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Hambuechen v. 221 Market North, Inc.

Court of Appeals of Ohio, Fifth District

August 26, 2013

ANA M. HAMBUECHEN Respondent- Appellee
v.
221 MARKET NORTH, INC. DBA NAPOLI'S ITALIAN EATERY Petitioner - Appellant

Appeal from the Stark County Court of Common Pleas, Case Number 2012CV03644

For Respondent-Appellee Ohio Civil Rights Commission WAYNE D. WILLIAMS

For Petitioner-Appellant STANLEY R. RUBIN

For Respondent- Appellee Ana M. Hambuechen, TODD W. EVANS

Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.

OPINION

Baldwin, J.

(¶1} Appellant 221 Market North, Inc., dba Napoli's Italian Eatery, appeals a judgment of the Stark County Common Pleas Court dismissing its petition for judicial review of a decision of appellee Ohio Civil Rights Commission.

STATEMENT OF FACTS AND CASE

(¶2} In 2007, appellee Ana M. Hambuechen filed a charge with the Ohio Civil Rights Commission alleging that appellant fired her because she was pregnant. The Commission issued a complaint charging appellant with a violation of R.C. 4112.02(A). The case proceeded to trial in front of an administrative law judge, who recommended that the Commission find a violation by appellant. The Commission made such a finding on November 15, 2012.

(¶3} On November 26, 2012, appellant filed a petition for judicial review in the Stark County Common Pleas Court pursuant to R.C. 4112.06. Counsel for appellant served appellees by regular mail rather than through the clerk of courts.

(¶4} The Commission moved to dismiss the petition for lack of subject matter jurisdiction on December 28, 2012, arguing that appellant had to both file its petition and initiate service through the clerk of courts within 30 days of the Commission's decision. On December 31, 2012, appellant filed a response to the motion to dismiss and also filed a praecipe for the clerk of courts to serve the petition in accordance with the Civil Rules.

(¶5} The trial court dismissed the petition, finding that appellant was required to both file its petition and initiate service through the clerk of courts within 30 days of the Commission's decision. Appellant assigns one error to this Court on appeal:

(¶6} "THE TRIAL COURT ERRED IN DISMISSING NAPOLI'S APPEAL FROM THE COMMISSION'S ORDER BECAUSE R.C. 4112.06 REQUIRES AN APPEAL BE SERVED THROUGH THE CLERK OF COURTS WITHIN ONE YEAR, NOT 30 DAYS."

(ΒΆ7} R.C. 4112.06 governs an appeal from a decision of the Ohio Civil Rights Commission to the Common Pleas ...


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