[Cite as Hambuechen v. 221 Market N., Inc., 2013-Ohio-3717.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


ANA M. HAMBUECHEN                                :             JUDGES:
                                                 :
                                                 :             Hon. W. Scott Gwin, P.J.
        Respondent- Appellee                     :             Hon. John W. Wise, J.
                                                 :             Hon. Craig R. Baldwin, J.
                                                 :
-vs-                                             :
                                                 :
221 MARKET NORTH, INC.                           :             Case No. 2013CA00044
DBA NAPOLI’S ITALIAN EATERY
                                                 :
        Petitioner - Appellant                   :             OPINION



CHARACTER OF PROCEEDING:                                       Appeal from the Stark County Court
                                                               of Common Pleas, Case Number
                                                               2012CV03644

JUDGMENT:                                                      Reversed and Remanded

DATE OF JUDGMENT:                                              August 26, 2013

APPEARANCES:

For Respondent-Appellee                                        For Petitioner-Appellant
Ohio Civil Rights Commission
                                                               STANLEY R. RUBIN
WAYNE D. WILLIAMS                                              437 Market Avenue North
State Office Building, 11th Floor                              Canton, OH 44702
615 W. Superior Ave
Cleveland, OH 44113-1899


For Respondent- Appellee
Ana M. Hambuechen

TODD W. EVANS
4505 Stephen Circle, Suite 101
Canton, OH 44718
Stark County, Case No. 2013CA00044                                                         2

Baldwin, J.

      {¶1}    Appellant 221 Market North, Inc., dba Napoli’s Italian Eatery, appeals a

judgment of the Stark County Common Pleas Court dismissing its petition for judicial

review of a decision of appellee Ohio Civil Rights Commission.

                             STATEMENT OF FACTS AND CASE

      {¶2}    In 2007, appellee Ana M. Hambuechen filed a charge with the Ohio Civil

Rights Commission alleging that appellant fired her because she was pregnant. The

Commission issued a complaint charging appellant with a violation of R.C. 4112.02(A).

The case proceeded to trial in front of an administrative law judge, who recommended

that the Commission find a violation by appellant.        The Commission made such a

finding on November 15, 2012.

      {¶3}    On November 26, 2012, appellant filed a petition for judicial review in the

Stark County Common Pleas Court pursuant to R.C. 4112.06. Counsel for appellant

served appellees by regular mail rather than through the clerk of courts.

      {¶4}    The Commission moved to dismiss the petition for lack of subject matter

jurisdiction on December 28, 2012, arguing that appellant had to both file its petition and

initiate service through the clerk of courts within 30 days of the Commission’s decision.

On December 31, 2012, appellant filed a response to the motion to dismiss and also

filed a praecipe for the clerk of courts to serve the petition in accordance with the Civil

Rules.

      {¶5}    The trial court dismissed the petition, finding that appellant was required to

both file its petition and initiate service through the clerk of courts within 30 days of the

Commission’s decision. Appellant assigns one error to this Court on appeal:
Stark County, Case No. 2013CA00044                                                       3


      {¶6}    “THE TRIAL COURT ERRED IN DISMISSING NAPOLI’S APPEAL FROM

THE COMMISSION’S ORDER BECAUSE R.C. 4112.06 REQUIRES AN APPEAL BE

SERVED THROUGH THE CLERK OF COURTS WITHIN ONE YEAR, NOT 30 DAYS.”

      {¶7}    R.C. 4112.06 governs an appeal from a decision of the Ohio Civil Rights

Commission to the Common Pleas Court, and provides in pertinent part:

      {¶8}    “(A) Any complainant, or respondent claiming to be aggrieved by a final

order of the commission, including a refusal to issue a complaint, may obtain judicial

review thereof, and the commission may obtain an order of court for the enforcement of

its final orders, in a proceeding as provided in this section. Such proceeding shall be

brought in the common pleas court of the state within any county wherein the unlawful

discriminatory practice which is the subject of the commission's order was committed or

wherein any respondent required in the order to cease and desist from an unlawful

discriminatory practice or to take affirmative action resides or transacts business.

      {¶9}    “(B) Such proceedings shall be initiated by the filing of a petition in court

as provided in division (A) of this section and the service of a copy of the said petition

upon the commission and upon all parties who appeared before the commission. ***

      {¶10}   “(H) If no proceeding to obtain judicial review is instituted by a

complainant, or respondent within thirty days from the service of order of the

commission pursuant to this section, the commission may obtain a decree of the court

for the enforcement of such order upon showing that respondent is subject to the

commission's jurisdiction and resides or transacts business within the county in which

the petition for enforcement is brought.”
Stark County, Case No. 2013CA00044                                                        4


      {¶11}   The sole issue before this court is whether appellant was required to serve

all parties within 30 days pursuant to R.C. 4112.06(H), or whether the Civil Rules apply

to service, giving appellant one year to perfect service on all parties pursuant to Civ. R.

3(A), which states in pertinent part, “A civil action is commenced by filing a complaint

with the court, if service is obtained within one year from such filing upon a named

defendant[.]” Civ. R. 4(A) provides that upon the filing of the complaint, the clerk shall

issue a summons for service upon each defendant listed in the caption.

      {¶12}   None of the cases cited by the parties directly address the issue before

this Court. Nevertheless, it is clear from the case law that service is required to be

instituted with the Clerk of Courts in accordance with the Civil Rules.      In finding that

service was not proper because it was sent by ordinary mail and not served through the

clerk within one year, the Court of Appeals for the Eighth District held:

      {¶13}   “The Rules of Civil Procedure apply to an action commenced in common

pleas court pursuant to R.C. 4112.06. Abbyshire Constr. Co. v. Civil Rights Comm.

(1974), 39 Ohio App.2d 125, 68 O.O.2d 319, 316 N.E.2d 893. R.C. 4112.06 is silent as

to whether the petition initiating the appeal must be served through the clerk of courts.

However, a de novo hearing of a Civil Rights Commission decision on the merits is

clearly adversarial in nature. Therefore, Civ.R. 3(A) and Civ.R. 4(A) and (B) apply

absent a good and sufficient reason not to apply those rules. We cannot find such good

and sufficient reason.” City of Cleveland v. Ohio Civil Rights Comm’n, 43 Ohio App.3d

153, 156, 540 N.E.2d 278 (1988).

      {¶14}   The Eighth District reaffirmed this holding in Donn, Inc. v. Ohio Civil Rights

Comm’n, 68 Ohio App. 3d 561, 565, 589 N.E.2d 110 (1991), stating that R.C. 4112.06
Stark County, Case No. 2013CA00044                                                     5


requires service on all parties who appeared before the Commission, and “Civ.R. 3 and

4 further provide that a civil action is commenced by the filing of a complaint with the

court and service upon the defendant through the clerk of courts within one year of

filing.”

       {¶15}   If Civil Rules 3 and 4 apply to the commencement and service of a petition

filed pursuant to R.C. 4112.06, they apply in their entirety unless the statute clearly

indicates otherwise. R.C. 4112.06(H) provides only that the appeal be filed within thirty

days; the statute does not clearly require that service be initiated within thirty days.

Appellee’s reliance on Ramsdell v. Ohio Civ. Rights Comm’n, 56 Ohio St. 3d 24, 563

N.E.2d 285 (1990), is misplaced. In Ramsdell, the issue was whether Civ. R. 6(E)

added three days to the thirty day time period within which a petition must be filed

pursuant to R.C. 4112.06(H). The case did not address the applicability of the Civil

Rules to service of a petition filed pursuant to R.C. 4112.06.
Stark County, Case No. 2013CA00044                                                          6


      {¶16}    The trial court erred in dismissing appellant’s petition for judicial review on

the basis that the service of the petition was not obtained through the Clerk of Courts

within thirty days.   The assignment of error is sustained. The judgment of the Stark

County Common Pleas Court is reversed, and this case is remanded to that court for

further proceedings according to law and consistent with this opinion. Costs assessed

to appellee.



By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.




                                           HON. CRAIG R. BALDWIN



                                           HON. W. SCOTT GWIN



                                           HON. JOHN W. WISE




CRB/rad
[Cite as Hambuechen v. 221 Market N., Inc., 2013-Ohio-3717.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


ANA M. HAMBUECHEN                                    :
                                                     :
        Plaintiff - Appellee                         :
                                                     :
-vs-                                                 :         JUDGMENT ENTRY
                                                     :
221 MARKET NORTH, INC.                               :
DBA NAPOLI’S ITALIAN EATERY                          :
                                                     :
        Defendant - Appellant                        :         CASE NO. 2013CA00044


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is reversed and

remanded. Costs assessed to appellee.




                                                HON. CRAIG R. BALDWIN



                                                HON. W. SCOTT GWIN



                                                HON. JOHN W. WISE
