Campus Pitt Stop, L.L.C. v. Ohio Liquor Control Comm. ( 2014 )

[Cite as Campus Pitt Stop, L.L.C., v. Ohio Liquor Control Comm., 2014-Ohio-227.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Campus Pitt Stop, L.L.C., :
Appellant-Appellant, :
No. 13AP-622
v. : (C.P.C. No. 13CVF-1688)
Ohio Liquor Control Commission, : (REGULAR CALENDAR)
Appellee-Appellee. :
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D E C I S I O N
Rendered on January 23, 2014
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Nathan Gordon, for appellant.
Michael DeWine, Attorney General, and Michael Rzymek, for
appellee.
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APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Appellant, Campus Pitt Stop, L.L.C., appeals from a judgment of the
Franklin County Court of Common Pleas dismissing its administrative appeal of the
January 24, 2013 order of the Liquor Control Commission ("commission"). For the
following reasons, we affirm.
{¶ 2} On January 24, 2013, for a violation of unsanitary conditions on the
premises, the commission ordered revocation of appellant's liquor permit but gave
appellant the option to pay a $3,000 financial forfeiture to avoid revocation. On
February 6, 2013, appellant's counsel filed a motion for reconsideration with the
commission, which was denied.
{¶ 3} On February 14, 2013, acting pro se, Cindy Krieder and Bruce Taylor filed a
notice of appeal of the commission's order with the Franklin County Court of Common
Pleas. The notice of appeal argued that the order of the commission is not supported by
No. 13AP-622 2
reliable, probative, and substantial evidence and that the order is not in accordance with
law.
{¶ 4} The commission filed a motion to dismiss the appeal because Ms. Krieder
and Mr. Taylor had filed the appeal on behalf of appellant, a limited liability company.
The commission argued that Ohio law requires that a limited liability company must be
represented by an attorney. In support of its argument, it cited Disciplinary Counsel v.
Kafele, 108 Ohio St.3d 283, 2006-Ohio-904, and Cleveland Bar Assn. v. Pearlman, 106
Ohio St.3d 136, 2005-Ohio-4107.
{¶ 5} Four days after the commission filed its motion to dismiss, Attorney Nathan
Gordan entered an appearance on behalf of appellant. Attorney Gordon then filed a
memorandum contra. On behalf of appellant, he requested the motion be denied because:
(1) appellant was now represented by counsel; (2) the law does not prevent members of a
limited liability company from filing a notice of appeal; (3) the case law cited by the
commission was not on point; (4) the commission does not apply its position consistently
in that both limited liability companies and corporations are permitted to proceed without
an attorney if they admit to the charges; and (5) the record of the case will show appellant
did not receive notice of the hearing and was, therefore, not present at the hearing.
{¶ 6} On May 1, 2013, the commission filed a motion for judgment on the
pleadings arguing that the commission order was supported by reliable, probative, and
substantial evidence. The commission also noted appellant did not file a brief in support
of its appeal. Appellant filed a memorandum contra, noting the motion to dismiss was
still pending and again stating it never received notice of the hearing before the
commission.
{¶ 7} The court filed a decision on May 17, 2013, in which it granted the
commission's motion to dismiss. Appellant filed an objection, alleging the court's decision
had been ghost-written by a magistrate. On June 19, 2013, the court filed a judgment
entry in which it affirmed the commission's January 24, 2013 order for the reasons set
forth in the decision of the court rendered on May 17, 2013.
{¶ 8} On July 19, 2013, appellant, through counsel, filed a notice of appeal.
Appellant sets forth the following two assignments of error:
No. 13AP-622 3
I. THE COURT OF COMMON PLEAS ERRORED [SIC]
WHEN IT FOUND THAT THE ORDER OF THE LIQUOR
CONTROL COMMISSION WAS NOT SUPPORTED BY
RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE
AND WAS NOT IN ACCORDANCE WITH THE LAW.
II. THE DECISION OF THE FRANKLIN COUNTY COMMON
PLEAS COURT FAILED TO COMPLY WITH THE PRO-
VISIONS OF SECTION 119.12 OF THE OHIO REVISED
CODE.
{¶ 9} In the first assignment of error, appellant argues that it was never notified
of the hearing before the commission, and, therefore, the commission's decision is not
supported by reliable, probative, and substantial evidence. In its second assignment of
error, appellant argues that the law does not prevent non-lawyers from taking certain
actions on behalf of limited liability companies of which they are a member. Appellant
concedes that non-lawyers cannot engage in cross-examinations, arguments or other acts
of advocacy on behalf of a limited liability company. Nevertheless, appellant argues it is
not statutorily prevented from filing a notice of appeal.
{¶ 10} In D.L. Lack Corp. v. Liquor Control Comm., 191 Ohio App.3d 20, 2010-
Ohio-6172 (10th Dist.), this court stated:
Pursuant to R.C. 119.12, when a common pleas court reviews
an order of an administrative agency, the court must consider
the entire record to determine whether the agency's order is
supported by reliable, probative, and substantial evidence and
is in accordance with law. To be "reliable," evidence must be
dependable and true within a reasonable probability. Our
Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio
St.3d 570, 571, 589 N.E.2d 1303. To be "probative," evidence
must be relevant or, in other words, tend to prove the issue in
question. Id. To be "substantial," evidence must have some
weight; it must have importance and value. Id.In reviewing the record for reliable, probative, and substantial
evidence, the trial court " 'must appraise all the evidence as to
the credibility of the witnesses, the probative character of the
evidence, and the weight thereof.' " AmCare, Inc. v. Ohio
Dept. of Job & Family Servs., 161 Ohio App.3d 350, 2005-
Ohio-2714, 830 N.E.2d 406, ¶ 9, quoting Lies v. Ohio
Veterinary Med. Bd. (1981), 2 Ohio App.3d 204, 207, 2 OBR
223, 441 N.E.2d 584. In doing so, the trial court must give due
No. 13AP-622 4
deference to the administrative resolution of evidentiary
conflicts because the agency, as the fact-finder, is in the best
position to observe the manner and demeanor of the
witnesses. Univ. of Cincinnati v. Conrad (1980), 63 Ohio
St.2d 108, 111, 17 O.O.3d 65, 407 N.E.2d 1265.
Unlike a trial court, an appellate court may not review the
evidence. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d
619, 621, 614 N.E.2d 748. An appellate court is limited to
determining whether the trial court abused its discretion. Id.Absent such an abuse of discretion, an appellate court must
affirm the trial court's judgment, even if the appellate court
would have arrived at a different conclusion from the trial
court. Lorain City School Dist. Bd. of Edn. v. State Emp.
Relations Bd. (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d 264.
When reviewing the trial court's judgment as to whether an
agency's decision is in accordance with law, an appellate
court's review is plenary. Spitnagel v. State Bd. of Edn., 126
Ohio St.3d 174, 2010-Ohio-2715, 931 N.E.2d 1061, ¶ 14.
Id. at ¶ 7-9.
{¶ 11} Regarding the second assignment of error, we agree with appellant that
the cases cited by appellee in support of its motion to dismiss do not address the specific
issue of whether a non-lawyer may file a notice of appeal on behalf of a limited liability
corporation. Nevertheless, Kafele states that: "The practice of law is not limited to
appearances in court. It also embraces the preparation of papers that are to be filed in
court on another's behalf and that are otherwise incident to a lawsuit." Id. at ¶ 15. The
court concluded that by preparing legal papers to be filed in court on behalf of a limited
liability corporation, the respondent had engaged in the unauthorized practice of law.
{¶ 12} R.C. 1925.17 states:
A corporation which is a real party in interest in any action in
a small claims division may commence such an action and
appear therein through an attorney at law. Such a corporation
may, through any bona fide officer or salaried employee, file
and present its claim or defense in any action in a small claims
division arising from a claim based on a contract to which the
corporation is an original party or any other claim to which
the corporation is an original claimant, provided such
corporation does not, in the absence of representation by an
attorney at law, engage in cross-examination, argument, or
other acts of advocacy.
No. 13AP-622 5
{¶ 13} Construing R.C. 1925.17, the Eleventh District Court of Appeals in Gass v.
Headlands Contracting & Tunnelling, Inc., 11th Dist. No. 2008-G-2841, 2008-Ohio-
6057, dismissed a notice of appeal that had been filed by a non-lawyer member of a
limited liability company. In Gass, H. Stanley Gass filed a notice of appeal from a
judgment of the Geauga County Court of Common Pleas. Mr. Gass filed the appeal "d.b.a.
Adept Contractor Services LLC, pro se." The appellee filed a motion to dismiss, arguing
that the appellant, as a limited liability company, is prohibited from representing itself
pro se in the appeal. The court noted its prior precedent "that pursuant to R.C. 1925.17,
outside of small claims court, an individual, including a corporate officer, who is not an
attorney, may not appear in court or maintain litigation in propria persona on behalf of a
corporation." Id. at ¶ 5. On this basis, the court ruled that Mr. Gass, a non-attorney,
lacked standing to appeal the judgment entered against the appellant. We likewise find
Ms. Krieder and Mr. Taylor could not appeal the judgment against appellant.
Accordingly, we overrule appellant's second assignment of error.
{¶ 14} Appellant argues that R.C. 1925.17 is unconstitutional. We decline to
address this argument as it was never raised before the commission, nor addressed by the
common pleas court and, thus, appellant has waived the issue. As stated by this court in
Harr v. Jackson Twp., 10th Dist. No. 10AP-1060, 2012-Ohio-2030:
"A party generally waives the right to appeal an issue that
could have been raised, but was not raised, in earlier
proceedings." Trish's Café & Catering, Inc. v. Ohio Dept. of
Health, 195 Ohio App.3d 612, 2011-Ohio-3304, 961 N.E.2d
236, 2011-Ohio-3304, 961 N.E.2d 236, ¶ 19 (10th Dist.), citing
MacConnell v. Ohio Dept. of Commerce, 10th Dist. No. 04AP-
433, 2005-Ohio-1960, ¶ 21. Generally, a reviewing court does
not consider questions not presented to the court whose
judgment is sought to be reversed. McBroom v. Dickerson,
10th Dist. No. 11AP-601, 2012-Ohio-377, ¶ 11, citing State ex
rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81, 679
N.E.2d 706 (1997). Furthermore, a party who fails to raise an
argument below waives his right to raise it on appeal.
McBroom at ¶ 11, citing Zollner v. Indus. Comm., 66 Ohio
St.3d 276, 278, 611 N.E.2d 830 (1993).
Id. at ¶ 32.
No. 13AP-622 6
{¶ 15} For the same reasons outlined in the paragraph above, we also decline to
address appellant's first assignment of error, as the issue of service was never raised
before the commission itself, nor addressed by the common pleas court. Accordingly, we
overrule appellant's first assignment of error.
{¶ 16} For the foregoing reasons, we overrule both of appellant's assignments of
error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER, P.J., and McCORMAC, J., concur.
McCORMAC, J., retired, of the Tenth Appellate District,
assigned to active duty under the authority of the Ohio
Constitution, Article IV, Section 6(C).
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