COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59100 : : ANDRE GEROC, DVM : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND OHIO VETERINARY MEDICAL BOARD : OPINION : Defendant-Appellant : : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1991 CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Common Pleas Court Case No. CP-138265 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: ANDRE GEROC, DVM, Ph.D., LEE FISHER, Attorney General Pro Se by: CHERYL D. MINSTERMAN, P. O. Box 21199 Assistant Attorney General Cleveland, Ohio 44121 State Office Tower, 10th Floor 30 East Broad Street Columbus, Ohio 43266-0410 -2- STILLMAN, J.: Appellant, the Ohio Veterinary Medical Board, revoked the license of appellee, Andre Geroc, but on appeal to the court of common pleas a settlement remanded the matter for a hearing. After a hearing the license was again revoked, appellee appealed and the revocation was affirmed. This court reversed and held that the Board had failed to certify the record as required. In accordance with the dictates of this court the trial court entered judgment for appellee. Appellant began new proceedings against appellee (on the same grounds) and reissued the "notice for opportunity for hearing." Appellee did not request a hearing and appellant revoked appellee's license. On appeal to the court of common pleas appellee filed several motions on January 15, 1988 and July 3, 1989. After appellant appealed a journal entry that had not been signed and the case was remanded, the appellant responded to the motions and moved for dismissal for failure to exhaust administrative remedies. The court did not rule on the motion. The trial court entered judgment for appellee stating that his motions were well taken and that appellant failed to certify a complete record and failed to respond to appellee's motions of January 15, 1988 and July 3, 1989. On appeal appellant assigns three errors for review. I THE COURT BELOW ERRED AS A MATTER OF LAW IN GRANTING DR. GEROC'S MOTIONS TO DISMISS. a. The court below failed to hold a hearing as required by R.C. 119.12. -3- Appellant notes that R.C. 119.12 requires a hearing and argues that, at a minimum, written argument must be permitted. R.C. 119.12 requires only a hearing. The hearing may be limited to a review of the record, or, at the judge's discretion, the hearing may involve the acceptance of briefs, oral argument and/or newly discovered evidence. In the instant case, neither party requested that the judge hear oral arguments or objected when none were heard. The court properly exercised its discretion and limited the hearing to a review of the adminis- trative proceedings. Ohio Motor Vehicle Dealers Bd. v. Central Cadillac Co. (1984), 14 Ohio St. 3d 64, 67. b. The Ohio Veterinary Medical Board did respond to the January 15, 1988 motion; however, Dr. Geroc failed to serve the Board with a copy of his July, 1989 motion. Appellant also insists that the court ignored its response to the January 15, 1988 motion to dismiss and that the July 3, 1989 motion to dismiss was never served on appellant. The entry states as follows: This cause came on before the court on the filing of two motions for the Relief though (sic) pursuant to Ch. (sic) 119.12 of the Ohio Revised Code, said motions being filed with this court on January 15, 1988 and July 03, 1989, respectively. Appellee has failed to certify to the court a complete Record of the proceedings in the case and failed to respond to both motions. Whereupon, the court, being fully advised in premises (sic) finds both motions to be well taken, and hereby enters a finding in favor of the Appellant. Now, therefore, it is ORDERED that the unauthorized BOARD ORDER # DVM-88-89 dated Nov. 24, 1987 is hereby dismissed with prejudice, with cost to Appellee. -4- The trial judge concluded that appellant failed to respond to both motions to dismiss. The record does contain responses to both: an August 17, 1989 "memorandum in opposition to motion to dismiss unauthorized adjudication order" and a September 8, 1989 "memorandum in opposition to motion ... filed July 3, 1989." There is also an August 28, 1989 "memorandum in opposition" which is pertinent. However, these motions were clearly out of rule. The August 17, 1989 motion purports to respond to the January 15, 1988 motion. Appellant refers to an appeal that occurred in the meantime but that does not explain why the motion was not responded to in a timely fashion. The first motion was filed January 15, 1988. The alleged "journal entry" from which appel- lant erroneously appealed was entered on February 23, 1988. There was no extension of time requested or granted. Even after the appeal was dismissed in May of 1989 because the February 23, 1988 entry was not a journal entry, appellant waited until August 17, 1989 to finally respond to the January 15, 1988 motion. In the same way, appellant failed to respond to the July 3, 1989 motion until August 28, 1989 (a partial response) and September 8, 1989. Again, no extensions were requested or granted. Although there is no service noted appellant had actual notice of it and responded. It never informed the court of a lapse in time before it received notification. In the December, 1989 entry the trial judge concluded that appellant had failed to respond. As appellant failed to do so in the time required it did "fail to respond" and its memoranda could not be considered. -5- c. The judgment rendered by the lower court constitutes a default judgment against the State, which is prohibited by Civ. R. 55(D). Appellant insists that the reason for the judgment for appellant was an alleged failure to respond to the motions to dismiss and therefore the trial court improperly entered a default judgment against an entity of the state. Civ. R. 54(D). We do not read the December, 1989 entry to be a default judgment. The trial court notes that the motions were not responded to (as noted this meant not responded to timely) and proceeds to find the motion well taken rather than entering judgment for failure to answer. Appellant did answer. Judgment was entered for appellee on the merits of his motions to dismiss. A dismissal is not a default. Assignment of Error No. I is overruled. II THE COURT BELOW ERRED AS A MATTER OF LAW IN GRANTING JUDGMENT IN FAVOR OF DR. GEROC FOR FAILURE TO CERTIFY A COMPLETE RECORD FOR REVIEW. Again, our reading of the journal entry does not accord with that of appellant. The court merely notes the fact that the record is incomplete. Assignment of Error No. II is overruled. III THE COURT BELOW ERRED AS A MATTER OF LAW IN GRANTING JUDGMENT IN FAVOR OF DR. GEROC WHEN HE FAILED TO EXHAUST ADMINISTRATIVE REMEDIES. Appellant filed a motion to dismiss for failure to exhaust administrative remedies. The motion was not ruled on and is -6- presumed denied. Hayes v. Smith (1900), 62 Ohio St. 161; Solon v. Solon Baptist Temple (1982), 8 Ohio App. 3d 347. Appellant insists that because appellee failed to request a hearing before the Board he has failed to exhaust his administrative appeals. R.C. 119.01 to 119.13 provide that appellant may not revoke appellee's license without affording him an opportunity for a hearing. Appellant did so and appellee did not request a hearing. A party subject to a revocation under R.C. 119 must avail himself of the opportunity for a hearing or be barred for failure to exhaust administrative remedies. Silverberg v. State Bd. of Pharmacy (Apr. 2, 1987), Cuyahoga App. No. 51777, unreported at 6-7, applying Driscoll v. Austintown Associates (1975), 42 Ohio St. 2d 263, 273. Appellee insists that he did not request a hearing because appellant could not proceed to revoke his license on the same charges as the first case when judgment had been entered for him. The trial court entered judgment because appellant failed to certify the record. R.C. 119.12. In that case a judgment is entered "as if on the merits" State, ex rel. Crockett, v. Robinson (1981), 67 Ohio St. 2d 363, 365. An adjudication must be on the merits before res judicata applies. LaBarbera v. Batsch (1967), 10 Ohio St. 2d 106, 109; Yoder v. Ohio St. Bd. of Educ. (11988), 40 Ohio App. 3d 111 (paragraph two of the syllabus); Jenneman v. Ohio St. Bd. of Chiropractic Examiners (1985), 21 Ohio App. 3d 225 (paragraph two of the syllabus) (both appellate cases construing R.C. 119.12). -7- The language of [R.C. 119] is clear; if the agency fails to comply, then the court must enter a finding in favor of the party adversely affected. The statute entitles the party to be put in the same position as if the court had ruled on the merits. Under the facts of this case, the court was required to issue an order of reinstatement, which, in itself, is a determination that the employee was wrongfully excluded from employment. State, ex rel. Crockett v. Robinson (1981), 67 Ohio St. 2d 363, 365. Assignment of Error No. III overruled. Judgment affirmed. -8- It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MCMANAMON, P.J. CONCURS. HARPER, J., CONCURS (SEE ATTACHED CONCURRING OPINION) JUDGE SAUL G. STILLMAN Sitting by Assignment of the Supreme Court of Ohio: Saul G. Stillman, Retired, Eighth District Court of Appeals. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59100 : ANDRE GEROC, DVM : : : Plaintiff-Appellee : : CONCURRING -vs- : : OPINION OHIO VETERINARY MEDICAL BOARD : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1991 HARPER, J. CONCURRING: I concur with the majority opinion, but find it necessary to address the issue of res judicata as it applies to Ohio administrative agencies pursuant to R.C. 119.12, which in my opinion was not adequately responded to by the majority in the case sub judice. Appellant, in its third assignment of error, argues that the trial court erred by dismissing its action against appellee when appellee failed to exhaust administrative remedies. Appellee contends that he was not required to exhaust administrative remedies because appellant lacked jurisdiction to entertain the -10- second action against him after the cause was dismissed by this court for failure to certify the record. Appellee, in his motion to dismiss before the trial court, consistently maintained that the board's second adjudication of his case after the dismissal by this court was invalid under the doctrine of res judicata. I agree. I shall briefly review the doctrine of res judicata for the benefit of resolving the issues involved in the case sub judice. The doctrine of res judicata involves two basic concepts. In a simplified form, res judicata "refers to the effect a judgment in a prior action has in a second action based upon the same cause of action". Whitehead v. General Telephone Co. (1969), 20 Ohio St. 2d 108, 112. One part of the doctrine, sometimes referred to as "claim preclusion", provides that: "A final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue as to the parties and their privies, and is a complete bar to any subsequent action upon the same cause of action between the parties or those in privity with them. The prior judgment is res judicata as between the parties or their privies. (paragraph No. 1 of syllabus of Norwood v. McDonald, 142 Ohio St. 299, approved and followed.)" Whitehead v. General Telephone Co., supra, paragraph one of the syllabus. Thus, in res judicata, the first judgment is conclusive not only as to those matters that were determined but also as to those matters that could have been determined in the prior actions. See Strongberg v. Bd. of Edn. (1980), 64 Ohio St. 2d 98, 100. -11- The second part of the doctrine of res judicata is collateral estoppel, sometimes referred to as "issue preclusion". Collateral estoppel precludes the re-litigation of legal or factual issues that were actually and necessarily litigated and determined in a prior action even though the subsequent action is a different cause of action. See Johnson's Island, Inc. v. Bd. of Twp. Trustees (1984), 69 Ohio St. 2d 241, 244; Whitehead, supra, at 112. It provides that: "A point of law or a fact which was actually and directly in issue in the former action, and was there passed upon and determined by a court of competent jurisdiction, may not be drawn in question in a subsequent action between the same parties or their privies. The prior judgment estops a party, or a person in privity with him, from subsequently relitigating the identical issue raised in the prior action. (Whitehead v. Gen. Tel. Co., 20 Ohio St. 2d 108, paragraph two of the syllabus approved and followed.)" Trautwein v. Sorgenfrei (1979), 58 Ohio St. 2d 493, syllabus. The Ohio Supreme Court has ruled that both parts of the doctrine of res judicata may be applicable to prior administrative proceedings, where (1) the administrative proceedings were of a judicial nature, and (2) where the parties had an ample opportunity to litigate the issues involved in the administrative proceeding. Set Products, Inc. v. Bainbridge Twp. Bd. of Zoning Appeals (1987), 31 Ohio St. 3d 260, 263; Superior Brand v. Lindley (1980), 62 Ohio St. 2d 133. This court held in Pullar v. UpJohn Health Care Serv. Inc. (1984), 21 Ohio App. 3d 288, paragraph two of the syllabus (motion to certify the record to the Ohio Supreme Court denied March 6, 1985), that: -12- "An administrative determination can collaterally estop a civil action when the following factors are present: "(a) the board was acting in a judicial capacity when it considered the claims of the parties; "(b) the factual disputes resolved were clearly relevant to issues properly before it; and "(c) both parties had a full and fair opportunity to argue their version of the facts and an opportunity to seek out review of any adverse findings. (United States v. Utah Construction Co. [1966], 384 U.S. 394, followed.)" In the within case, we must look to the statutory provision and determine whether a hearing before the Ohio Veterinary Medical Board constitutes a quasi-judicial hearing to permit the application of the doctrine of res judicata. I would answer that in the affirmative. R.C. 119.12 provides in pertinent part: "**** "Unless otherwise provided by law, in the hearing of the appeal, the court is confined to the record as certified to it by the agency. "**** "The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law." The language of the statute is plain on its face. The decision of the agency does not come to the common pleas court on a de novo review but on appeal. The statute's provision of an appeal instead of a de novo review makes the agency a quasi-judicial body. R.C. 119.12 includes the Ohio Veterinary Medical Board -13- among the agencies whose decisions are quasi-judicial when it provides that: "Notwithstanding any other provision of this section, any order issued by a court of common pleas suspending the effect of an order of the state medical board or chiropractic examining board that limits, revokes, suspends, places on probation, or refuses to register or reinstate a certificate issued by the board or reprimands the holder of such a certificate shall terminate not more than fifteen months after the date of the filing of a notice of appeal in the court of common pleas, or upon the rendering of a final decision or order in the appeal by the court of common pleas, whichever occurs first." Having established that appellant is a quasi-judicial body, we must look to the substance of the cause of action in the case at bar and the relationship of the parties to determine the application of res judicata. According to appellant's certified record to the court of common pleas, prior to February 13, 1984, a complaint was filed by Mr. Zupan and Mr. and Mrs. Valentine against appellee, Dr. Geroc. The board conducted an adjudication hearing on the complaints. Dr. Geroc was represented by counsel and in addition, Dr. Geroc presented a one hundred and twenty-eight page response to the charges against him. The board, in its decision, held that Dr. Geroc was incompetent and revoked his license to practice veterinary medicine. Dr. Geroc appealed to the court of common pleas which affirmed the board's decision. Dr. Geroc appealed the court of common pleas' decision to this court. This court held in Geroc DVM v. Ohio Veterinary Med. Bd. (Mar. 26, 1987), Cuyahoga App. No. 51830, unreported, that the board's failure to certify its -14- records to the court of common pleas violated R.C. 119.12 and vacated the court of common pleas' decision, ordering the court of common pleas to enter judgment in favor of Dr. Geroc. The court of common pleas acted according to this court's mandate and reinstated Dr. Geroc's license. The board, shortly after Dr. Geroc's license was reinstated, initiated a new proceeding against Dr. Geroc, the sole purpose of which was to comply with the R.C. 119.12 certification requirement. The board stated in their motion that: "Defendant-Appellant asserts that the grounds for reversal were procedural not substantive, and therefore, not on the merits. Relying on this belief, as well as R.C. 2305.19, the Board reissued the charges against Plaintiff-Appellant, who failed to request a hearing. The board then rendered its decision based upon the prior hearings held in this matter, and revoked Plaintiff-appellant's license to practice veterinary medicine." (Emphasis added.)" Appellee argues that the doctrine of res judicata barred appellants from re-adjudicating the same issues that were litigated prior to this court's vacating the court of common pleas decision. Appellant argues that it is not barred by the doctrine of res judicata because this court's decision was procedural and not substantive. Appellant cited one case from the Court of Appeals of Hamilton County, which tends to support its argument. In Sayler v. Ohio State Racing Commission, the Court of Appeals of Hamilton County held that: "the agency was not precluded from considering the charges against the appellant licensee a second time under the doctrine of res judicata." See also Bier v. Ohio State Racing Comm. (Oct. 4, 1978), Summit App. -15- No. 8946. In Jenneman v. Chiropractic Examiners (1985), 21 Ohio App. 3d 225, 226, the Court of Appeals of Hamilton County reaffirmed its holding in Sayler, supra, that the doctrine of res judicata is not a bar to a second adjudication of the same issues by the agency. I take issue with this holding and disagree with our sister court in Hamilton County. The Ohio Supreme Court, in State, ex rel. Crockett v. Robinson (1981), 67 Ohio St. 2d 363, 365, held that: "R.C. 119.12 provides, in part, that '[w]ithin thirty days after receipt of notice of appeal from an order in any case wherein a hearing is required by sections 119.01 to 119.13 of the Revised Code, the agency shall prepare and certify to the court a complete record of the proceedings in the case. Failure of the agency to comply within the time allowed, shall, upon motion, cause the court to enter a finding in favor of the party adversely affected.' (Emphasis added.) "The language of the statute is clear; if the agency fails to comply then the court must enter a finding in favor of the party adversely affected. The statute entitled the party to be put in the same position as if the court had ruled on the merits. Under the facts of this case, the court was required to issue an order of reinstatement, which, in itself, is a determination that the employee was wrongfully excluded from employment." The Hamilton County Court of Appeals in Jenneman, supra, interpreting the Ohio Supreme Court holding in Robinson, supra, held that: "When the Supreme Court said in State, ex rel. Crockett, v. Robinson (1981), 67 Ohio St. 2d 363, 365 [21 O.O.3d 228], that the appellant is 'to be put in the same position as if the court had ruled on the merits [emphasis added],' we believe the Supreme Court meant that the 'finding' was not a disposition of the -16- merits of the appeal, but that the appellant was to be treated as though it were. Since the administrative agency's decision in the instant case was vacated for procedural reasons, it was not reviewed and ruled on for its substantive validity." Jenneman, at 228. I disagree with this interpretation for two reasons. Firstly, if the agency is a quasi-judicial body, then the doctrine of res judicata should bar it from re-adjudicating the same facts and issues with the same parties. When the complaint against Dr. Geroc was re-adjudicated, it was based on the same complaints by the same parties against Dr. Geroc. The agency's reason for re-adjudication is to comply with the certification mandate of R.C. 119.12 and not for any new complaints against Dr. Geroc. The language by the Ohio Supreme Court in Robinson, supra, that: "The statute entitles the party to be put in the same position as if the court had ruled on the merits" is unambiguous and should not be interpreted to defeat the intent of the statute. The court applied the meaning of what it meant by "ruled on the merits" when it stated, "under the facts of this case, the court was required to issue an order of reinstatement, which, in itself, is a determination that the employee was wrongfully excluded from employment". (Emphasis added.) The merits of the case in Robinson is whether the employee was wrongfully excluded from employment. The Robinson holding will not make any sense if the Supreme Court orders that the employee be reinstated and paid his past wages and allows the same agency to re-adjudicate the same issues against the employee and discharge him. A person cannot be -17- treated as if he is a president without being accorded the rights and privileges of a president. When a party is to be treated as if he won on the merits, it follows that the rights and privileges of a merit win is accorded him, two of which in the within case, are reinstating Dr. Geroc's license and a bar from re-litigating the same issues against him. As Justice Oliver Wendell Holmes stated in Guild v. Walter (1902), 182 Mass. 225, 226, "When the words in their literal sense have a plain meaning, courts must be very cautious in allowing their imagination to give them a different one." "*** There is a strong presumption in favor of giving words their natural meaning, and against reading them as if they said something else, which they are not fitted to express." Merrill v. Preston (1883), 135 Mass. 451, 455. Secondly, can it be said from the statute that the legislature intended to give the agency a second chance after it fails to comply with statutory enactment. The answer should be in the negative. R.C. 119.12 states in pertinent part: "Failure of the agency to comply within the time allowed, upon motion, shall cause the court to enter a finding in favor of the party adversely affected." The Ohio Supreme Court further interpreted this section to mean entitling "the party to be put in the same position as if the court had ruled on the merits. I see no reason for the legislature to take such pains to enact this section of the statute and the supreme court to interpret it if -18- all it takes is for the agency after its decision is vacated to turn around and re-adjudicate the same issues and certify the records. The state and its agencies are required to obey the laws as they are enacted and courts cannot create exceptions and second chances in circumvention of statutory provisions especially where such exceptions and second chances result in prejudice to a citizen. R.C. 119.12 is analogous to R.C. 2945.71, which provides for a speedy trial, to a defendant charged with a crime, within a specified number of days. No Ohio court has ever held that the state can reindict a defendant who is discharged for failure to be tried within the specified time because the defendant is discharged on procedural grounds and not on the merits. Courts in Ohio have consistently held that the speedy trial statute is couched in mandatory terms and must be construed strictly against the state. Cleveland v. Austin (1978), 55 Ohio App. 2d 369, 375; State v. Singer (1977), 50 Ohio St. 2d 103. Like R.C. 2945.71, R.C. 119.12 is couched in mandatory terms and must be strictly construed against the agency. Therefore, an agency with quasi-judicial powers whose decisions lie with the provisions of R.C. 119.12 is mandatorily required to certify its records to the court of common pleas within thirty days after an appeal of its adjudication is filed with the court of common pleas. Failure to so certify mandates the court of common pleas, upon a motion, to render judgment in favor of the adverse party. The decision -19- of the court of common pleas which is regarded as if ruled on the merits is governed by the doctrine of res judicata. In the within case, the Ohio Veterinary Medical's Board's re-adjudication of the complaints against Dr. Geroc, after the court of common pleas vacated the board's prior adjudication, for failure to certify its records within 30 days of appeal of its decision, violates the doctrine of res judicata and is prejudicial to Dr. Geroc. Appellant's assignment of error is properly overruled. The court of common pleas order dismissing the board's action with prejudice is proper. .