Highland Square Mgmt., Inc. v. City of Akron, C.A. No. 27211
| Decision Date | 04 February 2015 |
| Docket Number | C.A. No. 27372,C.A. No. 27211 |
| Citation | 2015 Ohio 401 |
| Parties | HIGHLAND SQUARE MANAGEMENT, INC. Appellant v. CITY OF AKRON, et al. Appellees |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO
CASE Nos. CV 2013 07 3517 CV 2013 08 4354
DECISION AND JOURNAL ENTRY
{¶1} Highland Square Management, Inc. ("HSM") appeals from the dismissals of its administrative appeal and its complaint for injunctive relief and from the denial of its motion to vacate the judgments.
I.
{¶2} Lebo Holdings, LLC ("Lebo") purchased four parcels located at 795 and 803 West Market Street as well as 21 North Highland Avenue and Casterton Avenue. Manuel Nemer, a managing member of Lebo, filed a petition with the Akron City Planning Commission, which sought a conditional use of a parcel at 795 West Market Street to permit the construction of a building. The Planning Commission recommended the approval of the conditional use, and the Akron City Council passed an ordinance approving the conditional use on June 17, 2013, which was published on June 24, 2013.
{¶3} On July 19, 2013, HSM filed notice of an administrative appeal with the Summit County Clerk of Courts and requested that the notice be served on the Law Director for the City of Akron, which it was. On September 11, 2013, HSM also filed a complaint against Lebo, Mr. Nemer, and Summit County seeking to enjoin them "from proceeding in any further work related to the construction of 795 West Market Street." The two cases were consolidated.
{¶4} Following consolidation, the Planning Commission and City Council moved to dismiss the administrative appeal, arguing that HSM had failed to perfect the appeal by serving the City Council as required by R.C. 2505.04. Mr. Nemer and Lebo also moved to dismiss the complaint against them, arguing that the trial court lacked jurisdiction over the injunction complaint because it was moot. HSM filed a response, but the common pleas court granted both motions to dismiss, dismissing both actions with prejudice.
{¶5} HSM appealed the dismissals. While the appeal was pending, HSM filed a Civ.R. 60(B) motion for relief from judgment, arguing that the trial court should not have dismissed the cases with prejudice, and filed a motion with this Court to remand the matter for the lower court to rule on its motion to vacate. This Court remanded the matter, and the lower court denied the Civ.R. 60(B) motion. HSM appealed the denial, and this Court consolidated both appeals.
{¶6} HSM has raised five assignments of error for our review. For ease of discussion, we have rearranged the assignments of error.
II.
{¶7} Before addressing HSM's assignments of error, we briefly pause to address the appellees' argument that HSM's entire appeal is moot. Appellees point to this Court's prior decisions where we stated that, "'where an appeal involves the construction of a building or buildings and the appellant fails to obtain a stay of execution of the trial court's ruling andconstruction commences, the appeal is rendered moot.'" Poulson v. Wooster City Planning Comm., 9th Dist. Wayne No. 04CA0077, 2005-Ohio-2976, ¶ 7, quoting Schuster v. Avon Lake, 9th Dist. Lorain No. 03CA008271, 2003-Ohio-6587, ¶ 8. Although, at first glance, this statement appears broad, Poulson involved a situation where the complaining party solely sought to prevent the construction of a building and did not seek to prevent any continuing use of the structure. See id. at ¶ 7-8. Unlike the cases cited by the appellees, HSM does not merely seek to prevent the construction of a building; it also seeks to prevent the proposed uses of the building.1 Challenges to the manner in which the structure will be used are not moot merely because the structure has been built. Thus, because HSM's administrative appeal and complaint for injunctive relief are not limited to preventing the construction of a building on the parcels at issue in this case, this case is distinguishable from our precedent, and HSM's appeal is not moot.
{¶8} In its third assignment of error, HSM argues that it properly perfected its administrative appeal of the City Council's decision to permit a conditional use on the properties at issue. Specifically, it argues that its service upon the Law Director perfected the appeal.
{¶9} "[W]hen the right to appeal is conferred by statute, an appeal can be perfected only in the manner prescribed by the applicable statute." Welsh Dev. Co. Inc. v. Warren Cty. Regional Planning Comm., 128 Ohio St.3d 471, 2011-Ohio-1604, ¶ 14. "After the entry of a final order of an administrative officer, agency, board, department, tribunal, commission, or other instrumentality, the period of time within which the appeal shall be perfected, unlessotherwise provided by law, is thirty days." R.C. 2505.07. "An appeal is perfected when a written notice of appeal is filed, * * * in the case of an administrative-related appeal, with the administrative officer, agency, board, department, tribunal, commission, or other instrumentality involved." R.C. 2505.04. "Although the person attempting to appeal does not have to use a particular method to deliver his notice of appeal to the administrative body, '[f]iling does not occur until there is actual receipt by the agency within the time prescribed by R.C. 2505.07.'" Harris v. Akron, 9th Dist. Summit No. 25689, 2011-Ohio-6735, ¶ 5, quoting Welsh Dev. Co. Inc. at ¶ 18, 39.
{¶10} HSM concedes that it served its notice of appeal on the Law Director for the City of Akron and not to the Clerk of Council. Nevertheless, it argues that this service satisfies R.C. 2505.04 because "City Council was an adversary and the Akron law department was its lawyer." (Emphasis sic.). However, HSM does not cite any authority in support of this argument, nor has this Court's own research uncovered any such authority. See App.R. 16(A)(7). Courts have determined that service upon the administrative body's attorney does not satisfy the filing requirement of R.C. 2505.04. See, e.g., Welsh Dev. Co. v. Warren Cty. Regional Planning Comm., 186 Ohio App.3d 56, 2010-Ohio-592, ¶ 48 (12th Dist.), rev'd on other grounds, 128 Ohio St.3d 471, 2011-Ohio-1604; Guy v. Steubenville, 7th Dist. Jefferson No. 97-JE-22, 1998 WL 13866, *3 (Jan. 15, 1998); Patrick Media Group, Inc. v. Cleveland Bd. of Zoning Appeals, 55 Ohio App.3d 124, 125 (8th Dist.1988). See also Lorenzo Properties, II, Inc. v. Akron, 9th Dist. Summit No. 25807, 2011-Ohio-5369, ¶ 12 (). Although we do not foreclose the possibility of instances where service delivered to a city's law director might satisfy the filing requirement under R.C. 2505.04, the record does not reflect any factual circumstances suggesting that such would beappropriate. For example, there is no evidence in the record that the City Council regularly received its mail in the Law Director's office. Compare with Smola v. Legeza, 11th Dist. Ashtabula No. 2004-A-0038, 2005-Ohio-7059, ¶ 16-18 ().
{¶11} Thus, given the record in this case and the argument developed on appeal, we cannot conclude that the trial court erred when it concluded that it lacked jurisdiction over HSM's administrative appeal. Accordingly, HSM's third assignment of error is overruled.
{¶12} HSM argues in its first assignment of error that the lower court erred in dismissing its administrative appeal with prejudice.
{¶13} As noted above, the lower court dismissed HSM's appeal because it had failed to perfect the appeal within 30 days. See R.C. 2505.07; R.C. 2505.04. Because this dismissal was for reasons other than on the merits, HSM argues that the appeal should have been without prejudice. However, as other courts have noted, the dismissal of an administrative appeal outside the time for perfecting the appeal is essentially a dismissal on the merits since the appeal cannot be refiled. See Genesis Outdoor Advertising, Inc. v. Troy Twp. Bd. of Zoning Appeals, 11th Dist. Geauga No. 2001-G-2399, 2003-Ohio-3692, ¶ 10; McCann v. Lakewood, 95 Ohio App.3d 226, 233 (8th Dist.1994) (). Thus, given that the common pleas court dismissed HSM's appeal more than 30 days after the order sought to be appealed, it is difficult tosee how the court's decision affected HSM's substantial rights, even assuming an error occurred. See Civ.R. 61. See also Genesis Outdoor Advertising at ¶ 10; McCann at 233.
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