[Cite as Lafayette Twp. v. Sheppard, 2011-Ohio-6199.]


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

LAFAYETTE TOWNSHIP                                           C.A. No.   10CA0124-M

        Appellant

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
JAMES E. SHEPPARD, et al.                                    COURT OF COMMON PLEAS
                                                             COUNTY OF MEDINA, OHIO
        Appellees                                            CASE No.   10CIV0690

                                 DECISION AND JOURNAL ENTRY

Dated: December 5, 2011



        MOORE, Judge.

        {¶1}    Appellant, Lafayette Township, appeals from the judgment of the Medina County

Court of Common Pleas. This Court affirms.

                                                        I.

        {¶2}    James E. Sheppard, appellee, was employed for nearly thirty years as Lafayette

Township’s fire chief. When Lafayette decided to eliminate the full-time fire chief position,

Sheppard entered into a one-year employment agreement with Lafayette where he agreed to

retire from his fire chief position and serve as Lafayette’s “project coordinator.” The agreement

began on August 1, 2008, and ended on July 31, 2009.

        {¶3}    On August 6, 2009, at the end of the one-year term, Sheppard filed an application

for unemployment benefits. The Ohio Department of Job & Family Services issued an initial

determination that Sheppard was entitled to benefits on the ground that he was unemployed due

to a lack of work. Lafayette timely appealed, and upon redetermination, the initial determination
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was affirmed on October 1, 2009. Lafayette filed a timely appeal on October 21, 2009, and the

case was transferred to the Unemployment Compensation Review Commission (“UCRC”) for a

hearing.

       {¶4}    On March 2, 2010, a hearing was held. On that same date, the hearing officer

affirmed the redetermination finding that Sheppard was separated due to a lack of work and was

entitled to unemployment compensation benefits. Lafayette filed a request for review to the

UCRC on March 19, 2010. The request was disallowed on March 31, 2010. Lafayette filed an

appeal to the Medina County Court of Common Pleas on April 15, 2010. On October 22, 2010,

the common pleas court issued a decision denying Lafayette’s appeal and affirming the decision

of the UCRC.

       {¶5}    Lafayette timely filed a notice of appeal and raises two assignments of error for

our review.

                                              II.

                                ASSIGNMENT OF ERROR I

       “THE COMMON PLEAS COURT ERRED IN AFFIRMING THE AWARD OF
       UNEMPLOYMENT COMPENSATION BENEFITS TO [SHEPPARD] FOR
       ‘LACK OF WORK,’ WHERE [SHEPPARD] FAILED TO ESTABLISH ‘JUST
       CAUSE’ FOR HIS RESIGNATION FROM HIS POSITION AS PROJECT
       COORDINATOR, AND WHERE A FINDING OF ‘LACK OF WORK’ IS
       UNSUPPORTED BY COMPETENT, CREDIBLE EVIDENCE.”

       {¶6}    In its first assignment of error, Lafayette argues that the trial court erred in

affirming the decision of the Unemployment Compensation Review Commission because the

finding of “lack of work” was unsupported by competent, credible evidence. We do not agree.

       {¶7}    The scope of our review in unemployment-compensation appeals is quite limited.

“An appellate court may reverse the Unemployment Compensation Board of Review’s ‘just

cause’ determination only if it is unlawful, unreasonable or against the manifest weight of the
                                                3


evidence.” Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694,

paragraph one of the syllabus. This court cannot make factual findings or determine witness

credibility but we are required “to determine whether the board’s decision is supported by the

evidence in the record.” Id. at 696. “[T]his Court is required to focus on the decision of the

Review Commission, rather than that of the common pleas court[.]” (Citations omitted.) Upton

v. Rapid Mailing Servs., 9th Dist. No. 21714, 2004-Ohio-966, at ¶9. In determining whether a

UCRC decision is or is not supported by the manifest weight of the evidence, this Court applies

the civil manifest weight of the evidence standard set forth in C.E. Morris Co. v. Foley Const.

Co. (1978), 54 Ohio St.2d 279, syllabus, which holds: “Judgments supported by some

competent, credible evidence going to all the essential elements of the case will not be reversed

by a reviewing court as being against the manifest weight of the evidence.”

       {¶8}    R.C. 4141.29 establishes the criteria for unemployment compensation benefits.

Benefits are compensation for a “loss of remuneration due to involuntary total or partial

unemployment[.]” Id. An employee meets the definition of total unemployment for a given

week if he or she performs no services and is due no payment. R.C. 4141.01(M). An employee

may not be eligible for benefits under certain circumstances, including “if the employee has quit

without just cause, or if the employer discharged the employee for just cause in connection with

the employee’s work.” Lorain Cty. Aud. v. Ohio Unemp. Rev. Comm. (2007), 113 Ohio St.3d

124, at ¶15, citing R.C. 4141.29(D)(2)(a).

       {¶9}    The Ohio Supreme Court has held “that satisfaction of an intermittent-

employment contract does not create voluntary unemployment or a discharge sufficient to render

an employee ineligible for unemployment benefits.” Lorain Cty. Aud. at ¶1. Acceptance of

employment with an agreed upon termination date does not waive an employee’s right to
                                               4


unemployment benefits. Id. at ¶30. “More specifically, the employee has not agreed to become

voluntarily unemployed or to be discharged with just cause, unless an explicit exception is

applicable.” Id.

       {¶10} Lafayette argues that the decision of the UCRC is not supported by competent,

credible evidence because Sheppard “did not quit for ‘lack of work.’” Instead, it contends that

Sheppard “voluntarily resigned from his position[.]” At the hearing before the UCRC, Sheppard

testified that he was involuntarily rendered unemployed when his one-year contract expired and

Lafayette eliminated his position. Conversely, Linda Bowers testified on behalf of Lafayette and

averred that Sheppard had “voluntarily quit” the position. The UCRC concluded that Sheppard

was unemployed due to a lack of work and was entitled to unemployment benefits.

       {¶11} Lafayette’s argument is essentially a question of credibility since the testimony of

Sheppard was in direct contradiction to Bowers’ testimony. Lafayette challenges the fact that the

hearing officer found Sheppard’s testimony more credible than its own witness. However, under

our scope of review, we must defer to the findings of the UCRC with respect to purely factual

issues that concern the credibility of witnesses and the weight of conflicting evidence. Tzangas,

73 Ohio St.3d at 694; Irvine v. Unemp. Comp. Bd. of Review (1985), 19 Ohio St.3d 15, 17-18.

The UCRC’s decision cannot be reversed simply because reasonable minds might reach different

conclusions. Tzangas, 73 Ohio St.3d at 697. Because the UCRC’s decision is supported by

competent, credible evidence, particularly the testimony of Sheppard, the first assignment of

error is overruled.

                                ASSIGNMENT OF ERROR II

       “THE COMMON PLEAS COURT ERRED, TO THE PREJUDICE OF
       [LAFAYETTE] TOWNSHIP, IN EXPRESSLY CONSIDERING NEW
       TESTIMONY SUBMITTED TO THE COURT IN [SHEPPARD]’S PRO SE
       MERIT BRIEF.”
                                                 5


       {¶12} In its second assignment of error, Lafayette argues that the trial court erred when

it considered testimony submitted in Sheppard’s pro se merit brief. We do not agree.

       {¶13} Assuming without deciding that the trial court erred in considering testimony

submitted to the court in Sheppard’s brief, our focus is not on the trial court’s decision. Instead,

this Court is “required to focus on the decision of the Review Commission, rather than that of the

common pleas court[.]” Markovich v. Emps. Unity, Inc., 9th Dist. No. 21826, 2004-Ohio-4193,

at ¶10, citing Barilla v. Ohio Dept. of Job & Family Servs., 9th Dist. No. 02CA008012, 2002-

Ohio-5425, at ¶6. Furthermore, Lafayette failed to object to any alleged “new testimony”

submitted to the trial court. The “failure to timely advise a trial court of possible error, by

objection or otherwise, results in a [forfeiture] of the issue for purposes of appeal.” Goldfuss v.

Davidson (1997), 79 Ohio St.3d 116, 121. Lafayette’s second assignment of error is overruled.

                                                III.

       {¶14} Lafayette’s assignments of error are overruled. The judgment of the Medina

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 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
                                                6


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 Appellant.




                                                    CARLA MOORE
                                                    FOR THE COURT



CARR, P. J.
WHITMORE, J.
CONCUR

APPEARANCES:

DEAN HOLMAN, Prosecuting Attorney, CAROL SHOCKLEY and BRIAN RICHTER,
Assistant Prosecuting Attorneys, for Appellant.

MIKE DEWINE, Ohio Attorney General, and LORI WEISMAN, Assistant Attorney General,
for Appellee.
