[Cite as Wade v. Ohio Dept. of Job & Family Servs., 2011-Ohio-2234.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

BRUCE A. WADE                                             JUDGES:
                                                          Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                                Hon. William B. Hoffman, J.
                                                          Hon. Patricia A. Delaney, J.
-vs-
                                                          Case No. 2010CA00099
DIRECTOR OF THE OHIO
DEPARTMENT OF JOB AND FAMILY
SERVICES, ET AL.                                          OPINION

        Defendant-Appellants



CHARACTER OF PROCEEDING:                              Appeal from the Stark County Court of
                                                      Common Pleas, Case No. 2009CV04986


JUDGMENT:                                             Reversed and Final Judgment Entered


DATE OF JUDGMENT ENTRY:                               May 9, 2011


APPEARANCES:


For Plaintiff-Appellee                                For Defendant-Appellant


JAMES J. COLLUM                                       DAVID T. ANDREWS
4774 Munson Street N.W., Suite 400                    JERRY P. CLINE
Canton, Ohio 44718                                    Andrews & Wyatt, LLC
                                                      561 Boston Mills Road, Suite 700
                                                      Hudson, Ohio 44236
Stark County, Case No. 2010CA00099                                                    2

Hoffman, J.


       {¶1}   Appellant Progressive Oldsmobile Cadillac, Inc. appeals the April 30, 2010

Judgment Entry entered by the Stark County Court of Common Pleas, which reversed

the decision of the State of Ohio Unemployment Compensation Review Commission

(“the Commission”) disallowing Appellee Bruce A. Wade’s application for unemployment

compensation benefits.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   Progressive is an automobile dealership, which sells both new and used

vehicles. Wade was employed by Progressive from May 1, 2000, to April 30, 2009, as a

service advisor. On April 30, 2009, Wade met with service sales manager Gregory A.

Smith and service manager Tim Chillik after Progressive had received a complaint from

a customer about Wade. Wade received an employee warning report, which listed his

violation as “unsatisfactory behavior towards employees or customers” and indicated

the action taken was “warning”. Wade subsequently cleared out his desk, turned in his

keys, and left the dealership.

       {¶3}   On May 14, 2009, Wade applied for unemployment compensation

benefits. Progressive contested the application. The Commission set the matter for a

telephone hearing on November 13, 2009. The hearing officer issued his decision on

November 24, 2009, denying Wade’s request for unemployment benefits. The hearing

officer specifically found Wade “quit without just cause in connection with his work”.

Wade’s request for further review was denied. Wade filed a notice of appeal with the

Stark County Court of Common Pleas on December 31, 2009. Via Judgment Entry filed
Stark County, Case No. 2010CA00099                                                        3


March 31, 2010, the trial court reversed the Commission’s decision, finding such was

against the manifest weight of the evidence.

       {¶4}   It is from this judgment Progressive appeals, raising the following

assignment of error:

       {¶5}   “I.   THE    OHIO     UNEMPLOYMENT            COMPENSATION          REVIEW

COMMISSION’S DECISION WAS SUPPORTED BY COMPETENT, CREDIBLE

EVIDENCE AND WAS NOT UNLAWFUL, UNREASONABLE OR AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.”

                                                 I

       {¶6}   An appeal of a decision rendered by the Commission is governed by R.C.

4141.282(H), which provides, in pertinent part: “ * * * If the court finds that the decision

is 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, such court shall affirm the decision of the commission.”

       {¶7}   The scope of our review in unemployment compensation appeals is

limited. Silkert v. Ohio Dept. Job & Family Servs., 184 Ohio App 3d. 78, 2009-Ohio-

4399 ¶26. An appellate court may reverse the Commission’s decision only if the

decision is unlawful, unreasonable or against the manifest weight of the evidence. See,

Tzangas, Plakas & Mannos v. Administrator, Ohio Bureau of Employment Services, 73

Ohio St.3d 694, 696, 1995-Ohio-206, 653 N.E.2d 1207, citing Irvine v. Unemp. Comp.

Bd. Of Review (1985), 19 Ohio St.3d 15, 17-18, 482 N.E.2d 587. All reviewing courts,

including common pleas, courts of appeals, and the Supreme Court of Ohio, have the

same review power and cannot make factual findings or determine the credibility of the
Stark County, Case No. 2010CA00099                                                         4


witnesses. Rather, a reviewing court is required to make a determination as to whether

the Commission’s decision is supported by evidence on the record. Id. The hearing

officer as the fact finder is in best position to judge the credibility of the witnesses.

Shaffer-Goggin v. Unemployment Compensation Review Commission, Richland App.

No. 03-CA-2, 2003-Ohio-6907, citing, Hall v. American Brake Shoe Co. (1968), 13 Ohio

St.2d 11, 233 N.E.2d 582; Brown-Brockmeyer Co. v. Roach, (1947), 148 Ohio St. 511,

76 N.E.2d 79. “Every reasonable presumption must be made in favor of the [decision]

and the findings of facts [of the Review Commission].”             Ro-Mai Industries, Inc. v.

Weinberg, 176 Ohio App.3d 151, 2008-Ohio-301, 891 N.E.2d 348 at ¶ 7, quoting

Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 19, 526 N.E.2d 1350. “[I]f the evidence

is susceptible of more than one construction, we must give it that interpretation which is

consistent with the verdict and judgment, most favorable to sustaining the trial court's

verdict and judgment.” Karches, supra at 19.

        {¶8}   We note a judgment supported by some competent, credible evidence will

not be reversed as against the manifest weight of the evidence. C.E. Morris Co. v. Foley

Construction Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578.

        {¶9}   In order to qualify for unemployment compensation benefits, a claimant

must satisfy the criteria set forth in R.C. 4141.29(D)(2)(a). That section provides:

        {¶10} “(D) * * * [N]o individual may * * * be paid benefits * * *:

        {¶11} “(2) For the duration of the individual's unemployment if the director finds

that:

        {¶12} “(a) The individual quit his work without just cause or has been discharged

for just cause in connection with the individual's work, * * *.”
Stark County, Case No. 2010CA00099                                                           5


       {¶13} The Ohio Supreme Court has defined “just cause” as that which, to an

ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.

Irvine v. Unemp. Comp. Bd. of Review (1985), 19 Ohio St.3d 15, 17, 482 N.E.2d 587;

Tzangas at 697, 653 N.E.2d 1207.

       {¶14} We find the basic facts are not in dispute. The question is, what logical

conclusion can be drawn from the facts in the instant action?

       {¶15} The hearing officer reasoned:

       {¶16} “The evidence shows           that clearly each of        the parties had a

misunderstanding of the other’s position and the result was that the claimant was

separated from employment. The employer was giving the claimant a disciplinary

warning, but not a discharge. The claimant stated that he felt that he was being

discharged and therefore he left.       The employer testified that he never heard the

claimant say he quit. The claimant testified that he never heard the employer say he

was discharged. The testimony cannot be reconciled and both the employer and the

claimant are found to be credible witnesses.1 However, the claimant cleaned out his

desk and left. Therefore, the Hearing Officer finds that the claimant quit without just

cause in connection with work.” (Emphasis in original.)

       {¶17} We find the hearing officer’s finding Wade quit his employment is

supported by the record.      The trial court chose to give more credibility to Wade’s

testimony he “felt” he was discharged. A reviewing court is not permitted to determine

the credibility of the witnesses. We find the trial court did such herein. We find the

1
  While the employer may not have heard the claimant use the word “quit”, the
claimant’s actions were consistent with quitting. The claimant admitted he never heard
his employer say he was terminated. Unlike the hearing officer, we do not find the
testimony irreconcilable.
Stark County, Case No. 2010CA00099                                                    6


hearing officer’s initial determination is supported by some competent credible evidence

and was not against the manifest weight of the evidence.

      {¶18} Progressive’s sole assignment of error is sustained.

      {¶19} The judgment of the Stark County Court of Common Pleas is reversed

and the original decision of the Commission is reinstated.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY
Stark County, Case No. 2010CA00099                                                7


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


BRUCE A. WADE                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :        JUDGMENT ENTRY
                                           :
DIRECTOR OF THE OHIO                       :
DEPARTMENT OF JOB AND FAMILY               :
SERVICES, ET AL.                           :
                                           :
       Defendant-Appellants                :        Case No. 2010CA00099


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is reversed and the original decision of the Commission

is hereby reinstated. Costs assessed to Appellee.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY
