Ira S. Chapman v. Housing Appeals Board
| Decision Date | 13 August 1997 |
| Docket Number | 97-LW-3009,18166 |
| Parties | IRA S. CHAPMAN, Appellant v. HOUSING APPEALS BOARD, Appellee C.A. |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE NO. CV 96 04 1495
DECISION
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
This is an appeal by Ira S. Chapman from the Summit County Court of Common Pleas' affirmance of the decision of the City of Akron Housing Appeals Board ("the Board") to demolish his property.
In 1993, and again in 1995, the Housing Division inspected Chapman's property and issued a notice and an order to comply with housing code regulations. The 1995 orders stated that "the dwelling is condemned as unfit for human habitation" and the violations "created a serious hazard to the health and safety of the public." Chapman was advised that the violations must be corrected within thirty days or the property would be razed.
Chapman failed to comply with the orders, and the Housing Division referred the property to the Board pursuant to Housing Code Sections 150.04 and 150.19. Chapman was duly notified and appeared to testify at the hearing concerning the property on March 19, 1996. The Board found the vacant structure "to be dilapidated, decayed, unsafe unsanitary and in a deteriorated condition that is a blighting influence on the neighborhood" and found it necessary to order the structure razed. The Board entered its written final order to this effect at the conclusion of the meeting. Further, Chapman was notified in writing and by personal notice at the meeting that the Board's final order had been entered on March 19, 1996. The notice set forth the Ohio Revised Code citations regarding Chapman's appeal rights, including the need to perfect an appeal within thirty days. See R.C. 2505.03, 2505.04, and 2505.07.
Chapman filed a notice of appeal and praecipe with the common pleas court on April 17, 1996. The Board received a summons along with a copy of the notice of appeal and praecipe from the clerk of court on April 22, 1996, thirty-four days after the Board entered its final order. The Board filed a motion to dismiss on the grounds that the lower court lacked jurisdiction to address the appeal because Chapman's appeal had not been timely perfected. The Board filed the transcript and record on July 25, 1996. The lower court did not rule on the motion to dismiss, and the parties did not file any merit briefs or requests for extensions of time to do so.
On October 4, 1996, the lower court issued a judgment entry affirming the Board's decision, finding it "to be supported by a preponderance of reliable, probative and substantial evidence." Chapman timely appeals to this Court, raising a single assignment of error:
THE TRIAL COURT ERRED IN GRANTING JUDGMENT TO [THE BOARD] AND AFFIRMING THE DECISION OF THE HOUSING APPEALS BOARD WITHOUT HAVING FIRST PERMITTED [CHAPMAN] OPPORTUNITY TO FILE HIS ASSIGNMENTS OF ERROR AND BRIEF UPON THE MERITS OF THE APPEAL, AS PROVIDED IN LOCAL RULE 19.03(A) OF THE RULES OF PRACTICE AND PROCEDURE OF THE COURT OF COMMON PLEAS GENERAL DIVISION OF SUMMIT COUNTY, OHIO.
Chapman maintains that he did not file a brief or otherwise go forward with his appeal in the lower court because he "believes it was reasonable for him to expect the Trial Court to rule upon the Motion to Dismiss" before filing his brief on the merits of the case. He complains that he had no opportunity to present evidence or question the fairness and equity of the Board's decision.
The local rules of court governing appeals to the court of common pleas from administrative agencies require an appellant to submit a brief within thirty days after the filing of the record. See Loc.R. 19.03(A). "If the appellant fails to file its brief and assignments of error within the time provided, the Court may dismiss the appeal or otherwise dispose of the case as justice requires." Loc. R. 19.03(D). (Emphasis added.) The lower court was justified in issuing a decision, and thus disposing of the case, seventy-one days after the filing of record, where the parties had not submitted briefs on the issues. The court had no reason to expect Chapman to submit any additional evidence not in the record because he had not accompanied his appeal with a motion to do so, accompanied by an affidavit, as required by Loc.R. 19.04.
Chapman had the opportunity to file a merit brief or to move the court for an extension of time, yet he did neither. Our review of the record confirms that the Board's demolition order was supported by a preponderance of substantial, reliable and probative evidence. The lower court did not abuse its discretion in ruling on the merits of the appeal rather than dismissing the appeal due to Chapman's failure to file a brief.
However, we do find that the lower court erred in issuing its decision because it lacked subject matter jurisdiction to hear this administrative appeal. The court should have granted the Board's motion to dismiss because Chapman did not timely perfect his appeal.
It is well-settled that the filing of a notice of appeal under R.C. 2505.04 is essential in order to vest the common pleas court with jurisdiction over an administrative appeal, and that the failure to properly perfect an appeal may not be waived. See Richards v. Indus. Comm. of Ohio (1955), 163 Ohio St. 439, 445; Moore v. Cleveland Civil Serv. Comm. (1983), 11 Ohio App.3d 273, 275. Jurisdiction does not vest in the court unless and until an appeal is perfected. Patrick Media Group, Inc. v. Cleveland Bd. of Zoning Appeals (1988), 55 Ohio App.3d 124, 125; Moore, supra, at 274.
Chapter 2505 of the Ohio Revised Code governs Chapman's appeal to the court of common pleas. R.C. 2505.04 requires that the appeal be perfected by written notice of the appeal being filed with the Board itself:
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.
(Emphasis added.) See, also, Guysinger v. Chillicothe Bd. of Zoning Appeals (1990), 66 Ohio App.3d 353, 356; Patrick Media Group Inc., 55 Ohio App.3d at 125. "The language used in the statute clearly and succinctly requires that the notice of appeal be filed with the board appealed from,...
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