[Cite as Knight v. Cleveland Civ. Serv. Comm., 2011-Ohio-6440.]




                     Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96777



                                  LENWOOD KNIGHT

                                                          PLAINTIFF-APPELLANT

                                                    vs.

                         CLEVELAND CIVIL SERVICE
                            COMMISSION, ET AL.
                                                          DEFENDANTS-APPELLEES



                                           JUDGMENT:
                                            DISMISSED


                                 Administrative Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-736087

        BEFORE: Stewart, P.J., Boyle, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                         December 15, 2011
ATTORNEY FOR APPELLANT

Stewart D. Roll
Climaco, Wilcox, Peca, Tarantino & Garofoli Co., L.P.A.
55 Public Square, Suite 1950
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Interim Director of Law

By: Steven J. Moody
         Mark R. Musson
Assistant Directors of Law
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, OH 44114




MELODY J. STEWART, P.J.:

      {¶ 1} Appellant Lenwood Knight appeals from an order denying his motion for

reinstatement of employment with appellee city of Cleveland.         The city terminated

Knight, a construction equipment operator who performed sewer repair while off-duty,

for charging a city resident a fee for sewer work that the city maintained should have been

done by the city at no cost to the resident. The Cleveland Civil Service Commission

(“commission”) upheld the termination and Knight appealed to the court of common

pleas. When the city failed to offer a complete record of the civil service commission

proceedings within 30 days after the appeal had been filed, Knight asked the court to
order his reinstatement with back pay pursuant to R.C. 119.12. The court denied the

motion for reinstatement and granted the city an extension of time in which to file the

complete record. Knight appealed to this court before the court of common pleas had the

opportunity to consider the substantive merits of the inital appeal, arguing that the court

erred by denying his motion for reinstatement and ordering the administrative appeal to

go forward.

       {¶ 2} Before reaching the merits of Knight’s claim that the court erred by refusing

to grant his motion for reinstatement on grounds that the city failed to timely file the

record, we must consider the threshold question of whether the court’s order is final and

appealable.

       {¶ 3} R.C. 2505.03(A) states that “[e]very final order” may be appealed. Knight

argues that the court’s order denying his motion for reinstatement is appealable under

R.C. 2505.02(B)(2), which defines a “final order” as “[a]n order that affects a substantial

right made in a special proceeding or upon a summary application in an action after

judgment[.]”

       {¶ 4} An administrative appeal is a special proceeding for purposes of R.C.

2505.02(B)(2) because it was “specially created by statute and that prior to 1853 was not

denoted as an action at law or a suit in equity.” See R.C. 2505.02(A)(2).       But nothing

indicates that the court’s refusal to order Knight’s reinstatement as a result of the city’s

failure to file the record within 30 days affected a “substantial right” belonging to Knight.
       {¶ 5} R.C. 2505.02(A)(1) defines substantial right as “a right that the United

States Constitution, the Ohio Constitution, a statute, the common law, or a rule of

procedure entitles a person to enforce or protect.” In Chef Italiano Corp. v. Kent State

Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64, the Ohio Supreme Court stated: “A

substantial right is a ‘*** legal right entitled to enforcement and protection by law[.]’ In

re Estate of Wyckoff (1957), 166 Ohio St. 354, 358, 2 O.O.2d 257, 260, 142 N.E.2d 660,

664. A court order which deprives a person of a remedy which he would otherwise

possess deprives that person of a substantial right.” And in Bell v. Mt. Sinai Med. Ctr.

(1993), 67 Ohio St.3d 60, 616 N.E.2d 181, the court stated: “An order which affects a

substantial right has been perceived to be one which, if not immediately appealable,

would foreclose appropriate relief in the future.”

       {¶ 6} Knight claims a right to judgment under R.C. 119.12, which states in

relevant part:

       {¶ 7} “Within thirty days after receipt of a notice of appeal from an order in any

case in which a hearing is required by sections 119.01 to 119.13 of the Revised Code, the

agency shall prepare and certify to the court a complete record of the proceedings in the

case. Failure of the agency to comply within the time allowed, upon motion, shall cause

the court to enter a finding in favor of the party adversely affected. Additional time,

however, may be granted by the court, not to exceed thirty days, when it is shown that the

agency has made substantial effort to comply.”
       {¶ 8} It is true that some Ohio Supreme Court decisions state the proposition that

a failure to file a complete, certified record within 30 days is cause for mandatory

dismissal. See Matash v. State (1964), 177 Ohio St. 55, 202 N.E.2d 305, syllabus; Lorms

v. Dept. of Commerce (1976), 48 Ohio St.2d 153, 155, 357 N.E.2d 1067 (“R.C. 119.12

*** mandates a finding for the party ‘adversely affected’ by an agency's failure to certify

a ‘complete record’ within the prescribed time”); State ex rel. Crockett v. Robinson

(1981), 67 Ohio St.2d 363, 423 N.E.2d 1099 (“The language of the statute is clear; if the

agency [totally] fails to comply, then the court must enter a finding in favor of the party

adversely affected”).

       {¶ 9} However, the 30-day time period in which to file the record is no longer

considered to be immutable. The Matash syllabus added the caveat that dismissal is

warranted when “the court has granted the agency no additional time” to file the record.

Matash, 177 Ohio St. at syllabus. Indeed, in Arlow v. Ohio Rehab. Serv. Comm. (1986),

24 Ohio St.3d 153, 493 N.E.2d 1337, the syllabus states that “under R.C. 119.12 where a

record has been timely submitted to a court of common pleas, albeit with an

unintentionally erroneous or omitted case number, in the absence of prejudice to the party

appealing the administrative action, such submission shall not constitute a failure of

certification.”   These more recent decisions are in line with the R.C. 119.02 language

that allows the court to grant an extension of time in which to file the record when “it is

shown that the agency has made substantial effort to comply.”
      {¶ 10} If the court has the discretionary ability to extend the time in which to file a

complete record of the proceedings, dismissal is not absolute in a way that could be said

to have affected a substantial right belonging to Knight. Moreover, the court’s decisions

to deny the motion for reinstatement and extend the time for completion of the record

were not acts which, if not immediately

      {¶ 11} appealable, would foreclose Knight’s ability to seek appropriate relief in a

future appeal on the merits of the administrative appeal. Knight could, on direct appeal

from the merits of the appeal in the court of common pleas, raise the court’s refusal to

grant his motion for reinstatement, so no substantial right has been affected at this point

in the proceedings.

      {¶ 12} We therefore find that Knight did not have a “substantial right” to have his

motion for reinstatement granted, so we lack a final judgment as a predicate for an appeal

under R.C. 2505.02(B)(2).

      Appeal dismissed.

      It is ordered that appellees recover of appellant their costs herein taxed.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE

MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
