{¶ 2} In 2002, Husam' Adeen submitted a loan officer application to the DFI. A year later, the DFI notified him that it intended to deny his application because he did not meet the necessary requirements. Husam' Adeen requested an administrative hearing. The day before the scheduled hearing, he requested a continuance because he wanted to hire an attorney. The DFI denied his request, and Husam' Adeen proceeded pro se.
{¶ 3} Six months after the hearing, the hearing examiner recommended that Husam' Adeen's application for a loan officer license be denied. The examiner found that Husam' Adeen did not truthfully complete his loan officer application because he failed to disclose a criminal conviction. The DFI adopted the examiner's recommendation and issued the final order denying the license.
{¶ 4} Husam' Adeen appealed the agency's decision to the common pleas court. He claimed that the administrative hearing examiner erred in denying his request for a continuance, and he also sought to admit additional evidence. The lower court scheduled a hearing to consider "such additional evidence that shall be presented * * * to determine the rights of the parties."
{¶ 5} At the hearing, the trial court permitted Husam' Adeen to introduce testimony from three character witnesses, two of whom had previously testified at the administrative hearing. The court issued a written opinion vacating the DFI's decision and granting issuance of the license.
{¶ 6} The DFI now appeals, raising two assignments of error. In the first assignment of error, the agency argues that the trial court abused its discretion when it conducted a de novo review of the DFI's decision to deny a loan officer license to Husam' Adeen.
{¶ 7} R.C.
"Unless otherwise provided by law, in the hearing of the appeal, the court is confined to the record as certified to it by the agency. Unless otherwise provided by law, the court may grant a request for the admission of additional evidence when satisfied that such additional evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the agency. * * *
The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a 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."
{¶ 8} We recently stated in McAdams v. Ohio DOC, Cuyahoga App. No. 86639,
"When reviewing an order of an administrative agency, a common pleas court acts in a `limited appellate capacity.' Univ. Hosp.,Univ. of Cincinnati College of Medicine v. State Emp. RelationsBd. (1992),
An appellate court's review of the trial court's decision is even more limited and requires the appellate court `to determine only if the trial court has abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality or moral delinquency.' Pons,
{¶ 9} Upon appeal of an administrative order, the reviewing court is to examine the evidence in the record to determine if it supports the agency's decision. If the trial court finds that there exists reasonable, probative, and substantial evidence to support the order, it cannot substitute its judgment but must affirm the agency's order, unless the order is contrary to law. A de novo standard of review is inappropriate. See Ohio HistoricalSociety v. State Emp. Relations Bd.,
{¶ 10} The DFI claims that the trial court reviewed the agency's decision anew and failed to defer to the agency's findings by allowing Husam' Adeen to present additional evidence solely because he did not have counsel at the administrative hearing. Husam' Adeen argues that the trial court correctly decided that he had been denied his right to have counsel present. We agree that Husam' Adeen has a right to be represented by counsel, but the trial court overstepped its bounds in allowing additional testimony and substituting its judgment for that of the agency.
{¶ 11} The trial court found that the hearing officer erred in denying Husam' Adeen's request for a continuance to secure counsel. The trial court stated that Husam' Adeen had a fundamental right to an attorney and that the agency was unable to show any undue prejudice if a continuance had been granted.
{¶ 12} Unlike criminal proceedings, there is no general right of counsel in civil litigation. State ex rel. Burnes v. AthensCounty Clerk of Courts,
"At any hearing conducted under sections
{¶ 13} In determining whether a "witness" includes a party to the proceeding, the Ohio Supreme Court determined that the term "witness," as used in R.C.
{¶ 14} Husam' Adeen was a party to the action as well as a witness appearing before the hearing examiner. Therefore, he had a right to be represented by counsel in the administrative hearing, subject to the limitations found in R.C.
{¶ 15} Pursuant to R.C.
{¶ 16} The trial court deemed Husam' Adeen's additional evidence "newly discovered" because he did not have counsel at the administrative hearing. The court did not require Husam' Adeen to demonstrate that he met the burden of introducing additional evidence before the court heard the evidence. The court allowed Husam' Adeen to call character witnesses because his lack of counsel at the administrative hearing somehow prevented him from adequately questioning these witnesses. A review of the testimony, however, shows that the testimony provided by the witnesses did not constitute newly discovered information but could have been presented at the administrative hearing.
{¶ 17} Husam' Adeen has not demonstrated that he exercised due diligence to obtain the testimony of his witnesses prior to the administrative hearing. Further, the trial court allowed two of the same witnesses who testified at the administrative hearing to testify before the court. The testimony of Husam' Adeen's employer at the administrative hearing and at the trial court was repetitious. Although the court eventually struck that testimony, it should not have allowed a witness who had already testified at the administrative hearing to testify again unless the court made the prior determination that the information was newly discovered.
{¶ 18} Husam' Adeen also testified at the hearing and before the trial court. Much of his testimony was repetitive; however, the court denied the agency's motion to strike his testimony. The final witness, Earl Williams, admitted that he knew the substance of his testimony regarding Husam' Adeen's character prior to the date of the administrative hearing.
{¶ 19} Further, although the agency determined that Husam' Adeen did not meet the conditions of R.C.
{¶ 20} We find error in the trial court's decision to hear additional testimony that could have been presented at the administrative hearing. We agree with the agency that the trial court's actions amount to a de novo review. The court should have found error in the agency's refusal to grant Husam' Adeen a short continuance and remanded the case for further review by the agency. It was improper for the trial court to hold its own administrative hearing and conduct a de novo hearing. The court may not substitute its own judgment on factual matters; instead, the court must give due deference to the expertise of the agency. Thus, the abuse of discretion arose when the trial court conducted a trial de novo instead of remanding the case to the DFI.
{¶ 21} Finding that the trial court erred in allowing additional evidence to be admitted, we sustain the first assignment of error.
{¶ 22} In the second assignment of error, the DFI argues that its final order was based on reliable, probative, and substantial evidence and was in accordance with the law. Because we sustained the first assignment of error, it would be premature for this court to consider the merits of the agency's decision. Therefore, the second assignment of error is overruled.
{¶ 23} Accordingly, the first assignment of error is sustained.
Judgment reversed and case remanded for further proceedings consistent with this opinion.
It is, therefore, considered that said appellant recover of said appellee the costs herein.
It is ordered that a special mandate be sent to 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.
Patricia Ann Blackmon, J. concurs. Michael J. Corrigan, J. concurs in Judgment Only.
Notes
"Any person appearing as a witness before any public official,department, board, bureau, commission, agency, or representativethereof, in any administrative or executive proceeding orinvestigation, public or private, if he so requests, shall bepermitted to be accompanied, represented, and advised by anattorney."