[Cite as Roberts v. Pleasant Local School Dist. Bd. of Edn., 2011-Ohio-4560.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




DANIEL E. ROBERTS,

        PLAINTIFF-APPELLANT,                                         CASE NO. 9-11-04

        v.

PLEASANT LOCAL SCHOOL DISTRICT
BOARD OF EDUCATION,                                                  OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 2010-CV-0695

                                      Judgment Affirmed

                         Date of Decision:         September 12, 2011




APPEARANCES:

        Susan Hayest Kozlowski, William J. Steele and Lora A. Molnar
        for Appellant

        Karrie M. Kalail, David S. Hirt and Peter Zawadski for Appellee
Case No. 9-11-04



ROGERS, P.J.

        {¶1} Plaintiff-Appellant, Daniel E. Roberts (“Roberts”), appeals the

judgment of the Court of Common Pleas of Marion County dismissing the action

for lack of subject matter jurisdiction. On appeal Roberts argues that the trial

court erred by dismissing the action as he properly perfected his appeal. Based on

the following, we affirm the decision of the trial court.

        {¶2} The facts are not in dispute. Roberts was employed by Defendant-

Appellee Pleasant Local School District, Board of Education (“Pleasant” or

“Board of Education”), as a special education teacher under a series of limited

teaching contracts from the 1998-1999 school year through the 2009-2010 school

year.

        {¶3} In April, 2010 the Board of Education sent Roberts a letter notifying

him that it intended not to employ him at the expiration of his current limited

teaching contract. In that same month, the Board of Education received a written

request from Roberts requesting a written statement describing the circumstances

that led to its decision not to renew his contract. The Board of Education sent him

a letter describing the circumstances that led to its decision.

        {¶4} In May, 2010, Roberts sent Pleasant a written request for a non-

renewal hearing before the Board of Education, which was held July 19, 2010.

The Board of Education subsequently affirmed its intention to non-renew Roberts’

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Case No. 9-11-04



limited contract in a written decision dated July 20, 2010. On August 17, 2010,

Roberts filed a complaint appealing the Board of Education’s order (“Complaint”)

pursuant to R.C. 3319.11(G)(7) in the Marion County Court of Common Pleas.

       {¶5} On October 7, 2010, Pleasant filed a motion to dismiss the Complaint

pursuant to Civ.R. 12(B)(6). On January 13, 2011, the trial court ruled that it

lacked jurisdiction to rule on Pleasant’s motion to dismiss and dismissed the action

for lack of subject matter jurisdiction pursuant to Civ.R. 12(H)(3). It is from this

judgment Roberts appeals, asserting the following assignment of error for our

review.

                               Assignment of Error

       THE TRIAL COURT ERRED IN ITS DECISION BY
       DISMISSING     PLAINTIFF-APPELLANT      DANIEL    E.
       ROBERT’S (sic) APPEAL ON THE BASIS OF A LACK OF
       SUBJECT     MATTER       JURISDICTION,      BECAUSE
       PLAINTIFF-APPELLANT PROPERLY PERFECTED HIS
       APPEAL BEFORE THE TRIAL COURT PURSUANT TO
       OHIO REVISED OHIO (sic) SECTION 3319.11(G)(7).

       {¶6} In his sole assignment of error Roberts argues that the trial court erred

in finding that it lacked subject matter jurisdiction. His argument is three-pronged.

First, Roberts argues that R.C. 3319.11(G)(7) solely vests subject matter

jurisdiction in the court of common pleas as it is the statute which grants the right

to appeal the decision to non-renew a teacher’s contract. Since he complied with

that section, Roberts argues, the trial court erred by dismissing the Complaint.

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Case No. 9-11-04



Second, Roberts asserts that Revised Code Chapters 2505 and 2506 do not govern

the filing of an appeal, but rather, govern the appeal once it has been initiated.

Roberts argues that his failure to file a notice of appeal with the Board of

Education, as required by R.C. 2505.04, could not have deprived the trial court of

subject matter jurisdiction. Lastly, Roberts argues that R.C. 3319.11(G)(7) is part

of the Ohio Teachers’ Tenure Act, which must be construed liberally in favor of

teachers. Consequently, Roberts asserts, the trial court erred in finding it lacked

subject matter jurisdiction. We disagree.

      {¶7} Pleasant contends that the trial court properly determined that it lacked

subject matter jurisdiction.   Specifically, Pleasant argues that Revised Code

Chapters 2505 and 2506 in conjunction with R.C. 3319.11(G)(7) govern the

procedure for filing an appeal. Pleasant asserts that since Roberts did not file a

notice of appeal with the Board of Education within thirty days of receiving its

written decision pursuant to R.C. 2505.04, the appeal was not properly perfected,

and therefore, the trial court properly determined that it lacked subject matter

jurisdiction. We agree.

      {¶8} Civ.R. 12(H)(3) allows a court to dismiss an action “whenever it

appears by suggestion of the parties or otherwise that the court lacks jurisdiction

of the subject matter.” As a general matter, R.C. 2506.04 allows a party to appeal

the court of common pleas’ decision on an administrative matter to an appellate

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Case No. 9-11-04



court “on questions of law as provided by the Rules of Appellate Procedure.”

R.C. 2506.04; Thrower v. City of Akron, 9th Dist. No. 21153, 2003-Ohio-1307, at

¶21. “[W]here a trial court resolves an attack on the facial sufficiency of a

complaint and does not make any determinations with regard to disputed factual

issues, our review is limited to determining whether the trial court’s application of

the law was correct.” Manholt v. Maplewood Joint Vocational School Dist. Bd. of

Edn. (Aug. 21, 1992), 11th Dist. No. 91-P-2410, *2, citing Jenkins v. Eberhart

(1991), 71 Ohio App.3d 351, 355, 594 N.E.2d 29, citing Williamson v. Tucker

(C.A. 5 1981), 645 F.2d 404, 413.

        {¶9} The   general   provisions     regulating   appellate   procedure   and

administrative appeals are located in Revised Code Chapters 2505 and 2506,

respectively, of the Ohio Revised Code. R.C. 2506.01(A) provides in pertinent

part:

        Every final order, adjudication, or decision of any officer,
        tribunal, authority, board, bureau, commission, department, or
        other division of any political subdivision of the state may be
        reviewed by the court of common pleas of the county in which
        the principal office of the political subdivision is located as
        provided in Chapter 2505. of the Revised Code.

R.C. 2506.01(A).

        {¶10} This section of the code provides a general right to appeal the final

decision of a political subdivision. A school board of education falls within the


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parameters of a “board” or “political subdivision” of R.C. 2506.01. Kiel v. Green

Local School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 149, 152, 630 N.E.2d 716.

        {¶11} The general right to appeal an administrative decision is narrowed by

Revised Code Chapter 2505, which governs appellate procedure. R.C. 2505.03(A)

provides a means to appeal the final order of any administrative officer, agency, or

board “when provided by law.” The law which provides the specific authority for

a teacher to appeal the non-renewal of his or her contract is R.C. 3319.11(G)(7),1

which states:

        A teacher may appeal an order affirming the intention of the
        board not to reemploy the teacher to the court of common pleas
        of the county in which the largest portion of the territory of the
        school district or service center is located, within thirty days of
        the date on which the teacher receives the written decision, on
        the grounds that the board has not complied with this section or
        with section 3319.111 of the Revised Code.

R.C. 3319.11(G)(7).

        {¶12} This section, however, is notably silent as to the manner in which the

appeal is perfected. Therefore, we must look to Chapter 2505, specifically, R.C.

2505.04 and 2505.07, for the means of perfection. R.C. 2505.04 prescribes such

means, providing:


1
  The Eleventh District explained that, whereas “[t]he right to appeal the decision of a school board’s
affirmance of its intention not to re-employ a school teacher is conferred by both R.C. 2506.01 and
3319.11(G)(7) . . . when taken as a whole, subsection (G)(7) of R.C. 3319.11 grants a right to appeal where
none previously existed.” Estock v. Conneaut Area City School Dist. Bd. of Edn. (Sept. 30, 1993), 11th
Dist. No. 92-A-1757, at *2 (internal citations omitted).

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Case No. 9-11-04



       An appeal is perfected when a written notice of appeal is filed, . .
       . in the case of an administrative-related appeal, with the
       administrative officer, agency, [or] board . . . After being
       perfected, an appeal shall not be dismissed without notice to the
       appellant, and no step required to be taken subsequent to the
       perfection of the appeal is jurisdictional.

R.C. 2505.04 (emphasis added). Further, R.C. 2505.07 provides the time period

for perfecting an appeal and mandates that:

       After the entry of a final order of an administrative officer,
       agency, board, department, tribunal, commission, or other
       instrumentality, the period of time within which the appeal shall
       be perfected, unless otherwise provided by law, is thirty days.

R.C. 2505.07.

       {¶13} R.C. 2505.04 is clearly a jurisdictional requirement as it provides

notice to the administrative body that an appeal of its decision is being filed.

Richards v. Indus. Comm. of Ohio (1955), 163 Ohio St. 439, 445, 127 N.E.2d 402;

see, also, Moore v. Cleveland Civil Serv. Comm. (1993), 11 Ohio App.3d 273, 465

N.E.2d 482 (for the proposition that filing a notice of appeal pursuant to R.C.

2505.04 is a jurisdictional requirement). R.C. 2505.03(B) further exemplifies this

notion by explaining that in an appeal of an administrative decision, the

administrative board “shall be treated as if it were a trial court whose final order,

judgment, or decree is the subject of an appeal to a court of appeals or as if it were

a clerk of such a trial court.” Therefore, in order for jurisdiction to be vested in

the court of common pleas, an appellant must file a notice of appeal with the

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Case No. 9-11-04



agency from which the appeal is being taken within thirty days of receiving the

agency’s written decision.

       {¶14} Roberts argues that the trial court erroneously determined the source

of Roberts’ right to appeal was R.C. 3319.11(G)(7) in conjunction with R.C.

2505.03(A) and R.C. 2506.01, rather than solely R.C. 3319.11(G)(7). Roberts’

foundation for this argument is Hansford v. Steinbacher, an unemployment

benefits case in which the Ohio Supreme Court stated that “where a right of appeal

is conferred by statute the appeal can only be perfected in the mode prescribed by

that statute.” (1987), 33 Ohio St. 3d 72, 72, 514 N.E.2d 1385. Applying Hansford,

Roberts argues that since he complied with R.C. 3319.11(G)(7), he perfected his

appeal which was all that was required to vest jurisdiction in the trial court.

       {¶15} The analysis in Hansford is largely ineffective in the present case as

R.C. 3319.11(G)(7) does not prescribe the mode of perfecting an appeal, unlike

R.C. 4141.28(O), the statute at issue in Hansford. See Kiel, 69 Ohio St.3d 149

(for the proposition that R.C. 3319.11(G)(7) does not prescribe the mode of

perfecting an appeal); see, also, discussion of Manholt, infra. R.C. 3319.11(G)(7)

and R.C. 4141.28(O) are inapposite in that the latter explicitly specifies the

manner in which an appeal must be taken, filed, and perfected. It then provides,

“[s]uch filing shall be the only act required to perfect the appeal and vest

jurisdiction in the court.” Id. citing R.C. 4141.28(O).         In the present case,

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Case No. 9-11-04



however, R.C. 3319.11(G)(7) does not prescribe the mode of perfection, nor does

it specify that the statute itself mandates how an appeal is perfected or that it

confers jurisdiction in the court of common pleas.

       {¶16} Next, Roberts argues that Chapters 2505 and 2506 govern the

appellate process once the appeal has been filed and perfected pursuant to R.C.

3319.11(G)(7). In support of this argument, Roberts cites Kiel and Estock v.

Conneaut Area City School District Board of Education. Roberts asserts that R.C.

2505.04, which governs the perfection of an appeal, does not apply to appeals

brought under R.C. 3319.11(G)(7).

       {¶17} The holding in Kiel, supra, was that since R.C. 3319.11(G)(7) is

silent as to the procedure to be followed on appeal, the procedural provisions of

Revised Code Chapter 2506 govern. The issue in Kiel was whether the school

board could supplement the record in the court of common pleas. The Supreme

Court held that since R.C. 3319.11(G)(7) is silent as to the procedure that must be

followed, R.C. 2506 applies. Notably, this case did not address the perfection of

an appeal, the court of common pleas’ jurisdiction over R.C. 3319.11(G)(7)

appeals, or the application of Chapter 2505. The holding in Kiel affects the case

sub judice only insofar as R.C. Chapter 2506 governs the procedure to be followed

after the appeal has been perfected.



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      {¶18} In further support of his proposition, Roberts cites Estock v.

Conneaut Area City School District Board of Education (1993), 11th Dist. No. 92-

A-1757. In Estock, the Eleventh District stated that R.C. 3319.11(G)(7) only

precludes application of R.C. Chapters 2505 and 2506 if they govern substantive

matters on appeal. The court explained that since R.C. 3319.11(G)(7) limits a

teacher’s right to appeal a board of education’s decision to non-renew the teacher

only to the extent that the board of education did not follow the proper statutory

procedure and not whether the decision was proper substantively, statutes

governing this variety of administrative appeals apply only if they govern

procedural rather than substantive review. The Eleventh District never determined

whether R.C. 2505.04 was a procedural or substantive provision.        Therefore,

Estock does not stand for the proposition Roberts urges as it does not state that

Chapters 2505 and 2506 only govern the process of an appeal after it has been

properly filed in the court of common pleas, but rather, that R.C. 3319.11(G)(7)

appeals are limited to review only the procedure followed by the board of

education.

      {¶19} The final case Roberts cites is Manholt v. Maplewood Joint

Vocational School District Board of Education (Aug. 21, 1992), 11th Dist. No. 91-

P-2410, which he urges this Court to distinguish. Manholt is a strikingly similar

case from the Eleventh District, which we find to be persuasive. In that case,

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Case No. 9-11-04



Donna Manholt was employed as a teacher by Maplewood from 1989 to 1991

when Maplewood decided not to re-employ her. After a non-renewal hearing,

Manholt filed a complaint in the court of common pleas pursuant to R.C.

3319.11(G)(7), but did not file a notice of appeal with Maplewood within thirty

days of Maplewood’s affirmance of its decision not to re-employ her. Maplewood

filed a motion to dismiss for lack of subject matter jurisdiction for failure to timely

file the notice of appeal. The trial court granted the motion and the Eleventh

District affirmed, holding that “ . . . in the absence of a special statutory or rule

provision providing otherwise, since appellant failed to file a notice of appeal with

appellee within thirty days, the trial court properly dismissed appellant’s

complaint [for lack of subject matter jurisdiction] . . .” Id. at *2. Specifically, the

court of appeals stated the following:

       In the case at bar, the right to appeal the decision of appellee
       affirming its previous intention not to re-employ appellant as a
       school teacher is conferred by both R.C. 2506.01 and
       3319.11(G)(7). Neither of these statutory provisions explicitly
       state how the notice of appeal is to be perfected. Accordingly,
       we must apply relevant sections of R.C. Chapter 2505, i.e. R.C.
       2505.03, 2505.04, and 2505.07.

Id. at *4.

       {¶20} Lastly, Roberts argues that R.C. 3319.11(G)(7) is part of the Ohio

Teachers’ Tenure Act which must be liberally construed in order to provide

teachers with employment stability.          Roberts asserts that requiring R.C.

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3319.11(G)(7) appeals to be perfected pursuant to R.C. 2505.04 in order for the

court of common pleas to have jurisdiction would be inconsistent with the purpose

of providing job protection for teachers as it would limit their ability to file an

appeal. We think this is a hollow argument. Requiring teachers to perfect their

appeal according to R.C. 2505.04 is not an impediment to filing an appeal, but

rather is a preliminary step required to provide notice to the administrative body.

Further, filing a notice of appeal is standard procedure. There is no reason why an

exception should be made for teachers’ appeals from an administrative board.

       {¶21} Moreover, if we were to hold that R.C. 2505.04 is inapplicable in this

context, we would essentially render R.C. 2505.04 superfluous.          There is a

difference between liberal construction and vitiating a statute.      “Such liberal

construction should not result in the exercise of the legislative power of

amendment under the guise of statutory interpretation.” Manholt, at *5, citing

State v. Moore (Jan. 20, 1992), 4th Dist. No. 91 CA 1966; Nelson v. Admr., Ohio

Bur. Of Emp. Services (Aug. 19, 1987), 4th Dist. No. 1327.

       {¶22} Accordingly, we overrule Roberts’ assignment of error.

       {¶23} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed
PRESTON and WILLIAMOWSKI, J.J., concur.
/jlr

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