’s
September 30, 2021 order was filed at 12:13 p.m. on October 18, 2021. The common pleas
court’s order denying Khemsara’s motion for reconsideration was journalized at 2:00
p.m. on October 18, 2021.
As a general matter, ““‘once an appeal is perfected, the trial court is divested of
jurisdiction over matters that are inconsistent with the reviewing court’s jurisdiction to
reverse, modify, or affirm the judgment.’” * * * In other words, once a case has been
appealed, the trial court loses jurisdiction except to take action in aid of the appeal.” Black
v. Hicks, 2018-Ohio-2289, 114 N.E.3d 365, ¶ 25 (8th Dist.), quoting State ex rel.
Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio
limited to a review of the common pleas court’s September 30, 2021 order denying
Khemsara’s motion for stay.
The filing of an administrative appeal does not automatically entitle a
party to a stay pending judicial review. R.C. 119.12(E) addresses the circumstances
in which a court may stay an agency order pending appeal. It provides, in relevant
part:
The filing of a notice of appeal shall not automatically operate as a
suspension of the order of an agency. If it appears to the court that an
unusual hardship to the appellant will result from the execution of the
agency’s order pending determination of the appeal, the court may
grant a suspension and fix its terms. * * * In the case of an appeal from
the Ohio casino control commission, the state medical board, or the
state chiropractic board, the court may grant a suspension and fix its
terms if it appears to the court that an unusual hardship to the
appellant will result from the execution of the agency’s order pending
determination of the appeal and the health, safety, and welfare of the
public will not be threatened by suspension of the order. This provision
shall not be construed to limit the factors the court may consider in
determining whether to suspend an order of any other agency pending
determination of an appeal.
“Unusual hardship” is not defined in R.C. 119.12(E). However, giving
the terms their plain and ordinary meanings, “unusual” means “not usual,”
“uncommon” or “rare,” Merriam-Webster’s Online Dictionary, available at
St.3d 30, 2011-Ohio-626, 950 N.E.2d 149, ¶ 13, quoting State ex rel. Rock v. School Emps.
Retirement Bd., 96 Ohio St.3d 206, 2002-Ohio-3957, 772 N.E.2d 1197, ¶ 8; see also State
ex rel. Bohlen v. Halliday, 164 Ohio St.3d 121, 2021-Ohio-194, 172 N.E.3d 114, ¶ 25 (With
respect to “interlocutory appeals of final orders as well as to final judgments,” “the timely
filing of a notice of appeal generally precludes a trial court from taking further action on
claims that are affected by the appeal.”). An order issued without jurisdiction is void and
a nullity. See, e.g., In re G.C., 8th Dist. Cuyahoga No. 109969, 2021-Ohio-2442, ¶ 10;
Black at ¶ 35; Ormandy v. Dudzinski, 9th Dist. Lorain No. 09CA009713, 2010-Ohio-2017,
¶ 11.
https://www.merriam-webster.com/dictionary/unusual (accessed Jan. 26, 2022),
and “hardship” means “suffering” or “privation” or “something that causes or entails
suffering or privation,” Merriam-Webster’s Online Dictionary, available at
https://www.merriam-webster.com/dictionary/hardship (accessed Jan. 26, 2022).
Given that R.C. 119.12(E) requires a showing of unusual hardship, courts that have
considered the issue have generally required a showing of some kind of
“extraordinary” harm resulting from operation of an administrative order pending
determination of the appeal. See, e.g., Prince-Paul v. Ohio Bd. of Nursing, 2015-
Ohio-3984, 43 N.E.3d 13, ¶ 14 (10th Dist.) (likening “unusual hardship” under R.C.
119.12(E) to the “extraordinary circumstances” required to establish “undue
hardship” in determining whether a stay is appropriate in federal bankruptcy
proceedings); see also de Bourbon v. State Med. Bd. of Ohio, 10th Dist. Franklin No.
16AP-669, 2017-Ohio-5526, ¶ 9-10 (appellant’s contention in affidavit that he would
suffer “disastrous financial loss,” including the likely loss of his practice, his home
and his ability to provide for his family, if the court did not grant a stay of the
suspension of his medical license pending the determination of his appeal, did “not
rise to the level of extraordinary circumstances” required to establish unusual
hardship under R.C. 119.112(E) because “[t]hey are unfortunate but predictable
harms that would result whenever any physician has his or her license suspended
for an extended period of time”).
Moreover, even if an appellant establishes that he or she would suffer
unusual hardship, the common pleas court is not compelled to grant a motion for
stay. See R.C. 119(E) (“If it appears to the court that an unusual hardship to the
appellant will result from the execution of the agency’s order pending determination
of the appeal, the court may grant a suspension and fix its terms.”) (Emphasis
added.); see also Lots of Love, Inc. v. Ohio Dept. of Dev. Disabilities, 9th Dist.
Summit No. 28531, 2018-Ohio-371, ¶ 5 (“R.C. 119.12(E) requires a finding of an
unusual hardship before a trial court grants a suspension of the order of an agency;
it does not require a trial court to grant a suspension upon a finding of unusual
hardship. Thus, it is not a per se abuse of discretion for a trial court to deny a
suspension of an agency order if there is an unusual hardship to the appellant; under
the circumstances of an unusual hardship, R.C. 119.12(E) simply reserves to the
discretion of the trial court the ability to stay an agency order. * * * The trial court is
not mandated to suspend an agency order even if it makes a finding of unusual
hardship.”).
Thus, R.C. 119.12(E) grants “broad discretion” to a common pleas
court when deciding whether to suspend an administrative order pending
determination of an appeal following a showing of unusual hardship. See, e.g., Bob
Krihwan, 141 Ohio App.3d at 782, 753 N.E.2d 864; Hunter v. Civ. Serv. Comm., 1st
Dist. Hamilton No. C-800651, 1981 Ohio App. LEXIS 13852, 9-10 (Sept. 9, 1981)
(noting that under R.C. 119.12(E), “the trial court may * * * stay the order of the
agency appealed from” and that “such a determination is wholly within the sound
discretion of the trial court”). (Emphasis sic.) As such, we will not reverse a
common pleas court’s decision on a motion to stay under R.C. 119.112(E) absent an
abuse of discretion. See, e.g., Lots of Love at ¶ 4; de Bourbon 2017-Ohio-5526, at
¶ 7; Bob Krihwan at 782.
A court abuses its discretion where its decision is unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983). Abuse of discretion is “a very high standard.” Supportive
Solutions Training Academy, L.L.C., v. Electronic Classroom of Tomorrow, 8th
Dist. Cuyahoga Nos. 95022 and 95287, 2013-Ohio-3910, ¶ 11. As the Ohio Supreme
Court explained in Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 482 N.E.2d
1248 (1985):
“An abuse of discretion involves far more than a difference in * * *
opinion * * *. The term discretion itself involves the idea of choice, of
an exercise of the will, of a determination made between competing
considerations. In order to have an ‘abuse’ in reaching such
determination, the result must be so palpably and grossly violative of
fact and logic that it evidences not the exercise of will but perversity of
will, not the exercise of judgment but the defiance thereof, not the
exercise of reason but rather of passion or bias.”
Id. at 87, quoting State v. Jenkins, 15 Ohio St.3d 164, 222, 473 N.E.2d 264 (1984).
A decision is unreasonable when “no sound reasoning process”
supports that decision. AAAA Ents. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An abuse of
discretion also occurs when a court “applies the wrong legal standard, misapplies
the correct legal standard, or relies on clearly erroneous findings of fact.” Thomas
v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th
Dist.). In determining whether an abuse of discretion occurred, we cannot
substitute our judgment for that of the common pleas court. See, e.g., Victor v.
Kaplan, 8th Dist. Cuyahoga No. 110091, 2021-Ohio-2840, ¶ 10, citing Pons v. Ohio
State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).
Following a careful review of the record in this case, we find that
Khemsara has not shown that the common pleas court abused its discretion in
denying Khemsara’s motion for stay.
Although R.C. 119.12(E) requires a showing of “unusual hardship”
before a court may grant a stay under that provision, it does not limit the other
factors a court may consider in determining whether to suspend an administrative
order pending determination of an appeal. The Tenth District has identified four
“logical considerations” for courts to consider when exercising their discretion
under R.C. 119.12(E) and determining whether to stay an administrative order
pending appeal: (1) whether the appellant has shown a strong or substantial
likelihood or probability of success on the merits; (2) whether the appellant has
shown that he or she will suffer irreparable injury; (3) whether the issuance of a stay
will cause harm to others and (4) whether the public interest would be served by
granting a stay. See, e.g., Bob Krihwan, 141 Ohio App.3d at 783, 753 N.E.2d 864;
Prince-Paul, 2015-Ohio-3984, 43 N.E.3d 13, at ¶ 13 (noting that these factors “are
not prerequisites that must be met” in determining whether a stay is appropriate,
but rather, are “interrelated considerations that must be balanced together”). The
common pleas court’s September 30, 2021 order reflects that it considered all of
these factors when denying Khemsara’s motion for stay.
Khemsara contends that the common pleas court abused its
discretion in denying his motion for stay because its decision was based on
erroneous findings that he failed to establish unusual hardship or irreparable harm
and that he failed to demonstrate a substantial likelihood of success on the merits
on his appeal. Khemsara argues that he “more than sufficiently established” that he
would suffer unusual hardship and irreparable harm from operation of the Board’s
order pending the determination his appeal and that he further established that he
has a likelihood of success on the merits “as the * * * administrative decision was
arbitrary, unconstitutional, and unsupported by a preponderance of reliable and
probative evidence.” We disagree.
In support of his motion for stay, Khemsara submitted only a
conclusory affidavit in which he averred, generally, that he would “suffer damages
in money, time, inconvenience, lost and/or diminished business, lost and/or
diminished profit and revenue, lost and/or diminished clients/patients, likely
moving costs, damage to reputation and good standing in the community and
relevant industry, and/or other damages [or] injuries” or would “otherwise suffer
unusual hardship” if his veterinary license was revoked while his appeal was
pending. Khemsara also averred that the Board’s decision “failed to account for
crucial information and evidence” he had presented at the hearing and that it was
his “good faith belief” that he had “legitimate, procedural, and substantive grounds”
for challenging the Board’s decision, including lack of due process and proper notice
and because the Board’s decision was not supported by “reliable, probative, and
substantial evidence” and was “not in accordance with the law.” In his motion and
supporting affidavit, Khemsara did not provide any specific information in support
of his claims of unusual hardship and irreparable harm and did not explain, with
any detail or supporting evidence, why he believed he would prevail on appeal.2
Although Khemsara will no doubt suffer financial consequences as a
result of the revocation of his veterinary license, he has not shown that he will suffer
unusual hardship as required under R.C. 119.12(E). Khemsara, likewise, failed to
establish that he would sustain irreparable harm a result of the operation of the
Board’s order pending the determination of the appeal and did not show a
substantial likelihood of success on the merits of his appeal. See, e.g., Prince-Paul,
2015-Ohio-3984, 43 N.E.3d 13, at ¶ 14 (defining irreparable harm as ‘“an injury “for
the redress of which, after its occurrence, there could be no plain, adequate and
complete remedy at law, and for which restitution in specie (money) would be
impossible, difficult or incomplete’””), quoting Dimension Serv. Corp. v. First
Colonial Ins. Co., 10th Dist. Franklin No. 14AP-368, 2014-Ohio-5108, ¶ 12, quoting
Cleveland v. Cleveland Elec. Illum. Co., 115 Ohio App.3d 1, 12, 684 N.E.2d 343 (8th
Dist.1996). Further, given the findings against Khemsara in this case, including the
prior disciplinary action taken against him, there is a risk of harm to others if a stay
2 In his appellate brief, Khemsara points to the transcript of the administrative
hearing as evidence that the proceeding was “clearly a sham and predetermined pretext
to revoke [his] license.” However, because he did not make this argument in his motion
for stay below, we will not consider it here. The docket reflects that the transcript of the
administrative hearing was filed on September 27, 2021, approximately a week after
Khemsara filed his motion for stay, and several days before the common pleas court ruled
on the motion for stay.
was granted. See Bob Krihwan, 141 Ohio App.3d at 782, 753 N.E.2d 864 (“When
asked to stay an administrative order, courts give significant weight to the expertise
of the administrative agency, as well as to the public interest served by the proper
operation of the regulatory scheme.”), citing Hamlin Testing Labs, Inc. v. United
States Atomic Energy Comm., 337 F.2d 221 (1964).
Accordingly, based on the record before us, we cannot say that
common pleas court acted arbitrarily, unreasonably or unconscionably in denying
Khemsara’s motion for stay. Khemsara’s assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
It is ordered that a special mandate be sent to the Cuyahoga County Common
Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
________________________
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR