[Cite as Shearer v. Director O.D.J.F.S., 2012-Ohio-2294.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                                      :     JUDGES:
DONALD A. SHEARER                                     :     W. Scott Gwin, P.J.
                                                      :     William B. Hoffman, J.
                        Plaintiff-Appellant           :     Julie A. Edwards, J.
                                                      :
-vs-                                                  :     Case No. 2011AP070033
                                                      :
                                                      :
DIRECTOR ODJFS, et al.,                               :     OPINION

                   Defendants-Appellees




CHARACTER OF PROCEEDING:                                     Civil Appeal from Tuscarawas County
                                                             Court of Common Pleas Case No.
                                                             2011AA010043

JUDGMENT:                                                    Dismissed

DATE OF JUDGMENT ENTRY:                                      May 18, 2012

APPEARANCES:

For Plaintiff-Appellant                                      For Defendants-Appellees

JOSEPH I. TRIPODI                                            SUSAN SHEFFIELD
114 East High Avenue                                         Assistant Attorney General
New Philadelphia, Ohio 44663                                 Ohio Attorney General’s Office
                                                             20 W. Federal Street, 3rd Floor
                                                             Youngstown, Ohio 44503

                                                             For Defendant-Appellee
                                                             HP Auto Tuning, LLC

                                                             J. MICHAEL GATIEN
                                                             2371 Chestnut Hill Street, N.W.
                                                             North Canton, Ohio 44720
[Cite as Shearer v. Director O.D.J.F.S., 2012-Ohio-2294.]


Edwards, J.

        {¶1}     Plaintiff-appellant, Donald Shearer appeals from the July 1, 2011,

Judgment Entry of the Tuscarawas County Court of Common Pleas.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}     Pursuant to a Decision issued on or about December 15, 2010, the

Unemployment Compensation Review Commission found that appellant Donald

Shearer had been discharged by appellee HP Auto Tuning, Inc. for just cause in

connection with his work and was not entitled to unemployment compensation benefits.

On January 13, 2011, appellant appealed such decision to the Tuscarawas County

Court of Common Pleas. The trial court set a briefing schedule.

        {¶3}     On April 14, 2011, appellant filed his brief. Appellant attached his own

affidavit to his brief. Appellant, in his affidavit, stated, in relevant part, as follows:

        {¶4}     “2. An Ohio Unemployment Compensation Review Commission hearing

was held on November 16, 2010 with myself as the appellant/claimant.

        {¶5}     “3. Prior to the hearing I had submitted a subpoena request for documents

to be obtained from my former employer.

        {¶6}     “4. During the hearing I informed the hearing officer that I had sent a

subpoena request for documents, but had not received any of the documents, and the

hearing officer told me that I would have a chance to discuss my subpoena request after

he took our testimony.

        {¶7}     “5. The hearing officer also informed me that my subpoena request had

been sent out to my former employer, HP Auto Tuning and stated that we would discuss
Tuscarawas County App. Case No. 2011AP070033                                            3


whether other documents should be considered and that he would rule on this at the

end of the hearing. But, the hearing officer never made a ruling.

      {¶8}     “6. During the hearing, I asked the hearing officer to continue the hearing

so that I could receive the subpoenaed documents, and the hearing officer told me that

he would give me a chance to discuss my subpoena request – this also never

happened.

      {¶9}     “7. Before I was given a chance to state into the Record what the

documents would have shown, or to again state that I objected to not having the

subpoenaed documents in my possession, the hearing officer suddenly terminated the

hearing.

      {¶10} “8. The hearing was terminated so suddenly that I was unaware that the

hearing was over. The hearing officer was no longer on the phone – although I did not

know this at the time, and I began to speak into the phone asking the hearing officer to

discuss the subpoena and let me state into the record what the documents would have

show. But, the hearing officer had already hung up, and I was speaking to a dead

phone line.”

      {¶11} In response, appellee Director, Ohio Department of Job and Family

Services, on May 6, 2011, filed a Motion to Strike the affidavit attached to appellant’s

brief. Such appellee, in the motion, argued that the affidavit constituted additional

evidence that was not part of the record certified to the trial court on appeal and that,

pursuant to R.C. 4141.282(H), the appeal could only be heard upon the record as

certified by the Unemployment Compensation Review Commission. Appellee argued
Tuscarawas County App. Case No. 2011AP070033                                                 4


that the trial court had no authority to receive new evidence. On the same date,

appellee Ohio Department of Job and Family Services filed its brief.

         {¶12} Appellant, on May 9, 2011, filed a response to the Motion to Strike.

Appellant, in his response, argued that his appeal was governed by R.C. Chapter 2506

and that “if any of the conditions or deficiencies listed in R.C. 2506.03 applies, then

[appellant] is allowed to bring these deficiencies to the attention to the court by affidavit.”

Appellant maintained that such deficiencies existed.

         {¶13} On May 11, 2011, appellee HP Auto Tuning filed its reply to appellant’s

brief.

         {¶14} Thereafter, on May 16, 2011, appellant filed a “Motion to Certify the

Court’s Decision on the Motion to Strike, as a Final Order Pursuant to Civ.R. 54(B).”

         {¶15} As memorialized in a Judgment Entry filed on July 1, 2011, the trial court

granted appellee Director, Ohio Department of Job and Family Services’ Motion to

Strike the affidavit attached to appellant’s brief and ordered that appellant’s affidavit be

stricken from the record. The trial court held that R.C. Chapter 2506 did not apply to an

appeal from the decision of the Unemployment Compensation Review Commission and

that it was not permitted to consider new evidence outside the certified record provided

by the Commission. The trial court, in its Judgment Entry, further granted appellant’s

Motion to Certify and found that there was no just cause for delay.

         {¶16} Appellant now appeals from the July 1, 2011 Judgment Entry, raising the

following assignments of error on appeal:
Tuscarawas County App. Case No. 2011AP070033                                                 5


       {¶17} “I. THE TRIAL COURT ERRED WHEN IT FOUND THAT R.C. CHAPTER

2506 DOES NOT APPLY TO THE APPEAL FROM THE OHIO UNEMPLOYMENT

COMPENSATION REVIEW COMMISSION.

       {¶18} “II. THE TRIAL COURT ERRED WHEN IT FOUND THAT IT WAS NOT

PERMITTED TO CONSIDER NEW EVIDENCE OUTSIDE THE CERTIFIED RECORD

PROVIDED       BY     THE    OHIO      UNEMPLOYMENT           COMPENSATION           REVIEW

COMMISSION.

       {¶19} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

HOLDING THAT APPEALS FROM A DECISION OF THE OHIO UNEMPLOYMENT

COMPENSATION REVIEW COMMISSION ARE SPECIFICALLY GOVERNED BY R.C.

CHAPTER 4141, AND THAT THE PROVISIONS OF R.C. CHAPTER 2506 DO NOT

APPLY, BECAUSE THIS DENIED APPELLANT DUE PROCESS AND THE EQUAL

PROTECTION OF THE LAWS.”

       {¶20} As a preliminary matter, we must first determine whether the order under

review is a final, appealable order. If an order is not final and appealable, then we have

no jurisdiction to review the matter and must dismiss it. See Gen. Acc. Ins. Co. v. Ins.

Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266, (1989). In the event that the

parties to the appeal do not raise this jurisdictional issue, we may raise it sua sponte.

See Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64, (1989),

syllabus; Whitaker–Merrell v. Carl M. Geupel Const. Co., 29 Ohio St.2d 184, 186, 280

N.E.2d 922, (1972).

       {¶21} An appellate court has jurisdiction to review and affirm, modify, or reverse

judgments or final orders of the trial courts within its district. See Section 3(B)(2), Article
Tuscarawas County App. Case No. 2011AP070033                                               6

IV, Ohio Constitution; see also R.C. § 2505.02 and Fertec, LLC v. BBC & M

Engineering, Inc., 10th Dist. No. 08AP–998, 2009–Ohio–5246. If an order is not final

and appealable, then we have no jurisdiction to review the matter and must dismiss it.

See Gen. Acc. Ins. Co., supra at 20.

       {¶22} To be final and appealable, an order must comply with R.C. 2505.02 and

Civ.R. 54(B), if applicable. R.C. § 2505.02(B) provides the following, in relevant part:

       {¶23} “(B) An order is a final order that may be reviewed, affirmed, modified, or

reversed, with or without retrial, when it is one of the following:…

       {¶24} “(2) An order that affects a substantial right made in a special proceeding

or upon a summary application in an action after judgment.”

       {¶25} Civ.R. 54(B) provides:

       {¶26} “When more than one claim for relief is presented in an action whether as

a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the

same or separate transactions, or when multiple parties are involved, the court may

enter final judgment as to one or more but fewer than all of the claims or parties only

upon an express determination that there is no just reason for delay. In the absence of a

determination that there is no just reason for delay, any order or other form of decision,

however designated, which adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties, shall not terminate the action as to any of the

claims or parties, and the order or other form of decision is subject to revision at any

time before the entry of judgment adjudicating all the claims and the rights and liabilities

of all the parties.”   A finding there is no just cause for delay “...is not a mystical

incantation which transforms a nonfinal order into a final appealable order.” Wisintainer
Tuscarawas County App. Case No. 2011AP070033                                            7

v. Elcen Power Strut Co., 67 Ohio St.3d 352, 354, 617 N.E.2d 1136 (1993), citing Chef

Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989).

       {¶27} An administrative appeal is a special proceeding for purposes of R.C.

2505.02(B)(2) because it was “specially created by statute and that prior to 1853 was

not denoted as an action at law or a suit in equity.” See R.C. 2505.02(A)(2) and Knight

v. Cleveland Civ. Ser. Comm., 8th Dist. No. 96777, 2011-Ohio-6440. As noted by the

Ohio Supreme Court in Wilhelm-Kissinger v. Kissinger,129 Ohio St.3d 90, 2011-Ohio-

2317, 950 N.E.2d 516, ¶ 7, “An order affects a substantial right for the purposes of R.C.

2505.02(B)(2) only if an immediate appeal is necessary to protect the right effectively.

Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (To prevail in

contending that an order affects a substantial right, ‘appellants must demonstrate that in

the absence of immediate review of the order they will be denied effective relief in the

future’). Covered rights include any ‘right that the United States Constitution, the Ohio

Constitution, a statute, the common law, or a rule of procedure entitles a person to

enforce or protect.” R.C. 2505.02(A)(1).’”

       {¶28} In the case sub judice, we find that the trial court’s July 11, 2011,

Judgment Entry granting the Motion to Strike the affidavit attached to appellant’s brief

was not a final, appealable order despite containing Civ. R. 54(B) language that “[t]here

is no just cause for delay.” Although such order was made in a special proceeding, we

find that such order does not require immediate appeal to ensure the protection of a

substantial right effectively. After his case is decided on the merits, appellant can

effectively raise the issues relating to his affidavit on appeal.
Tuscarawas County App. Case No. 2011AP070033                                          8


      {¶29} Based on the foregoing, appellant’s appeal is dismissed for lack of a final,

appealable order.




By: Edwards, J.

Gwin, P.J. and

Hoffman, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                              JUDGES

JAE/d0213
[Cite as Shearer v. Director O.D.J.F.S., 2012-Ohio-2294.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


DONALD A. SHEARER                                      :
                                                       :
                            Plaintiff-Appellant        :
                                                       :
                                                       :
-vs-                                                   :       JUDGMENT ENTRY
                                                       :
DIRECTOR ODJFS, et al.,                                :
                                                       :
                      Defendants-Appellees             :       CASE NO. 2011AP070033




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

appeal of the Tuscarawas County Court of Common Pleas is dismissed.                     Costs

assessed to appellant.




                                                           _________________________________


                                                           _________________________________


                                                           _________________________________

                                                                        JUDGES
