Homeless Charity v. City of Akron, C.A. No. 29334
| Court | United States Court of Appeals (Ohio) |
| Writing for the Court | TEODOSIO, Presiding Judge. |
| Citation | 2019 Ohio 5330 |
| Parties | THE HOMELESS CHARITY, et al. Appellants v. CITY OF AKRON Appellee |
| Decision Date | 26 December 2019 |
| Docket Number | C.A. No. 29334 |
2019 Ohio 5330
THE HOMELESS CHARITY, et al. Appellants
v.
CITY OF AKRON Appellee
C.A. No. 29334
STATE OF OHIO COUNTY OF SUMMIT IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
December 26, 2019
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO
CASE No. CV-2018-10-4270
DECISION AND JOURNAL ENTRY
TEODOSIO, Presiding Judge.
{¶1} Sage Lewis LLC, Sage Lewis, and the Homeless Charity (collectively "the Homeless Charity") appeal the judgment of the Summit County Court of Common Pleas granting the City of Akron's motion to dismiss. We affirm.
{¶2} On October 16, 2018, the Homeless Charity filed an administrative appeal with the Summit County Court of Common Pleas, appealing the September 18, 2018, decision of the Akron City Council denying a conditional use permit for the property located at 15 Broad Street in Akron. The Homeless Charity filed instructions for service with the Summit County Clerk of Courts requesting certified mail service of the notice of appeal be made upon "City of Akron, c/o Law Director Eve Belfance" at the law director's address: 161 South High Street, Suite 202, Akron, Ohio 44308. The Clerk of Courts' website indicated that service was made upon the law director on October 18, 2018, however the corresponding document provided by the United
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States Postal Service indicates that the recipient of the certified mail was signed for by "C.O.C." at "205 S. High[.]" 205 South High Street, Akron, Ohio, is the address of the Summit County Clerk of Courts.
{¶3} In December 2018, the City of Akron filed its motion to dismiss the administrative appeal, and attached three affidavits in support. The motion argued that because a notice of the appeal was not filed with Akron City Council pursuant to R.C. 2505.04, the administrative appeal was not perfected and the trial court did not have jurisdiction. On February 14, 2019, the trial court granted the City of Akron's motion to dismiss, concluding that it was, in fact, without jurisdiction because the Homeless Charity had failed to perfect the administrative appeal.
{¶4} The Homeless Charity now appeals to this Court, raising two assignments of error.
THE TRIAL COURT ERRED IN HOLDING THAT APPELLANTS FAILED TO PROVIDE EVIDENCE THAT IT IS SUFFICIENT TO SERVE THE NOTICE OF APPEAL REQUIRED UNDER R.C. 2505.04 ON COUNSEL FOR THE AKRON CITY COUNCIL, RATHER THAN DIRECTLY ON THE ENTITY ITSELF.
{¶5} In its first assignment of error, the Homeless Charity argues the trial court erred in its finding "that no evidence was presented to show any special relationship between the law director and the administrative body that would warrant service upon the law director to be sufficient." We disagree.
{¶6} The dismissal of a case for lack of subject matter jurisdiction "'inherently raises questions of law,'" which requires a de novo review. Servpro v. Kinney, 9th Dist. Summit No.
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24969, 2010-Ohio-3494, ¶ 11, quoting Exchange St. Assocs., L.L.C. v. Donofrio, 187 Ohio App.3d 241, 2010-Ohio-127, ¶ 4 (9th Dist.). "A de novo review requires an independent review of the trial court's decision without any deference to the trial court's determination." State v. Consilio, 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4.
{¶7} R.C. 2505.04, in pertinent part, sets forth the procedure for perfecting an administrative appeal:
An appeal is perfected when a written notice of appeal is filed * * * with the administrative officer, agency, board, department, tribunal, commission, or other instrumentality involved.
Further, R.C. 2505.07 provides: "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, unless otherwise provided by law, is thirty days." If the procedure set forth by R.C. 2505.04 is not followed, then the common pleas court does not have jurisdiction to hear the appeal and must dismiss it. Helms v. Akron Health Dept., 9th Dist. Summit No. 21735, 2004-Ohio-3408, ¶ 11. Similarly, if the notice of appeal is filed with the administrative body after the 30-day period, then the notice of appeal is untimely and the trial court lacks jurisdiction to consider the appeal. See id. at ¶ 12-13. The parties in this matter agree that notice of appeal was due on or before October 18, 2018.
{¶8} "Although the person attempting to appeal does not have to use a particular method to deliver his...
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