COX, APPELLEE, v. DAYTON PUBLIC SCHOOLS BOARD OF EDUCATION, APPELLANT.
No. 2015-0494
Supreme Court of Ohio
Submitted March 8, 2016—Decided August 25, 2016
147 Ohio St.3d 298 | 2016-Ohio-5531 | 64 N.E.3d 977
{¶ 55} Respectfully, I dissent.
PFEIFER, J., concurs in the foregoing opinion.
DeMarco & Triscaro, Ltd., and Joseph J. Triscaro, for appellees.
Calfee, Halter & Griswold, L.L.P., Thomas I. Michals, John J. Eklund, William E. Coughlin, and Eric S. Zell, for appellants.
Frost Brown Todd, L.L.C., Frank J. Reed Jr., and Alexander L. Ewing, urging affirmance for amici curiae the County Commissioners Association of Ohio and the Ohio Township Association.
Melissa R. Lipchak, urging affirmance for amicus curiae Ohio Association for Justice.
Edward L. Bettendorf, urging reversal for amicus curiae the Ohio Bell Telephone Company.
{¶ 1} In this discretionary appeal, we consider the requirements for invoking the jurisdiction of a court of common pleas to vacate, modify, or correct an arbitration award under
Facts and Procedural History
{¶ 2} Cox was an intervention specialist assigned to teach students in the special-education unit at Meadowdale High School, a facility in the Dayton public school system. She was dismissed from the school campus and placed on administrative leave after allegedly hitting a student who had multiple physical and mental disabilities.1 After a hearing on the incident, the BOE served Cox with a notice of intent to terminate her contract. The matter was submitted to arbitration in accordance with the labor agreement between the BOE and the Dayton Education Association (“the DEA“), the union representing Cox.
{¶ 3} The arbitrator conducted a hearing with Cox, the attorney for the DEA, and the attorney for the BOE present. On December 10, 2013, the arbitrator issued a decision finding just cause for terminating Cox. The arbitrator e-mailed a copy of the decision to the attorneys for the BOE and the DEA on December 10,
{¶ 4} Cox filed a motion in the Montgomery County Common Pleas Court to vacate, modify, or correct the arbitration decision on March 10, 2014. At that time, she requested that the clerk of courts serve the BOE, and the court‘s docket indicates that a copy of the motion was sent to the BOE by certified mail that day. The BOE received that copy of the motion on March 12, 2014. The BOE submitted a date-stamped envelope showing that Cox sent a second copy of the motion to the attorney for the BOE by certified mail on March 11, 2014. The second copy was received on March 13, 2014.
{¶ 5} The BOE responded with a motion to dismiss, arguing that Cox did not have standing to challenge the arbitrator‘s decision and that her motion was not filed within the three-month period required by
Analysis
{¶ 6} Cox is representing herself in this matter. We have consistently held that pro se litigants must be treated the same as litigants who are represented by counsel. In re Application of Black Fork Wind Energy, L.L.C., 138 Ohio St.3d 43, 2013-Ohio-5478, 3 N.E.3d 173, ¶ 22. The dissenting opinion suggests that the majority interprets the law in Cox‘s favor because she is representing herself. However, this opinion is based solely on the application of the law to the facts, and the holding applies equally to all litigants, whether they represent themselves or are represented by counsel.
{¶ 8} But to this day, the BOE has not shown which day Cox was served a copy of the decision from which she seeks relief. It is truly unfair to demand that a litigant comply with a statute‘s service requirements while ignoring the fact that the opposing party has not proved when the litigant was served a copy of the document that triggered the start of the clock on the service requirement. Nevertheless, as explained below, even accepting as true the BOE‘s assertion that the award was delivered on December 10, 2013, Cox‘s notice was timely filed and served.
{¶ 9} We apply a statute “as written” if the “meaning is clear and unambiguous.” Chesapeake Exploration, L.L.C. v. Buell, 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, ¶ 40.
Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is delivered to the parties in interest, as prescribed by law for service of notice of a motion in an action.
(Emphasis added.)
{¶ 10} There is nothing unclear or ambiguous about this provision. To apply this statute, a court must first answer two questions: (1) on what day was the arbitrator‘s decision “delivered to the parties in interest” and (2) on what day was the motion to vacate, modify, or correct the arbitrator‘s decision “served upon the adverse party or his attorney * * * as prescribed by law for service of notice of a motion in an action“?
Delivery
{¶ 11} The three-month period under
{¶ 12} We believe that any statement that the award was delivered on a specific date would be to resolve an open question of fact. Indeed, the trial court failed to resolve the factual question and instead made its decision by “assuming that the arbitrator effectively delivered his decision on December 10, 2013.” We need not determine whether the arbitrator‘s December 10, 2013 e-mail delivered the arbitrator‘s award to “the parties in interest” within the meaning of
Service
{¶ 13}
{¶ 14} The BOE stretches our statement in Welsh Dev. Co. too far. First, we ruled on a different statute in that case, one governing the “filing” of an administrative appeal. Id. at ¶ 1. And second, our statement that a person is “served” when “actual delivery” is made was dicta not determinative of the outcome in that case, made without citation to authority, and contradictory to the plain language of our Civil Rules.
{¶ 15} We reject the BOE‘s argument that the word “notice” as it is used in
{¶ 16}
{¶ 17} The dissenting opinion criticizes Cox for failing to attach a certificate of service to her motion pursuant to
{¶ 18} The BOE, not Cox, is before this court asking us to disturb a judgment below. And the BOE did not raise the issue of the certificate of service in the trial court in its motion to dismiss or in the court of appeals as an alternative reason for upholding the trial court‘s dismissal.
Delivery within Three Months of Service
{¶ 19} Finally, we must determine whether the service accomplished by Cox on March 11, 2014, occurred “within three months after” the hypothetical delivery date of December 10, 2013. We measure the start and end point of the three-month time limit in
{¶ 20}
In computing any period of time prescribed or allowed by these rules, by the local rules of any court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included * * *.
(Emphasis added.) Applying the statute and the civil rule to this case, we exclude December 10, 2013, the day we assumed arguendo that the arbitration award was delivered. The three-month period under
{¶ 21}
{¶ 22} The dissenting opinion asserts that we ignore “ample law” and fail to explain our “departure from the well-accepted anniversary rule for statutes of
{¶ 23} In this case, the three-month period for service of Cox‘s motion,
Conclusion
{¶ 24} Accordingly, we reject the BOE‘s proposition of law, affirm the judgment of the court of appeals, and remand the cause to the trial court for further proceedings.
Judgment affirmed and cause remanded.
PFEIFER, KENNEDY, and FRENCH, JJ., concur.
O‘CONNOR, C.J., dissents, with an opinion joined by O‘DONNELL and LANZINGER, JJ.
O‘CONNOR, C.J., dissenting.
{¶ 25} I agree with the majority that by its plain terms,
{¶ 26}
{¶ 27} Together,
- Handing it to the person;
- Leaving it at the person‘s office in the prescribed manner;
- Leaving it at the person‘s residence in the prescribed manner;
- Mailing it to the person‘s last known address via U.S. mail;
- Delivering it to a commercial carrier for delivery to the person‘s last known address;
- Leaving it with the clerk of courts if the person has no known address; or
- Sending it by e-mail or fax to the appropriate address or number.
{¶ 28} Cox‘s notice failed to meet the first and fourth requirements.
{¶ 29} Cox failed to meet the first requirement because she did not mail a copy of the motion to appellant, Dayton Public Schools Board of Education (“BOE“), until March 11, 2014, a day after the three-month deadline expired.
{¶ 30} For purposes of analysis, the majority accepts as true the BOE‘S assertion that the arbitrator delivered the award to the parties in interest on December 10, 2013. Majority opinion at ¶ 8. I will do the same. This court has
{¶ 31} The majority relies on
{¶ 32} Regarding the fourth requirement for service of notice of a motion, no certificate of service accompanied the notice served on the BOE. Neither the notice served on March 10 by the clerk‘s office (which the majority appears to suggest satisfied the service requirement, majority opinion at ¶ 18) nor the notice Cox untimely mailed to the BOE was accompanied by a certificate of service as required by
{¶ 34} There is no authority to support a reading of the rule that permits tolling of the time for service until a proper proof of service is filed. The statute of limitations had well expired by the time either the common pleas court or the BOE was aware that the notice had no proof of service. Accordingly, by the time either the court or the BOE could have alerted Cox to the deficiency and asked her to correct it, if they even had a duty to do so, her time to serve a notice accompanied by a certificate of service had elapsed.
{¶ 35} The majority seems to exercise leniency because Cox filed her motion pro se. But on numerous occasions, we have made clear that “‘“pro se litigants are presumed to have knowledge of the law and legal procedures and that they are held to the same standard as litigants who are represented by counsel.“‘” In re Application of Black Fork Wind Energy, L.L.C., 138 Ohio St.3d 43, 2013-Ohio-5478, 3 N.E.3d 173, ¶ 22, quoting State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10, quoting Sabouri v. Ohio Dept. of Job & Family Servs., 145 Ohio App.3d 651, 654, 763 N.E.2d 1238 (10th Dist.2001). Accord Zukowski v. Brunner, 125 Ohio St.3d 53, 2010-Ohio-1652, 925 N.E.2d 987, ¶ 8; State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d 124, 2009-Ohio-4688, 914 N.E.2d 402, ¶ 1. The General Assembly established clear rules, and we should enforce them consistently and fairly as to all litigants.
{¶ 36} Accordingly, I dissent.
O‘DONNELL and LANZINGER, JJ., concur in the foregoing opinion.
Georgia B. Cox, pro se.
Bricker & Eckler, L.L.P., and Beverly A. Meyer, for appellant.