[Cite as Black v. Chiropractic Assocs. of Zanesville, L.L.C., 2014-Ohio-192.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                                             JUDGES:
DAVID C. BLACK                                               Hon. W. Scott Gwin, P. J.
                                                             Hon. Sheila G. Farmer, J.
        Appellant                                            Hon. John W. Wise, J.

-vs-
                                                             Case No. CT2013-0012
CHIROPRACTIC ASSOCIATES
of ZANESVILLE, LLC, et al.

        Appellees                                            OPINION



CHARACTER OF PROCEEDING:                                Civil Appeal from the Court of Common
                                                        Pleas, Case No. CF2012-0323

JUDGMENT:                                               Affirmed


DATE OF JUDGMENT ENTRY:                                 January 16, 2014


APPEARANCES:

For Appellant                                           For Appellee Chiropractic

DAVID C. BLACK                                          MILES D. FRIES
1055 1/2 Blue Avenue                                    GOTTLIEB JOHNSTON BEAM &
Zanesville, Ohio 43701                                  DAL PONTE
                                                        320 Main Street, P. O. Box 190
                                                        Zanesville, Ohio 43702-0190

                                                        For Appellee ODJFS

                                                        MICHAEL DEWINE
                                                        ATTORNEY GENERAL
                                                        PATRIA V. HOSKINS
                                                        ASSISTANT ATTORNEY GENERAL
                                                        30 East Broad Street, 26th Floor
                                                        Columbus, Ohio 43215-3400
Muskingum County, Case No. CT2013-0012                                                    2

Wise, J.

      {¶1}     Appellant (Claimant) David C. Black appeals from the decision of the

Court of Common Pleas, Muskingum County, which affirmed a decision by the Ohio

Unemployment       Review    Commission     to   disallow   appellant's   application    for

unemployment compensation. The relevant facts leading to this appeal are as follows.

      {¶2}     Prior to the events leading to the present dispute, appellant was employed

as a chiropractor at Zanesville Chiropractic, Inc. (“ZCI”).1 In June 2011, appellant

commenced employment as a chiropractor at Appellee Chiropractic Associates of

Zanesville (“CAZ”). CAZ, a business competitor of ZCI, is owned and operated by Dr.

Rusty Myers.

      {¶3}     ZCI thereafter asserted that appellant’s employment at CAZ was in

violation of a non-competition agreement between appellant and ZCI. On October 5,

2011, appellant was served with a temporary restraining order in that regard. Dr. Myers

thereupon offered appellant work opportunities at CAZ to avoid a conflict with the

restraining order, such as preparing insurance documentation and report writing, until

the temporary restraining order could be resolved in court. Appellant nonetheless

stopped reporting for work at CAZ upon his receipt of the aforesaid restraining order.

      {¶4}     On October 8, 2011, appellant filed an application for unemployment

compensation with the director of the Ohio Department of Job and Family Services

("ODJFS").

      {¶5}     On November 22, 2011, ODJFS allowed appellant's initial application for

unemployment benefits.

1
    In order to alleviate any confusion over the names of the two chiropractic entities
involved, we are creating acronyms for purposes of our opinion.
Muskingum County, Case No. CT2013-0012                                                  3


       {¶6}   On November 28, 2011, CAZ appealed the initial determination to the

Redetermination Unit of ODJFS.

       {¶7}   On December 14, 2011, the Redetermination Unit affirmed the initial

determination to allow benefits to appellant.

       {¶8}   On   December      20,   2011,    CAZ   appealed   the   decision   of   the

Redetermination Unit to the Ohio Unemployment Review Commission. On December

27, 2011, ODJFS transferred jurisdiction to the Commission.

       {¶9}   On March 1, 2012, the Commission conducted a telephonic hearing,

during which Appellant appeared and offered sworn testimony. Chiropractic Associates

of Zanesville also appeared and was represented by its owner, Dr. Rusty Myers.

       {¶10} On March 15, 2012, the Commission’s hearing officer reversed the

ODJFS redetermination with regard to appellant's separation from employment from

CAZ. The hearing officer held that appellant's application was disallowed, because he

was not involuntarily totally or partially unemployed at the time that he applied for

unemployment compensation benefits.

       {¶11} Appellant's subsequent request for review was disallowed.

       {¶12} Appellant then appealed the Commission's decision to the Muskingum

County Court of Common Pleas. In its judgment of February 11, 2013, the Common

Pleas Court affirmed the Commission's decision.

       {¶13} On March 13, 2013, appellant filed a notice of appeal. He herein raises the

following two Assignments of Error:

       {¶14} “I.   THE JUDGE DID NOT REVIEW THE CASE LAW AND DID NOT

PROVIDE ANY REASONING FOR HIS DECISION.
Muskingum County, Case No. CT2013-0012                                                  4


      {¶15} “II. HEARING OFFICER PATTERSON'S DECISION IS PREDICATED IN

LARGE PART ON NOT ALLOWING ME DUE PROCESS OF LAW.”

                                              I., II.

      {¶16} In his First and Second Assignments of Error, appellant essentially

contends the trial court improperly affirmed the Commission's denial of benefits without

reviewing the law, without providing adequate reasoning, and without ensuring due

process of law by the hearing officer. We disagree.

      {¶17} The process of filing applications for determination of benefit rights and

claims for unemployment compensation benefits with the ODJFS Director is set forth in

R.C. 4141.28. As a reviewing court, we may reverse an unemployment board

determination if it is unlawful, unreasonable, or against the manifest weight of the

evidence. Tzangas, Plakas & Mannos v. Administrator (1995), 73 Ohio St.3d 694, 653

N.E.2d 1207, paragraph one of the syllabus. While appellate courts are not permitted to

make factual findings, or to determine the credibility of witnesses, they have the duty to

determine whether the board's decision is supported by the evidence in the record. Id.

at 696, 653 N.E.2d 1207. The same standard of review is shared by all reviewing

courts, from the common pleas court through the Ohio Supreme Court. Id. Therefore,

the duty of this Court is to review the decision of the Review Commission to determine

whether it is unlawful, unreasonable, or against the manifest weight of the evidence.

Cardani v. Olsten Home Health Care (March 22, 1999), Tuscarawas App.No.

1998AP110118. As a reviewing court, we may neither substitute our judgment for that of

the Commission on questions of fact nor reassess the credibility of the witnesses.
Muskingum County, Case No. CT2013-0012                                                   5

Kilgore v. Bd. of Rev., Bur. of Unemp. Comp. (1965), 2 Ohio App.2d 69, 72, 206 N.E.2d

423.

       {¶18} In the case sub judice, the hearing officer determined that appellant's

unemployment was not involuntary, finding that “ *** Dr. Myers generously offered

Claimant several different options to allow him to continue working in a more

administrative capacity”, but that “Claimant denied the employer's offer without

reasonable explanation and voluntarily chose to not work at all during his settlement

negotiations.” UCRC Decision at 4. The common pleas court thereafter determined the

hearing officer’s decision was supported by competent, credible evidence. Appellant

presently alleges that Dr. Myers of CAZ was aware of the non-competition clause with

ZCI, and that Dr. Myers promised to open a new office should legal complications arise

because of the clause. He essentially urges that the temporary restraining order put him

in an untenable position without CAZ facilitating a way for him to work off-site. However,

the common pleas court, as a reviewing court, was not permitted to reverse the

Commission's decision simply because reasonable minds might reach different

conclusions. See Williams v. Ohio Dept. of Job and Family Services, 129 Ohio St.3d

332, 951 N.E.2d 1031, 2011-Ohio-2897, ¶ 20, citing Irvine v. Unemp. Comp. Bd. of

Review (1985), 19 Ohio St.3d 15, 18, 19 OBR 12, 482 N.E.2d 587.

       {¶19} Upon review, we are unable to conclude that the decision of the Review

Commission, and the trial court in affirming same, was unlawful, unreasonable, or

against the manifest weight of the evidence.

       {¶20} In regard to appellant’s specific allegation in the text of his first assigned

error that the trial court failed to “review the case law,” we note that a presumption of
Muskingum County, Case No. CT2013-0012                                                    6

regularity attaches to all trial court proceedings. See, e.g., Chari v. Vore (2001), 91 Ohio

St.3d 323, 325, 744 N.E.2d 763. Appellant fails to articulate his assertion or otherwise

demonstrate that the trial court failed to follow Ohio law regarding unemployment

compensation. See App.R. 16(A)(7). In regard to appellant’s claim that the trial court

failed to provide reasoning for its decision, we recite R.C. 4141.282(H), which succinctly

states that if a common pleas court, in considering an appeal from the UCRC, “finds that

the decision of the commission was unlawful, unreasonable, or against the manifest

weight of the evidence, it shall reverse, vacate, or modify the decision, or remand the

matter to the commission. Otherwise, the court shall affirm the decision of the

commission.” Thus, there is no direct legislative requirement in R.C. 4141.282(H) that a

common pleas court state findings or reasons in its decision. A reviewing court in such

cases is actually directed not to make factual findings or weigh witness credibility. See,

e.g., Isenberg v. Artcraft Memorials, Trumbull App.No. 2011–T–0093, 2012-Ohio-2564,

¶ 11, citing Williams, supra. Lastly, appellant fails to persuade us that the hearing

officer’s apparent conclusion in her decision that appellant had effectively taken a leave

of absence (see UCRC Decision at 4) constitutes a violation of his due process rights.
Muskingum County, Case No. CT2013-0012                                              7


      {¶21} Appellant’s First and Second Assignments of Error are therefore

overruled.

      {¶22} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Muskingum County, Ohio, is hereby affirmed.


By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.
