[Cite as Caudill v. Brunswick, 2011-Ohio-5337.]


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

HARRY CAUDILL                                          C.A. No.   10CA0075-M

        Appellant

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
CITY OF BRUNSWICK                                      COURT OF COMMON PLEAS
                                                       COUNTY OF MEDINA, OHIO
        Appellee                                       CASE No.   08CIV2312

                                 DECISION AND JOURNAL ENTRY

Dated: October 17, 2011



        CARR, Presiding Judge.

        {¶1}    Appellant, Harry Caudill, appeals the judgment of the Medina County Court of

Common Pleas. This Court reverses.

                                                  I.

        {¶2}    The parties agree regarding the following procedural history of this matter. Mr.

Caudill was terminated from his employment as a captain in the Brunswick, Ohio fire

department. He appealed his termination to the Civil Service Commission which upheld his

termination. Mr. Caudill appealed the commission’s decision to the court of common pleas

which remanded the case to the commission for rehearing. After rehearing, the commission

again upheld Mr. Caudill’s termination. Mr. Caudill appealed to the court of common pleas

which affirmed the commission’s decision. Mr. Caudill filed a timely appeal in which he raises

one assignment of error for review.
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                                               II.

                                 ASSIGNMENT OF ERROR

       “THE COURT OF COMMON PLEAS ERRED BY APPLYING AN
       INCORRECT STANDARD OF REVIEW TO THE ADMINISTRATIVE
       APPEAL PRESENTED TO IT.”

       {¶3}    Mr. Caudill argues that the common pleas court applied the incorrect standard of

review to his appeal from the Civil Service Commission’s decision upholding his termination as

a captain in the Brunswick fire department. This Court agrees.

       {¶4}    The trial court expressly considered Mr. Caudill’s appeal pursuant to R.C.

Chapter 2506 to determine whether the decision of the commission was “unconstitutional,

illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial,

reliable, and probative evidence.” See R.C. 2506.04. The trial court, citing Kisil v. Sandusky

(1984), 12 Ohio St.3d 30, 35, accorded great deference to the decision of the commission, noting

that “[a] trial court does not sit as a trier of fact in an administrative appeal; rather, when

reviewing an administrative appeal, a trial court may not substitute its judgment for that of the

agency unless there is a lack of a preponderance of reliable, probative, and substantial evidence

to the agency’s decision.”

       {¶5}    Mr. Caudill correctly argues that the termination of a member of a municipal fire

department is governed by R.C. 124.34, which provides that the member may appeal the

commission’s decision to the common pleas court as provided by R.C. 119.12. Moreover, “[a]n

appeal on questions of law and fact may be had from the decision of the commission to the court

of common pleas[.]” R.C. 124.34(C). R.C. 119.12 provides that the common pleas court “may

affirm the order of the agency complained of in the appeal if it finds, upon consideration of the

entire record and any additional evidence the court has admitted, that the order is supported by
                                                3


reliable, probative, and substantial evidence and is in accordance with law. In the absence of this

finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by

reliable, probative, and substantial evidence and is in accordance with law.” Mr. Caudill argues

below and on appeal that the common pleas court is required to conduct a de novo hearing

regarding his appeal from the commission’s decision. Although appellee, City of Brunswick,

agreed below that the common pleas court’s standard of review is de novo, it now argues that the

trial court properly applied the standard enunciated in R.C. Chapter 2506. We conclude that Mr.

Caudill makes the sound argument.

        {¶6}    This Court has recognized the Ohio Supreme Court’s holding that an appellant

challenging his termination pursuant to R.C. 124.34 is entitled to a de novo hearing before the

court of common pleas. Williams v. Akron (2001), 141 Ohio App.3d 724, citing Cupps v. Toledo

(1961), 172 Ohio St. 536, and Chupka v. Saunders (1986), 28 Ohio St.3d 325. In Williams,

Cupps, and Chupka, the appeals involved the termination of a police officer. Because R.C.

124.34 addresses members of both police and fire departments, the holding is equally applicable

in this case.

        {¶7}    A firefighter’s appeal on questions of law and fact to the common pleas court

pursuant to R.C. 124.34 “is conducted as a trial de novo.” See Williams, 141 Ohio App.3d at

730, citing Chupka, 28 Ohio St.3d at 327. Moreover, at the trial de novo, “the city again bears

the burden of proving the truth of the charges by a preponderance of the evidence.” Williams,

141 Ohio App.3d at 730, citing Cupps, 172 Ohio St. at 539. The Chupka court clarified that “in

a trial de novo the court of common pleas is empowered to substitute its own judgment on the

facts for that of the commission, based upon the court’s independent examination and

determination of conflicting issues of fact. The trial, in a trial de novo, is the independent
                                                 4


judicial examination and determination of conflicting issues of fact and law, notwithstanding the

evidence before the appellate court consists of the record of the proceedings in the lower

tribunal.” (Internal quotations and citations omitted.) Chupka, 28 Ohio St.3d at 327.

       {¶8}    In this case, the common pleas court failed to conduct a de novo trial and an

independent judicial examination and determination of the conflicting issues of fact and law as

required in an appeal pursuant to R.C. 124.34.            Instead, it improperly conducted an

administrative appeal pursuant to R.C. Chapter 2506, erroneously according greater deference to

the decision of the commission. Mr. Caudill is entitled to a de novo trial and independent

judicial examination and determination of the conflicting issues of fact and law in his appeal

from the commission’s decision. Mr. Caudill’s sole assignment of error is sustained.

                                                III.

       {¶9}    Mr. Caudill’s assignment of error is sustained. The judgment of the Medina

County Court of Common Pleas is reversed and the cause remanded for further proceedings

consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       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 Medina, 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
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period for review shall begin to run. App.R. 22(E). 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.

       Costs taxed to Appellee.




                                                    DONNA J. CARR
                                                    FOR THE COURT



MOORE, J.
DICKINSON, J.
CONCUR

APPEARANCES:

KEITH R. WOLGAMUTH, Attorney at Law, for Appellant.

JAMES A. BUDZIK, Attorney at Law, for Appellee.
