[Cite as Ward v. Dept. of Job & Family Servs., 2015-Ohio-5539.]


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

SHAINE E. WARD                                             C.A. No.   27621

        Appellant

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
OHIO DEPARTMENT OF JOB AND                                 COURT OF COMMON PLEAS
FAMILY SERVICES                                            COUNTY OF SUMMIT, OHIO
                                                           CASE No.   CV 2014-07-3181
        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: December 31, 2015



        WHITMORE, Judge.

        {¶1}    Appellant, Shaine Ward, appeals from the order of the Summit County Court of

Common Pleas affirming the administrative agency decision of the Ohio Department of Job and

Family Services (“ODJFS”). We affirm.

                                                      I

        {¶2}    Mr. Ward applied through the Summit County Department of Job and Family

Services for cash assistance, food assistance, and Medicaid. He also sought benefits for his son.

        {¶3}    An investigation took place to verify whether Mr. Ward had a child living with

him, where he was residing, and how he was supporting himself and his son. Investigators

interviewed Mr. Ward and presented him with evidence that he had committed an intentional

program violation (“IPV”), because he had failed to report several income producing properties,

and thus had obtained food and assistance benefits to which he was not entitled.
                                                2


       {¶4}    The investigators provided Mr. Ward with a waiver of administrative

disqualification hearing form pursuant to Ohio Adm.Code 5101:6-20-30. The form notified Mr.

Ward that the evidence against him consisted of “verification from the county auditor’s website

of rental property, IRS tax returns and video receiving cash payments.” The form told Mr. Ward

that he could have a hearing to determine whether he committed an IPV, and, if he won the

hearing, no penalty would be imposed. The form also told Mr. Ward that he could waive the

hearing and accept the applicable disqualification penalty. He could do this by admitting to the

facts presented, or by not admitting the facts presented, and choosing to sign the waiver. Mr.

Ward elected to sign the waiver, admit to the facts presented, and accept the disqualification

penalty of 12 months disqualification from the food assistance program.

       {¶5}    Mr. Ward also signed a food assistance repayment agreement, acknowledging

overpayment of $6,802 because he failed to report “earned income from self-employment” such

that he “intentionally misrepresented [his] situation or [he] intentionally violated program rules

causing an overissuance.” On the same day, he signed a cognovit installment note, agreeing to

repay the $6,802 within a month. Mr. Ward repaid the overpayment in full on the same day he

signed the food assistance repayment agreement and the cognovit note.           Mr. Ward’s food

assistance, and his Medicaid assistance, were then terminated for failure to verify income.

       {¶6}    Despite admitting to the IPV and the underlying facts of his failure to report

income, and repaying the overpayment amount in full, Mr. Ward requested a state hearing to

challenge the overpayment and the termination of his food assistance and Medicaid benefits.

ODJFS overruled Mr. Ward’s appeal as it pertained to his food assistance disqualification and

overpayment, finding that he had waived the right to appeal on these matters, and also that he did
                                                 3


not have the right to appeal through the state hearing process. However, the ODJFS sustained

Mr. Ward’s appeal regarding his Medicaid benefits on procedural grounds.

       {¶7}    Mr. Ward next appealed to ODJFS’s Director by requesting an administrative

appeal from the state hearing decision.      ODJFS entered an administrative appeal decision

affirming the state hearing decision. ODJFS found that: (1) it had no jurisdiction to hear the

appeal because Mr. Ward signed the waiver of administrative disqualification hearing form; (2)

any issues regarding the food assistance overpayment were moot because Mr. Ward repaid the

overpayment amount; and (3) Mr. Ward’s Medicaid benefits were improperly terminated due to

procedural error.

       {¶8}    Mr. Ward then appealed the administrative appeal decision to the common pleas

court. The common pleas court held that the administrative appeal decision was supported by

the requisite evidence and was in accordance with the law on the food assistance issues because

they were waived, were moot, and had been pursued in the wrong forum at the agency level.

The trial court also held that Mr. Ward could not challenge the portion of the agency’s decision

upholding his Medicaid-related challenge, because he had prevailed on that issue.

       {¶9}    Mr. Ward now appeals from the trial court decision, raising four assignments of

error for our review. We will address his assignments of error together to facilitate analysis.

                                                 II

                                Assignment of Error Number One

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
       DISCRETION IN REFUSING TO REVIEW THE AAD DECISION EVEN
       THOUGH THE AAD DECSION [SIC] WAS A FINAL AND APPEALABLE
       ORDER, THOUGH IT DETERMINED THAT ODJFS FAILED TO
       COMPLETE A PRE-TERMINATION REVIEW WHICH MAY IMPACT THE
       OUTCOME IN THE PENDING FOOD ASSISTANCE BENEFITS DECISION.
                                               4


                              Assignment of Error Number Two

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
       DISCRETION IN RULING ON NEEDING AN ADMINISTRATIVE
       DISQUALIFICAITON [SIC] HEARING DECISION IN ORDER TO RULE ON
       THE FOOD ASSISTANCE BENEFIT DISQUALIFICATION RULING SINCE
       THERE WAS NO ADMINISTRATIVE DISQUALIFICAITON [SIC]
       HEARING IN WHICH TO RULE UPON.

                              Assignment of Error Number Three

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
       DISCRETION IN NOT ACCOUNTING FOR THE EVIDENCE IN THE
       RECORD THAT THE APPELLANT WAS NOT LIVING WITH HIS MINOR
       CHILD WHEN THERE IS RELIABLE, PROBATIVE AND SUBSTANTIAL
       EVIDENCE TO PROVE OTHERWISE.

                              Assignment of Error Number Four

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
       DISCRETION IN NOT ACCOUNTING FOR THE EVIDENCE ON RECORD
       SHOWING THE INCOME OF THE APPELLANT PER THE AFFIDAVIT
       FROM HIS ACCOUNTANT, JAY REITZES, CONFLICTS WITH THE
       PERSONAL INCOME REPORTED FROM ODJFS.

       {¶10} In his assignments of error, Mr. Ward challenges the merits of the findings that he

committed an IPV with regard to the food assistance program violation and received

overpayment. He also challenges the determination that ODJFS lacked jurisdiction to review the

finding that his Medicaid benefits were improperly terminated. We disagree.

       {¶11} When, as here, the common pleas court reviews an administrative agency order

pursuant to R.C. 119.12, the trial court generally must affirm the agency’s order if it is (1)

supported by reliable, probative and substantial evidence and (2) in accordance with the law.

Wise v. Ohio Motor Vehicle Dealers Bd., 106 Ohio App.3d 562, 565 (9th Dist.1995) (citations

omitted). When it determines whether the agency’s decision is supported by reliable, probative,

and substantial evidence, the trial court must give “’due deference to the administrative

resolution of evidentiary conflicts.’” Id., quoting Univ. of Cincinnati v. Conrad, 63 Ohio St.2d
                                                5


108, 111 (1980). Thus, the common pleas court’s review is a hybrid one, and examines “both

the factual and legal determinations made by the agency.” Wise at 565.

       {¶12} This court’s scope of review of the common pleas court’s determination of an

appeal from an administrative agency decision based upon the evidence is confined to whether

the common pleas court abused its discretion. Id. An abuse of discretion is more than an error

of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its

ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶13} In the instant case, the common pleas court did not review the ODJFS’s factual

determinations concerning whether Mr. Ward committed violations of the assistance programs.

Rather, the court concluded that, as a matter of law, Mr. Ward’s claims were precluded from

further review. Accordingly, “we need only determine whether the court’s decision was in

accordance with the law.” Wise at 566. The common pleas court does not exercise discretion on

questions of law. Grill v. Ohio Dept. of Job and Family Services, 9th Dist. Medina No.

03CA0029-M, 2003-Ohio-5780, ¶ 16. Thus, our review is plenary. Id.

       {¶14} Ohio permits an individual accused of committing an IPV to either (1) attend an

administrative disqualification hearing, or (2) waive a hearing by signing a waiver of

administrative disqualification hearing form.       See Ohio Adm.Code 5101:6-20-15; Ohio

Adm.Code 5101:6-20-30. A person who chooses the latter option and signs the form waives the

administrative disqualification hearing and accepts the penalties, including a disqualification

period. See Ohio Adm.Code 5101:6-20-30(C)(8). Individuals who have signed a waiver of the

right to an administrative disqualification hearing for an IPV generally are disqualified from the

food assistance program for 12 months for the first violation. Ohio Adm.Code 5101:6-20-

03(A)(2).
                                                 6


       {¶15} Mr. Ward signed the waiver of administrative disqualification hearing. He also

checked a box on the waiver stating, “I admit to the facts presented and understand that a

disqualification penalty will be imposed if I sign this waiver.” The facts included “not reporting

* * * earned income from self-employment.”

       {¶16} We agree with the trial court that Mr. Ward’s execution of the waiver form bars a

challenge on appeal to the finding that he committed an IPV, and the resulting disqualification

penalty. Ohio law is clear that, “[n]o further administrative appeal procedures exist * * * after

the individual waives the right to an administrative disqualification hearing and a disqualification

penalty has been imposed.” Ohio Adm.Code 5101:6-20-19(A). Thus, when Mr. Ward signed

the waiver of administrative disqualification hearing form, expressly admitting to the IPV and

underlying facts, and accepting the disqualification penalty, he foreclosed the opportunity to

challenge the IPV before ODJFS. By not raising any issues before ODJFS to challenge the IPV,

the factual basis thereof, or the disqualification penalty, Mr. Ward forfeited the right to raise

those issues on appeal. “The failure to raise an issue before an administrative board operates as a

waiver of that issue” in an appeal to the court of common pleas. Tipton v. Woltz, 9th Dist.

Summit No. 22722, 2005-Ohio-6989, ¶ 8. Accordingly, the common pleas court did not err when

it determined that Mr. Ward could not raise in the trial court challenges to the IPV and

disqualification penalty that he did not raise before ODJFS.

       {¶17} We also find that Mr. Ward waived an appeal of the food assistance overpayment.

An overpayment is calculated by subtracting the amount of benefits the applicant should have

received from the amount of benefits the applicant actually received. Ohio Adm.Code 5101:4-8-

17(A)(2)(b). Mr. Ward signed a repayment agreement that specified that Mr. Ward’s “household

accrued [$6,802] more food assistance than the household was eligible to receive because [he]
                                                  7


intentionally misrepresented [his] situation or [he] intentionally violated program rules causing

an overissuance.” The repayment agreement also made clear that if Mr. Ward did not agree with

the amount ODJFS said he owed, he could have requested a fair hearing. Mr. Ward did not

disagree or request a hearing, however. Instead, he signed a cognovit installment note and

promised to repay the $6,802. The cognovit note gave Mr. Ward a month from the date of

signing to repay the overpayment.

       {¶18} Instead of waiting for a month to repay the overpayment, Mr. Ward paid the full

amount on the same day he signed the repayment agreement and cognovit note. Mr. Ward

agreed to have some of the repayment removed from his electronic benefit transfer card, and then

wrote a check for the balance of the repayment.

       {¶19} Generally, “’the doctrine of waiver is applicable to all personal rights and

privileges, whether secured by contract, conferred by statute, or guaranteed by the Constitution,

provided that the waiver does not violate public policy.’” Sanitary Commercial Servs., Inc. v.

Shank, 57 Ohio St.3d 178, 180 (1991), quoting State ex rel. Hess v. Akron, 132 Ohio St. 305.

307 (1937). The statutory right to appeal an agency decision may validly be waived if the party

aggrieved by agency's order knew of the right to appeal, intended to waive the right, and gave

and received sufficient consideration for waiving the right. Shank at 180.

       {¶20} Here, all of the requirements for a valid waiver have been satisfied. First, the

food assistance repayment agreement informed Mr. Ward of his right to appeal. In bold typeface

on the front of the agreement, it stated, “If you do not agree with the amount we say you owe,

you have the right to a fair hearing.” The agreement also gave instructions regarding how to

request a hearing. Second, Mr. Ward manifested his intention to waive the right to an appeal by

signing the agreement. Third, sufficient consideration was supplied by ODJFS’s promise in
                                                8


connection with the cognovit note to extend Mr. Ward’s time for repayment for a month, and

forbear litigation during that time. See Roberts v. Union Natl. Mtge. Co., 9th Dist. Summit No.

10383, 1982 WL 4990, *3 (May 5, 1982) (a promise to forbear litigation is consideration). Thus,

the trial court did not abuse its discretion when it found that Mr. Ward waived an appeal of the

food assistance overpayment.

       {¶21} Even if Mr. Ward had not waived an appeal of the overpayment, his appeal on

this issue is moot. We will not review an action that does not involve a live controversy; such an

action must be dismissed as moot. Lorain Cty. Bd. of Commrs. v. U.S. Fire Ins. Co., 81 Ohio

App.3d 263, 266-267 (9th Dist.1992). By signing the repayment agreement and cognovit note in

place of pursuing a hearing, and repaying the overpayment in full, Mr. Ward voluntarily satisfied

the overpayment obligation. Thus, there is no live controversy between the parties regarding the

overpayment, and no viable issue for appeal.

       {¶22} Mr. Ward’s remaining challenge in this appeal is to the trial court’s determination

that it lacked jurisdiction to hear his Medicaid appeal. An appellant must be “adversely affected”

by an agency’s decision before he may appeal to the court under R.C. 119.12. Rose v. Ohio

Dept. of Job and Family Servs., 160 Ohio App.3d 581, 2005-Ohio-1804, ¶ 11 (12th Dist.).

When the “adversely affected” requirement is not met, a common pleas court lacks jurisdiction

over the appeal. See id. at ¶ 12.

       {¶23} An appellant is “adversely affected” by an agency decision, and has standing to

appeal under R.C. 119.12, when his “rights, privileges, benefits, or pecuniary interests are the

subject of the administrative adjudication” and he “has been, or likely will be, injured by the

administrative order.” (Citations omitted.)     Id. at ¶ 11.    Here, as reflected in ODJFS’s

administrative appeal decision and its state hearing decision, Mr. Ward’s Medicaid appeal was
                                                 9


sustained. These decisions require continuation of Mr. Ward’s Medicaid coverage pending a

pre-termination review. ODJFS did not allow termination of Mr. Ward’s Medicaid benefits and,

therefore, its decisions did not injure Mr. Ward. Thus, Mr. Ward was not adversely affected, and

the common pleas court correctly recognized that it did not have jurisdiction over the portion of

Mr. Ward’s appeal pertaining to his Medicaid benefits.

       {¶24} Accordingly, we overrule Mr. Ward’s assignments of error.

                                                III

       {¶25} Mr. Ward’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       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.
                                     10


      Costs taxed to Appellant.




                                          BETH WHITMORE
                                          FOR THE COURT



HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

SHAINE E. WARD, pro se, Appellant.

MICHAEL DEWINE, Attorney General, and ALLAN K. SHOWALTER, Assistant Attorney
General, for Appellee.
