Busy Bee Nursery & Preschool, Inc. v. Ohio Dep't of Job & Family Servs.Busy Bee Nursery & Preschool, Inc. v. Ohio Dep't of Job & Family Servs.
Rendered on March 29, 2018
On brief: Barry W. Epstein, for appellant. Argued: Barry W. Epstein.
On brief: Michael DeWine, Attorney General, Allan K. Showalter, and Amy R. Goldstein, for appellee. Argued: Amy R. Goldstein.
APPEAL from the Franklin County Court of Common Pleas
BROWN, P.J.
{¶ 1} Busy Bee Nursery and Preschool, Inc., plaintiff-appellant, appeals from a judgment of the Franklin County Court of Common Pleas in which the trial court granted the motion to dismiss filed by the Ohio Department of Job and Family Services (“ODJFS“), defendant-appellee.
{¶ 2} Appellant is a licensed child day care provider that contracted with ODJFS to provide publicly funded child care pursuant to
{¶ 3} On June 10, 2015, ODJFS denied appellant‘s reconsideration. ODJFS began collection of the overpayment on June 22, 2015, by withholding appellant‘s weekly earnings. ODJFS subsequently agreed to cease collection of the overpayment pending the outcome of this litigation.
{¶ 4} On July 10, 2015, appellant filed a complaint, seeking a temporary restraining order, preliminary and permanent injunctive relief, declaratory relief, and damages. Appellant contended ODJFS did not afford it fair and equal treatment when it failed to properly review its supporting evidence, and ODJFS‘s review process is fundamentally unfair.
{¶ 5} On September 14, 2015, ODJFS filed a motion to dismiss pursuant to
{¶ 6} On October 28, 2015, the trial court issued a decision and entry in which it granted ODJFS‘s motion to dismiss. The court found ODJFS was permitted, under
{¶ 7} Appellant appeals the judgment of the trial court, asserting the following assignments of error:
I. THE TRIAL COURT ERRED BY DISMISSING A CASE IN VIOLATION OF PROCEDURAL DUE PROCESS.
II. THE TRIAL COURT ERRED BY DISMISSING THE CASE PURSUANT TO A [
CIV.R. 12(B)(6) ] MOTION WITHOUTPROVIDING THE APPELLANT LEAVE TO AMEND ITS PLEADINGS.
{¶ 8} Appellant argues in its first assignment of error the trial court erred when it dismissed its action pursuant to
{¶ 9} In the present case, appellant claims in its first assignment of error that ODJFS‘s review process violated due process. “The United States Supreme Court has held that ‘[t]he fundamental requisite of due process of law is the opportunity to be heard.’ ” Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn., 28 Ohio St.3d 118, 124 (1986), quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914). Moreover, “[a]n elementary and fundamental requirement of due process in any proceeding * * * is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
{¶ 10} The Ohio Constitution also explicitly guarantees due process.
{¶ 11} Furthermore, the requirements of procedural due process apply only to the deprivation of protected interests of liberty and property, and when so implicated, the right to some kind of prior hearing is paramount. Bd. of Regents v. Roth, 408 U.S. 564, 569-70 (1972). Thus, the first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in property or liberty. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). Only after finding the deprivation of a protected interest do we look to see if the state‘s procedures comport with due process. Id. To have a property interest in a benefit, a person must have a legitimate claim of entitlement to it. Roth at 577. Property interests are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Id.
{¶ 12} In the present case, we assume, arguendo, that appellant had a protected property interest and, therefore, the requirements of procedural due process apply. Assuming such, appellant claims ODJFS failed to provide any opportunity, beyond a cursory internal records review, for appellant to challenge its findings. Appellant asserts that ODJFS‘s deprivation of its income by way of withholding future income to appellant demands a more meaningful review process than currently set forth by ODJFS, including a full evidentiary hearing.
{¶ 13} Initially, ODJFS counters appellant failed to specifically raise a due process argument in its complaint for a temporary restraining order, preliminary and permanent injunctive relief, declaratory relief, and damages before the trial court. Appellant‘s allegation in the complaint that ODJFS failed to provide “fair and equal treatment” in the review process is directed at ODJFS‘s review of appellant‘s request for reconsideration, which does not raise the issue of an inadequate opportunity to be heard but ODJFS‘s legal and factual conclusions; thus, this portion of the complaint does not appear to raise a due process argument. However, a strained reading of the complaint could arguably support
{¶ 14} Notwithstanding, even assuming appellant raised a due process argument in its complaint below, we find appellant‘s due process argument to be without merit.
{¶ 15} We have not found any authority directly on point, but two cases are helpful to our analysis in the present case. The Second District Court of Appeals recently addressed the reconsideration procedure for providers under
{¶ 16} Also of import to the present case is that, after finding day care providers are not entitled to any further hearing or appeal of an ODJFS denial of a request for reconsideration, the court in Small World went on to note providers of publicly funded child care have a possible avenue for relief. The court explained that the Supreme Court of Ohio ” ‘has repeatedly determined in a long line of cases in varying contexts that when an agency‘s decision is discretionary and, by statute, not subject to direct appeal, a writ of mandamus is the sole vehicle to challenge the decision, by attempting to show that the agency abused its discretion.’ ” Id. at ¶ 42, quoting Ohio Academy of Nursing Homes v. Ohio Dept. of Job & Family Servs., 114 Ohio St.3d 14, 2007-Ohio-2620, ¶ 23. As explained by the Supreme Court and quoted by the court in Small World:
Two important competing concerns are implicated when a party wishes to challenge a particular state actor‘s decision that expressly is not appealable. The first concern is that the unavailability of an appeal indicates the clear intention that full discretion is to be entrusted to the state agency. The opposing concern is that if an agency‘s discretionary decision were truly allowed to be absolutely unchallengeable, an aggrieved party would have no remedy whatsoever, giving the state agency unfettered discretion and raising fundamental
due process concerns. See Section 16, Article I of the Ohio Constitution , which provides that a remedy shall be available “by due course of law.”In light of these very significant competing concerns, courts (including this court) in many different situations) have determined that some level of review must be recognized. Furthermore, courts have determined that a writ of mandamus provides an appropriate balance between the extreme of allowing no challenge at all and the other alternative of completely ignoring the explicit directive that an agency‘s particular determination is not meant to be appealable. In such a mandamus action, the aggrieved party can challenge the agency‘s decision, but must demonstrate an abuse of discretion before relief can be provided.
Id. at ¶ 42, quoting Ohio Academy at ¶ 25-26. However, the court of appeals in Small World refused to state an opinion as to whether an original action in mandamus would be available or successful.
{¶ 17} This court‘s decision in State ex rel. Rock v. School Emps. Retirement Bd., 10th Dist. No. 99AP-1474, 2004-Ohio-5268, is also helpful to our analysis. In Rock, the applicant applied for disability retirement from the School Employees Retirement System (“SERS“). SERS denied the application and the applicant‘s subsequent request for reconsideration. The applicant filed a complaint in mandamus in this court to compel SERS to vacate its decision and grant disability retirement benefits, or, alternatively, to compel SERS to vacate its decision and grant the applicant a personal appearance before SERS. Ultimately, this court decided that, in the absence of evidence to the contrary, administrative officers will be presumed to have properly performed their duties in a regular and lawful manner and not to have acted illegally or unlawfully. We further found the applicant was not deprived of procedural due process when she was not provided with an evidentiary hearing before the board, and the board denied her request for a personal appearance. We explained that due process is flexible and calls for such procedural protections as the particular situation demands. We noted that none of the statutory and administrative provisions at issue required an evidentiary hearing before SERS. We ultimately concluded that, even assuming the applicant had a protected property interest, the applicant was not deprived of procedural due process.
{¶ 19} Appellant argues in its second assignment of error the trial court erred when it dismissed the complaint without providing appellant leave to amend its pleadings.
A party may amend its pleading once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading or twenty-eight days after service of a motion under
Civ.R. 12(B) , (E), or (F), whichever is earlier. In all other cases, a party may amend its pleading only with the opposing party‘s written consent or the court‘s leave. The court shall freely give leave when justice so requires.
Thus, “after the time has passed in which a responsive pleading may be served, a party may amend its pleading only by leave of court or written consent of the adverse party.” Morrissette v. DFS Servs., L.L.C., 10th Dist. No. 10AP-633, 2011-Ohio-2369, ¶ 30.
{¶ 20} In the present case, appellant contends that once the trial court decided it needed more information, it should have, in the interest of justice, afforded appellant the opportunity to amend before dismissing the case. We disagree. Appellant neither filed an amended complaint nor sought leave to file an amended complaint. A court is not required to give a plaintiff notice or an opportunity to amend before dismissing the complaint pursuant to
{¶ 21} Accordingly, appellant‘s two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
KLATT and SADLER, JJ., concur.