COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68331 JOHN W. SCOTT : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION BOARD OF EDUCATION FOR : CUYAHOGA VALLEY JOINT VOCATIONAL : SCHOOL DISTRICT : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 31, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 274,452 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: GEORGE W. PALDA Attorney at Law 2121 The Illuminating Building 55 Public Square Cleveland, Ohio 44113 For defendant-appellee: JAMES D. VAIL JONATHAN L. STARK Attorneys at Law 629 Euclid Avenue 1525 National City Bank Bldg. Cleveland, Ohio 44114 JAMES D. SWEENEY, J.: Plaintiff-appellant John Scott appeals the trial court's dismissal of his administrative appeal. The trial court granted the motion to dismiss for failure to prosecute pursuant to Loc.R. 28 of the Court of Common Pleas of Cuyahoga County, General Division, which was filed by defendant-appellee Board of Education for Cuyahoga Valley Joint Vocational School District (Board of Education). On June 15, 1994, the Board of Education adopted a resolution to notify the appellant, who was the treasurer, that certain charges were made against him which would cause him to be removed from his position. The following charges were attached to the resolution: 1. Payment of Leadership Funds to Dr. Jerry Shuck in violation of the Salary Administration and Performance Evaluation Policy, as described at pages 20 and 21 of the Report of Examination of the Cuyahoga Valley Joint Vocational School District for the year ended June 30, 1992 prepared by the Auditor of State (the "Audit"). 2. Making payments to or on behalf of Dr. Shuck for the purchase of automobiles, ostensibly from Dr. Shuck's Leadership Account, when that account lacked sufficient funds, as set forth in page 33 of the Audit. 3. Furnishing automobile insurance for Dr. Shuck, as set forth at page 22 of the Audit. - 3 - 4. Purchasing a cellular telephone for Dr. Shuck, as set forth at page 22 of the Audit. 5. Failing to maintain your Treasurer's certificate for a period of sixty days, as set forth at page 24 of the Audit. 6. Providing salary increases to Dr. Shuck in excess of that permitted by his contract. 7. Payment to Dr. Shuck of non-reimburseable [sic] travel expenses, as set forth at page 22 of the Audit. The appellant was duly notified of the charges, and these charges were considered at a special meeting held by the Board of Education on July 6, 1994. At this pre-termination hearing, the appellant was represented by counsel, and he was permitted to bring witnesses and present evidence. Subsequently, the Board of Education passed the following resolution which removed appellant from his position: WHEREAS, John Scott has been notified of charges that have been made against him; and WHEREAS, John Scott has been notified of the Board's intention to conduct a hearing on the charges at its meetings of July 6, 1994 and July 12, 1994; and WHEREAS, John Scott was offered an opportunity to present testimony, evidence and other information at these meetings; and WHEREAS, John Scott has availed himself of his opportunity; BE IT RESOLVED, pursuant to Ohio Revised Code Section 3313.22, that John Scott's employment as Treasurer is hereby terminated for cause, for each of the reasons set forth on Exhibit A hereto. - 4 - Exhibit A referred to in the resolution is a verbatim copy of the original charges cited supra, which were brought against the appellant. On July 28, 1994, the appellant filed his appeal pursuant to R.C. 2506 in the Cuyahoga County Court of Common Pleas. On September 2, 1994, the transcript was filed. The docket reflects that the appellee filed a Notice of Filing Transcript of Proceedings. On November 7, 1994, the appellee filed a motion to dismiss for failure to prosecute. The appellant timely filed both a brief in opposition and an Application With Affidavit, Pursuant to R.C. 2506.03, for a Hearing in Which to Present Additional Evidence. On November 29, 1994, the trial court granted the motion to dismiss and held that appellant's application for hearing was moot. The appellant sets forth two assignments of error. The first assignment of error states: THE TRIAL COURT ERRED IN DISMISSING THE APPEAL BEFORE IT CONSIDERED APPELLANT'S APPLICATION WITH AFFIDAVIT FOR A HEARING TO PRESENT ADDITIONAL EVIDENCE. The appellant argues that the trial court erred when it failed to grant a hearing to present additional evidence. The appellant asserts that the Ohio Supreme Court has held that R.C. 2506.01 makes a liberal provision for the introduction of new or additional evidence; and that the Supreme Court has also held that when an affidavit is filed under R.C. 2506.03, the reviewing court must consider its content prior to disposition of the case. The - 5 - appellee maintains that because the appellant failed to follow Loc.R. 28 of the Cuyahoga County Court of Common Pleas, General Division, and timely filed his brief and assignments of error, the trial court did not err in granting the dismissal for want of prosecution. Every final order or adjudication of a board of a political subdivision of a state may be reviewed by the appropriate county court of common pleas. R.C. 2506.01. In most administrative appeals, and under most circumstances, the hearing on appeal is limited to the transcript; however, R.C. 2506.03 states: (A) The hearing of such appeal shall proceed as in the trial of a civil action, but the court shall be confined to the transcript as filed pursuant to section 2506.02 of the Revised Code unless it appears, on the face of that transcript or by affidavit filed by the appellant, that one of the following applies: (1) The transcript does not contain a report of all evidence admitted or proffered by the appellant; (2) The appellant was not permitted to appear and be heard in person, or by his attorney, in opposition to the final order, adjudication, or decision appealed from, and to do any of the following: (a) Present his position, arguments, and contentions; (b) Offer and examine witnesses and present evidence in support; (c) Cross-examine witnesses purporting to refute his position, arguments, and contentions; - 6 - (d) Offer evidence to refute evidence and testimony offered in opposition to his position, arguments, and contentions; (e) Proffer any such evidence into the record, if the admission of it is denied by the officer or body appealed from. (3) The testimony adduced was not given under oath; (4) The appellant was unable to present evidence by reason of a lack of the power of subpoena by the officer or body appealed from or the refusal, after request, of such officer or body to afford the appellant opportunity to use the power of subpoena when possessed by the officer or body; (5) The officer or body failed to file with the transcript conclusions of fact supporting the final order, adjudication, or decision appealed from. If any circumstances described in divisions (A)(1) to (5) of this section applies, the court shall hear the appeal upon the transcript and such additional evidence as may be introduced by any party. At the hearing, any party may call, as if on cross-examination, any witness who previously gave testimony in opposition to such party. The Supreme Court has impliedly acknowledged that the language used by the legislature in R.C. 2506.03 is mandatory. In Dvorak v. Municipal Civil Service Comm. (1976), 46 Ohio St.2d 99, the court stated at syllabus 2: Where an affidavit is filed pursuant to R.C. 2506.03, in an R.C. Chapter 2506 appeal, the reviewing court must consider its content in its disposition of the case. - 7 - This court has held that it is unnecessary for a litigant to file a motion to submit additional evidence. Once an affidavit is filed, the required circumstances are established and the court must schedule a hearing. Scafaria v. Fairview Park (Nov. 12, 1992), Cuyahoga App. No. 61008, unreported. It is also clear that R.C. 2506.03 contains a liberal provision for the introduction of new or additional evidence. In re Annexation of Certain Territory (1992), 82 Ohio App.3d 377, 381. This precise issue was decided by this court in McCann v. Lakewood (1994), 95 Ohio App.3d 226, at 240, where it was determined that a trial court commits error when it fails to conduct a hearing pursuant to R.C. 2506.03 prior to a dismissal for want of prosecution. In the case sub judice, the docket clearly reflects that the appellant filed an affidavit pursuant to R.C. 2506.03 prior to the trial court's entry of dismissal. Once the affidavit was filed, the trial court was required to schedule a hearing and consider its content before disposing of the case. Finally, we note that the Supreme Court in Logsdon v. Nichols (1995), 72 Ohio St.3d 124, adopted the opinion of the Court of Appeals for Franklin County. In Logsdon, the court of appeals held that it is error for a court to fail to give notice to the parties prior to a dismissal pursuant to Civ.R. 41(B)(1). See, also, McCann, supra, where this court held that notice to the plaintiff or to plaintiff's counsel of the court's intent to dismiss is an absolute prerequisite to a Civ.R. 41(B)(1) dismissal regardless of - 8 - whether the dismissal is with or without prejudice, and that failure to provide such notice is an abuse of discretion. As in McCann, supra, the trial court dismissed the appellant's administrative appeal for want of prosecution prior to considering the affidavit made pursuant to R.C. 2506.03. And as in McCann, supra, the trial court failed to provide the requisite notice to the appellant. The court abused its discretion when it granted the appellee's motion to dismiss the appellant's appeal without first holding a hearing on the affidavit filed pursuant to R.C. 2506.03. The court erred when it dismissed for want of prosecution without notice. The appellant's first assignment of error is well taken, and this case is remanded for hearing on the affidavit. The appellant's second assignment of error states: IN AN APPEAL PURSUANT TO R.C. CHAPTER 2506, WHERE AN APPELLANT HAS REQUESTED A HEARING TO PRESENT ADDITIONAL EVIDENCE IN LIEU OF FILING A BRIEF, COMMON PLEAS LOCAL RULES 21 AND 28 REQUIRE THAT THE TRIAL COURT ESTABLISH A BRIEFING SCHEDULE SO AS TO PERMIT AN APPELLANT AN OPPORTUNITY TO FILE AN ASSIGNMENT OF ERRORS AND BRIEF BEFORE THE COURT GRANTS A MOTION TO DISMISS FOR FAILURE TO FILE AN ASSIGNMENT OF ERRORS AND BRIEF. The appellant's second assignment of error is moot pursuant to App.R. 12(A). Judgment reversed and remanded for hearing. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. - 9 - It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said 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. JOSEPH J. NAHRA, J., CONCURS; and LEO M. SPELLACY, P.J., CONCURS IN JUDGMENT ONLY. JUDGE JAMES D. SWEENEY 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 journalization, .