Welsh Dev. Co. Inc. v. Warren County Reg'l Planning Comm'n

• Decision Date: 29 March 2011
• Docket Number: Nos. 2010–0611,2010–0858.,s. 2010–0611
• Citation: 946 N.E.2d 215,128 Ohio St.3d 471
• Parties: WELSH DEVELOPMENT COMPANY, INC., et al., Appellants,v.WARREN COUNTY REGIONAL PLANNING COMMISSION, Appellee.
• Court: Ohio Supreme Court

128 Ohio St.3d 471

946 N.E.2d 215

2011 -Ohio- 1604

WELSH DEVELOPMENT COMPANY, INC., et al., Appellants,

v.WARREN COUNTY REGIONAL PLANNING COMMISSION, Appellee.

Nos. 2010–0611

2010–0858.

Supreme Court of Ohio.

Submitted Feb. 2, 2011.Decided March 29, 2011.

Syllabus of the Court

An administrative appeal is considered filed and perfected for purposes of R.C. 2505.04 if the clerk of courts serves upon the administrative agency a copy of the notice of the appeal filed in the court of common pleas and the administrative agency is served within the time period prescribed by R.C. 2505.07.

Frost Brown Todd, L.L.C., Matthew C. Blickensderfer, Scott D. Phillips, and Benjamin J. Yoder, Cincinnati, for appellants.

Surdyk, Dowd & Turner Co., L.P.A., Robert J. Surdyk, and Kevin A. Lantz, Miamisburg, for appellee.

O'CONNOR, C.J.

[Ohio St.3d 471] {¶ 1} In this appeal, we are asked to decide whether a service of summons by a clerk of courts upon an administrative agency, together with a copy of a notice of appeal filed in the common pleas court, is sufficient to perfect an administrative appeal pursuant to R.C. 2505.04 if the agency receives the notice within the time prescribed by R.C. 2505.07. For the reasons stated below, we reaffirm and clarify our decision in Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 204, 12 O.O.3d 198, 389 N.E.2d 1113, by holding that an administrative appeal is perfected pursuant to R.C. 2505.04 when a party files a notice of appeal with the clerk of courts with instructions to serve a copy of the complaint and [Ohio St.3d 472] notice of the appeal on the administrative agency and the agency is served and receives notice of the appeal within the time period set forth in R.C. 2505.07.

Relevant Background

{¶ 2} Welsh Development Company, Inc. (“Welsh”) is an Ohio corporation with its principal place of business in Harrison, Ohio. Daniel and Angela Proeschel, Robert and Mary Proeschel, and Jeraldine and Karl Hoffer are all residents of Ohio. In 2004, Welsh obtained options to purchase the Proeschels' and the Hoffers' properties for the development of a subdivision of single-family homes.

{¶ 3} Soon after Welsh entered into the purchase agreements, it began moving forward with its plan for the development of the property. The plan consisted of two phases. On February 1, 2005, Welsh submitted an application for approval of a preliminary plat for Phase I to the Warren County Regional Planning Commission (“WCRPC”). On February 24, 2005, the WCRPC executive committee denied approval of the preliminary plat for Phase I. On March 1, 2005, the executive director of WCRPC informed Welsh of the planning commission's decision.

{¶ 4} On March 25, 2005, Welsh and the property owners filed a complaint and notice of appeal in the Warren County Court of Common Pleas against WCRPC for its denial of Phase I. The notice and complaint contained a praecipe for the clerk of courts to serve WCRPC by certified mail. WCRPC was served on March 28, 2005. An unfiled courtesy copy of the initial pleadings was sent to the Warren County assistant prosecutor, which he received on March 24, 2005.

{¶ 5} On March 1, 2005, Welsh submitted an application for approval of a preliminary plat to the WCRPC for Phase II. On March 24, 2005, the WCRPC approved the preliminary plat for Phase II subject to Welsh's dedication of an interior collector thoroughfare. Welsh and the property owners objected to the conditional approval, arguing that Phase II should have been approved without the requirement of the interior collector street.

{¶ 6} On April 25, 2005, Welsh and the property owners filed another notice of appeal and complaint in the Warren County Court of Common Pleas for WCRPC's conditional approval of Phase II. The notice and complaint contained a praecipe for service upon WCRPC by certified mail. Service was completed on April 27, 2005, and the Warren County assistant prosecutor received an unsigned courtesy copy of this initial pleading on April 25, 2005. The cases were subsequently consolidated.

{¶ 7} In its answers to both cases, WCRPC raised the affirmative defense that Welsh and the property owners had failed to exhaust their administrative remedies. WCRPC then moved to dismiss both of the administrative appeals on grounds that although Welsh and the property owners had served their notices of [Ohio St.3d 473] appeal upon WCRPC within 30 days of the final decisions being appealed, the property owners in both instances had failed to file notices of appeal with the WCRPC as required by R.C. 2505.04.

{¶ 8} The magistrate found that the property owners had failed to properly file their notices of appeal with the WCRPC in accordance with R.C. 2505.04. The magistrate therefore concluded that the Warren County Court of Common Pleas was without subject-matter jurisdiction to entertain the administrative appeals and dismissed the appeals.

{¶ 9} WCRPC, Welsh, and the property owners filed objections to the magistrate's decision. The trial court overruled the parties' objections and adopted the magistrate's decision.

{¶ 10} On January 31, 2008, Welsh attempted to voluntarily dismiss the remaining causes of action pursuant to Civ.R. 41(A)(1)(a). WCRPC filed a motion to dismiss the appeal for lack of subject-matter jurisdiction, which the Twelfth District Court of Appeals granted, holding that Welsh could not create a final, appealable order by filing a voluntary dismissal as to the remaining claims. Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning Comm., Warren App. No. CA2008–02–026, 2009-Ohio-1158, 2009 WL 683859.

{¶ 11} Following remand, Welsh moved for leave to file amended consolidated complaints, which the trial court granted. Welsh filed its amended complaints to eliminate the unadjudicated claims. Welsh then filed its second notice of appeal to the Twelfth District, raising two assignments of error.

{¶ 12} In overruling Welsh's two assignments of error, the appellate court refused to extend Dudukovich and hold that timely service upon an administrative agency with a copy of a notice of appeal satisfied the explicit requirements set forth in R.C. 2505.04. The court of appeals also held that service on the adverse party's counsel, despite a close relationship between counsel and the agency, is insufficient to satisfy R.C. 2505.04.

{¶ 13} Welsh appealed to this court for discretionary review and secured an order from the court of appeals certifying that its decision in this case is in conflict with that of other courts of appeals, namely the Second and Sixth Appellate Districts. We granted discretionary review, 125 Ohio St.3d 1461, 2010-Ohio-2753, 928 N.E.2d 737, and recognized the conflict, 125 Ohio St.3d 1460, 2010-Ohio-2753, 928 N.E.2d 737, which presents the following question: “Is a service of summons by a clerk of courts upon an administrative agency, together with a copy of a notice of appeal filed in the common pleas court, sufficient to perfect an administrative appeal pursuant to R.C. 2505.04 as long as the agency receives the notice within the time prescribed by R.C. 2505.07?” We answer the question affirmatively and hold that an administrative appeal is considered filed and perfected for purposes of R.C. 2505.04 if the clerk of courts serves upon the [Ohio St.3d 474] administrative agency a copy of the notice of the appeal filed in the court of common pleas and the administrative agency is served within the time period prescribed by R.C. 2505.07. Accordingly, we reverse the judgment of the court of appeals.

Analysis

Dudukovich v. Lorain Metro. Hous. Auth.

{¶ 14} We have held repeatedly that when the right to appeal is conferred by statute, an appeal can be perfected only in the manner prescribed by the applicable statute. E.g., McCruter v. Bur. of Emp. Servs. Bd. of Review (1980), 64 Ohio St.2d 277, 279, 18 O.O.3d 463, 415 N.E.2d 259, citing Zier v. Bur. of Unemp. Comp. (1949), 151 Ohio St. 123, 38 O.O. 573, 84 N.E.2d 746, paragraph one of the syllabus.

{¶ 15} R.C. 2505.04 governs the manner in which an administrative appeal is perfected. It provides:

{¶ 16} “An appeal is perfected when a written notice of appeal is filed, in the case of an appeal of a final order, judgment, or decree of a court, in accordance with the Rules of Appellate Procedure or the Rules of Practice of the Supreme Court, or, in the case of an administrative-related appeal, with the administrative officer, agency, board, department, tribunal, commission, or other instrumentality involved.”

{¶ 17} In Dudukovich, we addressed whether a party had sufficiently complied with R.C. 2505.04 by mailing a copy of the notice of appeal to an agency. Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d at 203, 12 O.O.3d 198, 389 N.E.2d 1113. Dudukovich presented an employee who had appealed her termination from the employ of a municipal housing authority. The agency challenged the trial court's assumption of jurisdiction and contended that the employee had not properly filed a notice of appeal from the agency's decision by mailing the notice of appeal directly to the municipal housing authority.

{¶ 18} We held: “[T]he act of depositing the notice in the mail, in itself, does not constitute a ‘filing,’ at least where the notice is not received until after the expiration of the prescribed time limit. Rather, ‘the term “filed” * * * requires actual delivery * * *.’ However, no particular method of delivery is prescribed by the statute. Instead, as was aptly stated in Columbus v. Arlington (1964), 94 Ohio Law Abs. 392, 397, 31 O.O.2d 351, 201 N.E.2d 305, ‘any method productive of certainty of accomplishment is countenanced.’ Having considered [the employee's] method of service, we find that simply ‘[b]ecause the manner of delivery is unusual does not make it illegal.’ ” (Citations omitted.) Id. at 204, 12 O.O.3d 198, 389 N.E.2d 1113, quoting Fulton v. State ex rel. Gen. Motors Corp. (1936), 130 Ohio St. 494, 5 O.O. 142, 200...