Woerner v. Mentor Exempted Village School District Board of Education

*845 Joseph E. Mahoney, Presiding Judge. Appellant, James F. Woerner, timely filed an application for reconsideration pursuant to App.R. 26, requesting this court to reconsider its opinion issued May 29, 1992, 1992 WL 121665. On October 9, 1992, appellant’s application for reconsideration was granted, and this court’s opinion and judgment entry of June 1, 1992 was vacated. A brief review of the facts in the underlying case is necessary to properly analyze appellant’s application. Appellant’s employment was terminated by his employer, Mentor Exempted Village School District Board of Education, appellee, after it was discovered that appellant had falsified his employment application. Prior to the aforementioned termination, appellee notified appellant of a hearing wherein the charges would be reviewed and appellant would be given an opportunity to respond. Subsequent to the hearing, a public meeting was conducted, which was followed by an executive session. Testimony was provided by the superintendent of the school district and by appellant, but, according to appellant, no one was administered an oath. Following the executive session, the school board met in open session and voted to terminate appellant’s employment. Appellant appealed the decision to the common pleas court and requested the school board to file a transcript of proceedings. No transcript of proceedings was ever filed. Eventually, the trial court granted summary judgment in favor of appellee. The trial court’s decision was appealed to this court on the accelerated docket. This court modified the trial court’s decision and affirmed as modified, stating in pertinent part: “It has been held that appeals pursuant to R.C. 3319.081 are governed by R.C. Chapter 2506. In re Appeal of Sergent (1976), 49 Ohio Misc. 36 [3 O.O.3d 308, 360 N.E.2d 761]. R.C. 2506.03 provides that the hearing on appeal by the common pleas court shall be confined to the transcript filed pursuant to R.C. 2506.02. Although R.C. 2506.02 does not specify whose responsibility it is to request that a transcript be prepared, this court has previously held that the duty to file the requisite praecipe rests with appellant. Wickliffe Firefighters Assn. v. Wickliffe (June 4, 1990), Lake App. No. 89-L-13-005 [66 Ohio App.3d 681, 586 N.E.2d 133] * * *; Rodzen v. Warren City Health Dept. (Mar. 20, 1987), Trumbull App. No. 3633, unreported [1987 WL 8230]. *846 v. Washington Twp. (1963), 1 Ohio App.2d 84 [30 O.O.2d 108, 203 N.E.2d 859] paragraph two of the syllabus. *845 “ “Where no transcript has been filed as provided in Chapter 2506, Revised Code, the Common Pleas Court has no basis or authority upon which to permit the introduction of evidence and no authority to proceed with the appeal.’ Grant *846 “In the instant cause, therefore, the trial court erred in considering either side’s motion for summary judgment because appellant failed to provide a transcript in accordance with R.C. 2506.02. Without a transcript, the trial court had no basis to determine whether any error had been committed.” The test generally applied upon the filing of a motion for reconsideration is whether the motion calls to the attention of the court an obvious error in its decision, or raises an issue for consideration that was either not considered at all or was not fully considered by the court when it should have been. Columbus v. Hodge (1987), 37 Ohio App.3d 68, 523 N.E.2d 515. After further review, it appears that there is a split in authority as to the proper procedure when a transcript is not filed in conjunction with an administrative appeal. Pursuant to R.C. 2505.08, the school board had the responsibility of filing a complete transcript of testimony and evidence offered in the administrative proceeding. The school board failed to do so. R.C. 2506.03 outlines the procedure to be followed when a transcript is incomplete: “(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 profferred [sic] by the appellant; a % $ % “If any circumstance 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.” Although R.C. 2506.03 does not specifically address the situation where no transcript whatsoever is filed, the Court of Appeals for Butler County has held that it does, in fact, apply to the situation where no transcript has been filed because the situations are analogous. Xetron Corp. v. Butler Cty. Bd. of Zoning Appeals (July 25, 1988), Butler App. No. CA87-12-163, unreported, 1988 WL 76814. See, also, Smith v. Clermont Northeastern Local School Dist. (Aug. 26, 1991), Clermont App. No. CA90-10-103, unreported, 1991 WL 164577; and *847 Underwood v. St. Clairsville-Richland School Dist. (Mar. 4, 1985), Belmont App. No. 84-13-11, unreported, 1985 WL 10394. On the other hand, in Sofer v. Cincinnati Metro. Hous. Auth. (1975), 44 Ohio App.2d 113, 73 O.O.2d 99, 335 N.E.2d 872, the Court of Appeals for Hamilton County held that a transcript of proceedings is indispensable to the trial court and, therefore, the trial court cannot proceed with the appeal without a transcript. See, also, Miller v. Woodlawn Bd. of Appeals (July 20, 1983), Hamilton App. No. C-820839, unreported, 1983 WL 5137; and Toth v. Kenston Local School Dist. (June 29, 1981), Geauga App. No. 921, unreported, 1981 WL 4416. Therefore, if R.C. 2506.03 applies to situations where no transcript is filed, the trial court could hold a hearing de novo and essentially perform the function of the administrative body. If R.C. 2506.03 does not apply, the trial court is without jurisdiction to hear the appeal and has no choice but to dismiss it. This latter alternative, however, which is the course this court followed in its opinion, rewards the school board for not filing a transcript which it is required to file pursuant to R.C. 2505.08. If a school board does not want its decision reversed on appeal to the common pleas court, all it has to do is not file a transcript. Clearly, the result would not be fair to the appellant. For the foregoing reasons, it is this court’s opinion that our previous decision in this matter was in error. This court chooses to follow the decision in Xetron Corp., supra, and, thus, we hold that R.C. 2506.03 applies to the situation where no transcript is filed. If an administrative body fails to perform its obligation of filing the transcript of proceedings, the trial court should be able to conduct a hearing de novo. Accordingly, the case is remanded to the trial court for further proceedings consistent with this opinion. Specifically, the trial court shall either obtain a copy of the transcript of the proceedings before the school board or conduct a hearing de novo. Costs are to be assessed against appellee. Judgment accordingly. Basinger, J., concurs. Nader, J., concurs separately. Randall L. Basinger, J., of the Putnam County Court of Common Pleas, sitting by assignment.