[Cite as P.D. v. Copley-Fairlawn City Sch. Dist., 2017-Ohio-9132.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

P.D., et al.                                                C.A. No.   28436

        Appellants

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
COPLEY-FAIRLAWN CITY SCHOOL                                 COURT OF COMMON PLEAS
DISTRICT                                                    COUNTY OF SUMMIT, OHIO
                                                            CASE No.   CV 2015-12-5661
        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: December 20, 2017



        CARR, Presiding Judge.

        {¶1}     Appellants, P.D. and J.D., appeal an order of the Summit County Court of

Common Pleas that dismissed their administrative appeal. This Court reverses.

                                                       I.

        {¶2}     P.D. and J.D. are the parents of a minor child who was enrolled at Copley High

School during the 2015-2016 school year. The minor was expelled from school following a

disciplinary incident in November 2015.             After the expulsion, P.D. and J.D. pursued two

different administrative remedies: they appealed the District’s denial of a manifestation

determination related to an alleged disability by filing a due process complaint under Ohio Adm.

Code 3301-1-05(K)(7) and (K)(22), and they appealed the expulsion to the Board of Education

under R.C. 3313.66(E). While the due process complaint was pending, the Board of Education

affirmed the expulsion, and P.D. and J.D. filed an administrative appeal in the Summit County

Court of Common Pleas under R.C. 3313.66(E) and R.C. Chapter 2506.                 The trial court
                                                2


determined that because P.D. and J.D. filed the administrative appeal of the expulsion

determination before the due process proceedings reached their conclusion, they had failed to

exhaust their administrative remedies. The trial court dismissed the administrative appeal on that

basis, and P.D. and J.D. filed this appeal.

                                                II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
       DISMISSED [P.D. AND J.D.’S] APPEAL FOR FAILING TO EXHAUST
       ADMINISTRATIVE REMEDIES.

       {¶3}    P.D. and J.D.’s assignment of error is that the trial court erred by dismissing this

administrative appeal on the basis that they failed to exhaust administrative remedies by waiting

until the due process complaint procedure had reached its conclusion. This Court agrees.

       {¶4}    Under R.C. 2506.04, a trial court considering an administrative appeal reviews the

order at issue to determine whether it is “unconstitutional, illegal, arbitrary, capricious,

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

evidence on the whole record.” The scope of this Court’s review is more limited. Smith v.

Granville Twp. Bd. of Trustees, 81 Ohio St.3d 608, 613 (1998). When reviewing a trial court’s

decision in an administrative appeal, this Court must ordinarily determine whether, as a matter of

law, the trial court’s decision is unsupported by a preponderance of reliable, probative, and

substantial evidence. Independence v. Office of Cuyahoga Cty. Executive, 142 Ohio St.3d 125,

2014-Ohio-4650, ¶ 14, citing Kisil v. Sandusky, 12 Ohio St.3d 30, 34 (1984). This case,

however, presents solely a matter of law.

       {¶5}       Failure to exhaust administrative remedies is an affirmative defense in a civil

action that must be asserted pursuant to Civ.R. 8 and Civ.R. 12(H). Jones v. Chagrin Falls, 77
                                                3


Ohio St.3d 456 (1997), syllabus.       The affirmative defense may be asserted in actions in

mandamus, actions seeking a declaratory judgment, and actions for damages. Kaufman v.

Newburgh Heights, 26 Ohio St.2d 217, 219 (1971). In contrast, the affirmative defense of failure

to exhaust administrative remedies is not available in an appellate proceeding. An administrative

appeal under R.C. Chapter 2506 is by nature an appeal: the trial court is charged with reviewing

an administrative decision based on the existing record, absent circumstances described by R.C.

2506.03(A). The trial court’s role is to determine whether the decision “is unconstitutional,

illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial,

reliable, and probative evidence on the whole record,” and to “affirm, reverse, vacate, or modify

the order, adjudication, or decision, or remand the cause to the officer or body appealed from

with instructions to enter an order, adjudication, or decision consistent with the findings or

opinion of the court.” R.C. 2506.04.

       {¶6}    P.D. and J.D. did not pursue an action in which the affirmative defense of failure

to exhaust administrative remedies is available.        Instead, they availed themselves of the

administrative appeal provided by R.C. 3313.66(E). The trial court erred by dismissing the

administrative appeal, and P.D. and J.D.’s assignment of error is sustained.

                                               III.

       {¶7}    P.D. and J.D.’s assignment of error is sustained. The judgment of the Summit

County Court of Common Pleas is reversed, and this matter is remanded to the trial court for

proceedings consistent with this opinion.

                                                                                 Judgment reversed
                                                                               and cause remanded.



       There were reasonable grounds for this appeal.
                                                 4


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT



TEODOSIO, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

JASON D. WALLACE and DANIEL R. BACHE, Attorneys at Law, for Appellants.

GISELLE S. SPENCER, Attorney at Law, for Appellee.
