[Cite as O’Connor v. Exel, Inc., 2009-Ohio-6867.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY



SEAN J. O'CONNOR,                                      CASE NO. 1-09-31

   APPELLEE,

  v.

EXEL, INC., ET AL.,

   APPELLEES,                                             OPINION

  and

DIRECTOR, OHIO DEPARTMENT
OF JOB & FAMILY SERVICES,

   APPELLANT.



                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV 2008 1179

       Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                          Date of Decision: December 28, 2009




APPEARANCES:

        Eric A. Baum for Appellant

        C. Bradford Kelley for Appellee Sean J. O’Connor
Case No. 1-09-31




       WILLAMOWSKI, J.

       {¶1} Appellant Ohio Department of Job and Family Services (“ODJFS”)

brings this appeal from the judgment of the Court of Common Pleas reversing the

judgment of the Unemployment Review Commission denying benefits to Appellee

Sean J. O’Connor (“O’Connor”). For the reasons set forth below, the judgment is

affirmed in part and reversed in part.

       {¶2} From April 8, 2003, until February 12, 2008, O’Connor was

employed by Exel, Inc. (“Exel”) as a forklift operator/mechanic. Exel terminated

O’Connor for allegedly working unauthorized overtime. On February 14, 2008,

O’Connor filed a claim for unemployment compensation.           The claim was

approved by ODJFS on March 6, 2008. Exel filed for reconsideration. On April

16, 2008, the Director of ODJFS issued a decision affirming the prior decision.

Exel appealed and a telephone hearing was held on June 2, 2008. The Board of

Review Commission then reversed the prior decisions and denied benefits to

O’Connor. O’Connor filed his notice of appeal with the trial court on July 30,

2008. The transcript from the hearing was filed with the trial court on September

8, 2008.

       {¶3} On January 9, 2009, the trial court found that the record was

insufficient to support the judgment of the Commission and remanded the matter

to the commission for an additional hearing.         This order instructed the


                                         -2-
Case No. 1-09-31


Commission to determine whether the overtime was authorized by the prior

supervisor, to examine O’Connor’s prior W-2s and paycheck stubs, and to prepare

a transcript of the hearing and file it in the trial court. The Commission held a

second hearing on March 5, 2009. On May 1, 2009, the trial court entered an

order for the commision to file the transcript and to issue a decision based on the

additional evidence. On May 20, 2009, the trial court issued its final judgment on

the matter and reversed the earlier judgment of the Commission as being against

the manifest weight of the evidence. The ODJFS appeals from this judgment and

raises the following assignments of error.

                            First Assignment of Error

       In an unemployment-compensation administrative appeal, the
       common pleas court may reverse, vacate or modify the decision
       of the unemployment compensation review commission or
       remand the matter for further proceedings, but it may do so
       only if it first finds that the commission’s decision was
       “unlawful, unreasonable, or against the manifest weight of the
       evidence.” Here, the trial court erred by remanding the matter
       to the commission for additional evidence without making this
       requisite finding.

                           Second Assignment of Error

       In an unemployment-compensation administrative appeal, the
       common pleas court is limited to a review of the certified record
       provided by the unemployment compensation review
       commission. The court may remand the matter for additional
       evidence only if that evidence was proffered before the review
       commission. Here, the trial court erred by remanding the
       matter for the inclusion of testimony, w-2 wage statements and
       paycheck stubs that were never proffered in the administrative
       proceedings.


                                        -3-
Case No. 1-09-31



                          Third Assignment of Error

       A common pleas court may review only a final decision from the
       unemployment compensation review commission. Here, the
       trial court remanded the matter for a second hearing.
       Additional evidence. (sic) Before the commission could issue a
       final decision, however, the trial court issued a decision
       reversing the commission. The trial court erred in issuing that
       decision before the commission issued its final decision.

      {¶4} In the first and second assignments of error, ODJFS alleges that the

trial court erred in remanding the matter to the Commission for a second hearing.

The Supreme Court of Ohio has held that common pleas courts reviewing an

administrative decision may remand the cause for further proceedings, including a

new hearing. State ex rel. Village of Chagrin Falls v. Geauga County Bd. Of

Commrs., 96 Ohio St.3d 400, 2002-Ohio-4906, 775 N.E.2d 512. “This court

holds that the power to reverse and vacate decisions necessarily includes the

power to remand the cause to the decision maker.” Superior Metal Products, Inc.

v. Admr., Ohio Bur. of Emp. Serv., et al. (1975), 41 Ohio St.2d 143, 146, 324

N.E.2d 179, reaffirmed by Chagrin Falls, supra. This includes the authority to

remand for further findings of fact. Greer v. Director of Job and Family Serv.,

171 Ohio App.3d 197, 2007-Ohio-1668, 870 N.E.2d 207.

      {¶5} In the first assignment of error, ODJFS argues that the judgment of

the trial court remanding the matter to the commission was improper because it

did not specifically find that the commission abused its discretion. A review of



                                       -4-
Case No. 1-09-31


the judgment indicates that the trial court found that there was insufficient

evidence upon which the trial court could reach a decision. Although the trial

court did not expressly state that the judgment was unlawful, unreasonable or

against the manifest weight of the evidence, “it is nonetheless apparent from the

court’s decision and other parts of the record that the court implicitly made this

finding.” Warren Cty. Auditor v. Sexton, 12th Dist. No. CA2006-10-124, 2007-

Ohio-7081, ¶20. Like the trial court in Warren, the trial court in this case clearly

set forth the correct standard of review before reaching its decision. Thus, the

finding by the trial court that the record lacked sufficient evidence from which a

decision could be made is essentially a finding that the judgment was

unreasonable.1 Since the trial court’s judgment remanding the matter for further

findings was permitted by law, the first assignment of error is overruled.

        {¶6} ODJFS alleges in the second assignment of error that the trial court

cannot remand the matter for additional evidence because the evidence was not

proffered at the hearing and relies upon a holding in Manno v. Bendix, Warner &

Swasey (June 26, 1986), Cuyahoga App. No. 50716. In Manno, the appellate

court determined that the trial court could not consider evidence about length of

service because the appellant raised new facts on appeal which were not

previously raised.


1
    This court notes that ODJFS should be happy that the trial court remanded the matter for additional
findings. The trial court could have just found that the decision was not supported by sufficient evidence
and reversed the judgment instead of giving ODJFS a second chance.


                                                   -5-
Case No. 1-09-31


       {¶7} A review of the record in this case indicates that the issues for the

remand were raised at the prior hearing. At the hearing, O’Connor was not

represented by counsel and the majority of the questioning was conducted by the

hearing officer. O’Connor testified that he had been given continuing permission

to work overtime by his prior supervisor.         This claim was not disputed.

Additionally, he testified that he had consistently worked overtime without

objection from the employer. This claim also was not disputed. These issues

were not discussed by the hearing officer in its judgment. Thus, the matter was

raised by O’Connor and could be raised on appeal. The second assignment of

error is overruled.

       {¶8} Finally, ODJFS argues in the third assignment of error that the trial

court erred in entering its judgment before allowing the Commission to enter a

new judgment on remand.          Once a matter has been remanded to the

Administrative Agency for further action, the original decision is reversed and

vacated. Superior Metal, supra at 146. A trial court’s remand “effectuates a

revival of jurisdiction over a cause which may enable the subordinate tribunal or

administrative body to conduct further proceedings and to render a new decision.”

Id. The effect is to make the original decision a nullity. Id. Thus, until the

Commission has entered a new decision and an appeal has been taken from that

decision, there is no judgment for the trial court, in its capacity as an appellate




                                        -6-
Case No. 1-09-31


court of the administrative decision, to review.2 Since the trial court in this case

reversed the judgment of the Commission and remanded the matter for a new

hearing, the trial court did not have jurisdiction to enter its judgment until the

Commission entered a new judgment and a new appeal was taken. Therefore, the

third assignment of error is well taken.

        {¶9} The judgment of the Court of Common Pleas of Allen County is

affirmed in part, reversed in part, and the matter is remanded for further

proceedings in accord with this opinion.

                                                                Judgment Affirmed in Part,
                                                     Reversed in Part and Cause Remanded

PRESTON, P.J., and SHAW, J., concur.
/jnc




2
    This court notes that a reversal on this issue does not mean that the Commission’s original judgment
stands. To the contrary, that judgment was vacated by the remand and has effectively been reversed. This
court makes no decision on the merits of the case and the judgment reached prematurely by the trial court.


                                                   -7-
