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Kimberly J. Nicoll v. Ohio Department of Job & Family

October 7, 2011

KIMBERLY J. NICOLL PLAINTIFF-APPELLANT
v.
OHIO DEPARTMENT OF JOB & FAMILY SERVICES, ET AL. DEFENDANT-APPELLEE



(Civil appeal from Common Pleas Court) T.C. NO. 10CV8834

The opinion of the court was delivered by: Donovan, J.

Cite as

Nicoll v. Ohio Dept. of Job & Family Servs.,

OPINION

{¶1} This matter is before the Court on the Notice of Appeal of Kimberly J. Nicoll, filed March 1, 2011. The facts herein are not in dispute, and the issues for review are procedural in nature.

{¶2} On November 8, 2010, in the court of common pleas, Nicoll filed a "Notice of Appeal Pursuant to O.R.C. 4141.282," in which she appealed the Ohio Unemployment Review Commission's ("Commission") "Decision Disallowing Request for Review" ("Decision"). The Commission had previously determined, in September, 2010, that Nicoll was discharged from her employment with just cause. The Decision denying her request for review provided, in a section entitled "Appeal Rights," that "[a]n appeal from this [D]ecision may be filed to the Court of Common Pleas of the county where the appellant, if an employee, is [a] resident or was last employed, * * * within thirty (30) days from the date of mailing of this [D]ecision, as set forth in Section 4141.282(A)(B)(B) (sic), Revised Code of Ohio." The Decision provided that it was mailed on October 6, 2010.

{¶3} The succeeding paragraph stated, "If your appeal is filed more than thirty (30) days from the date of mailing, then you may ask the Court of Common Pleas to determine the timeliness of your appeal. The court may find the appeal to be timely if you did not receive this [D]ecision within thirty (30) days after it was mailed to you. * * * ." On November 16, 2010, the Director of the Ohio Department of Job and Family Services ("Director"), filed a motion to dismiss for failure to timely appeal.

{¶4} Nicoll opposed the motion to dismiss. In her memorandum in support, she conceded that the Decision was mailed on October 6, 2010, and she asserted that the 30 day period within which she must file her notice of appeal began to run on October 7, 2010, and that 30 days from that date is Saturday, November 6, 2010. Nicoll asserted, in reliance upon Civ.R. 6(A), and R.C. 4141.281(D)(9), that her notice of appeal was then due on Monday, November 8, 2010, and that it was timely filed.

{¶5} The Director filed a reply in which he argued that "the time begins to run from the time the board mails the decision and not the day after under Civ.R. 6(A)." Further, the director asserted, the Civil Rules of Procedure "do not apply to special statutes such as the Ohio Unemployment Compensation Act," in reliance upon Civ.R. 1(C)(7). According to the Director, even if the Civil Rules did apply, Civ.R. 82*fn1 "disallows the Ohio Civil Rules to be used to extend the jurisdiction of the court." The Director asserted that the trial court lacked jurisdiction to decide the appeal.

{¶6} On February 2, 2011, the trial court sustained the Director's motion to dismiss. According to the trial court, "Under the plain language of the statute, thirty days from October 6, 2010 is Friday November 5, 2010. * * * Plaintiff filed her appeal on November 8, 2010, three days late." In a footnote, the trial court observed, "The Ohio Rules of Civil Procedure do not apply to cases concerning the Ohio Unemployment Compensation Act. Civ.R. 1(C)(7). More importantly, Civ.R. 6 and R.C. Section 4141.282 provide the identical method for computing the period of time prescribed for Plaintiff's filing her appeal: '* * * the date of the act * * * from which the designated period of time begins to run shall not be included.' The date of the act in this case was October 6, 2010. Thus, the first day of the appeal period under Civ.R. 6(A) and R.C. Section 4141.282 was October 7, 2010 and the thirtieth day was therefore Friday November 5, 2010."

{¶7} Nicoll asserts two assignments of error. Her first assignment of error is as follows:

{¶8} "THE TRIAL COURT ERRED WHEN IT SUSTAINED APPELLEE'S MOTION TO DISMISS, WHEN THE APPEAL WAS TIMELY FILED."

{¶9} "An appellate court reviews a trial court's granting of a motion to dismiss pursuant to Civ.R. 12(B)(1) de novo." Fowler v. Summa Health Systems, Summit App. No. Civ.A 22091, 2004-Ohio-6740,¶ 6.

{ΒΆ10} R.C. 4141.282 (A) provides: "Any interested party, within thirty days after written notice of the final decision of the unemployment compensation review commission was sent to all interested parties, may appeal the ...


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