547 N.E.2d 403


No. 54424Court of Appeals of Ohio.
Decided May 2, 1988.

Appellate procedure — Administrative law — Trial court’s dismissal of appeal from administrative agency on basis of appellant’s failure to file brief within time prescribed by local rule is error, when.

O.Jur 3d Administrative Law §§ 190, 200.

A trial court abuses its discretion in dismissing an administrative appeal due to the appellant’s failure to timely file its assignments of error and brief, where the omission did not constitute a flagrant, substantial disregard for the rules of the court, where the appellant corrects the omission promptly after discovering it, and where the delay did not prejudice either the court or the opposing party.

APPEAL: Court of Appeals for Cuyahoga County.

Thomas N. Gartman, for appellant.

John T. Corrigan, prosecuting attorney, for appellee Cuyahoga County Board of Revision.

Timothy J. McCormack, pro se.
Christopher Boyko and Stephen P. Bond, for appellee Parma City School District.

Per Curiam.

Appellant A.G. G. Company appeals from an order of the common pleas court that dismissed appellant’s administrative appeal because appellant had not filed its assignment of error and brief within the time prescribed by Loc. R. 28 of the Court of Common Pleas of Cuyahoga County, General Division. We reverse.

Where an appeal from an administrative agency is taken to the common pleas court, Loc. R. 28(A) provides that the appellant shall file his assignments of error and brief within twenty days after a complete transcript of the administrative proceedings has been filed with the clerk of the common pleas court. I Goehringer v. Cuyahoga Cty. Welfare Dept. (Nov. 17, 1983), Cuyahoga App. No. 46700, unreported, this court reversed an order of the common pleas court that dismissed an administrative appeal when the appellant failed to file his assignments of error and brief within the time prescribed in Loc. R. 28(A). “A court abuses its discretion when it imposes the extreme and drastic sanction of dismissal in the absence of irresponsible, contumacious, dilatory or grossly negligent conduct * * *.” Id.
at 2. Thus, where a range of sanctions is available. “* * * the most drastic must be reserved for flagrant situations.” Id.
“`Only a flagrant, substantial disregard for the court rules can justify a dismissal on procedural grounds.'” Hawkins v. Marion Correctional Institute (1986), 28 Ohio St.3d 4, 5, 28 OBR 3, 4, 501 N.E.2d 1195, 1196, quoting DeHart v. Aetna Life Ins. Co.
(1982), 69 Ohio St.2d 189, 193, 23 O.O. 3d 210, 213, 431 N.E.2d 644, 647.

In the instant case, the transcript of the administrative proceedings was filed with the court on November 25, 1986. When appellant did not timely file its assignment of error and brief, the appellee Parma School Board moved to dismiss the appeal on July 16, 1987. Six days later, on July 22, 1987, appellant filed a reply to the motion to dismiss and simultaneously filed its assignments of error and brief. Nevertheless, on August 7, 1987, the common pleas court dismissed the appeal for appellant’s failure to comply with Loc. R. 28.

While it is undisputed that appellant

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did not comply with the filing requirements of Loc. R. 28(A), we think that the drastic sanction of dismissal of the appeal was disproportionately harsh. Once appellant learned that it had not complied with the rule, appellant’s assignments of error and brief were filed within six days. In this case, as in Hawkins v Marion Correctional Institute, supra, neither the court nor the appellees were prejudiced since the appellees’ briefing time did not commence until appellant’s brief was filed, and the court would not have considered the appeal until all the briefs were filed. Moreover, nothing in the record indicates that appellant’s untimely assignments of error and brief would have any effect on the substantive issues asserted in the appeal. In contrast, appellant would be prejudiced because of the harsh sanction of dismissal.

Under these circumstances, the common pleas court abused its discretion in dismissing the appeal for appellant’s noncompliance with Loc. R. 28(A). Accordingly, the judgment is reversed and the cause will be remanded for further proceedings.

Judgment reversed and cause remanded.

NAHRA, P.J., and MATIA, J., concur.

J.V. CORRIGAN, J., dissents.

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