Ohio Board of Pharmacy v. Evankovich

[Cite as Ohio Bd. of Pharmacy v. Evankovich, 194 Ohio App. 3d 686, 2011-Ohio-3172.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
OHIO BOARD OF PHARMACY )
) CASE NO. 10 MA 153
APPELLEE, )
)
v. ) OPINION
)
EVANKOVICH, )
)
APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 09CV4708.
JUDGMENT: Reversed and Remanded.
APPEARANCES:
Michael DeWine, Attorney General, and Tracy Greuel, Assistant Attorney
General, for appellee.
Michael McGee and Matthew Vansuch; and Harry Reinhart, for appellant.
JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: June 21, 2011
VUKOVICH, Judge.
{¶ 1} Appellant Gary Evankovich appeals the decision of the Mahoning County
Common Pleas Court dismissing his administrative appeal of his pharmacist license
revocation for lack of jurisdiction. Evankovich argues five separate contentions as to
why the common pleas court erred in dismissing the administrative appeal. First, he
contends that appellee the Ohio Board of Pharmacy did not have jurisdiction to
prosecute Evankovich because the statutes and administrative code sections that he
allegedly violated were allegedly not validly enacted. Second, he contends that R.C.
119.07’s requirement that a hearing must be held not less than seven days but not
more than 15 days after the request was violated. Third, Evankovich contends that his
due-process rights were violated when attorney Rowland, the board’s legal-affairs
administrator, was present and did not permit him to offer his argument to the board
regarding his position that the statutes and codes were not validly enacted. Fourth, he
contends that the board’s order is not a final, appealable order because it did not
adjudicate all of the charges brought against him. Last, he contends that the notice of
appeal did comply with R.C. 119.12 and, thus, properly invoked the jurisdiction of the
common pleas court.
{¶ 2} The board counters the above by concentrating on the fifth argument. It
contends that while the notice of appeal was timely, it did not comply with R.C. 119.12.
Specifically, according to the board, the notice of appeal did not identify any specific
legal or factual errors, nor did it recite the standard of review as it contends is required
by the language of R.C. 119.12. According to the board, the remaining four arguments
concerning the propriety of the underlying administrative proceeding are irrelevant
because the common pleas court’s jurisdiction to decide those issues was never
properly invoked.
{¶ 3} We agree with the board that our review is limited to the trial court’s
finding that the notice of appeal did not comply with R.C. 119.12. Therefore, we will
not address Evankovich’s first four arguments. However, we find that Evankovich’s
fifth argument has merit. The language of R.C. 119.12 requires the notice of appeal to
contain a statement that “the agency's order is not supported by reliable, probative,
and substantial evidence and is not in accordance with law.” The notice of appeal in
this case does not contain such a statement. However, considering statements made
by the Ohio Supreme Court in Medcorp, Inc. v. Ohio Dept. of Job & Family Servs., 121
Ohio St. 3d 622, 2009-Ohio-2058, and a legislative enactment subsequent thereto, we
hold that the notice of appeal in and of itself is an affirmative statement of the statutory
standard of review. Thus, we find that the notice of appeal complied with the current
statutory requirements. To find otherwise serves no purpose and flies in the face of the
legislative purpose in amending R.C. 119.12.
{¶ 4} Therefore, we find that the sole assignment of error has merit. The
decision of the common pleas court is reversed, and the matter is remanded for the
appeal to proceed.
STATEMENT OF CASE
{¶ 5} On December 9, 2009, the board issued an order revoking Evankovich’s
pharmacy license. On December 14, 2009, Evankovich filed a notice of appeal. About
a month after the notice of appeal was filed, the board filed a motion to dismiss based
on lack of jurisdiction. The motion specifically indicated that while the notice was
timely, it did not comply with R.C. 119.12 because it did not set forth the grounds of
Evankovich’s appeal and the language in the notice of appeal was devoid of any
allegation of legal or factual errors that occurred in the administrative proceedings.
{¶ 6} Evankovich responded to the motion to dismiss, raising arguments that
went to the heart of the appeal, i.e., whether the administrative body had the authority
to revoke his license on the basis that it did. Evankovich claimed that the “arguments
concerning the adequacy of Appellant’s notice of appeal are secondary to the fact that
it cannot cure the statutory defect that riddled its prosecution of” Evankovich. This
motion did not address whether the notice of appeal complied with R.C. 119.12. Three
months later, Evankovich filed a merit brief. Once again, Evankovich made merit
arguments; however, he also included an argument that the notice of appeal
adequately complied with R.C. 119.12.
{¶ 7} On July 2, 2010, the magistrate issued its decision and granted the
motion to dismiss based on lack of jurisdiction for failing to comply with R.C. 119.12.
Specifically, it indicated that the notice of appeal did not set forth any grounds for the
appeal. Evankovich objected to that decision, filed a brief in support of his objections,
filed an amended notice of appeal that set forth grounds for the appeal, and filed a
motion for reconsideration of the magistrate’s July 2, 2010 decision.
{¶ 8} The magistrate denied the motion for reconsideration, deemed the
amended notice of appeal untimely, and once again indicated that the original notice of
appeal did not set forth any grounds for the appeal in violation of R.C. 119.12.
Evankovich objected to the magistrate’s decision.
{¶ 9} After reviewing both of the magistrate’s decisions and the objections to
those decisions, the trial court granted the motion to dismiss. It stated:
{¶ 10} “[T]he Motion to Dismiss filed by Appellee, Ohio State Board of
Pharmacy is granted. Appellant’s July 19, 2010 Amended Notice of Appeal of the
December 9, 2009, Order of the Ohio State Board of Pharmacy is untimely.
{¶ 11} “Appellant failed to set forth any grounds for his appeal within his notice
of appeal of the Order of December 9, 2009, as required by R.C. 119.12. Therefore,
this Court lacks jurisdiction to consider Appellant’s appeal. See Medcorp, Inc. v. Ohio
Dept. of Job & Family Services (2009), 121 Ohio St. 3d 622; Zier v. Bureau of
Unemployment Compensation (1949), 151 Ohio St. 123.
{¶ 12} “The appeal is dismissed for lack of jurisdiction.”
ASSIGNMENT OF ERROR
{¶ 13} “The trial court erred to the prejudice of appellant Gary Evankovich by
adopting the magistrate’s decision that granted the appellee Ohio State Board of
Pharmacy’s motion to dismiss.”
{¶ 14} A motion challenging a court's subject-matter jurisdiction inherently
raises a question of law, which is reviewed independently without deference to a trial
court's determination. In re Campbell, 7th Dist. No. 05MA10, 2006-Ohio-1764, ¶ 7.
Consequently, we review a trial court’s determination on subject-matter jurisdiction
under a de novo standard of review. Fifth Third Bank, N.A. v. Maple Leaf Expansion,
Inc., 188 Ohio App. 3d 27, 2010-Ohio-1537, ¶ 10.
{¶ 15} As aforementioned, the common pleas court dismissed the appeal for
lack of jurisdiction because the notice of appeal did not comply with R.C. 119.12.
Although Evankovich made five separate arguments in his appellate brief, only the fifth
argument addresses whether the notice of appeal complies with R.C. 119.12. The first
three arguments are merit arguments that address the propriety of the administrative
proceedings. In the fourth argument, he contends that the order he appealed from is
not a final, appealable order.
{¶ 16} Those first four arguments will not be addressed by this court because
our review is solely limited to the common pleas court’s determination of jurisdiction
based on the notice of appeal complying with R.C. 119.12. In order for the common
pleas court to have the authority to address those four arguments, its jurisdiction had
to be properly invoked under R.C. 119.12. It has previously been explained that when
a statute confers the right to appeal, an appeal can be perfected only in the mode
prescribed by that statute. Ramsdell v. Ohio Civ. Rights Comm. (1990), 56 Ohio St. 3d
24, 27. Consequently, R.C. 119.12’s requirements must be met in order to invoke the
common pleas court’s jurisdiction to review the administrative order. Thus, any
argument or insinuation that the adequacy of the notice of appeal is secondary to any
alleged errors that occurred during the administrative proceedings is incorrect.
{¶ 17} Furthermore, pursuant to R.C. 119.12, the common pleas court’s review
of an order of an administrative agency is limited to whether the agency's order is
supported by reliable, probative, and substantial evidence and is in accordance with
law. Our review of a common pleas court’s determination under that standard of
review is even more limited because we cannot review the evidence. Pons v. Ohio
State Med. Bd. (1993), 66 Ohio St. 3d 619, 621. We review the common pleas court’s
decision for an abuse of discretion. Id. Consequently, because there is no ruling by
the common pleas court on the first four arguments raised, and our review of any merit
ruling is limited to whether the common pleas court abused its discretion, we cannot
usurp the common pleas court’s role to review the merit arguments to determine
whether the administrative order is supported by reliable, probative, and substantial
evidence and is in accordance with law.
{¶ 18} Therefore, because we cannot review the first four arguments, our
analysis turns to the heart of the appeal: whether the notice of appeal invoked the
common pleas court’s jurisdiction to review the administrative order.
{¶ 19} As previously indicated, in order to invoke the common pleas court’s
jurisdiction over the administrative appeal, Evankovich had to comply with R.C.
119.12. The current version states:
{¶ 20} “Any party desiring to appeal shall file a notice of appeal with the agency
setting forth the order appealed from and stating that the agency's order is not
supported by reliable, probative, and substantial evidence and is not in accordance
with law. The notice of appeal may, but need not, set forth the specific grounds of the
party's appeal beyond the statement that the agency's order is not supported by
reliable, probative, and substantial evidence and is not in accordance with law. * * *
The amendments made to this paragraph by Sub. H.B. 215 of the 128th general
assembly are procedural, and this paragraph as amended by those amendments shall
be applied retrospectively to all appeals pursuant to this paragraph filed before the
effective date of those amendments but not earlier than May 7, 2009, which was the
date the supreme court of Ohio released its opinion and judgment in Medcorp, Inc. v.
Ohio Dep't. of Job and Family Servs. (2009), 121 Ohio St. 3d 622.”
{¶ 21} The notice of appeal in this matter was filed in December 2009, prior to
the September 13, 2010 effective date of this statute. However, pursuant to the
retroactive language of this statute, this version is applicable to Evankovich.
{¶ 22} The Ohio Supreme Court has stated that when construing a statute, we
must first examine its plain language and apply the statute as written when the
meaning is clear and unambiguous. Medcorp, 121 Ohio St. 3d 622, 2009-Ohio-2058, ¶
9 (dealing specifically with the construction of R.C. 119.12). “The words used must be
afforded their usual, normal, and/or customary meanings.” Id.
{¶ 23} When the words in the statute are given their ordinary meaning, the
statute requires the notice of appeal to contain two things. First, an indication of the
order appealed from, and second, a statement that the agency's order is not supported
by reliable, probative, and substantial evidence and is not in accordance with law. The
second requirement is a recitation of the statutory standard of review for the
administrative appeal that is found in R.C. 119.12.
{¶ 24} Evankovich’s December 14, 2009 notice of appeal stated:
{¶ 25} “Now comes GARY EVANKOVICH, Rh.P., Pharmacy License Number
03-2-13226, and hereby gives NOTICE of his APPEAL of the order of the Ohio State
Board of Pharmacy on or about December 1, 2009 revoking his license to practice
pharmacy, and all other actions taken by the Board against him as a result of the
hearings held on September 14-15, October 7, and November 4, 2009. This APPEAL
is taken pursuant to O.R.C. §119.02 to the MAHONING COUNTY COURT OF
COMMON PLEAS, being the county in which the place of business of the licensee is
located and the county in which the licensee is a resident.” (Boldface and
capitalization sic.)
{¶ 26} Clearly, this notice does not state that the order is not supported by
reliable, probative, and substantial evidence and that it is not in accordance with law.
The notice, at most, refers to the order Evankovich is appealing from and states that
the appeal is taken pursuant to R.C. 119.12.
{¶ 27} When considering a notice of appeal that similarly lacked a recitation of
the statutory standard of review, our sister district found that under the current version
of R.C. 119.12, the common pleas court’s jurisdiction was not properly invoked.
Foreman v. Lucas Cty. Court of Common Pleas, 189 Ohio App. 3d 678, 2010-Ohio-
4731. It explained:
{¶ 28} “The amended statute requires an appellant's notice of appeal to, at
least, state that ‘the agency's order is not supported by reliable, probative, and
substantial evidence and is not in accordance with law,’ even while eliminating the
requirement of any specificity ‘beyond [that] statement.’ Foreman's notice of appeal,
by contrast, states only that she ‘bases her appeal on issues of fact and law.’ The
recent amendments to R.C. 119.12 do not alter the necessity for strict adherence to
the statutory requirements to invoke the trial court's jurisdiction over an administrative
appeal. Thus, we conclude that even under the amended statute, Foreman's notice of
appeal was insufficient under R.C. 119.12 and that the trial court lacked subject-matter
jurisdiction to hear Foreman's appeal.” Id. at ¶ 15.
{¶ 29} In rendering its decision, the Tenth Appellate District acknowledged that
the amendments to R.C. 119.12 were made by the General Assembly to relax the
requirements for the contents of the notice of appeal. Id. We agree with the Tenth
Appellate District that the new version of the statute relaxes the requirements for the
notice of appeal. The amendments specifically refer to the Ohio Supreme Court’s
decision in Medcorp and make the amendments retroactive to the date of the Medcorp
decision. In Medcorp, the court held that a statement in the notice of appeal that the
administrative decision “is not in accordance with law and is not supported by reliable,
probative and substantial evidence” was merely a recitation of the standard of review
the common pleas court employs in reviewing the administrative order and, as such,
was not sufficient to meet the previous version of R.C. 119.12 that required the notice
of appeal to contain the grounds for the appeal. Medcorp, 121 Ohio St. 3d 622, 2009-
Ohio-2058, ¶ 1-9. The court determined that the notice of appeal was required to
specify legal and/or factual reasons why it was appealing. Id. at ¶ 11. An appellant
was required to “designate the explicit objection they are raising to the administrative
agency's order, much in the same way that appellants in a court of appeals must
assert specific legal arguments in the form of assignments of error and issues for
review, * * *, and appellants in [the Ohio Supreme Court] must advance propositions of
law * * *.” Id.
{¶ 30} That said, we disagree with our sister district’s conclusion that the notice
of appeal must be dismissed if it does not state the statutory standard of review. The
Ohio Supreme Court made the following statement in Medcorp:
{¶ 31} “When a party files an appeal from an order of an administrative agency,
it is already making an affirmative statement that it believes that the underlying order
‘is not supported by reliable, probative, and substantial evidence, and/or is not in
accordance with law’ because it must meet that standard to succeed on appeal under
the plain language of R.C. 119.12. If we were to adopt Medcorp's position [that a
recitation of the statutory standard of review is sufficient to constitute grounds for the
appeal], those same, general words could be used in virtually every appeal from an
administrative agency filed pursuant to the statute.” Id. at ¶ 14.
{¶ 32} Furthermore, the Ohio Supreme Court has consistently indicated that the
purpose of a notice of appeal is to inform the opposing party of the taking of an appeal.
Welsh Dev. Co. v. Warren Cty. Regional Planning Comm., 128 Ohio St. 3d 471, 2011-
Ohio-1604, ¶ 29 (deciding what the word “filed” in R.C. 2505.04 meant), citing Maritime
Mfrs., Inc. v. Hi-Skipper Marina (1982), 70 Ohio St. 2d 257, 259; Wells v. Chrysler
Corp. (1984), 15 Ohio St. 3d 21, 24 (holding that the purpose of a notice of appeal is to
set forth the names of the parties and to advise those parties that an appeal of a
particular claim is forthcoming); Couk v. Ocean Acc. & Guar. Corp. (1941), 138 Ohio
St. 110, 116, quoting Capital Loan & Sav. Co. v. Biery (1938), 134 Ohio St. 333, 339
(“the purpose of the notice of appeal is ‘to apprise the opposite party of the taking of
an appeal.’ If this is done beyond danger of reasonable misunderstanding, the
purpose of the notice of appeal is accomplished”).
{¶ 33} Likewise, it must be noted that the General Assembly referred to the
Medcorp decision in its amendments to R.C. 119.12. The effect of the amendments
clearly was to relax the requirements for the notice of appeal. Thus, the purpose of
the legislature’s relaxation of R.C. 119.12 was to make it easier to appeal the
administrative decision, not to make an additional less onerous requirement for the
appealing party.
{¶ 34} Thus, considering all the above, we find that the notice of appeal
properly invoked the trial court’s jurisdiction; the notice of appeal complied with R.C.
119.12. The notice of appeal in and of itself is an affirmative statement that the party
believes that the order it is appealing is not supported by reliable, probative, and
substantial evidence and is not in accordance with law. Any requirement to make a
written statement of the standard of review in the notice of appeal is superfluous.
{¶ 35} Moreover, dismissing the appeal because the notice of appeal fails to
state the statutory standard leads to an absurd and unreasonable result. R.C. 1.47(C)
states that “[i[n enacting a statute, it is presumed that * * * [a] just and reasonable
result is intended.” Likewise, the Ohio Supreme Court has consistently indicated that it
“ ‘is a cardinal rule of statutory construction that a statute should not be interpreted to
yield an absurd result’ .” Elston v. Howland Local Schools, 113 Ohio St. 3d 314, 2007-
Ohio-2070, ¶ 25, quoting Mishr v. Bd. of zoning Appeals (1996), 76 Ohio St. 3d 238,
667 N.E.2d 365. See also State v. Cabrales, 118 Ohio St. 3d 54, 2008-Ohio-1625, ¶
20; State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio St. 3d 262, 2005-Ohio-
6432.
{¶ 36} Consequently, the sole assignment of error has merit. The judgment of
the trial court is hereby reversed, and the matter is remanded for the appeal to
proceed.
{¶ 37} In rendering our ruling, we acknowledge that our decision is in direct
conflict with the Tenth Appellate District’s decision in Foreman,.189 Ohio App. 3d 678,
2010-Ohio-4731. Consequently, pursuant to Section 3(B)(4), Article IV of the Ohio
Constitution, we certify the following question to the Ohio Supreme Court:
{¶ 38} “To invoke the common pleas court’s jurisdiction over an administrative
appeal, does the current version of R.C. 119.12 require the appealing party to state in
the notice the statutory standard of review? Or does the notice of appeal in and of
itself provide a sufficient indication of that standard and thus, meet the requirements of
R.C. 119.12?”
Judgment accordingly.
WAITE, P.J., and DEGENARO, J., concur.
_______________________