322 N.E.2d 139 | Ohio Ct. App. | 1974
Lead Opinion
This is an appeal from a judgment of the Franklin County Court of Common Pleas affirming an order of the Ohio Real Estate Commission and overruling a motion of appellants for a finding and judgment in their favor.
Appellants appealed to the Court of Common Pleas from an order of the Ohio Real Estate Commission suspending their real estate license for a period of twenty-five days. Subsequently, appellants filed a motion for a judgment in their favor upon the grounds that the Ohio Real Estate Commission had failed to certify a complete record of its proceedings to the Court of Common Pleas. The trial court overruled this motion and found the order of the commission to be reasonable and lawful and in conformity with the evidence. Appellants now appeal to this court and raise three assignments of error as follows:
"1. Error of the trial court in overruling appellants' motion for judgment in favor of appellants.
"2. Error of the trial court in not sustaining appellants' motion for findings and judgment in favor of appellants.
"3. Error of the trial court in granting judgment in favor of appellee."
Although appellants have set forth three assignments of error, only a single issue is raised by the brief and oral argument. Appellants contend that the trial court should have entered an order in their favor pursuant to R. C.
"Within twenty days after receipt of notice of appeal from an order in any case wherein a hearing is required by *39
Sections
"* * * Upon demand by any interested party, the agency shall furnish at the cost of the party requesting it a copy of the stenographic report of testimony offered and evidence submitted at any hearing and a copy of the complete record." (Emphasis added.)
This provision of R. C.
"Where an appeal from an order of an administrative agency has been duly made to the Common Pleas Court pursuant to Section
In Matash, there would appear to have been a complete failure to certify any record. In this case, the Ohio Real Estate Commission, within the required twenty-day period, did file a certification of record to which was attached certain documents. Such certification reads, in pertinent part, as follows:
"The Ohio Real Estate Commission, appellee, hereby certifies that the enclosed documents comprise the complete record of the proceedings in the captioned case before it, and further certifies that copies of any documents included herein are true and correct copies of the originals.
"The enclosed documents consist of the following:
"(1) One transcript, O.R.E.C., Docket 495
"(2) Certified copy of O.R.E.C. order in said case attached to transcript. *40
"(3) Commission's Exhibits 1 through 4, inclusive, attached to transcript.
"Respondent's Exhibits A through D, inclusive, attached.
"This certification of the aforesaid record is made pursuant to the requirements of Section
Appellants contend that the record so certified is not complete because it does not contain the complaint upon which the hearing was founded. This alleged complaint is a four page letter signed by Edward Centofante. Appellee contends that the record is complete and that the letter is not the complaint upon which the hearing was founded. Appellee states, at pages 4 and 5 of its brief:
"Pursuant to the authority granted by the above-quoted portion of Section
"On April 5, 1973, the commission met and heard the evidence in this case. A court reporter was in attendance during the entire proceedings and prepared a written transcript of those proceedings. Appellants were represented by legal counsel. At no time did appellants attempt to introduce the aforementioned letter."
An examination of the "complete record," as certified by the Ohio Real Estate Commission, reveals nothing to verify the above statements of appellee as to what transpired prior to the hearing held April 5, 1973. The "complete record," as certified by the Commission, consists of a transcript of the hearing held on April 5, 1973, and the exhibits introduced at such hearing, and a certified copy of a finding and order from the journal of the Commission. Nothing more is contained in the "complete record." *41
However, we find at page 1 of the transcript a statement by the assistant attorney general that he "planned to call one witness in this case, the complaining witness, upon whose statement a citation was issued against Mr. Kincaid and the Checker Realty Company." At page 3 of the record, we find the following statement by the chairman of the commission:
"This hearing has been arranged at the request of Mr. Centofante of the Ohio real estate Commission — on Mr. Centofante's complaint to the Real Estate Commission, alleging that Section 3745.19 of the Revised Code of Ohio has been violated, and there is a request to be heard in relationship to a complaint to the real estate commission."
R. C.
"The Ohio Real Estate Commission may, upon its own motion, and shall, upon the verified complaint in writing of any person, investigate the conduct of any licensee and may suspend or revoke any license at any time where the licensee * * * is guilty of any one of the following: * * *." (There follows some 33 divisions setting forth grounds for such action.)
R. C.
"The Ohio Real Estate Commission shall keep a record of its proceedings and may, upon application of an interested party, or upon its own motion and notice to the interested parties reverse, vacate, or modify its own orders.
"Any applicant, licensee, or complainant, dissatisfied with an order of said commission may appeal in accordance with Sections
The initial issue is what constitutes "a complete record of theproceedings in the case" within the meaning of R. C.
"* * * Upon demand by any interested party, the agency shall furnish at the cost of the party requesting it a copy of the stenographic report of testimony offered *42 and evidence submitted at any hearing and a copy of the completerecord." (Emphasis added.)
Ordinarily, a "record of proceedings" of a court does not include a report of the testimony or evidence submitted unless made a part of the record by some means.
There appears to be little Ohio authority as to what constitutes a "record of proceedings." In State v. Allen
(1927),
"It must first be determined what constitutes a record. A definition found in early text-books and adopted in many adjudicated cases states that it is a precise history of a suitfrom its commencement to its termination, including the conclusions of law thereon drawn by the proper officer for the purpose of perpetuating the exact state of facts. * * *" (Emphasis added.)
Utilizing this definition, a "complete record of proceedings in the case" would be a "precise history" of the administrative proceedings from their commencement to their termination. The instant proceedings necessarily were commenced by either the filing of a verified complaint or the adoption of a motion. To constitute a "precise history" of the case from its "commencement to its termination," that which commenced the case necessarily is a part of the record.
R. C. Chapter 119 is applicable to the proceedings of the Ohio Real Estate Commission in suspending licenses. R. C.
Although appellants only raise the objection that the *43
record is not complete, there is no record of the required notice having been given herein. A complete record, of necessity, would include such notice. It would also include either the motion of the Ohio Real Estate Commission or the verified complaint upon which the proceedings were founded, pursuant to R. C.
The certified "complete" record herein does include an extract from the journal of the Ohio Real Estate Commission setting forth the findings and order of the commission. R. C.
"After such order is entered on its journal, the agency shall serve by registered mail, return receipt requested, upon the party affected thereby, a certified copy of the order and a statement of the time and method by which an appeal may be perfected. * * *"
Since R. C.
This court, in Brockmeyer v. Ohio Real Estate Comm. (1966),
"There is a sufficient certification by `the agency' under Section
Pursuant to McKenzie, inasmuch as the Ohio Real Estate Commission has certified that what is forwarded to the Common Pleas Court is "a complete record," such certification is a sufficient compliance with R. C.
Here, it does so affirmatively appear. The record certified contains nothing that transpired prior to the day of hearing. There necessarily were either a motion of the commission or a verified complaint filed with the commission, a notice to appellants of the charges and the setting of a hearing, as well as certain subpoenas which statements in the record indicate were issued for witnesses.
After the hearing itself, the only thing contained in the record certified is a certified copy of the journal containing the findings and order of the commission. Thereafter, however, a notification of such order is required. A return receipt of such notification would have been received, and a notice of appeal would have been filed with the commission. R. C.
In this case, if the record, in fact, be complete, as certified by the commission, the R. C.
The failure of the record to include either the motion of the commission, or the verified complaint, upon which the charges against appellants were founded, is equivalent to the record of an action in court failing to include the complaint in a civil action, or the affidavit, information or indictment in a criminal action, in that the motion or complaint commences the proceedings of the administrative agency.
In almost all the decisions of Courts of Appeals, cited above, the courts have held that, even though a record has been certified, if such record is not complete, the consequences set forth in R. C.
We recognize that we are in conflict with Brockmeyer, supra,
which was decided by this court. Brockmeyer involved a failure to include a copy of the order in the *46
"complete record." However, the appellant, as required by R. C.
"Appellee argues that the copy of the order attached to appellant's notice of appeal constitutes compliance with the statute, and, in any event, constitutes a `waiver' of the requirement of a complete record. Assuming that a copy may be substituted for the original, the copy here is not certified by the agency, and therefore cannot be a compliance with the statute. The contention as to `waiver' goes to the existence of prejudice — a factor not found in the mandatory procedural requirements of the statute.
"If the issue presented by the procedural defect here were one of notice to the appellant or prejudice in the presentation of his appeal, we would agree that no reversal would be warranted. * * *
"* * * Perhaps a procedural oversight which does not prejudice the opposite party should not carry the harsh result of dismissal of the charges. However, in the field of administrative law, the rules are strictly applied, and at least the harshness falls equally upon both sides. * * * Until the statutes are amended, the licensee must go free if the agency makes a mistake."
We expressly disapprove and, therefore, overrule the foregoing holding of Brockmeyer v. Ohio Real Estate Comm. that an omission from a certified record of the proceedings of an administrative agency which does not prejudice the appellant in the presentation of his appeal automatically requires a finding in favor of the appellant and a reversal of the order appealed from.
Rather, we find that a mere omission from the certified record of the proceedings does not require a reversal of the order appealed from where that which has been omitted in no way prejudices the appellant in the presentation of his appeal. No such prejudice has been demonstrated herein.
Our decision herein may well be in conflict with that *47
of Courts of Appeals of other districts, such as Young v. Bd. ofReview, supra, which approved and followed Brockmeyer, supra.
However, our decision is not inconsistent with that of the Supreme Court in Matash v. State, supra, which involved a situation where no record of proceedings was filed, while, in this case, a substantially complete record of proceedings was filed. Furthermore, we are consistent with the language of the opinion in McKenzie v. Racing Comm., supra at 231, to the effect that R. C.
Although three assignments of error were raised, the only issue argued in support was the contention that appellants are entitled to judgment in their favor because the record of proceedings certified by appellee to the Court of Common Pleas is incomplete. Accordingly, we find none of the assignments of error to be well taken.
For the foregoing reasons, all three assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
HOLMES and STRAUSBAUGH, JJ., concur.
Concurrence Opinion
I concur in the decision of the majority for the additional reason that, in my opinion, the letter herein does not and should not constitute a part of the record; it is not the equivalent of an affidavit or a complaint upon which a criminal case is based. Not only has there been a compliance with the requirement that a complete record of the proceedings be certified, but, even if the record be not complete, I agree with my colleagues that there has been no prejudice to appellants and that the judgment should be affirmed. *48