MACMILLIAN,
APPELLEE,
vs.
UNEMPLOYMENT COMPENSATION
BOARD OF REVIEW, APPELLANT
No. 82-CA-66
COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MIAMI
COUNTY
462 N.E.2d 177, 10 Ohio App. 3d 290, 10 Ohio B. Rep. 465
July 25, 1983, Decided
HEADNOTE
Unemployment compensation -- Standard of review for court
of common pleas -- Claimant "unemployed" within contemplation of
R.C. 4141.29, when -- Self-employment produces no
income.
SYLLABUS
1. R.C. 4141.28(O) requires the court of common pleas to determine
whether the decision of the board of review was "unlawful,
unreasonable or against the manifest weight of the evidence."
2. A claimant for unemployment compensation was "unemployed"
within the contemplation of R.C. 4141.29, even though during his
period of unemployment he was operating a business of his own which
provided no compensation, income or other reward.
COUNSEL
Mr. L. Craig Hallows, for appellee.
Mr. William J. Brown, attorney general, and
Mr. Marquette D. Evans, for appellant.
JUDGES
KERNS, J., WILSON and WEBER, JJ., concur.
AUTHOR: KERNS
OPINION
{*290} On April 30, 1981, Gregg J. MacMillian was
separated from his employment with Joint Hospital Services,
Inc.> On May 15, 1981, he filed an application for unemployment
compensation benefits. The application was allowed, and MacMillian
was paid $ 4,120 by the Ohio Bureau of Employment Services.
{*291} Prior to his separation from employment,
MacMillian and his wife had invested $ 2,250 in a business
partnership which was known as Miami Printery, Ltd. The business
partnership was organized, along with another couple, in September
1980. Since MacMillian owned a one-fourth interest in the print
shop, he spent a considerable amount of time there after his
separation from Joint Hospital Services, Inc. However, the evidence
discloses that Miami Printery, Ltd. was losing money at the time
and that the four owners were not receiving any income from the
limited partnership association.
Upon learning that MacMillian was working for Miami Printery,
Ltd., the Administrator of the Bureau of Employment Services issued
an order for the repayment of the unemployment benefits paid to the
appellee, and the overpayment order of the administrator was
subsequently affirmed by the Unemployment Compensation Board of
Review. MacMillian then appealed to the Court of Common Pleas of
Miami County, which reversed the determination of the board of
review, and the cause is presently before this court on appeal by
the Administrator of the Ohio Bureau of Employment Services from
the decision of the Court of Common Pleas of Miami County.
The appellant has set forth two assignments of error, the first
of which has been stated as follows:
"1. The lower court erred in applying an improper standard of
review in its consideration of this matter."
In support of this alleged error, the appellant correctly
observes that R.C. 4141.28(O) requires the court of common pleas to
determine whether the decision of the board of review was
"unlawful, unreasonable or against the manifest weight of the
evidence." Vest v. . Bd. of
Review (1952), 93 Ohio App. 504 [51 O.O. 217]. In other
words, the jurisdiction of the court was limited to a finding of
whether the decision of the board of review was unlawful,
unreasonable, or against the manifest weight of the evidence.
Kilgore v. . Bd. of Review
(1965), 2 Ohio App. 2d 69 [31 O.O.2d 108].
In the present case, the court of common pleas entered a
decision which provides specifically that "the court has considered
the record and finds that appellee's decision is not based on
reliable, probative, and substantial evidence and that it is
unlawful," and nothing otherwise appears of record to suggest that
the trial court did not review the administrative proceedings with
a conscious regard for the standard of review required by statute.
Manifestly, a finding made without evidence to support it is
arbitrary and unlawful, and the findings of the court of common
pleas in its decision meet the statutory requirements of R.C.
4141.28. As we view it, therefore, the first assignment of error is
completely devoid of merit.
The second assignment of error has been proposed as follows:
"2. The lower court erred in finding the claimant to be entitled
to unemployment compensation benefits."
The decision of the Unemployment Compensation Board of Review
was based essentially upon the following findings of fact:
"During October, 1980, the claimant and his wife formed a
partnership with Jim Karnes and Cathy Karnes, who are also husband
and wife, to operate a business known as the Miami Printery, Ltd.
The Miami Printery, Ltd. operates a commercial printing business,
printing a variety of business forms. Among the forms printed are
several that pertain to hospital administration and are sold to
customers the claimant contacted through his previous job with
Joint Hospital Services, Inc.
"During the weeks in issue the claimant estimates that he spent
approximately 20 hours per week performing work for {*292}
the Miami Printery, Ltd., although the claimant was not paid for
this service. The claimant has received no income as a result of
his work for the Miami Printery, Ltd.
"* * *
"An individual who is working is not unemployed and hence not
fully eligible for unemployment benefits. Section 4141.29, Revised
Code of Ohio, provides that an eligible individual shall receive
benefits as compensation for loss of remuneration due to
involuntary total or partial unemployment. An individual who is
self-employed is in total control of the hours and efforts devoted
to the business. While the claimant apparently devoted less than
full time to the operation of the business, his choice to do so was
voluntary and does not constitute an involuntary loss of employment
within the purview of the Ohio Unemployment Compensation Law.
Furthermore, the facts establish that during at least 20 hours per
week the claimant was actively engaged in self-employment, and,
therefore, unavailable for other work. Although the claimant
contends that he could have reduced the time spent in
self-employment had a job been offered, in determining an
individual's availability for work the determination must be based
on the circumstances that existed during the week in issue and not
what might have been under different circumstances. An individual
who is occupied in endeavors that preclude his working during half
of a normal workweek cannot be deemed available for work within the
purview of the Ohio Unemployment Compensation Law."
The manifest purpose of the unemployment compensation law is to
assist those who are involuntarily unemployed, but
the determination of whether a particular claimant is truly
unemployed and available for work, within the contemplation of the
law, necessarily involves a delicate balance. Here, however, the
facts and circumstances weigh heavily in favor of MacMillian.
In the first place, he received no compensation, income, or
reward from the print shop to alleviate the financial burden of
unemployment, and secondly, it strains credulity somewhat to assume
that MacMillian, possessed as he was with a M.B.A. degree, would
have refused employment commensurate with his education and
experience in order to pursue his $ 2,250 investment at Miami
Printery, Ltd. Under the law, and as a matter of public policy, the
right to unemployment benefits is not conditioned upon complete
idleness, and the undisputed evidence in this case militates
against the finding that MacMillian was not available for work upon
reasonable notice.
In cases of this kind, the mind readily can conjure up any
number of factual patterns to support the competing interests of
the parties, but this record is devoid of any evidence of fraud or
misrepresentation, and the evidence is otherwise sufficient to show
that MacMillian was "unemployed" within the contemplation of R.C.
4141.29. Applicable here, in our opinion, is the rationale adopted
in the case of Parent v. . Admr.
(App. 1959), 84 Ohio Law Abs. 360, 362, where the court observed
that "the claimant should be placed in no worse position than a
less ambitious man." The second assignment of error is
overruled.
The judgment of the court of common pleas will be affirmed.
Judgment affirmed.
DISPOSITION
Judgment
affirmed.