[Cite as Hendy v. Ohio Civ. Rights. Comm., 2020-Ohio-5415.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
CARY HENDY C.A. No. 29043
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
OHIO CIVIL RIGHTS COMMISSION COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CV-2017-10-4426
DECISION AND JOURNAL ENTRY
Dated: November 25, 2020
TEODOSIO, Judge.
{¶1} Cary Hendy appeals the judgment of the Summit County Court of Common Pleas
dismissing his petition for judicial review of an order issued by the Ohio Civil Rights Commission.
We reverse.
I.
{¶2} In 2015, the Fair Housing Contact Service (“FHCS”) filed a charge of
discrimination with the Ohio Civil Rights Commission (“OCRC”) against Cary Hendy for housing
practices in violation of R.C. 4112.02(H). On September 28, 2017, the OCRC issued an order
requiring Mr. Hendy to cease and desist from all discriminatory practices in violation of R.C. 4112,
to pay actual and punitive damages to the FHCS, and to receive training in Ohio’s anti-
discrimination fair housing laws.
{¶3} On October 23, 2017, Mr. Hendy filed a petition for judicial review of the OCRC’s
order with the Summit County Court of Common Pleas. Attached to the petition was a certificate
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of service indicating, in pertinent part, that the petition had been sent by regular mail to the FHCS.
On April 19, 2018, the Court of Common Pleas dismissed Mr. Hendy’s petition for lack of
jurisdiction, concluding that Mr. Hendy had failed to perfect his appeal in accordance with R.C.
4112.06. Mr. Hendy now appeals to this Court, raising five assignments of error, which have been
reordered for the purposes of our analysis.
II.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED IN THE REASON IT STATES FOR DISMISSAL
OF THE JUDICIAL REVIEW AS “THE COURT FINDS THAT HENDY DID
NOT PROPERTLY PERFECT HIS APPEAL AS REQUIRED BY R.C. 4112.06
AND THEREFORE DOES NOT HAVE SUBJECT MATTER JURISDICTION
TO CONSIDER HIS APPEAL.”
{¶4} In his second assignment of error, Mr. Hendy argues the trial court erred in
dismissing his appeal for lack of subject matter jurisdiction on the grounds that he had not properly
perfect the appeal under R.C. 4112.06. We agree.
{¶5} The dismissal of a case for lack of subject matter jurisdiction “‘inherently raises
questions of law,’” which requires a de novo review. Servpro v. Kinney, 9th Dist. Summit No.
24969, 2010-Ohio-3494, ¶ 11, quoting Exchange St. Assocs., L.L.C. v. Donofrio, 187 Ohio App.3d
241, 2010-Ohio-127, ¶ 4 (9th Dist.). “A de novo review requires an independent review of the trial
court’s decision without any deference to the trial court’s determination.” State v. Consilio, 9th
Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4.
{¶6} “[W]hen the right to appeal is conferred by statute, an appeal can be perfected only
in the manner prescribed by the applicable statute.” Welsh Dev. Co. Inc. v. Warren Cty. Regional
Planning Comm., 128 Ohio St.3d 471, 2011-Ohio-1604, ¶ 14. R.C. 4112.06 provides:
(A) Any complainant, or respondent claiming to be aggrieved by a final order of
the commission, including a refusal to issue a complaint, may obtain judicial review
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thereof, and the commission may obtain an order of court for the enforcement of its
final orders, in a proceeding as provided in this section. Such proceeding shall be
brought in the common pleas court of the state within any county wherein the
unlawful discriminatory practice which is the subject of the commission's order was
committed or wherein any respondent required in the order to cease and desist from
an unlawful discriminatory practice or to take affirmative action resides or transacts
business.
(B) Such proceedings shall be initiated by the filing of a petition in court as
provided in division (A) of this section and the service of a copy of the said petition
upon the commission and upon all parties who appeared before the commission.
***
(H) If no proceeding to obtain judicial review is instituted by a complainant, or
respondent within thirty days from the service of order of the commission pursuant
to this section, the commission may obtain a decree of the court for the enforcement
of such order upon showing that respondent is subject to the commission's
jurisdiction and resides or transacts business within the county in which the petition
for enforcement is brought.
R.C. 4112.06(H) thus imposes a mandatory thirty-day time limit for filing appeals from orders
issued by the Ohio Civil Rights Commission. Ramsdell v. Ohio Civ. Rights Comm., 56 Ohio St.3d
24, 25 (1990).
{¶7} In its order dismissing Mr. Hendy’s petition, the trial court concluded that under
R.C. 4112.06, Mr. Hendy was required to serve all parties appearing before the commission within
30 days of OCRC’s final order, and that service needed to have been made through the clerk of
courts. Because Mr. Hendy did not serve or attempt to serve the FHCS through the clerk of courts
within the 30-day time period, the trial court dismissed the petition for lack of jurisdiction.
{¶8} In dismissing Mr. Hendy’s appeal, the trial court relied upon the Eighth District
Court of Appeals’ decision in Muhammad v. Ohio Civ. Rights Comm., 8th Dist. Cuyahoga No.
99327, 2013-Ohio-3730. In Muhammad, the appellant had filed a petition for judicial review of
an order issued by the OCRC with a court of common pleas. Id. at ¶ 4. The trial court dismissed
the petition due to the appellant’s failure to initiate service, within 30 days of the final order
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through the clerk of courts, on a party that had appeared before the commission. Id. at ¶ 13. In
affirming the decision of the trial court, the Eighth District Court of Appeals noted that R.C.
4112.06(H) imposed a 30-day time limit for filing an appeal of an OCRC decision. Id. at ¶ 19-20.
The Court also determined that service of the petition must be made through the clerk of courts in
accordance with the Civil Rules of Procedure. Id. at ¶ 21-22. From this, the Court concluded that
because the appellant had not initiated service through the clerk of courts on a necessary party
within the requisite 30-day time period, the trial court had lacked jurisdiction over the petition and
properly dismissed the action. Id. at ¶ 22.
{¶9} Subsequent to the Muhammad decision, the Supreme Court of Ohio decided
Hambuechen v. 221 Mkt. N., Inc., the facts of which were set forth as follows:
On November 26, 2012, the employer filed a petition for judicial review in the Stark
County Court of Common Pleas pursuant to R.C. 4112.06. On the petition, the
employer’s attorney certified that he had mailed copies of the petition to the
commission and to attorneys for the commission and Hambuechen, but he did not
file a praecipe for service on the parties with the clerk of the common pleas court.
On December 28, 2012, the commission moved to dismiss the petition for lack of
subject-matter jurisdiction, arguing that the employer had failed to properly initiate
service by the clerk within 30 days of the date the commission’s order was mailed.
On December 31, 2012, 35 days after the petition for review of the commission's
order was filed, the employer filed a praecipe for service with the clerk of courts.
The employer filed a response to the commission's motion to dismiss claiming that
according to Civ.R. 3(A), service must be obtained within one year. The common
pleas court granted the commission's motion to dismiss after concluding that the
petition for review was not timely served on the parties.
The employer appealed the common pleas court's decision to the Fifth District
Court of Appeals on March 5, 2013. The Fifth District reversed the decision of the
common pleas court, holding that under the Rules of Civil Procedure, the employer
had one year to perfect service through the clerk of the common pleas court. 5th
Dist. Stark No. 2013CA00044, 2013-Ohio-3717, 2013 WL 4680453.
Hambuechen v. 221 Mkt. N., Inc., 143 Ohio St.3d 161, 2015-Ohio-756, ¶ 4-5.
{¶10} In Hambuechen, as in the case sub judice, the petitioner failed to initiate service
through the clerk of courts on all parties appearing before the commission within 30 days of the
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order issuing from the Ohio Civil Rights Commission. Likewise, the petitioner in both cases
attached a certificate of service indicating that a copy of the petition was sent to the unserved
parties by regular mail.
{¶11} In affirming the Fifth District’s reversal of the Common Pleas Court, the Supreme
Court of Ohio held:
The Rules of Civil Procedure apply to proceedings initiated pursuant to R.C.
4112.06; therefore, the petition for review of an order of the Civil Rights
Commission must be served by a clerk of courts on all parties who appeared before
the commission and on the commission itself within one year of the date that the
petition was filed, as required by Civ.R. 3(A).
Hambuechen at syllabus. The Hambuechen Court further explained its rationale:
The office of the clerk of courts exists for a reason. The use of a central office brings
stability to the system. The judicial system and the public thus have a concrete
method of knowing when a document has been filed, who has been served with that
document, and how that document was served. As this court recently reasoned in
Clermont Cty. Transp. Improvement Dist. v. Gator Milford, L.L.C., 141 Ohio St.3d
542, 2015-Ohio-241, 26 N.E.3d 806, ¶ 2, “actual knowledge” is never a substitute
for service by the clerk of courts.
Id. at ¶ 10. Thus, although the Hambuechen Court concluded that service of the petition must be
accomplished through the clerk of courts, it did not find the failure to initiate service through the
clerk of courts within 30 days fatal to its jurisdiction; rather, the Court determined the petitioner
had one year to accomplish service.
{¶12} In the case sub judice, we must also consider the fact that although Mr. Hendy
indicated regular mail service on the FHCS, he did not formally name the FHCS as a party. In our
review of R.C. 4112.06, we find nothing to indicate that the formal naming of all parties appearing
before the commission is a jurisdictional requirement. Rather, with regard to such parties, R.C.
4112.06(B) states only that service of a copy of the petition be made “upon the commission and
upon all parties who appeared before the commission.” R.C. 4112.06(B). See generally Mason
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City School Dist. Bd. of Edn. v. Warren Cty. Bd. of Revision, 138 Ohio St.3d 153, 2014-Ohio-104,
¶ 17 (stating in the context of tax appeals under R.C. 5717.03 that “identifying a party as an
appellee in the notice of appeal is not a jurisdictional requirement; it is jurisdictionally sufficient
if the party is served”).
{¶13} The determination that the failure to formally name a party is not jurisdictionally
fatal to an action is generally consistent with the approach taken by the Ohio Rules of Appellate
Procedure. See App.R. 3(A) (“Failure of an appellant to take any step other than the timely filing
of a notice of appeal does not affect the validity of the appeal, but is ground only for such action
as the court of appeals deems appropriate, which may include dismissal of the appeal.”). It is also
consistent with Ohio courts’ treatment of indispensable parties. See State ex rel. Bush v. Spurlock,
42 Ohio St.3d 77, 81 (1989) (“Ohio courts have eschewed the harsh result of dismissing an action
because an indispensable party was not joined, electing instead to order that the party be joined
pursuant to Civ.R. 19(A) (joinder if feasible), or that leave to amend the complaint be granted.”
(citations omitted)).
{¶14} We conclude that failure to formally name the FHCS as a party did not deprive the
Court of Common Pleas of jurisdiction. Furthermore, in accordance with Hambuechen, Mr. Hendy
was required to accomplish service on all parties who appeared before the commission and on the
commission itself, through the clerk of courts, within one year of the date that the petition was
filed. Because the Court of Common Pleas dismissed the action prior to the expiration of the one-
year time limitation for serving FHCS, its dismissal for lack of jurisdiction was premature.
{¶15} Mr. Hendy’s second assignment of error is sustained.
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ASSIGNMENT OF ERROR ONE
THE TRIAL COURT INCORRECTLY DISMISSE[D] THE JUDICIAL REVIEW
OF A FINAL COMMISSION ORDER WRITING THAT IT “DOES NOT HAVE
SUBJECT MATTER JURISDICTION.”
ASSIGNMENT OF ERROR THREE
THE TRIAL COURT ERRED BY NOT CITING WHAT SPECIFIC RULES IN
OHIO RULES OF CIVIL PROCEDURE ALLEGEDLY DID NOT COMPORT
WITH AS TO WHAT WAS “INFERRED” BY R.C. 4112.06, THE DIRECTIVE
A PETITIONER MUST FOLLOW.
ASSIGNMENT OF ERROR FOUR
THE TRIAL COURT, AND ITS CITED APPELLATE RENDERING, HAS
ERRED IN STATING “THAT A PARTY BEFORE THE COMMISSION MUST
BE NAMED.”
ASSIGNMENT OF ERROR FIVE
THE TRIAL COURT HAS UNKNOWINGLY ERRED IN BEING UNAWARE
THAT INSIDE THE PETITION FOR A JUDICIAL REVIEW OF A FINAL
ORDER, THE PETITIONER HAS INCLUDED USAGE OF [CIV.R. 9]
REGARDING “SPECIAL MATTERS.”
{¶16} We decline to address the remaining assignments of error because our disposition
of Mr. Hendy’s second assignment of error has rendered them moot. See App.R. 12(A)(1)(c).
III.
{¶17} Mr. Hendy’s second assignment of error is sustained. We decline to address his
first, third, fourth, and fifth assignments of error as they have been rendered moot. The judgment
of the Summit County Court of Common Pleas is reversed and remanded.
Judgment reversed
and remanded.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
THOMAS A. TEODOSIO
FOR THE COURT
CARR, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
CARY HENDY, pro se, Appellant.
WAYNE D. WILLIAMS, Principal Assistant Attorney General, for Appellee.