[Cite as Furnas v. Clay Twp. Trustees,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

BRENT FURNAS :

Plaintiff-Appellant : C.A. CASE NO. 25239

v. : T.C. NO. 11CV6149

CLAY TOWNSHIP TRUSTEES : (Civil appeal from Common Pleas Court) Defendant-Appellee :

:

..........

OPINION

Rendered on the 21st day of November , 2012.

..........

JEFFREY M. SILVERSTEIN, Atty. Reg. No. 0016948 and JASON P. MATTHEWS, Atty. Reg. No. 0073144, 627 South Edwin C. Moses Blvd., Suite 2-C, Dayton, Ohio 45417 Attorney for Plaintiff-Appellant

DOUGLAS M. TROUT, Atty. Reg. No. 0072027, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Defendant-Appellee

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Brent Furnas,

filed June 8, 2012. Furnas appeals from the May 15, 2012 decision of the trial court which

denied Furnas’ Motion to Strike the brief of the Clay Township Board of Trustees (“CTBT”) 2

and affirmed the decision of the CTBT to terminate Furnas’ employment with the Clay

Township Police Department (“Department”). We hereby affirm the decision of the trial

court.

{¶ 2} The trial court’s decision reflects the following undisputed facts regarding

Furnas’ termination. On August 9, 2011, Clay Township Chief of Police Donald Perkins

served Furnas, a sergeant, with a Charging Form which indicated that the Montgomery

County Sheriff’s Office (“MCSO”) had conducted an investigation related to Furnas’

conduct during the week of March 31, 2011. The Charging Form referred to a report

produced by the MCSO, and it indicated that Furnas had been provided a copy of the report

on July 21, 2011. Furnas was charged with violating three of the Department’s Rules of

Conduct, namely Unsatisfactory Performance, Unbecoming Conduct, and 3 counts related to

Courtesy. Perkins and three trustees signed the Charging Form. The Charging Form

advised Furnas that a “hearing regarding ‘disciplinary action up to and including termination

of your employment’” would occur on August 16th, 2011, at 7:00 PM.

{¶ 3} On that date, Furnas appeared at the hearing represented by counsel. The

trustees heard the testimony of the complaining witness, Sandra Welborn, Perkins, and

Officers Steve Hodge and Anthony Scott of the Department, all of whom were

cross-examined by counsel for Furnas. Furnas did not testify or present evidence. The trial

court noted that, on February 21, 2011, Perkins notified officers by interoffice memorandum

that he would be on vacation for several weeks, and that Furnas would be in charge.

Welborn testified that on or about March 28, 2011, she reported to the Department that her

home and vehicles had been vandalized by the use of paintball guns. Hodge initially 3

responded to the scene and advised her that Furnas would handle the subsequent

investigation. Welborn later learned that her home might be targeted in the future for

another attack, and she contacted Perkins directly, who was on extended vacation leave.

Perkins advised her that Furnas would handle the investigation.

{¶ 4} On March 31, 2011, Welborn went to the Department to provide Furnas

with copies of information that she had acquired regarding the possibility of further acts of

vandalism at her home. The trial court cited her testimony that Furnas slapped his hands

together “‘almost in [her] face’” and told her that the matter was “‘out of his hands,’” since

Welborn had contacted Perkins directly. Furnas told her that Perkins would handle the

investigation. Furnas then called Perkins in Welborn’s presence, and after speaking with

him, handed the phone to Welborn. Perkins assured Welborn that Furnas would handle the

matter. After the call was concluded, Furnas told Welborn that he would not be acting on

her case.

{¶ 5} Welborn contacted the MCSO that evening due to her frustration with

Furnas, and the trial court noted that Welborn described Furnas’ treatment of her as “‘[v]ery

disrespectful,’” as though her complaint “‘was a waste of his time.’”

{¶ 6} Perkins told Hodge, as well as Furnas directly, that the Welborn

investigation was Furnas’ responsibility. The trial court noted that when Perkins received

a copy of Welborn’s written complaint, he contacted Chief Deputy Scott Landis at MCSO

and requested an outside investigation, which resulted in the disciplinary action against

Furnas.

{¶ 7} The trial court noted Hodge’s testimony that Furnas had stated, “‘I’m not 4

going to follow up on it, Chief can bring his ass in here and follow up on it.’” The court also

noted Hodge’s testimony that Furnas referred to the underlying criminal damaging report as

the “‘Sandra Welborn bitch’s incident.’”

{¶ 8} The trial court also noted Scott’s testimony that he observed Welborn’s

encounter with Furnas on March 31, 2011, and that Furnas subsequently called Welborn

another derogatory term.

{¶ 9} Furnas appealed the decision of the CTBT, pursuant to R.C. 505.49, 2505,

2506, and 119 on August 26, 2011, asserting that he was denied due process of law,

specifically a “post-termination hearing” and “progressive discipline,” and that the decision

of the CTBT was not supported by reliable, probative or substantial evidence. Furnas also

moved the court to strike the brief filed by CTBT as untimely.

{¶ 10} The court initially addressed Furnas’ motion to strike CTBT’s untimely

brief. The court noted its “inherent power” to manage its own docket and concluded, “the

only prejudice to Appellant resulting from the late filing of Appellee’s brief is the length of

any resulting delay in the resolution of this appeal, which delay would not be relieved by

granting Appellant’s motion to strike.”

{¶ 11} Regarding Furnas’ appeal, the trial court determined that R.C. 119.12

provides the appropriate standard of review for an R.C. 505.49 administrative appeal,

although it also quoted R.C. Chapter 2506. Regarding the denial of a post-termination

hearing, the court noted that Furnas was provided written notice of the charges against him

and notice that a hearing regarding disciplinary action, up to and including termination,

would occur on August 16, 2011. According to the trial court, “[g]iven such an explicit 5

warning of the possibility of termination, a reasonable person surely would recognize that

his future employment was in jeopardy.” The court determined that the CTBT had “no

additional due process obligations” beyond affording him an opportunity to respond to the

charges. It was also significant to the trial court that Furnas was provided a copy of the

MCSO’s report, upon which the charges were based; that he was represented by counsel at

the August 16, 2011 hearing; that the majority of the witnesses interviewed in the course of

the investigation testified at the hearing; that counsel for Furnas subjected them to

cross-examination and also presented legal arguments and a closing statement; and finally

that Furnas had the opportunity to testify at the hearing. The court concluded that Furnas

was provided notice and an opportunity to respond, as well as an opportunity to challenge

the evidence against him, and that “no further post-termination hearing was necessary in

order to satisfy the constitutional requirements of the Due Process Clause.” Finally, the

court concluded that “Ohio’s statutory scheme adequately protects the due process interests

of public employees by allowing for ‘post-termination judicial proceedings.’” The court

found that Furnas was not denied an opportunity to file an administrative appeal, and

concluded that his “pursuit of relief from [the decision of the CTBT] via this appeal

constitutes his administrative appeal, brought in the proper forum of this common pleas

court.”

{¶ 12} Regarding the “legal adequacy” of the record to support Furnas’

termination,

the court initially noted that, while some portions of the transcript of the hearing are marked

“inaudible,” or refer to an “Unidentified Speaker,” in “nearly all instances” the content of 6

such omissions is readily discernible or “is not critical to this Court’s consideration of the

evidence.” The trial court emphasized that “the testimony of all four witnesses as

transcribed is sufficiently complete and intelligible for this court to make sense of the

hearing record. Accordingly, any minor flaws in the record do not impede this court’s

ability to render an informed decision based upon the evidence thus presented.”

{¶ 13} The court noted that it found Furnas’ reliance upon the lack of evidence of

prior disciplinary action against him unpersuasive, noting that he offered no authority for

“his implicit premise that the Trustees were required to take a progressive approach to any

disciplinary action against Furnas before imposing the drastic measure of termination,” or

that he was entitled to “additional protection under common law concepts” beyond statutory

protections.

{¶ 14} Finally, the court concluded that the evidence supported CTBT’s decision to

terminate Furnas’ employment. The court cited Welborn’s testimony that Furnas “flatly

refused to investigate the threat of future damage to her property.” The court also cited

Perkins’ testimony that he instructed Furnas both in writing and orally, that Furnas was

responsible for investigating Welborn’s complaint as well as any follow-up. Hodge’s

description of Furnas’ “defiance” to Perkins’ instruction, as well as Hodge’s and Scott’s

testimony that Furnas used vulgarity when speaking of Welborn were also significant to the

trial court. According to the court:

* * * In light of that unfavorable testimony from the four witnesses

who personally appeared at Appellant’s pre-termination hearing, there is no

basis for concluding that the [CTBT] improperly relied on the results of the 7

investigation performed by the [MCSO] in deciding to terminate Furnas’

employment. The [CTBT’s] review of that investigatory report prior to the

hearing is not enough to impugn their fairness at the later adversary

proceeding.

{¶ 15} Regarding Furnas’ continued employment after the incident of March 31,

2011 until his August 16, 2011 termination, the court “construe[d] that period of continued

tenure as evidence of the Township’s good faith effort to conduct a thorough and

independent investigation into the complaint against Appellant before imposing any

detrimental employment consequences.”

{¶ 16} The court found that while the evidence clearly supported a conclusion that

Furnas violated the Department’s Rule of Conduct regarding “Unsatisfactory Performance,”

a “more substantial challenge would appear to be evoked by Appellant’s arguments related

to the ‘Unbecoming Conduct’ and ‘Courtesy’ violations with which he was charged,” since

Welborn’s testimony made clear that she did not hear Furnas’ vulgar comments, and since

Perkins, Hodge and Scott “all testified that the use of obscene language within the

department was not uncommon, generally not regarded as offensive, and usually did not

result in disciplinary complaints or action.” The trial court further noted, however, “the

Rules of Conduct on which those latter charges were based are phrased broadly enough to

encompass other behavior that the evidence attributes to Appellant.” Consistent with R.C.

119.12, the court concluded that the CTBT’s “August 16, 2011 decision to terminate Furnas’

employment is supported by reliable, probative and substantial evidence, and further that

Furnas’s pre-termination hearing on the same date comported with the requirements of the 8

Due Process Clause of the U.S. Constitution.”

{¶ 17} We initially note that Furnas’ brief does not comply with the requirements

of Rule 16 of the Ohio Rules of Appellate Procedure, which provides that an appellate brief

must contain a statement of the assignments of error presented for review, as well as a

statement of the issues presented for review. Instead, Furnas sets forth an “Argument,” with

subsections entitled: “Due Process”; “Trial Court’s Disregard for Its Own Rule and Abuse

of Discretion,” and “Progressive Discipline.”

{¶ 18} As we begin our analysis, we note that the the trial court erroneously

determined that an R.C. 505.49 administrative appeal is governed by R.C. 119.12, in reliance

upon In re Brackett, 2d Dist. Montgomery No. 11799,

(May 1, 1990).

R.C. 119.12 provides in relevant part:

***

Any party adversely affected by any order of an agency issued

pursuant to any other adjudication may appeal to the court of common pleas

of Franklin County * * * except that appeals under division (B) of section

124.34 of the Revised Code from a decision of the state personnel board of

review or a municipal or civil service commission shall be taken to the court

of common pleas of the county in which the appointing authority is located *

**.

***

The court may affirm the order of the agency complained of in the

appeal if it finds, upon consideration of the entire record and any additional 9

evidence 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 this 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. ***

{¶ 19} By its express language, R.C. 119.12 “applies to an order of a state

‘agency.’” Madison Twp. Bd. of Trustees v. Donohoo, 2d Dist. Montgomery No. 14007,

, *2 (Oct. 12, 1994) (“We have shown that while R.C. 119.12 controls

administrative appeals under certain circumstances, it is not relevant in appeals from

political subdivisions, as in the case sub judice.”) . Donohoo, a police lieutenant, was

suspended by the Madison Township Board of Trustees for one day without pay for

insubordination, and the common pleas court applied R.C. 119.12 and reversed the Board’s

decision. The Board appealed, asserting in part that the court erred in concluding that the

appeal was governed by R.C. 119.12. This Court therein noted:

* * * Ohio law is clear that townships are political subdivisions, not

agencies, of the state. * * * Moreover, township trustees are not “agencies”

for the purposes of Chapter 119. * * *

Neither does the record indicate that Madison Township is a civil

service township under R.C. 124.01(G) nor that Lt. Donohoo was a classified

employee pursuant to R.C. 124.11(B). Were these the facts, R.C. 119.12

would govern this appeal. R.C. 124.34. Id., *2-3.

{¶ 20} This Court further concluded that the “proper statutory scheme that governs 10

the appeal and review of this type of administrative decision is found in Chapter 2506 of the

Revised Code.” Id., * 3. R.C. 2506.01 provides in relevant part, “ * * * every final order,

adjudication, or decision of * * * any political subdivision of the state may be reviewed by

the court of common pleas of the county in which the principal office of the political

subdivision is located as provided in Chapter 2505. of the Revised Code.” This Court

concluded that the standards of review under “both R.C. 2506.04 and 119.12 are

substantially similar,” such that the common pleas court’s error in applying R.C. 119.12 was

harmless, pursuant to Civ.R. 61, which requires in part a court to “disregard any error or

defect in the proceedings which does not affect the substantial rights of the parties.” Id., *

4.

{¶ 21} Regarding the appropriate framework for analysis in the court of common

pleas, R.C. 2506.03 provides:

(A) The hearing of an appeal taken in relation to a final order,

adjudication, or decision covered by division (A) of section 2506.01 of the

Revised Code shall proceed as in the trial of a civil action, but the court shall

be confined to the transcript filed under section 2506.02 1 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 “Within forty days after filing a notice of appeal in relation to a final order, adjudication, or decision covered by division (A) of section 2506.01 of the Revised Code, the officer or body from the appeal is taken, upon the filing of a praecipe by the appellant, shall prepare and file in the court to which the appeal is taken, a complete transcript of all the original papers, testimony, and evidence offered, heard and taken into consideration in issuing the final order, adjudication, or decision. * * *.” R.C. 2506.02. 11

(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 the appellant’s attorney in opposition to the final order, adjudication, or

decision, and to do any of the following:

(a) Present the appellant’s position, arguments and conditions;

(b) Offer and examine witnesses and present evidence in support;

(c) Cross-examine witnesses and present evidence in support;

(d) Offer evidence to refute evidence and testimony offered in

opposition to the appellant’s 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.

{¶ 22} As this Court has previously noted:

When considering an administrative appeal, a court of common pleas

must weigh the evidence in the record to ascertain whether there exists a

preponderance of reliable, probative, and substantial evidence to support the

administrative agency’s decision. R.C. 2506. 04 * * *. Consistent with its

findings, the court may affirm, reverse, vacate, or modify the decision or

remand the matter to the body appealed from with instructions to enter a

decision consistent with the findings or opinion of the court. R.C. 2506.04.

The common pleas court “considers the ‘whole record,’ including any new or

additional evidence admitted under R.C. 2506.03, and determines whether the 12

administrative order is unconstitutional, illegal, arbitrary, capricious,

unreasonable, or unsupported by the preponderance of substantial, reliable,

and probative evidence.” Henley v. Youngstown Bd. of Zoning Appeals

(2000),

,

.

The standard of review to be applied by an appellate court in an R.C.

2506.04 appeal is “more limited in scope.”

citing Kisil v. Sandusky

(1984),

, 12 OBR 26,

. Under R.C.

2506.04, the court of appeals does not have the same extensive power to

weigh the evidence as is granted to the common pleas court. While “[i]t is

incumbent on the trial court to examine the evidence[,] [s]uch is not the

charge of the appellate court.”

An appellate court reviews the judgment of

the common please court only on questions of law. Kisil,

, 12 OBR 26,

. The appellate court’s inquiry is

limited to a determination of whether, as a matter of law, the decision of the

common pleas court is not supported by a preponderance of reliable,

probative, and substantial evidence.

At 34, 12 OBR 26,

.

In other words, in reviewing questions of law, the appellate court considers

whether the trial court abused its discretion.

Bowman v. Butler Twp. Bd.

of Trustees,

,

,

(2d Dist.).

{¶ 23} As the Supreme Court of Ohio determined:

“Abuse of discretion” has been defined as an attitude that is 13

unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

to be expected that most instances of abuse of discretion will result in

decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.

A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were

it deciding the issue de novo, would not have found that reasoning process to

be persuasive, perhaps in view of countervailing reasoning processes that

would support a contrary result. AAAA Enterprises, Inc. v. River Place

Community Redevelopment,

,

(1990).

{¶ 24} As this Court noted in Donohoo, the “major difference” between the

standards of review in R.C. 119.12 and 2506.04, as set forth above, “is that the word

‘preponderance’ is omitted from R.C. 119.12.”

This Court further noted:

“Preponderance” is defined as “the greater weight of evidence.” * * *

Thus, the R.C. 2506.04 [standard] seems to include the stricter requirement.

However, the Ohio Supreme Court has chosen to treat the standards similarly.

In Dudukovich [v. Lorain Metro. Hous. Auth.,

,

(1979)], the Court labeled the two standards “analogous.” * * *

In Hale v. Board of Edn.(1968),

, the Court noted that the

“preponderance of * * * evidence” phrase was adopted by the General

Assembly in R.C. 2605.04 to emphasize the legislature’s general desire that

common pleas courts weigh evidence in administrative appeals.

at 14

96-97.

Donohoo, at *4.

{¶ 25} Neither party raised the issue of the trial court’s erroneous application of

R.C. 119.12, and although the court concluded that CTBT’s decision was supported by

reliable, probative and substantial evidence, we conclude that the error is harmless.

{¶ 26} Regarding Furnas’ assertion that he was denied due process of law, he

directs our attention to Cleveland Bd. of Educ. v. Loudermill,

,

,

(1985), upon which the trial court also relied. Furnas asserts that the trial

court “ignores the fact that the so-called pre-termination hearing was nothing more than an

ambush, at which time without any ability of Furnas or his attorney to prepare, he was

nonetheless presented with a perfunctory ‘opportunity’ to cross-examine witnesses.” He

asserts that the August 16, 2011 hearing “was not upon a final order, but rather a notice to

‘consider disciplinary action up to and including termination . . .,’” quoting the August 9,

2011 Charging Form he received.

{¶ 27} As this Court has previously determined:

The Due Process Clause of the Fourteenth Amendment states that no

state shall “deprive a person of life, liberty, or property without due process

of law.” A two step analysis is used when considering a claim that due

process rights were violated. First, a court must determine whether the

claimant has a right or interest that is entitled to due process protection.

Second, if the claimant was deprived of such a right or interest, the court

must determine what process is due. McDonald v. Dayton,

,

,

(2d Dist.), citing Louderrmill.

{¶ 28} As this Court has also noted:

In [Loudermill], the Court reviewed the termination of school

employees in light of the due process standard under the Federal Constitution.

The court indicated that the Ohio statute in question (R.C. 124.34) was

constitutional. As for the due process claim, the Court indicated that the

pretermination “hearing” need not be elaborate. Id. at 1495. As the Court

stated: “ . . . the pretermination hearing need not definitively resolve the

propriety of the discharge. It should be an initial check against mistaken

decisions - essentially, a determination of whether there are reasonable

grounds to believe that the charges against the employee are true and support

the proposed action.” Id. at 1495. The Court indicated that all due process

required was notice and an opportunity to respond. “The tenured public

employee is entitled to oral or written notice of the charges against him, an

explanation of the employer’s evidence, and an opportunity to present his side

of the story.” Id. The Court concluded that “all the process that is due is

provided by a pretermination opportunity to respond coupled with

post-termination administrative procedures as provided by the Ohio statute.”

Id. at 1496. Patton v. Bd. of Educ. of the Springfield City Schools, 2d Dist.

Montgomery No. 2227,

, * 5 (Dec. 5, 1986).

{¶ 29} The version of R.C. 124.34 in effect when Loudermill was decided required

that “the dismissed employee is to be provided with a copy of the order of removal giving 16

the reasons therefor. Within 10 days of the filing of the order with the Director of

Administrative Services, the employee may file a written appeal with the State Personnel

Board of Review or the Commission.” Loudermill, fn. 6. The statute further provided:

“‘In the event such an appeal is filed, the board of commission shall forthwith notify the

appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty

days from and after its filing with the board or commission, and it may affirm, disaffirm, or

modify the judgment of the appointing authority.’”

Finally, either side could

subsequently obtain judicial review of the post-termination hearing.

{¶ 30} We conclude that Furnas’ reliance upon Loudermill is misplaced, and that

Furnas is not entitled to the due process protections afforded by the statute at issue therein,

namely post-termination administrative procedures.

{¶ 31} R.C. 505.49(B)(3) provides:

* * * [A] patrol officer, other police district employee, or police

constable, who has been awarded a certificate attesting to the satisfactory

completion of an approved state, county, or municipal police basic training

program, as required by section 109.77 of the Revised Code, may be removed

or suspended only under the conditions and by the procedures in sections

505.491 to 505.495 of the Revised Code. Any other patrol officer, police

district employee, or police constable shall serve at the pleasure of the

township trustees. In case of removal or suspension of an appointee by the

board of township trustees, that appointee may appeal the decision of the

board to the court of common pleas of the county in which the district is 17

situated to determine the sufficiency of the cause of removal or suspension.

The appointee shall take the appeal within ten days of written notice to the

appointee of the decision of the board.

{¶ 32} R.C. 505.491 to 505.495 set forth the grounds for termination and the

procedures by which termination may take place. R.C. 505.491 provides:

* * * [I]f the board of trustees of a township has reason to believe

that a chief of police, patrol officer, or other township police district

employee appointed under division (B) of section 505.49 of the Revised Code

* * * has been guilty, in the performance of the official duty of that chief of

police, patrol officer, other township police district employee, * * * of

bribery, misfeasance, malfeasance, nonfeasance, misconduct in office, neglect

of duty, gross immorality, habitual drunkenness, incompetence, or failure to

obey orders given that person by the proper authority, the board immediately

shall file written charges against that person, setting forth in detail a statement

of the alleged guilt and, at the same time, or as soon thereafter as possible,

serve a true copy of those charges upon the person against whom they are

made. The service may be made on the person or by leaving a copy of the

charges at the office or residence of that person. Return of the service shall

be made to the board in the same manner that is provided for the return of the

service of summons in a civil action.

{¶ 33} R.C. 505.492 requires that the charges filed pursuant to R.C. 505.491 must

be heard at the next regular meeting of the township board of trustees, “unless the board 18

extends the time for the hearing, which shall be done only on the application of the accused.

The accused may appear in person and by counsel, examine all witnesses, and answer all

charges against the accused.”

{¶ 34} The trial court did not note whether Furnas is a certified police officer, such

that he is entitled to the due process protections afforded in sections 505.491 to 505.494, or

whether he serves “at the pleasure of the township trustees” and is accordingly subject to

removal without prior notice or hearing. Regardless of his status, the decision of the trial

court makes clear that CTBT provided Furnas with notice and an opportunity to be heard.

Furnas was served a copy of the charges against him on August 9, 2011, the notice indicated

that the charges would be heard at the next regular meeting of the CTBT on August 16,

2012, and the notice indicated that termination would be considered. Furnas appeared,

represented by counsel who cross-examined all witnesses and presented closing arguments.

Since the trial court did not err in concluding that Furnas’ “due process challenge to the

[CTBT] is not well taken,” an abuse of discretion is not demonstrated.

{¶ 35} Furnas next asserts that the trial court erred in overruling his motion to strike

the untimely brief of CTBT, pursuant to local rules. CTBT’s brief, which was due on

December 10, 2011, pursuant to the briefing schedule set forth by the court, was filed on

March 30, 2012. Loc.R. 2.37 governs administrative appeals and provides as follows in

relevant part:

I. This rule shall govern all appeals from administrative agencies to

the extent that the appeals are not otherwise governed by statute or by the

rules of the Ohio Supreme Court. 19

***

III. BRIEFS:

A. The Court may require arguments of counsel to be written and

included in briefs. Unless otherwise ordered by the Court or fixed by statute

or by rule or the Ohio Supreme Court, all briefs shall be filed as follows:

1. Unless the court has authorized an extension of time, the appellant

shall file a claim of error, brief, and all other essential papers within forty (40)

days after the notice of appeal has been filed or the filing of the transcript,

whichever is later. Failure to file briefs and assignment of error within the

requisite period of time may result in dismissal of the appeal as directed by

the Court.

2. Within thirty (30) days after service of appellant’s brief, counsel

for appellee shall file his brief.

***

4. All requests for extensions or reductions of time to file briefs or

other papers shall be approved only before the requisite filing time has

expired.

{¶ 36} A trial court’s procedural rulings will not be reversed absent an abuse of

discretion. Harmon v. Baldwin,

,

,

, ¶

16.

{¶ 37} CTBT did not move the court for an extension of time to file its brief prior

to the expiration of the time period within which it was due. We note, however, that 20

Furnas’ filing of April 5, 2012 was entitled, “Appellant’s Motion to Strike and

Memorandum in Support And/Or Reply Brief,” and that he asked the court to either strike

CTBT’s brief, or alternatively, to consider Furnas’ additional arguments set forth therein in

reply to CTBT’s brief. We further note Furnas’ suggestion in his brief that he was not

prejudiced by the trial court’s consideration of CTBT’s brief; according to Furnas, the “trial

court did not weigh any substantive legal arguments made by [CTBT] in their brief because

none were included. That brief did not include one case either to affirmatively argue the

Trustees’ position or to contradict the arguments made by Furnas.” We conclude that an

abuse of discretion is not demonstrated by the trial court’s failure to strike CTBT’s brief.

{¶ 38} In the final subsection of his “Argument,” regarding the use of progressive

discipline, Furnas asserts that he “had no opportunity to present the Police Department

Policy Procedural Manual or the Township Personnel Policies,” and “[t]he issue having been

raised by Furnas, it was incumbent upon the Court to inquire about the existence or

non-existence of such a policy since no such reference was contained in the transcript.” As

discussed at length above, Furnas was given the requisite notice and opportunity to be heard.

Furnas did not offer evidence of a policy of progressive discipline, or file an affidavit

averring that he was not permitted to do so, and the trial court’s review was limited to the

transcript of the proceedings at the August 16, 2011 hearing. In other words, it was not

“incumbent” upon the trial court to independently inquire into the Department’s policies as

Furnas suggests.

{¶ 39} Furnas’ “Argument” lacks merit, an abuse of discretion is not demonstrated,

and the judgment of the trial court is affirmed. 21

..........

GRADY, P.J. and FROELICH, J., concur.

Copies mailed to:

Jeffrey M. Silverstein Jason P. Matthews Douglas M. Trout Hon. Mary L. Wiseman