[Cite as HumaCare-Consol. Emp. Mgt, Inc. v. State Unemp. Comp. Rev. Comm., 2016-Ohio-715.]

                            IN THE COURT OF APPEALS OF OHIO

                                TENTH APPELLATE DISTRICT

HumaCare-Consolidated Employee                    :
Management, Inc. et al.,
                                                  :
                Appellants-Appellants,
                                                  :                     No. 15AP-200
v.                                                                   (C.P.C. No. 14CV-8224)
                                                  :
State of Ohio, Unemployment                                      (REGULAR CALENDAR)
Compensation Review Commission                    :
et al.,
                                                  :
                Appellees-Appellees.
                                                  :



                                           D ECISION

                                 Rendered on February 25, 2016


                On brief: Roetzel & Andress, LPA, Stephen W. Funk, and
                Daniel G. Hilson, for appellants. Argued: Stephen W. Funk

                On brief: Michael DeWine, Attorney General, and Patria V.
                Hoskins, for appellee, Director, Ohio Department of Job and
                Family Services. Argued: Patria V. Hoskins

                 APPEAL from the Franklin County Court of Common Pleas

HORTON, J.
        {¶ 1} Appellants,       HumaCare-Consolidated            Employee       Management,   Inc.
("HumaCare-CEM") and HumaCare, Inc., ("HumaCare, Inc."), appeal from the
February 24, 2015, judgment of the Franklin County Court of Common Pleas, which
affirmed the decision of appellee, Ohio Unemployment Compensation Review
Commission ("UCRC"), which determined that HumaCare-CEM is the successor in
interest to HumaCare, Inc. for purposes of determining HumaCare-CEM's unemployment
No. 15AP-200                                                                            2

contribution rate as an employer pursuant to R.C. 4141.24(F). For the reasons that follow,
we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} The Ohio Department of Job and Family Services ("ODJFS") detected
workforce transfers between HumaCare, Inc. and HumaCare-CEM. Under authority
granted by R.C. 4141.18 and 4141.20, an audit was issued to determine employer
compliance. On October 2, 2012, an audit of HumaCare, Inc. and HumaCare-CEM was
performed in an attempt to ensure that all workers and wages were being correctly
reported. On December 27, 2012, an audit report was issued, which found, in relevant
part to this appeal, that HumaCare-CEM was a successor in interest to HumaCare, Inc.
        {¶ 3} In a Director's Reconsidered Decision, issued February 26, 2014, the ODJFS
agreed with the audit report, and found that HumaCare-CEM was a successor in interest
to HumaCare, Inc. HumaCare-CEM filed a timely appeal with the UCRC. On June 24,
2014, a hearing was conducted via telephone before a hearing officer for the UCRC.
        {¶ 4} On July 9, 2014, the UCRC issued a decision with the following findings of
fact:
              During 2012, an audit was performed by the Ohio Department
              [of] Job and Family Services to determine if Humacare
              Consolidated Employee Management, Inc. was properly
              reporting wages for its employees. During the course of the
              audit, the Ohio Department [of] Job and Family Services
              found that in-house employees who had been considered
              employees of Humacare, Inc. as of 2009 were considered
              employees     of   Humacare      Consolidated    Employee
              Management, Inc. as of 2010. The Ohio Department of Job
              and Family Services found that, as of 2010, the in-house
              employees' W-2 forms were issued by Humacare Consolidated
              Employee Management, Inc. and that federal tax returns
              showed that Humacare, Inc. had no assets and had income
              that was almost nonexistent

              At an audit meeting on October 2, 2012 involving the Ohio
              Department of Job and Family Services and Humacare
              Consolidated Employee Management, Inc., an accountant
              with the employer noted that Humacare, Inc. had ceased to
              operate. During the course of the audit, the Humacare
              Consolidated Employee Management, Inc. accountant
              completed a Disposition of Business form, a Transfer of
              Business form, and a Report to Determined Liability form
No. 15AP-200                                                                          3

             which indicated that Humacare, Inc. had merged with
             Humacare Consolidated Employee Management, Inc. as of
             the end of 2009. Also during the course of the audit,
             Humacare Consolidated Employee Management, Inc.
             maintained that Humacare, Inc. and Humacare Consolidated
             Employee Management, Inc. had filed consolidated federal
             tax returns as of 2010.


             In later statements made to the Ohio Department of Job and
             Family Services and at the hearing on this matter, Humacare
             Consolidated Employee Management, Inc. maintained that
             Humacare, Inc. continue to be in operation after the end of
             2009. The employer maintained that the company had not
             merged with Humacare, Inc. The employer further
             maintained that, rather than merge, a transfer from a
             professional employer organization to a human resource
             organization had occurred. The employer argued that such a
             change was allowed under the auspices of a 2006 settlement
             agreement with the Ohio Department of Job and Family
             Services and allowed for compliance with new Ohio Revised
             Code provisions for reporting requirements after a transfer of
             experience to client companies. Despite earlier statements,
             the employer further maintained that Humacare Consolidated
             Employee Management, Inc. and Humacare, Inc. were unable
             to file consolidated federal tax returns as of 2010.

      {¶ 5} The UCRC concluded that HumaCare-CEM was a successor in interest to
HumaCare, Inc. for purposes of determining HumaCare-CEM's unemployment
contribution rate as an Ohio employer. R.C. 4141.24(F). The UCRC affirmed the Director's
Reconsidered Decision, and held that:
             The evidence and testimony presented establishes that
             Humacare, Inc. merged with Humacare Consolidated
             Employee Management, Inc. as of the end of 2009 and ceased
             operations. The evidence and testimony presented further
             establishes that the in-house workforce for Humacare, Inc.
             was transferred to Humacare Consolidated Employee
             Management, Inc. This constitutes a transfer of all the trade
             or business of Humacare, Inc. to Humacare Consolidated
             Employee Management, Inc. Therefore, a review of the entire
             record in this matter establishes that Humacare Consolidated
             Employee Management, Inc. is a successor in interest to
             Humacare, Inc.
No. 15AP-200                                                                              4

       {¶ 6} Pursuant to R.C. 4141.26, appellants appealed the UCRC's Decision to the
common pleas court arguing that the UCRC's decision that HumaCare-CEM is the
successor in interest to HumaCare, Inc. under R.C. 4141.24(F) is not supported by
reliable, probative and substantial evidence, and is not in accordance with law.
       {¶ 7} The court of common pleas determined, by Decision and Entry of
February 24, 2015, that reliable, probative, and substantial evidence existed in the record
to support the commission's finding that HumaCare, Inc. had transferred its entire
business to HumaCare-CEM and that, as a result, HumaCare-CEM became the successor
in interest to HumaCare, Inc. by operation of law. Specifically, the trial court found:
              The evidence supports that HumaCare Consoli[d]ated
              Employee Management, Inc. transferred all the property
              integral to its business to HumaCare, Inc.. Steven Markle, the
              accountant for HumaCare Consoli[d]ated Employee
              Management, Inc. told the ODJFS Compliance Auditor that
              HumaCare ceased operating at the end of 2009 and that there
              was a total transfer of business to Humacare Consoli[d]ated
              Employee Management, Inc. He related this information
              during the audit and in the presence of company CEO
              William B. Southerland. Tr. 32-33, 39-41, 69. Additionally,
              there is no evidence that HumaCare was still operating after
              2009. HumaCare did not issue any W-2's to any employees
              after 2009. Tr. 35-41, 54-55, 56-57.

              The record also demonstrates that HumaCare filed a "transfer
              of business" form with ODJFS in November 2012. This form
              was executed by Steven Markle who served as the accountant
              for HumaCare and on January 1, 2010, was the accountant for
              HumaCare Consoli[d]ated Employee Management, Inc. The
              form includes a question as to whether HumaCare
              Consoli[d]ated Employee Management, Inc. was taking over
              HumaCare’s entire business organization in Ohio. Mr. Markle
              answered that question in the affirmative. In the follow up
              question, Mr. Markle indicated that 100% of HumaCare
              business assets in Ohio had transferred to HumaCare
              Consoli[d]ated Employee Management, Inc. There was also
              testimony that the attorney for HumaCare Consoli[d]ated
              Employee Management, Inc. would provide ODJFS personnel
              with additional information regarding consolidated federal
              tax returns to demonstrate that HumaCare was still operating.
              However, the attorney for HumaCare Consoli[d]ated
              Employee Management, Inc. never provided the consolidated
              federal income tax returns to ODJFS. Tr. 51-57. Moreover, on
No. 15AP-200                                                                               5

              January 20, 2014, HumaCare Consoli[d]ated Employee
              Management, Inc. informed ODJFS that the two companies
              were not able to file consolidated tax returns. ODJFS Exhibit
              10. There is also testimony that HumaCare Consoli[d]ated
              Employee Management, Inc and HumaCare did not file any
              consolidated tax returns. Tr. 73-75.

              The record demonstrates that HumaCare ceased filing federal
              tax returns in 2010. HumaCare had 62 million in gross
              receipts and 2.7 million in assets in 2009. In 2010, it had zero
              gross receipts and zero in assets. The compensation for
              officers was $120,000 and was zero in 2010. The physical
              assets listed for HumaCare's 2009 tax return were the same
              assets listed for HumaCare Consoli[d]ated Employee
              Management, Inc. in 2010. Based on this information, there is
              reliable, probative and substantial evidence to support that
              there was a total transfer of business. R.C. 4141.24.

       {¶ 8} Accordingly, the trial court, after reviewing the record, affirmed the UCRC's
decision finding that it "is supported by reliable, probative and substantial evidence and is
in accordance with law." (Decision, 6.)
II. ASSIGNMENTS OF ERROR
       {¶ 9} Appellants appeal, assigning the following errors:
              [I.] THE TRIAL COURT ERRED AS A MATTER OF LAW
              AND ABUSED ITS DISCRETION BY FAILING TO REVERSE
              THE UNEMPLOYMENT COMPENSATION REVIEW
              COMMISSION'S FINDING THAT HUMACARE, INC.
              "MERGED"      WITH    HUMACARE—CONSOLIDATED
              EMPLOYEE MANAGEMENT, INC.

              [II.] THE TRIAL COURT ERRED AS A MATTER OF LAW
              AND ABUSED ITS DISCRETION BY FAILING TO REVERSE
              THE UNEMPLOYMENT COMPENSATION REVIEW
              COMMISSION'S FINDING THAT THE ALLEGED
              TRANSFER OF IN-HOUSE EMPLOYEES CONSTITUTES A
              TRANSFER OF ALL OF HUMACARE, INC.'S "TRADE OR
              BUSINESS" UNDER R.C. 4141.24(F).

              [III.] THE TRIAL COURT ERRED AS A MATTER OF LAW
              AND ABUSED ITS DISCRETION BY APPLYING THE
              WRONG LEGAL STANDARD IN DECIDING WHETHER
              THE UNEMPLOYMENT COMPENSATION REVIEW
              COMMISSION'S ACTUAL DETERMINATIONS WERE
No. 15AP-200                                                                           6

             SUPPORTED    BY   RELIABLE,             PROBATIVE,        AND
             SUBSTANTIAL EVIDENCE.


             [IV.] THE TRIAL COURT ERRED AS A MATTER OF LAW
             AND ABUSED ITS DISCRETION BY FAILING TO
             CONSIDER AND WEIGH ALL OF THE EVIDENCE IN THE
             RECORD IN DETERMINING WHETHER TO AFFIRM THE
             UNEMPLOYMENT         COMPENSATION       REVIEW
             COMMISSION'S DECISION.


             [V.] THE TRIAL COURT ERRED AS A MATTER OF LAW
             AND ABUSED ITS DISCRETION BY DENYING
             APPELLANTS' MOTION TO REMAND UNDER R.C.
             4141.26(D) "AS MOOT."

III. STANDARD OF REVIEW AND ISSUES PRESENTED
      {¶ 10} As we recently stated in Jeff Schmitt Chevrolet, Ltd. v. Dir., Ohio Dept. of
Job & Family Servs., 10th Dist. No. 14AP-917, 2015-Ohio-3010, ¶ 10-11:
             R.C. 4141.26(D)(2) provides that the trial court may affirm a
             decision from the UCRC regarding an employer's rate revision
             "if it finds, upon consideration of the entire record, that the
             determination or order is supported by reliable, probative,
             and substantial evidence and is in accordance with law." Our
             review of the trial court's decision "is more limited," as we
             "do[] not weigh [the] evidence." Kate Corp. v. Ohio State
             Unemp. Comp. Rev. Comm., 10th Dist. No. 03AP-315, 2003-
             Ohio-5668, ¶ 7, citing Childs v. Oil & Gas Comm., 10th Dist.
             No. 99AP-626, 2000 Ohio App. LEXIS 1242 (Mar. 28, 2000),
             citing Lorain Cty. Bd. of Edn. v. State Emp. Relations Bd., 40
             Ohio St.3d 257, 533 N.E.2d 264 (1988). The court of appeals
             does not make factual findings or weigh the credibility of the
             witnesses; rather, we simply determine whether the UCRC's
             decision is supported by the evidence in the record. Tzangas,
             Plakas & Mannos v. Admr., Ohio Bur. of Emp. Servs., 73
             Ohio St.3d 694, 696, 1995 Ohio 206, 653 N.E.2d 1207 (1995).

             As such, we determine only whether the trial court abused its
             discretion. Id at 696-97. "In successor-in-interest cases, 'this
             court has defined "abuse of discretion" as connoting more
             than an error in judgment, but implying a decision that is
             without a reasonable basis and clearly wrong.' " Resource Title
             Natl. Agency, Inc. v. Ohio Dept. of Job & Family Servs., 10th
             Dist. No. 14AP-39, 2014-Ohio-3427, ¶ 9, quoting All Star
No. 15AP-200                                                                                 7

              Personnel, Inc. v. Unemp. Comp. Rev. Comm., 10th Dist. No.
              05AP-522, 2006-Ohio-1302, ¶ 13.

       {¶ 11} Pursuant to R.C. 4141.09, every employer in Ohio must make contributions
to the unemployment compensation fund. R.C. 4141.24(F) provides, in pertinent part:
              If an employer transfers all of its trade or business to another
              employer or person, the acquiring employer or person shall be
              the successor in interest to the transferring employer and
              shall assume the resources and liabilities of such transferring
              employer's account, and continue the payment of all
              contributions, or payments in lieu of contributions, due under
              this chapter.

Thus, this appeal concerns whether HumaCare-CEM acquired successor in interest status
under R.C. 4141.24(F), by acquiring all of the trade or business of HumaCare, Inc. See All
Star Personnel, Inc. v. Unemp. Comp. Rev. Comm., 10th Dist. No. 05AP-522, 2006-Ohio-
1302, ¶ 16. Ohio Adm.Code 4141-17-04(A) provides that a transferee "shall become a
successor in interest by operation of law" where (1) there is "a transfer of all of the
transferor's trade or business" and, (2) at the time of the transfer, "the transferor is liable
under Chapter 4141 of the Revised Code." As a successor in interest, the transferee "shall
assume all of the resources and liabilities of the transferor's account" and the "director
shall revise the contribution rates of the transferee to reflect the result of the
successorship." Ohio Adm.Code 4141-17-04(B). For purposes of R.C. 4141.24, an
employer's " '[t]rade or business' includes all real, personal and intangible property
integral to the operation of the trade or business," and may include the employer's
workforce. Ohio Adm.Code 4141-17-01(A).
IV. ASSIGNMENT OF ERROR ONE–MOOT
       {¶ 12} Appellants argue that the trial court abused its discretion in not reversing
the UCRC's finding that appellants merged. The trial court did not rule on this issue. It
has never been ODJFS' position that a legal merger did or did not take place.
       {¶ 13} The issue of "merger" was first raised when HumaCare-CEM's staff
accountant, Steven Markle, told ODJFS that a merger had taken place. In addition, he
filed a Disposition of Business form with ODJFS which indicated that the appellants had
merged.
No. 15AP-200                                                                              8

       {¶ 14} We note that the true issue is whether, under R.C. 4141.24(F), HumaCare,
Inc. transferred all of its trade or business to HumaCare-CEM. Whether there was a legal
merger is not relevant because HumaCare-CEM was not found to be a successor in
interest to HumaCare, Inc. as a result of a finding of statutory merger.           Instead,
HumaCare-CEM was found to be successor in interest because of a finding that
HumaCare, Inc. transferred all the property integral to its business to HumaCare-CEM.
       {¶ 15} Inasmuch as this issue is not dispositive, or relevant, to the successor in
interest issue, assignment of error one is moot.
V.   ASSIGNMENTS          OF    ERROR      TWO      AND     THREE–NO         ABUSE      OF
DISCRETION


       {¶ 16} Because appellants' assignments of error two and three are interrelated, we
will address them together. Appellants allege that the trial court erred (1) in finding that
the alleged transfer of in-house employees constitutes a transfer of all of HumaCare, Inc.'s
trade or business, and (2) in using the wrong legal standard in deciding whether UCRC's
determinations were supported by reliable, probative, and substantial evidence.
       {¶ 17} Appellants argue that the UCRC erred in finding that the alleged transfer of
in-house employees constitutes a transfer of all of HumaCare, Inc.'s trade or business. It
is clear that the trial court relied on significantly more evidence than only the "alleged
transfer of in-house employees." For example, the trial court notes that Markle told the
ODJFS Auditor, in the presence of company CEO William B. Southerland, that
HumaCare, Inc. ceased operating at the end of 2009, and that there was a total transfer of
business to HumaCare-CEM. At the time, CEO Southerland did not dispute Markle's
assertions. HumaCare-CEM also filed a Transfer of Business form with ODJFS, executed
by Markle, wherein HumaCare-CEM states that 100 percent of HumaCare, Inc.'s assets in
Ohio had transferred to HumaCare-CEM.
       {¶ 18} Furthermore, as the trial court notes, Humacare, Inc. did not issue any W-
2's after 2009, and ceased filing federal tax returns in 2010. HumaCare, Inc. had 62
million in gross receipts in 2009, and zero gross receipts in 2010. HumaCare, Inc. had 2.7
million in assets in 2009 and zero assets in 2010. The physical assets listed in HumaCare,
Inc.'s 2009 tax return were the same assets listed by HumaCare-CEM in 2010, and the
No. 15AP-200                                                                                9

same employees worked for both HumaCare, Inc. and HumaCare-CEM.                          The
compensation for officers went from $120,000 to zero in 2010. Salaries and wages went
from 1.4 million to zero in 2010.
       {¶ 19} HumaCare-CEM argues that, because none of the clients transferred, and
the clients are truly the business of the companies, there was no transfer of all the integral
assets. However, as these are other entities, HumaCare, Inc. could not simply transfer the
clients to HumaCare-CEM.,
       {¶ 20} HumaCare-CEM also argues that HumaCare, Inc. was still operating as an
employer, "providing human resource management and reporting services on behalf of 48
client employers," after 2009, apparently without any employees. (HumaCare-CEM's
Brief, 40); (ODJFS exhibit No. 8.) However, the W-2's were issued by HumaCare-CEM.
There is no way around the fact that the employer after 2009 is HumaCare-CEM.
HumaCare, Inc. had no workforce after the December 31, 2009 transfer date. A
corporation simply cannot operate without any employees.
       {¶ 21} Appellants argued that HumaCare, Inc. and HumaCare-CEM were filing
consolidated tax returns. (ODJFS exhibit No. 8.) This turned out to be false. ODJFS
Unemployment Compensation Contribution Supervisor Amy Bornman-Weber testified
that on October 21, 2013, she along with other ODJFS personnel met with HumaCare-
CEM's attorney to discuss the issue of consolidated returns. (Tr. 51.) At that meeting,
HumaCare-CEM again asserted that both entities were still operating and filing
consolidated federal tax returns. (Tr. 54.) The meeting ended with the understanding that
HumaCare-CEM would provide additional information regarding the consolidated federal
tax returns to show that HumaCare, Inc. was still operating. (Tr. 54.) Bornman-Weber
testified that HumaCare-CEM never provided consolidated federal income tax returns to
ODJFS. (Tr. 54.) HumaCare-CEM's outside accountant, Candace DeClark-Peace, testified
that despite earlier statements, the entities were unable to file consolidated federal tax
returns. (Tr. 73-75.)
       {¶ 22} In regards to assignment of error three, appellants argue that the UCRC's
"determination or order" (pursuant to R.C. 4141.26(D)) was that HumaCare, Inc. and
HumaCare-CEM merged and that the transfer of in-house employees constitutes the
No. 15AP-200                                                                            10

transfer of all the trade or business. While these findings are mentioned, the actual
determination or order of the UCRC is:
             Therefore, a review of the entire record in this matter
             establishes that Humacare Consolidated Employee
             Management, Inc. is a successor in interest to Humacare, Inc.
             Humacare Consolidated Employee Management, Inc.
             assumes all the resources and liabilities of the account of
             Humacare, Inc.

In short, the trial court reviewed the record and found sufficient reliable, probative and
credible evidence of a transfer of all of its trade or business to HumaCare-CEM, which the
statements of Markle, the filed documents with ODJFS, the W-2s and the 2009 and 2010
federal tax returns corroborated. Also, the transfer of the entire workforce and all of the
assets demonstrates that all of the integral real and personal property was transferred for
purposes of R.C. 4141.24(F).
       {¶ 23} The UCRC and the trial court recognized that after the audit report and the
finding of successor in interest status, appellants' officers, employees, and agents
provided evidence that attempted to contradict prior statements, filings, and tax
documents. Appellants argue that the court should have discounted the original evidence
found during the audit and should have focused instead on appellants' later testimony. In
response, the UCRC argues that appellants' self-serving testimony at the commission
hearing does not overweigh or render insubstantial their earlier statements, tax returns,
and filed documents.
       {¶ 24} The Supreme Court of Ohio has held that "the Court of Common Pleas must
give due deference to the administrative resolution of evidentiary conflicts. For example,
when the evidence before the court consists of conflicting testimony of approximately
equal weight, the court should defer to the determination of the administrative body,
which, as the fact-finder, had the opportunity to observe the demeanor of the witnesses
and weigh their credibility." Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108 (1980). See
also Leon v. Ohio Bd. of Psychology, 63 Ohio St.3d 683 (1992),
       {¶ 25} Despite this conflicting evidence, the trial court found that reliable,
probative, and substantial evidence existed in the record demonstrating that HumaCare,
Inc. transferred its entire business to HumaCare-CEM, thereby rendering HumaCare-
CEM the successor in interest to HumaCare, Inc., pursuant to R.C. 4141.24(F). We agree.
No. 15AP-200                                                                               11

       {¶ 26} The UCRC's findings of successor liability were based upon the witnesses'
testimony, documentary evidence, such as the Transfer of Business form and the
Disposition of Business form, the audit report, copies of W-2's in addition to the tax
returns, all of which showed a transfer of all assets from HumaCare, Inc. to HumaCare-
CEM. We note that the original statements of Markle were consistent with the filings with
ODJFS and the related tax documents. Based on the above, we find that the trial court
did not abuse its discretion in affirming the decision of the UCRC. Therefore, appellants'
assignments of error two and three are overruled.
VI. ASSIGNMENT OF ERROR FOUR–NO ABUSE OF DISCRETION
       {¶ 27} Appellants argue that the trial court failed to consider and weigh all of the
evidence in the record. There is no evidence to support this assignment of error.
Appellants are asking this court to assume that because an issue or witness is not directly
mentioned in the court's decision, that the court did not follow the law and review the
entire record. R.C. 4141.26(D)(2) requires the trial court to consider the entire record.
This Court has ruled that "[t]he trial court is entitled to a presumption of correctness and
a presumption that the trial court knew the law and acted accordingly. Fletcher v. Fletcher
(1994), 68 Ohio St.3d 464, 468, 1994 Ohio 434, 628 N.E.2d 1343. A reviewing court will
presume the validity of a judgment as long as there is evidence in the record to support it."
Lewis v. Connors, 10th Dist. No. 02-AP-607, 2003-Ohio-632, ¶ 19.
       {¶ 28} The evidence shows that the trial court's review was in accordance with the
law. The trial court notes that the court "may not weigh or judge the credibility of
witnesses" and must give due deference to "administrative resolution of evidentiary
conflicts" and "statutory interpretations." (Decision and Entry, 2.) The trial court then
summarizes appellants' arguments, states what the "evidence supports" and what the
"record demonstrates" before stating its conclusions. (Decision and Entry, 4.)
Accordingly, a fair reading of the decision indicates that the trial court complied with the
law and thoroughly considered the entire record. Appellants' fourth assignment of error
is overruled.
VII. ASSIGNMENT OF ERROR FIVE–NO ABUSE OF DISCRETION
       {¶ 29} Appellants argue that the trial court abused its discretion by denying
appellants' motion to remand under R.C. 4141.26(D) "as moot." R.C. 4141.26(D)(2)
No. 15AP-200                                                                              12

states, in relevant part, that "the court may order additional evidence to be taken before
the commission, and the commission, after hearing such additional evidence, shall certify
such additional evidence to the court or it may modify its determination and file such
modified determination, together with the transcript of the additional record, with the
court."
          {¶ 30} If the court had ordered the commission to take additional evidence,
appellants intended to admit into evidence tax returns showing that HumaCare, Inc. and
HumaCare-CEM resumed the filing of separate federal income tax returns for tax year
2013. The audit was in 2012, so the UCRC was only looking at conduct from 2012 and
earlier. Appellants' 2013 tax returns, created after the audit, are not relevant to the issue
of whether HumaCare, Inc. transferred all of its integral assets to HumaCare-CEM in
2009 and 2010, which is the issue in this action.
          {¶ 31} R.C. 4141.26(D)(2) states that the court "may" order additional evidence.
On its face, the statute gives the court discretion. Given the facts of this action, we find
that the trial court did not abuse its discretion in denying appellants' motion. Therefore,
appellants' fifth assignment of error is overruled.
VIII. DISPOSITION
          {¶ 32} We perceive no abuse of discretion in the trial court's finding that the
UCRC's decision in finding that HumaCare, Inc. transferred its entire business to
HumaCare-CEM, thereby rendering HumaCare-CEM the successor in interest to
HumaCare, Inc. pursuant to R.C. 4141.24(F), was supported by reliable, probative, and
substantial evidence, and in accordance with law. Accordingly, appellants' first
assignment of error is moot and we overrule appellants' second, third, fourth, and fifth
assignments of error and affirm the judgment of the Franklin County Court of Common
Pleas.
                                                                        Judgment affirmed.
                                 TYACK, J., concurs.
                      LUPER SCHUSTER, J., concurs in judgment only.
                               _________________
