[Cite as Marcus Roach Express, L.L.C. v. Dir., Ohio Dept. of Job & Family Serv., 2019-Ohio-5414.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


MARCUS ROACH EXPRESS, LLC,                              :          OPINION

                 Appellee,                              :
                                                                   CASE NO. 2019-P-0054
        - vs -                                          :

DIRECTOR, OHIO DEPARTMENT OF                            :
JOB AND FAMILY SERVICES,
                                                        :
                 Appellant.
                                                        :


Appeal from the Portage County Court of Common Pleas, Case No. 2018 CV 00543.

Judgment: Affirmed.


Melissa R.V. Roubic, 218 West Main Street, Suite 150, Ravenna, OH 44266 (For
Appellee).

Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th
Floor, Columbus, OH 43215; and Eric A. Baum, Assistant Attorney General, One
Government Center, Suite 1340, 640 Jackson Street, Toledo, OH 43604 (For
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, the Director of the Ohio Department of Job and Family Services

(the “Director”), appeals the March 27, 2019 decision of the Portage County Court of

Common Pleas reversing the decision of the Unemployment Compensation Review

Commission (“the Review Commission”), which had affirmed the granting of
unemployment benefits for Robert Ferrebee in connection with his separation from his

relationship with appellee, Marcus Roach Express LLC (“Marcus Roach”).

      {¶2}   At issue is whether Mr. Ferrebee was an independent contractor for

Marcus Roach, or an employee separated due to a lack of work, thus entitling him to

unemployment compensation. The Unemployment Compensation Review Commission

found that Mr. Ferrebee was an employee; the trial court reversed, finding he was an

independent contractor.

      {¶3}   For the reasons set forth below, we affirm the decision of the Portage

County Court of Common Pleas.

      {¶4}   In June 2017, the Ohio Department of Job and Family Services (“ODJFS”)

first issued a determination denying Mr. Ferrebee’s application for benefits, then issued

a corrected determination granting his application based on updated remuneration

information. ODJFS affirmed the latter determination in a redetermination issued July

14, 2017.

      {¶5}   Marcus Roach appealed to the Review Commission, which held a

telephone hearing. The hearing officer ultimately affirmed the ODJFS’s redetermination

on August 15, 2017. Marcus Roach requested a final Review from the Commission

Review, which affirmed the decision on October 4, 2017.

      {¶6}   Marcus Roach then filed an R.C. 4141.282 administrative appeal in the

Portage County Court of Common Pleas and asked the court for a new hearing. In

February 2018, the trial court granted the request and remanded the matter. A second

hearing was held in May 2018 and the new hearing officer ultimately affirmed the July

14, 2017 redetermination.




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       {¶7}   Marcus Roach again appealed to the trial court under R.C. 4141.282,

arguing, as it had before, that (1) finding that Mr. Ferrebee was an employee, not an

independent contractor, was not supported by substantial evidence; (2) Mr. Ferrebee’s

application was void because he submitted forged documents to ODJFS; and (3) even if

Mr. Ferrebee were an employee, he was separated from work for just cause, thus

warranting denial of his application.

       {¶8}   In March 2019, the trial court found that Mr. Ferrebee was an independent

contractor and reversed the Review Commission’s final decision; it did not address

Marcus Roach’s fraud and just cause arguments.

       {¶9}   The Director now appeals, assigning one error for our review:

       {¶10} The Review Commission twice determined that Mr. Ferrebee did
             not have the right to control how he performed his work. Those fact
             determinations are supported by some competent, credible
             evidence. Further, as a matter of law Marcus Roach cannot
             delegate its direction and control over Mr. Ferrebee to Cardinal.
             Accordingly, the trial court’s judgment should be reversed both
             because it wrongly substituted its judgment for the review
             commission’s and because its decision was unlawful.

       {¶11} R.C. 4141.282(H) sets forth a court’s standard for reviewing the decision

of the unemployment compensation review commission:

       {¶12} The court shall hear the appeal on the certified record provided by
             the commission. If the court 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.

       {¶13} This standard of review applies both to the trial court and this court.

Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Services, 73 Ohio St.3d 694, 696

(1995). An appellate court reviewing such a case “is required to focus on the decision

of the Review Commission, rather than that of the common pleas court * * *.” Williams


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v. Ohio Unemp. Comp. Rev. Comm., 11th Dist. Trumbull No. 2010-T-0094, 2011-Ohio-

2458, ¶27, citing Barilla v. Ohio Dept. of Job & Family Servs., 9th Dist. Lorain No.

02CA008012, 2002-Ohio-5425, ¶6.

       {¶14} This court has previously noted that “an unemployment compensation

appeal probably provides the least opportunity for a reviewing court to weigh and

assess evidence and credibility of witnesses of any R.C. Chapter 119 administrative

proceeding.”    Fredon Corp. v. Zelenak, 124 Ohio App.3d 103, 108–109 (11th

Dist.1997). An appellate court reviewing such cases is not permitted to make factual

findings or to determine the credibility of witnesses. Becka v. State Unemp. Comp. Rev.

Com’n, 11th Dist. Lake No. 2001-L-037, 2001 WL 446869 (Mar. 22, 2002), *3, citing

Irvine v. Unemp. Comp. Bd. of Review, 19 Ohio St.3d 15, 17-18 (1985) (“[T]he

determination of purely factual questions in an unemployment compensation case, such

as the credibility of witnesses and the weight to be given to conflicting evidence, is

primarily within the province of the Board of Review.”).

       {¶15} Instead, our review, like the trial court’s, is limited to a determination of

whether the evidence in the record supported the Review Commission’s decision.

Becka, supra; Tzangas, supra, at 696. “‘The fact that reasonable minds might reach

different conclusions is not a basis for the reversal of the board’s decision.’” Id. at 697,

quoting Irvine, supra, at 18. We may reverse the Review Commission’s decision only if

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

supra, at paragraph one of the syllabus. Because we find the Review Commission’s

decision was unreasonable and against the manifest weight of the evidence, we affirm

the trial court’s decision reversing the board’s decision.




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      {¶16} “Whether someone is an employee or an independent contractor is

ordinarily an issue to be decided by the trier of fact.” Bostic v. Connor, 37 Ohio St.3d

144, 145-146 (1988). However, “‘where the evidence is not in conflict or the facts are

admitted, the question of whether a person is an employee or an independent

contractor is a matter of law to be decided by the court.’” Harmon v. Schnurmacher, 84

Ohio App.3d 207, 211 (11th Dist.1992), quoting Bostic, supra. Here, many facts are in

contention and the evidence is in conflict. Thus, the determination of employee versus

independent contractor is an issue of fact, and this court, as with the trial court before

us, is required to give deference to the Review Commission’s determination that Mr.

Ferrebee was an employee. However, “[t]hough deference is due the findings of an

administrative body, an appellate court is not bound to accept improperly drawn

inferences from the evidence.” Aaron v. Ohio Bur. of Emp. Serv., 130 Ohio App.3d 376,

381-382, (7th Dist.1998), citing Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108 (1980).

      {¶17} In making its determination, the Review Commission analyzed the 20

factors outlined in Ohio Adm. Code 4141-3-05(B).        “These factors set out in Ohio

Adm.Code 4141-3-05(B) are to be used by the [commission], but they are not

necessarily the factors utilized by courts in determining whether reasonable minds could

find that a claimant was or was not subject to direction and control over the performance

of his services. * * * The code is permissive and states that, ‘[d]irection or control may

be evidenced by,’ the factors.” Edan Farms, Inc. v. Toth, 7th Dist. Mahoning No. 99-

CA-185, 2000 WL 1809050 (Dec. 5, 2000), *3, quoting Butts v. Obes, 7th Dist.

Columbiana No. 98 CO 7, 1999 WL 669522, *4. After a careful review of the evidence

in the record, we find that the Review Commission’s determination that Mr. Ferrebee




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was an employee of Marcus Roach was unreasonable and against the manifest weight

of the evidence.

      {¶18} In 2009, Mr. Ferrebee approached Larry Roach, owner of Marcus Roach,

a trucking company, and asked for a job driving a semitrailer; Mr. Roach agreed. Mr.

Ferrebee signed Mr. Roach’s standard agreement which clearly stated that Mr.

Ferrebee was an independent contractor, and not an employee of Marcus Roach;

according to the terms, Marcus Roach did not deduct employment-related taxes for Mr.

Ferrebee and issued Mr. Ferrebee a Form 1099 each year. However, though this factor

supports our finding, this factor alone is not determinative. “Contract language does not

determine the relationship of the parties; rather, the objective nature of the relationship

is determined by an analysis of the totality of the facts and circumstances of each case.”

Silver v. Statz, 166 Ohio App.3d 148, 2006-Ohio-1727, ¶14 (8th Dist.), citing Bobik v.

Indus. Comm., 146 Ohio St. 187, 191 (1946).

      {¶19} The Ohio Supreme Court has held that “[t]he vital test, in determining

whether a person employed to do certain work is an independent contractor or a mere

servant, is the control over the work which is exercised by the employer. * * * The

ultimate question is not whether the employer actually exercises such control, but

whether he has the right to control.” Indus. Comm. v. Laird, 126 Ohio St. 617, 619

(1933). See also R.C. 4141.01(B)(1); Bostic v. Connor, 37 Ohio St.3d 144, 146 (1988);

Gillum v. Indus. Com’n., 141 Ohio St. 373, 375 (1943); Harmon, supra.

      {¶20} The Director cites certain facts as weighing in favor of finding Mr.

Ferrebee to be an employee of Marcus Roach, including that Mr. Ferrebee stood neither

to gain a profit nor to lose money for his services; Marcus Roach paid Mr. Ferrebee




                                            6
weekly; approved his time-off requests; owned the delivery truck and paid for its repairs,

maintenance, and insurance; reimbursed Mr. Ferrebee for travel-related expenses;

continued a working relationship with Mr. Ferree for almost eight years; did not permit

Mr. Ferrebee to use the truck for non-Marcus Roach business; required Mr. Ferrebee to

turn over to it his log books; and provided certain tools for Mr. Ferrebee’s use on the

job.

       {¶21} However, whether Mr. Ferrebee was permitted to use the truck for non-

Marcus Roach business is in contention. Certainly nothing in the agreement between

Marcus Roach and Mr. Ferrebee prohibited it.        Additionally, being paid weekly and

continuing a working relationship for numerous years, does not support either a finding

that Mr. Ferrebee was an employee or an independent contractor, especially

considering the nature of the trucking business.     Moreover, Mr. Ferrebee was paid

based on how many loads he accepted, not based on hours worked, and Marcus Roach

did not mandate that Mr. Ferrebee work full time or certain hours.

       {¶22} The fact that Marcus Roach approved time-off; required logs to be turned

in; owned the truck and paid for its repairs, insurance, maintenance, as well as tools

and travel-related expenses, except for fuel expense which were shared, is not alone

indicative of an employer-employee relationship.        Considering the totality of the

circumstances, it is clear that Marcus Roach neither exercised nor retained a right to

control Mr. Ferrebee’s work.

       {¶23} Mr. Ferrebee used the truck to drive for Marcus Roach’s customer,

Cardinal. Both Mr. Roach and Mr. Ferrebee attended meetings and signed paperwork

with Cardinal, who had them both watch videos explaining how their products should be




                                            7
moved.    Cardinal contacted Mr. Ferrebee directly when they needed loads, which,

though Mr. Ferrebee said he always called Mr. Roach to approve any declined loads, he

could accept or reject.    Marcus Roach was not involved with the direction of the

deliveries. Cardinal required that Mr. Ferrebee had at least one other helper with him

on deliveries. Mr. Ferrebee alone was responsible for hiring, managing, and paying his

helpers out of his share of the proceeds; Marcus Roach was in no way involved with Mr.

Ferrebee’s helpers.

       {¶24} After receiving complaints of late deliveries and foul language by Mr.

Ferrebee’s helpers, Cardinal banned Mr. Ferrebee’s helpers from making deliveries.

Cardinal informed both Mr. Roach and Mr. Ferrebee of this.           Cardinal alternatively

offered Mr. Ferrebee “line haul” routes, which did not require an additional helper.

       {¶25} The termination of the relationship between Marcus Roach and Mr.

Ferrebee is in contention. Mr. Roach testified that Mr. Ferrebee declined the line haul

routes Cardinal offered him and instead left the truck at a truck stop and told Mr. Roach

to pick it up. Contradictorily, Mr. Ferrebee testified that Mr. Roach told him the line haul

routes were unprofitable, that Marcus Roach was taking the truck out of commission,

and to leave the truck at the truck stop, the effect of which was that Mr. Ferrebee did not

have a truck to use and work ceased. The Review Commission believed Mr. Ferrebee’s

testimony.

       {¶26} The trial court stated that “[a]t no time did Appellant [Marcus Roach] state

that Appellee-Ferrebee was terminated,” while Mr. Ferrebee argued that Mr. Roach’s

actions terminated their contract. The Review Commission agreed with Mr. Ferrebee

and weighed this as a supporting factor in determining that Mr. Ferrebee was an




                                             8
employee of Marcus Roach and was separated due to a lack of work.                  However,

regardless of which party terminated the relationship, pursuant to the independent

contractor agreement, either party could terminate the relationship at any time.

      {¶27} In light of the foregoing, it is clear from the record that Marcus Roach did

not exercise nor retain the right to control Mr. Ferrebee’s work. Accordingly, the Review

Commission decision was unreasonable and against the manifest weight of the

evidence. The Director’s sole assignment of error is not well taken.

      {¶28} The decision of the Portage County Court of Common Pleas is affirmed.


TIMOTHY P. CANNON, J.,

MARY JANE TRAPP, J.,

concur.




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