[Cite as Brenneman v. Allen Cty. Bd. of Commrs., 196 Ohio App.3d 60, 2011-Ohio-4032.]




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




BRENNEMAN ET AL.,

        APPELLANTS,                                              CASE NO. 1-11-03

        v.

ALLEN COUNTY BOARD OF
COMMISSIONERS,                                                   OPINION

        APPELLEE.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV 2009 0715

                      Judgment Reversed and Cause Remanded

                           Date of Decision: August 15, 2011




APPEARANCES:

        Michael A. Rumer and Victoria Maisch Rumer. for appellants.

        Gregory M. Antalis, for appellee.
       SHAW, Judge.

       {¶ 1} Appellants, Stanley and Kim Brenneman, appeal the December 20,

2010 judgment of the Common Pleas Court of Allen County, Ohio, affirming the

decision of appellee, the Allen County Board of Commissioners, and dismissing

their appeal.

       {¶ 2} On March 18, 2009, the Allen Soil and Water Conservation District

held an informational meeting for a proposed drainage project known as the

Nicholas Wrasman Group #1268 Project (“the Wrasman project”) located in

Marion Township, Allen County.         After this meeting, the Soil and Water

Conservation District determined that the Wrasman project was necessary and

conducive to the public welfare, and it requested approval for the project from the

board as required by R.C. 1515.19. On April 22, 2009, the board concurred with

the recommendation of the Soil and Water Conservation District and approved the

project.

       {¶ 3} Thereafter, the property owners affected by the Wrasman project

were provided notice, pursuant to R.C. 1515.24(D)(1), of their estimated

assessments and informed that if they had concerns about the proposed project,

they could write a letter of objection within 30 days to the board.        Several

landowners, including the Brennemans, filed letters with the board to express their

concerns about the Wrasman project.           These concerns largely involved the

estimated assessments and the cost of the project.


                                        -2-
        {¶ 4} In accordance with R.C. 1515.24(D)(2), the board conducted a final

hearing on the objections on June 25, 2009. At the conclusion of the hearing, the

board once again approved the Wrasman project and established a schedule for the

collection of assessments.             On July 1, 2009, the board made a number of

adjustments to the assessment schedule in recognition of four parcels of property

that had been improperly assessed, which resulted in increased assessments to the

other parcels of land affected by the Wrasman project.

        {¶ 5} On July 16, 2009, the Brennemans, pro se, filed a notice of appeal in

the Allen County Common Pleas Court, asserting that the board had accepted the

improvements to the Wrasman project on July 1, 2009, but had not equitably

treated the landowners of the Wrasman project and had not acted in accordance

with law. The Brennemans subsequently obtained counsel in October 2009 and

amended their notice of appeal.1                   In their amended notice of appeal, the

Brennemans specifically challenged both the decision to accept the Wrasman

project and the assessments levied against the property owners affected by the

Wrasman project.

        {¶ 6} On January 22, 2010, the board filed a motion to dismiss the

Brennemans’ appeal for failure to perfect the appeal as required by law because

the Brennemans had not posted the necessary bond. Thereafter, the common pleas

court filed an order that provided a date by which the Brennemans were to respond

1
  This amendment notes that the common pleas court granted the Brennemans leave to amend at an October
16, 2009 pretrial. The record does not contain any entry granting this leave, but the board has not disputed
that the leave was granted by the court.

                                                    -3-
to this motion. The records from the board concerning the Wrasman project were

filed in the action on January 26, 2010.                        These records contained an audio

recording of the public hearing concerning the Wrasman project on June 25, 2009,

nine letters from various landowners concerning this project, the board resolutions

from April 22, June 25, and July 1, 2009, a request from the Brennemans’ counsel

for these records, and an e-mail from Dan Ellerbrock to Bruce Wells regarding the

Wrasman project and the estimated costs.2

           {¶ 7} The Brennemans filed a response to the board’s motion to dismiss on

February 1, 2010. They asserted that their appeal was made pursuant to R.C.

1515.24, which involves improvements initiated by the county soil and water

conservation district. The Brennemans further asserted that R.C. 1515.01 et seq.

did not require an appeal bond for appeals arising under this chapter of the

Revised Code. Thus, they maintained that because the Wrasman project was

initiated by the county soil and water conservation district, they did not need to

post an appeal bond. On February 16, 2010, after the board filed its reply to the

Brennemans, the common pleas court overruled the board’s motion to dismiss.

           {¶ 8} On July 15, 2010, the common pleas court filed another pretrial

order. In this order, the court stated: “This case involves the interpretation of

O.R.C. 1515.24(D) and the manner in which it provides for objections to

assessments. Specifically: Does it mean that an individual can object only to



2
    This record also contained a notice of a pretrial that was scheduled for October 16, 2009.

                                                       -4-
his/her individual assessment?      Or can an individual object to the total

assessment?” The court then stated, “Based upon the above, and the issues in

CV2010 0164, the August 19, 2010 Trial is vacated and this matter is continued

until a decision is rendered in CV2010 0164.” Five months later, on December

20, 2010, the court found as follows:

           The Court in a related matter, CV 2010 0164, filed an order
      affirming the decision of Appellee Allen County Board of
      Commissioners and thereby dismissing Appellant Stan Brenneman’s
      appeal. (Doc. # 13 in CV 2010 0164).
           For purposes of the present matter, this Court now adopts the
      Order from the related matter and attaches the same as “Exhibit A.”
      As such, the Court hereby AFFIRMS the decision from the board
      below and DISMISSES Appellant’s Notice of Appeal in CV 2009
      0715.

This appeal followed, and the Brennemans now assert three assignments of error

for our review.

                          ASSIGNMENT OF ERROR I

             The trial court erred, abused its discretion, and denied
      appellants due process of law when the trial court failed to conduct a
      hearing pursuant to R.C. 2506.03 on the administrative appeal.

                          ASSIGNMENT OF ERROR II

            The trial court erred when it utilized the administrative record
      from an unrelated second case to decide the instant case.

                         ASSIGNMENT OF ERROR III

             The trial court erred when it failed to determine the
      administrative order appealed from was based upon substantial,
      reliable and probative evidence after a consideration of the entire
      record as required by R.C. 2506.04.


                                        -5-
       {¶ 9} For ease of discussion, we elect to address these three assignments

of error together.   The Revised Code provides that property owners “whose

objections [are] not allowed may appeal within thirty days to the court of common

pleas.” R.C. 1515.24(D)(3). Further, R.C. 2506.01(A) states that “every final

order, adjudication, or decision of any * * * board * * * of any political

subdivision of the state may be reviewed by the court of common pleas of the

county in which the principal office of the political subdivision is located.”

       {¶ 10} The Revised Code also provides that an appeal to the court of

common pleas “shall proceed as in the trial of a civil action, but the court shall be

confined to the transcript filed under section 2506.02 of the Revised Code unless”

one of five enumerated factors exists. R.C. 2506.03(A)(1 through 5). If at least

one of the five enumerated factors exists, the common pleas court must consider

the appeal “upon the transcript and additional evidence as may be introduced by

any party.” R.C. 2506.03(B).

       {¶ 11} When reviewing the judgment of a board, the common pleas court is

to consider the “‘whole record,’ including any new or additional evidence

admitted under R.C. 2506.03, and determine whether the administrative order is

unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the

preponderance of substantial, reliable, and probative evidence.”           Henley v.

Youngstown Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142, 147, 735 N.E.2d

433.


                                         -6-
      {¶ 12} In contrast, “[t]he standard of review to be applied by the court of

appeals in an R.C. 2506.04 appeal is ‘more limited in scope.’” (Emphasis sic.)

Id., quoting Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 465 N.E.2d 848.

      This statute grants a more limited power to the court of appeals to
      review the judgment of the common pleas court only on “questions
      of law,” which does not include the same extensive power to weigh
      “the preponderance of substantial, reliable and probative evidence,”
      as is granted to the common pleas court. It is incumbent on the trial
      court to examine the evidence. Such is not the charge of the
      appellate court. * * * The fact that the court of appeals, or this court,
      might have arrived at a different conclusion than the administrative
      agency is immaterial. Appellate courts must not substitute their
      judgment for those of an administrative agency or a trial court absent
      the approved criteria for doing so.

Henley, 90 Ohio St.3d at 147, quoting Lorain City School Dist. Bd. of Edn. v. State

Emp. Relations Bd. (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d 264.

Furthermore, this court has recognized that administrative appeals under R.C.

2506.04 are reviewed under an abuse-of-discretion standard. Briggs v. Dinsmore

Twp. Bd. of Zoning Appeals, 161 Ohio App.3d 704, 2005-Ohio-3077, 831 N.E.2d

1063, at ¶ 7. “Abuse of discretion” implies that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219, 450 N.E.2d 1140.

      {¶ 13} In this case, the court of common pleas did not find that the board’s

resolution of July 1, 2009, was unconstitutional, illegal, arbitrary, capricious,

unreasonable, or unsupported by the preponderance of substantial, reliable, and

probative evidence, nor did it find that the converse was true. Rather, the court


                                        -7-
dismissed the appeal based upon its September 21, 2010 judgment in another case:

Brenneman v. Allen Cty. Bd. of Commrs., Allen C. P. Case No. CV 2010 0164.

According to the judgment entry in CV 2010 0164, this matter concerned the

construction of the Brenneman-Peters project #1273 (“the Brenneman-Peters

project”), which was approved by the board on August 26, 2009. This project was

also an Allen Soil and Water Conservation District proposal.              After the

Brenneman-Peters project was approved, the board sent letters of estimated

assessments to affected landowners on November 19, 2009, and received a

number of letters of objection in return. An objection hearing was held, and as a

result, the board passed a new resolution rejecting the construction of the

Brenneman-Peters project. This action by the board was appealed to the court of

common pleas in case No. CV 2010 0164. The court found that the board was

permitted to pass a new resolution, rejecting a previously approved project, and

that its decision to do so was supported by a substantial weight of the evidence.

       {¶ 14} The court’s decision in case No. CV 2010 0164 reveals nothing

beyond the caption of the case, which merely shows that the same parties were

involved, to demonstrate that it is in any way related to the case sub judice.

Moreover, the issues in that case were whether the board could reject a previously

approved project and whether its decision to reject the Brenneman-Peters project

was unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported

by the preponderance of substantial, reliable, and probative evidence on the whole


                                        -8-
record. The issues in the present case involved the acceptance of the Wrasman

project and the assessments objected to by the Brennemans on the Wrasman

project. On the status of the record before this court, we cannot even discern

whether these projects involved the same activity or the same land. Conceivably,

the Brennemans could own multiple properties in different areas of Allen County

and the two projects at issue could also be in different areas of Allen County.

Thus, how one relates to the other and how the result of one is outcome

determinative of the other are not ascertainable from the record.

       {¶ 15} As noted, our review is limited to determining whether the court of

common pleas acted in an unreasonable, arbitrary, or unconscionable manner. By

failing to indicate in any way the connection between the two cases and without

explaining its decision in the present case, the common pleas court’s decision to

dismiss the case sub judice based upon the outcome in case No. CV 2010 0164

was both unreasonable and arbitrary.

       {¶ 16} Furthermore, while there is nothing in its entry to indicate that the

common pleas court considered the transcript that was filed in the current case, the

court’s entry does note that it reviewed the transcript that was filed in case No. CV

2010 0164. However, as previously noted, R.C. 2506.03(A) mandates that a

common pleas court consider only the evidence contained in the transcript of the

hearings below unless on the face of the transcript or by an affidavit filed in the

matter that one of five enumerated factors exists. When one of those five factors


                                         -9-
exists, the court is then permitted to consider the transcript of the hearings below

and “additional evidence as may be introduced by any party.” R.C. 2506.03(B).

       {¶ 17} None of the parties in this case introduced any additional evidence.

In fact, the record does not indicate that the parties were even aware that

additional evidence could be introduced by them. Instead, the record contains the

July 15, 2010 pretrial order, continuing the trial of this appeal until case No. CV

2010 0164 was decided. The next filing in this appeal occurred on December 10,

2010, wherein the court dismissed this appeal based on its decision in case No. CV

2010 0164. There is no filing that shows that the parties were notified that this

case was no longer continued, that the court was not going to conduct a hearing as

it had previously indicated it would, or that additional evidence would be accepted

and/or considered by the court because one of the five factors was present.

Therefore, the common pleas court should not have considered the evidence in

case No. CV 2010 0164 in deciding to dismiss the current case. While a common

pleas court is not obligated to hear evidence beyond the transcript, we find that by

considering evidence that the court is expressly prohibited from considering, and

particularly in light of the fact that the parties were not permitted to address this

evidence or to present their own additional evidence, the common pleas court

abused its discretion when it dismissed the Brennemans’ appeal.

       {¶ 18} For all of these reasons, the assignments of error are sustained and

the judgment of the Common Pleas Court of Allen County is reversed on the basis


                                        -10-
that the common pleas court dismissed the Brennemans’ appeal based upon

improperly considered evidence from another case that seemingly had nothing to

do with the Wrasman project and issued its judgment using the rationale of this

other case that did not raise the same issues as the present matter. Accordingly,

this cause is remanded to the Allen County Common Pleas Court for further

proceedings consistent with this opinion.

                                                              Judgment reversed

                                                            and cause remanded.



      ROGERS, P.J., and WILLAMOWSKI, J., concur.




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