Townsend v. Board of Bldg. Appeals

• Court: Ohio Court of Appeals
• Writing for the Court: MAHONEY; VICTOR, P. J., and DOYLE; DOYLE
• Citation: Townsend v. Board of Bldg. Appeals, 361 N.E.2d 271, 49 Ohio App.2d 402, 3 O.O.3d 461 (Ohio App. 1976)
• Decision Date: 21 April 1976
• Parties: , 3 O.O.3d 461 TOWNSEND, Appellant, v. BOARD OF BUILDING APPEALS, Appellee. *

Page 402

49 Ohio App.2d 402

361 N.E.2d 271, 3 O.O.3d 461

TOWNSEND, Appellant, v. BOARD OF BUILDING APPEALS, Appellee. ^*

Court of Appeals of Ohio, Ninth District, Summit County.

April 21, 1976.

Syllabus by the Court

1. The depositing of a notice of appeal in the U.S. mail is not the equivalent of filing a notice of appeal with the agency whose order is being appealed, pursuant to R.C. 119.12.

2. The requirement of R.C. 119.12 that a notice of appeal be filed within fifteen days after the mailing of the notice of the agency's order is constitutional.

L. Terrence Ufholz and Lee C. Davies, Akron, for appellant.

William J. Brown, Atty. Gen., and Gladys F. Burkhart, Columbus, for appellee.

MAHONEY, Judge.

This is an appeal from a judgment of the Court of Common Pleas dismissing plaintiff's appeal from a decision by the Board of Building Appeals of the Ohio Department of Industrial Relations, the defendant. The court held that plaintiff had failed to file her notice of appeal with the Board of Building Appeals within 15 days of the mailing of the order of the board, as required by R.C. 119.12. We affirm and hold that the depositing of a notice of appeal in the U.S. mails is not the equivalent of filing a notice of appeal with the board or agency whose order is being appealed.

Plaintiff's sole assignment of error states:

'The trial court erred at law in finding that the notice of appeal filed with the Board of Building Appeals was not 'timely' and thereby dismissing said appeal.'

To support this allegation, plaintiff asserts two arguments, the first of which states:

'Civ.R. 6(E) allows an additional three day period in calculating the appellant's appeal time.'

Civ.R. 6(E), by its very language, is inapplicable. It reads in pertinent part:

'Whenever a party * * * is required to do some act * * * within a prescribed period after the service of notice * * * upon him and the notice * * * is served * * * by mail, three days shall be added to the prescribed period.'

R.C. 119.12 does not require a party to do some act within a prescribed period after the service of notice upon him; rather, it requires the filing of a notice of appeal with the agency and a copy with the court within 15 days after the mailing of the notice of the agency's order.

Additionally, Civ.R. 1(C) provides that the civil rules are not applicable to procedures upon appeal to 'review any judgment order or ruling.' By their nature, the civil rules are inapplicable.

We would analogize the instant situation to the requirement that a notice of appeal from a judgment of the trial court shall be filed within 30 days of the date of the entry of the judgment appealed from. App.R. 4. A party desiring to appeal is reqired to do some act within a prescribed period of time. Yet, does Townsend maintain that the 30 days does not begin to run until actual notice is received by the party desiring to appeal? There is no provision for the court to mail judgment entries to litigants.

In this case, literal compliance with the provisions of the statute must be observed or the reviewing court will be without jurisdiction to entertain the appeal. See Hart v. Bd. of Liquor Control (1953), 96 Ohio App. 128, 121 N.E.2d 257.

The second argument states:

'The interpretation of Section 119.12 Ohio Revised Code, finding that the fifteen day period for filing the notice of appeal begins to run upon the mailing of the decision rather than the receipt of said decision is unconstitutional.'

We find nothing here similar to the denial of due process found by the...