[Cite as Ohio Bd. of Pharmacy v. Evankovich, 194 Ohio App.3d 686, 2011-Ohio-3172.] 

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

OHIO BOARD OF PHARMACY ) 

 ) CASE NO. 10 MA 153 

 APPELLEE, ) 

 ) 

 v. ) O P I N I O N 

 ) 

EVANKOVICH, ) 

 ) 

 APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, 

 Case No. 09CV4708. 

JUDGMENT: Reversed and Remanded. 

APPEARANCES: 

 Michael DeWine, Attorney General, and Tracy Greuel, Assistant Attorney 

General, for appellee. 

 Michael McGee and Matthew Vansuch; and Harry Reinhart, for appellant. 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 Dated: June 21, 2011 
VUKOVICH, Judge. 

{¶ 1} Appellant Gary Evankovich appeals the decision of the Mahoning County 

Common Pleas Court dismissing his administrative appeal of his pharmacist license 

revocation for lack of jurisdiction. Evankovich argues five separate contentions as to 

why the common pleas court erred in dismissing the administrative appeal. First, he 

contends that appellee the Ohio Board of Pharmacy did not have jurisdiction to 

prosecute Evankovich because the statutes and administrative code sections that he 

allegedly violated were allegedly not validly enacted. Second, he contends that R.C. 

119.07’s requirement that a hearing must be held not less than seven days but not 

more than 15 days after the request was violated. Third, Evankovich contends that his 

due-process rights were violated when attorney Rowland, the board’s legal-affairs 

administrator, was present and did not permit him to offer his argument to the board 

regarding his position that the statutes and codes were not validly enacted. Fourth, he 

contends that the board’s order is not a final, appealable order because it did not 

adjudicate all of the charges brought against him. Last, he contends that the notice of 

appeal did comply with R.C. 119.12 and, thus, properly invoked the jurisdiction of the 

common pleas court. 

{¶ 2} The board counters the above by concentrating on the fifth argument. It 

contends that while the notice of appeal was timely, it did not comply with R.C. 119.12. 

Specifically, according to the board, the notice of appeal did not identify any specific 

legal or factual errors, nor did it recite the standard of review as it contends is required 

by the language of R.C. 119.12. According to the board, the remaining four arguments 

concerning the propriety of the underlying administrative proceeding are irrelevant 
because the common pleas court’s jurisdiction to decide those issues was never 

properly invoked. 

{¶ 3} We agree with the board that our review is limited to the trial court’s 

finding that the notice of appeal did not comply with R.C. 119.12. Therefore, we will 

not address Evankovich’s first four arguments. However, we find that Evankovich’s 

fifth argument has merit. The language of R.C. 119.12 requires the notice of appeal to 

contain a statement that “the agency's order is not supported by reliable, probative, 

and substantial evidence and is not in accordance with law.” The notice of appeal in 

this case does not contain such a statement. However, considering statements made 

by the Ohio Supreme Court in Medcorp, Inc. v. Ohio Dept. of Job & Family Servs., 121 

Ohio St.3d 622, 2009-Ohio-2058, and a legislative enactment subsequent thereto, we 

hold that the notice of appeal in and of itself is an affirmative statement of the statutory 

standard of review. Thus, we find that the notice of appeal complied with the current 

statutory requirements. To find otherwise serves no purpose and flies in the face of the 

legislative purpose in amending R.C. 119.12. 

{¶ 4} Therefore, we find that the sole assignment of error has merit. The 

decision of the common pleas court is reversed, and the matter is remanded for the 

appeal to proceed. 

STATEMENT OF CASE 

{¶ 5} On December 9, 2009, the board issued an order revoking Evankovich’s 

pharmacy license. On December 14, 2009, Evankovich filed a notice of appeal. About 

a month after the notice of appeal was filed, the board filed a motion to dismiss based 

on lack of jurisdiction. The motion specifically indicated that while the notice was 
timely, it did not comply with R.C. 119.12 because it did not set forth the grounds of 

Evankovich’s appeal and the language in the notice of appeal was devoid of any 

allegation of legal or factual errors that occurred in the administrative proceedings. 

{¶ 6} Evankovich responded to the motion to dismiss, raising arguments that 

went to the heart of the appeal, i.e., whether the administrative body had the authority 

to revoke his license on the basis that it did. Evankovich claimed that the “arguments 

concerning the adequacy of Appellant’s notice of appeal are secondary to the fact that 

it cannot cure the statutory defect that riddled its prosecution of” Evankovich. This 

motion did not address whether the notice of appeal complied with R.C. 119.12. Three 

months later, Evankovich filed a merit brief. Once again, Evankovich made merit 

arguments; however, he also included an argument that the notice of appeal 

adequately complied with R.C. 119.12. 

{¶ 7} On July 2, 2010, the magistrate issued its decision and granted the 

motion to dismiss based on lack of jurisdiction for failing to comply with R.C. 119.12. 

Specifically, it indicated that the notice of appeal did not set forth any grounds for the 

appeal. Evankovich objected to that decision, filed a brief in support of his objections, 

filed an amended notice of appeal that set forth grounds for the appeal, and filed a 

motion for reconsideration of the magistrate’s July 2, 2010 decision. 

{¶ 8} The magistrate denied the motion for reconsideration, deemed the 

amended notice of appeal untimely, and once again indicated that the original notice of 

appeal did not set forth any grounds for the appeal in violation of R.C. 119.12. 

Evankovich objected to the magistrate’s decision. 
{¶ 9} After reviewing both of the magistrate’s decisions and the objections to 

those decisions, the trial court granted the motion to dismiss. It stated: 

{¶ 10} “[T]he Motion to Dismiss filed by Appellee, Ohio State Board of 

Pharmacy is granted. Appellant’s July 19, 2010 Amended Notice of Appeal of the 

December 9, 2009, Order of the Ohio State Board of Pharmacy is untimely. 

{¶ 11} “Appellant failed to set forth any grounds for his appeal within his notice 

of appeal of the Order of December 9, 2009, as required by R.C. 119.12. Therefore, 

this Court lacks jurisdiction to consider Appellant’s appeal. See Medcorp, Inc. v. Ohio 

Dept. of Job & Family Services (2009), 121 Ohio St.3d 622; Zier v. Bureau of 

Unemployment Compensation (1949), 151 Ohio St. 123. 

{¶ 12} “The appeal is dismissed for lack of jurisdiction.” 

ASSIGNMENT OF ERROR 

{¶ 13} “The trial court erred to the prejudice of appellant Gary Evankovich by 

adopting the magistrate’s decision that granted the appellee Ohio State Board of 

Pharmacy’s motion to dismiss.” 

{¶ 14} A motion challenging a court's subject-matter jurisdiction inherently 

raises a question of law, which is reviewed independently without deference to a trial 

court's determination. In re Campbell, 7th Dist. No. 05MA10, 2006-Ohio-1764, ¶ 7. 

Consequently, we review a trial court’s determination on subject-matter jurisdiction 

under a de novo standard of review. Fifth Third Bank, N.A. v. Maple Leaf Expansion, 

Inc., 188 Ohio App.3d 27, 2010-Ohio-1537, ¶ 10. 

{¶ 15} As aforementioned, the common pleas court dismissed the appeal for 

lack of jurisdiction because the notice of appeal did not comply with R.C. 119.12. 
Although Evankovich made five separate arguments in his appellate brief, only the fifth 

argument addresses whether the notice of appeal complies with R.C. 119.12. The first 

three arguments are merit arguments that address the propriety of the administrative 

proceedings. In the fourth argument, he contends that the order he appealed from is 

not a final, appealable order. 

{¶ 16} Those first four arguments will not be addressed by this court because 

our review is solely limited to the common pleas court’s determination of jurisdiction 

based on the notice of appeal complying with R.C. 119.12. In order for the common 

pleas court to have the authority to address those four arguments, its jurisdiction had 

to be properly invoked under R.C. 119.12. It has previously been explained that when 

a statute confers the right to appeal, an appeal can be perfected only in the mode 

prescribed by that statute. Ramsdell v. Ohio Civ. Rights Comm. (1990), 56 Ohio St.3d 

24, 27. Consequently, R.C. 119.12’s requirements must be met in order to invoke the 

common pleas court’s jurisdiction to review the administrative order. Thus, any 

argument or insinuation that the adequacy of the notice of appeal is secondary to any 

alleged errors that occurred during the administrative proceedings is incorrect. 

{¶ 17} Furthermore, pursuant to R.C. 119.12, the common pleas court’s review 

of an order of an administrative agency is limited to whether the agency's order is 

supported by reliable, probative, and substantial evidence and is in accordance with 

law. Our review of a common pleas court’s determination under that standard of 

review is even more limited because we cannot review the evidence. Pons v. Ohio 

State Med. Bd. (1993), 66 Ohio St.3d 619, 621. We review the common pleas court’s 

decision for an abuse of discretion. Id. Consequently, because there is no ruling by 
the common pleas court on the first four arguments raised, and our review of any merit 

ruling is limited to whether the common pleas court abused its discretion, we cannot 

usurp the common pleas court’s role to review the merit arguments to determine 

whether the administrative order is supported by reliable, probative, and substantial 

evidence and is in accordance with law. 

{¶ 18} Therefore, because we cannot review the first four arguments, our 

analysis turns to the heart of the appeal: whether the notice of appeal invoked the 

common pleas court’s jurisdiction to review the administrative order. 

{¶ 19} As previously indicated, in order to invoke the common pleas court’s 

jurisdiction over the administrative appeal, Evankovich had to comply with R.C. 

119.12. The current version states: 

{¶ 20} “Any party desiring to appeal shall file a notice of appeal with the agency 

setting forth the order appealed from and stating that the agency's order is not 

supported by reliable, probative, and substantial evidence and is not in accordance 

with law. The notice of appeal may, but need not, set forth the specific grounds of the 

party's appeal beyond the statement that the agency's order is not supported by 

reliable, probative, and substantial evidence and is not in accordance with law. * * * 

The amendments made to this paragraph by Sub. H.B. 215 of the 128th general 

assembly are procedural, and this paragraph as amended by those amendments shall 

be applied retrospectively to all appeals pursuant to this paragraph filed before the 

effective date of those amendments but not earlier than May 7, 2009, which was the 

date the supreme court of Ohio released its opinion and judgment in Medcorp, Inc. v. 

Ohio Dep't. of Job and Family Servs. (2009), 121 Ohio St.3d 622.” 
{¶ 21} The notice of appeal in this matter was filed in December 2009, prior to 

the September 13, 2010 effective date of this statute. However, pursuant to the 

retroactive language of this statute, this version is applicable to Evankovich. 

{¶ 22} The Ohio Supreme Court has stated that when construing a statute, we 

must first examine its plain language and apply the statute as written when the 

meaning is clear and unambiguous. Medcorp, 121 Ohio St.3d 622, 2009-Ohio-2058, ¶ 

9 (dealing specifically with the construction of R.C. 119.12). “The words used must be 

afforded their usual, normal, and/or customary meanings.” Id. 

{¶ 23} When the words in the statute are given their ordinary meaning, the 

statute requires the notice of appeal to contain two things. First, an indication of the 

order appealed from, and second, a statement that the agency's order is not supported 

by reliable, probative, and substantial evidence and is not in accordance with law. The 

second requirement is a recitation of the statutory standard of review for the 

administrative appeal that is found in R.C. 119.12. 

{¶ 24} Evankovich’s December 14, 2009 notice of appeal stated: 

{¶ 25} “Now comes GARY EVANKOVICH, Rh.P., Pharmacy License Number 

03-2-13226, and hereby gives NOTICE of his APPEAL of the order of the Ohio State 

Board of Pharmacy on or about December 1, 2009 revoking his license to practice 

pharmacy, and all other actions taken by the Board against him as a result of the 

hearings held on September 14-15, October 7, and November 4, 2009. This APPEAL 

is taken pursuant to O.R.C. §119.02 to the MAHONING COUNTY COURT OF 

COMMON PLEAS, being the county in which the place of business of the licensee is 
located and the county in which the licensee is a resident.” (Boldface and 

capitalization sic.) 

{¶ 26} Clearly, this notice does not state that the order is not supported by 

reliable, probative, and substantial evidence and that it is not in accordance with law. 

The notice, at most, refers to the order Evankovich is appealing from and states that 

the appeal is taken pursuant to R.C. 119.12. 

{¶ 27} When considering a notice of appeal that similarly lacked a recitation of 

the statutory standard of review, our sister district found that under the current version 

of R.C. 119.12, the common pleas court’s jurisdiction was not properly invoked. 

Foreman v. Lucas Cty. Court of Common Pleas, 189 Ohio App.3d 678, 2010-Ohio4731. It explained: 

{¶ 28} “The amended statute requires an appellant's notice of appeal to, at 

least, state that ‘the agency's order is not supported by reliable, probative, and 

substantial evidence and is not in accordance with law,’ even while eliminating the 

requirement of any specificity ‘beyond [that] statement.’ Foreman's notice of appeal, 

by contrast, states only that she ‘bases her appeal on issues of fact and law.’ The 

recent amendments to R.C. 119.12 do not alter the necessity for strict adherence to 

the statutory requirements to invoke the trial court's jurisdiction over an administrative 

appeal. Thus, we conclude that even under the amended statute, Foreman's notice of 

appeal was insufficient under R.C. 119.12 and that the trial court lacked subject-matter 

jurisdiction to hear Foreman's appeal.” Id. at ¶ 15. 

{¶ 29} In rendering its decision, the Tenth Appellate District acknowledged that 

the amendments to R.C. 119.12 were made by the General Assembly to relax the 
requirements for the contents of the notice of appeal. Id. We agree with the Tenth 

Appellate District that the new version of the statute relaxes the requirements for the 

notice of appeal. The amendments specifically refer to the Ohio Supreme Court’s 

decision in Medcorp and make the amendments retroactive to the date of the Medcorp

decision. In Medcorp, the court held that a statement in the notice of appeal that the 

administrative decision “is not in accordance with law and is not supported by reliable, 

probative and substantial evidence” was merely a recitation of the standard of review 

the common pleas court employs in reviewing the administrative order and, as such, 

was not sufficient to meet the previous version of R.C. 119.12 that required the notice 

of appeal to contain the grounds for the appeal. Medcorp, 121 Ohio St.3d 622, 2009-

Ohio-2058, ¶ 1-9. The court determined that the notice of appeal was required to 

specify legal and/or factual reasons why it was appealing. Id. at ¶ 11. An appellant 

was required to “designate the explicit objection they are raising to the administrative 

agency's order, much in the same way that appellants in a court of appeals must 

assert specific legal arguments in the form of assignments of error and issues for 

review, * * *, and appellants in [the Ohio Supreme Court] must advance propositions of 

law * * *.” Id. 

{¶ 30} That said, we disagree with our sister district’s conclusion that the notice 

of appeal must be dismissed if it does not state the statutory standard of review. The 

Ohio Supreme Court made the following statement in Medcorp: 

{¶ 31} “When a party files an appeal from an order of an administrative agency, 

it is already making an affirmative statement that it believes that the underlying order 

‘is not supported by reliable, probative, and substantial evidence, and/or is not in 
accordance with law’ because it must meet that standard to succeed on appeal under 

the plain language of R.C. 119.12. If we were to adopt Medcorp's position [that a 

recitation of the statutory standard of review is sufficient to constitute grounds for the 

appeal], those same, general words could be used in virtually every appeal from an 

administrative agency filed pursuant to the statute.” Id. at ¶ 14. 

{¶ 32} Furthermore, the Ohio Supreme Court has consistently indicated that the 

purpose of a notice of appeal is to inform the opposing party of the taking of an appeal. 

Welsh Dev. Co. v. Warren Cty. Regional Planning Comm., 128 Ohio St.3d 471, 2011-

Ohio-1604, ¶ 29 (deciding what the word “filed” in R.C. 2505.04 meant), citing Maritime 

Mfrs., Inc. v. Hi-Skipper Marina (1982), 70 Ohio St.2d 257, 259; Wells v. Chrysler 

Corp. (1984), 15 Ohio St.3d 21, 24 (holding that the purpose of a notice of appeal is to 

set forth the names of the parties and to advise those parties that an appeal of a 

particular claim is forthcoming); Couk v. Ocean Acc. & Guar. Corp. (1941), 138 Ohio 

St. 110, 116, quoting Capital Loan & Sav. Co. v. Biery (1938), 134 Ohio St. 333, 339 

(“the purpose of the notice of appeal is ‘to apprise the opposite party of the taking of 

an appeal.’ If this is done beyond danger of reasonable misunderstanding, the 

purpose of the notice of appeal is accomplished”). 

{¶ 33} Likewise, it must be noted that the General Assembly referred to the 

Medcorp decision in its amendments to R.C. 119.12. The effect of the amendments 

clearly was to relax the requirements for the notice of appeal. Thus, the purpose of 

the legislature’s relaxation of R.C. 119.12 was to make it easier to appeal the 

administrative decision, not to make an additional less onerous requirement for the 

appealing party. 
{¶ 34} Thus, considering all the above, we find that the notice of appeal 

properly invoked the trial court’s jurisdiction; the notice of appeal complied with R.C. 

119.12. The notice of appeal in and of itself is an affirmative statement that the party 

believes that the order it is appealing is not supported by reliable, probative, and 

substantial evidence and is not in accordance with law. Any requirement to make a 

written statement of the standard of review in the notice of appeal is superfluous. 

{¶ 35} Moreover, dismissing the appeal because the notice of appeal fails to 

state the statutory standard leads to an absurd and unreasonable result. R.C. 1.47(C) 

states that “[i[n enacting a statute, it is presumed that * * * [a] just and reasonable 

result is intended.” Likewise, the Ohio Supreme Court has consistently indicated that it 

“ ‘is a cardinal rule of statutory construction that a statute should not be interpreted to 

yield an absurd result’ .” Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-

Ohio-2070, ¶ 25, quoting Mishr v. Bd. of zoning Appeals (1996), 76 Ohio St.3d 238, 

667 N.E.2d 365. See also State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, ¶ 

20; State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio St.3d 262, 2005-Ohio6432. 

{¶ 36} Consequently, the sole assignment of error has merit. The judgment of 

the trial court is hereby reversed, and the matter is remanded for the appeal to 

proceed. 

{¶ 37} In rendering our ruling, we acknowledge that our decision is in direct 

conflict with the Tenth Appellate District’s decision in Foreman,.189 Ohio App.3d 678, 

2010-Ohio-4731. Consequently, pursuant to Section 3(B)(4), Article IV of the Ohio 

Constitution, we certify the following question to the Ohio Supreme Court: 
{¶ 38} “To invoke the common pleas court’s jurisdiction over an administrative 

appeal, does the current version of R.C. 119.12 require the appealing party to state in 

the notice the statutory standard of review? Or does the notice of appeal in and of 

itself provide a sufficient indication of that standard and thus, meet the requirements of 

R.C. 119.12?” 

Judgment accordingly. 

 WAITE, P.J., and DEGENARO, J., concur. 

_______________________