¶1 concurring separately.
¶2 Inasmuch as I cannot agree with the reasoning relied upon by the majority in reaching the result herein, I write separately.
¶3 I agree with the majority that R.C. 2335.39(B)(1) controls appellant’s ability to recover attorney fees in the instant action. However, I would conclude that *453 the foregoing statute authorizes appellant to seek attorney fees as an eligible prevailing party in a purported R.C. 119.12 agency appeal from an adjudication order, rather than as an eligible prevailing party in a civil action: the distinction drawn in R.C. 2335.39 between civil actions and appeals of adjudication orders under R.C. 119.12 precludes the present action, which arises from administrative agency action, from falling into the “civil action” category.
¶4 In that context, R.C. 2335.39 authorizes recovery of attorney fees by an eligible prevailing party when an agency appeals an adjudication order pursuant to R.C. 119.12, unless that adjudication order was entered after a hearing described in R.C. 119.092(F). Although appellee expressly relied upon R.C. 119.12 as a basis for its appeal of the board’s decision, it now argues that R.C. 2335.39(B)(1) does not authorize appellant’s recovery of attorney fees because this court has expressly rejected the agency’s reliance on R.C. 119.12 as a basis for its appeal. However, I would construe R.C. 2335.39(B)(1) to authorize recovery of attorney fees by an eligible prevailing party when an agency purports to appeal an adjudication order pursuant to R.C. 119.12, even when the agency’s reliance on R.C. 119.12 is unfounded.
¶5 Further, in my view the statutory bar in R.C. 2335.39(F) to recovery of attorney fees in an R.C. 119.12 agency appeal of an adjudication order entered after an R.C. 119.092(F) hearing is not applicable herein. The board hearings described in R.C. 119.092(F) are limited to those conducted pursuant to authority conferred upon the board by R.C. 124.03, to wit, appeals relating to:
“ … reduction in pay or position, job abolishments; layoff, suspension, discharge, assignment or reassignment to a new or different position classification, or the refusal of the director … to reassign an employee to another classification or to reclassify his position ….”
¶6 Finding no basis for concluding that the board’s hearing of appellant’s disability separation involved a matter enumerated in R.C. 124.03, I would conclude that the resulting adjudication order was not entered after an R.C. 119.092(F) hearing. Accordingly, I would reverse the judgment of the trial court, and remand the cause for the trial court’s determination of whether the appellant’s request for an award of attorney fees otherwise satisfies the criteria of R.C. 2335.39(B)(2).