Welsh Dev. Co. v. Warren County Reg'l Planning Comm'n, No. CA2009-07-101.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: BRESSLER, Presiding
• Citation: 186 Ohio App.3d 56,926 N.E.2d 357,2010 Ohio 592
• Parties: WELSH DEVELOPMENT COMPANY, et al., Appellants,v.WARREN COUNTY REGIONAL PLANNING COMMISSION, Appellee.
• Docket Number: No. CA2009-07-101.
• Decision Date: 22 February 2010

186 Ohio App.3d 56
926 N.E.2d 357
2010 Ohio 592

WELSH DEVELOPMENT COMPANY, et al., Appellants,
v.
WARREN COUNTY REGIONAL PLANNING COMMISSION, Appellee.

No. CA2009-07-101.

Court of Appeals of Ohio,
Twelfth District, Warren County.

Decided Feb. 22, 2010.

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Frost Brown Todd L.L.C. and Scott D. Phillips, West Chester, for appellants.

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

BRESSLER, Presiding Judge.

{¶ 1} Plaintiffs-appellants, Welsh Development Company, Inc., Daniel and Angel Proeschel, Robert and Mary Proeschel, Jeraldine Hoffer, and Karl Hoffer (“Welsh”), appeal the decision of the Warren County Court of Common Pleas dismissing all but three claims against defendant-appellee, Warren County Regional Planning Commission (“the WCRPC”), finding that Welsh had failed to perfect its administrative appeal and, as a consequence, had failed to exhaust its administrative remedies.

{¶ 2} Welsh filed two preliminary plat applications with the WCRPC in early 2005 regarding a proposed single-family-home subdivision in Turtlecreek Township, Warren County, Ohio. The WCRPC denied the first application and approved the second application subject to certain conditions.

{¶ 3} On March 25, 2005, Welsh filed with the Warren County Common Pleas Court a notice of appeal of the first decision, along with a praecipe, a notice of the filing of a supersedeas bond, and instructions to serve a copy of the complaint and notice to the WCRPC. The record indicates that the WCRPC was served on March 28, 2005.

{¶ 4} Prior to filing, Welsh sent to the chief assistant Warren County prosecutor unfiled courtesy copies of the cover letter mailed to the Warren County clerk of courts, the complaint, the notice of the supersedeas bond, and the praecipe.

{¶ 5} On April 25, 2005, Welsh filed with the Warren County Common Pleas Court a notice of appeal of the second WCRPC decision and instructions to serve a copy of the complaint and notice of appeal to the WCRPC. The record indicates that service was obtained on April 27, 2005. As with the first appeal, Welsh sent to the

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assistant prosecutor only a copy of a cover letter mailed to the Warren County clerk of courts and enclosed documents similar to those mailed in the previous appeal.

{¶ 6} These actions, each of which contained a combination of an administrative appeal and civil action, were consolidated in the common pleas court.

{¶ 7} The WCRPC moved to dismiss the consolidated administrative appeals, arguing that the common pleas court lacked subject matter jurisdiction based on Welsh's failure to perfect the appeals pursuant to R.C. 2505.04. The WCRPC also raised in its answer to the civil actions the affirmative defense that Welsh had failed to exhaust its administrative remedies.

{¶ 8} Consequently, the magistrate dismissed Welsh's administrative appeals for want of jurisdiction and dismissed all but three of Welsh's causes of action for failing to exhaust its administrative remedies. Both the WCRPC and Welsh filed objections to the magistrate's decision. The common pleas court overruled the parties' objections and adopted the magistrate's decision.

{¶ 9} On January 31, 2008, Welsh attempted to voluntarily dismiss the remaining causes of action pursuant to Civ.R. 41(A)(1)(a) to create a final, appealable order from which it could appeal.

{¶ 10} Welsh subsequently filed its first appeal to this court. The WCRPC filed a motion to dismiss the appeal for lack of subject matter jurisdiction, and this court dismissed the appeal for want of jurisdiction, holding that Welsh could not create a final, appealable order from the trial court's decision simply by filing a voluntary dismissal as to the remaining claims. See 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 the common pleas court for leave to file amended consolidated complaints, a motion that the court granted. Welsh filed its amended complaints to eliminate the unadjudicated claims and create a final, appealable order, from which Welsh filed its notice of appeal to this court. On its second appeal now before this court, Welsh asserts two assignments of error.

{¶ 12} Assignment of Error No. 1:

{¶ 13} “The trial court's and magistrate's distinction between ‘service’ and ‘filing,’ for purposes of perfecting an appeal under R.C. 2505.04, contradicts well-established Ohio Supreme Court precedent.”

{¶ 14} Welsh argues that the court erred in finding that it lacked subject matter jurisdiction over the consolidated appeals and asserts that this court should overrule its prior decisions, as we have ignored the binding precedent established by the Ohio Supreme Court in Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 12 O.O.3d 198, 389 N.E.2d 1113.

{¶ 15} It is well settled that the filing of a notice of appeal pursuant to R.C. 2505.04 is essential to vest a common pleas court with jurisdiction to hear an administrative appeal. See Guysinger v. Chillicothe Bd. of Zoning Appeals (1990), 66 Ohio App.3d 353, 584 N.E.2d 48; Weatherholt v. Hamilton, Butler App. No. CA2007-04-098, 2008-Ohio-1355, 2008 WL 757528, ¶ 6. Jurisdiction does not vest in the common pleas court unless and until an appeal is perfected. Id. R.C. 2505.04 provides that “an appeal is perfected when a 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.” Further, R.C. 2505.07 requires that such an appeal be

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perfected within 30 days of the entry of a final order by the involved commission.

{¶ 16} In 1979, the Ohio Supreme Court considered what would satisfy the filing requirements of R.C. 2505.04 in the context of an administrative appeal. Dudukovich, 58 Ohio St.2d 202, 12 O.O.3d 198, 389 N.E.2d 1113. In Dudukovich, the appellee ¹ sent a copy of the notice of appeal to the housing authority by certified mail and filed a copy with the Lorain County Common Pleas Court two days later. On appeal to the Ohio Supreme Court, the housing authority argued that the common pleas court lacked jurisdiction to hear the appeal because the appellee did not comply with the requirements of R.C. 2505.04. Thus, the issue before the Ohio Supreme Court was whether the appellee had sufficiently complied with R.C. 2505.04 by mailing a copy of the notice of appeal to the housing authority. Dudukovich at 204, 12 O.O.3d 198, 389 N.E.2d 1113.

{¶ 17} Dudukovich held that “the 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. Fulton, Supt. of Banks v. State ex rel. General Motors Corp. (1936), 130 Ohio St. 494[, 5 O.O. 142, 200 N.E. 636]. Rather, ‘[t]he term “filed” * * * requires actual delivery * * *.’ Id. at paragraph one of the syllabus.” Id.

{¶ 18} The court further held that no particular method of delivery is prescribed by the statute, and “ ‘any method productive of certainty of accomplishment is countenanced.’ ” Id., quoting Columbus v. Upper Arlington (1964), 31 O.O.2d 351, 201 N.E.2d 305, 308. The court then determined that the housing authority did receive the mailed copy of the notice of appeal and presumed timely delivery of the notice.

{¶ 19} In the case sub judice, Welsh argues that pursuant to Dudukovich, “filing” for purposes of R.C. 2505.04 requires “actual delivery,” and if no particular method of delivery is prescribed by statute, then effectuating service of a copy of the filed combination notice of appeal and civil complaint through the clerk of courts, within the required 30-day period, constitutes a perfected appeal. We disagree.

{¶ 20} The right to appeal is conferred by statute and can be perfected only in the manner prescribed by that statute. Midwest Fireworks Mfg. Co. v. Deerfield Twp. Bd. of Zoning Appeals (2001), 91 Ohio St.3d 174, 177, 743 N.E.2d 894; Zier v. Bur. of Unemployment Comp. (1949), 151 Ohio St. 123, 38 O.O. 573, 84 N.E.2d 746, paragraph one of the syllabus; McCruter v. Bd. of Review, Bur. of Emp. Serv. (1980), 64 Ohio St.2d 277, 279, 18 O.O.3d 463, 415 N.E.2d 259; Guysinger, 66 Ohio App.3d at 357, 584 N.E.2d 48; Thrower v. Akron, Summit App. No. 21061, 2002-Ohio-5943, 2002 WL 31423701, ¶ 17. As stated by the Ohio Supreme Court, “[n]o one would contend that a notice of appeal need not be filed within the time fixed by statute. Compliance with a requirement that a notice of appeal shall be filed within the time specified, in order to invoke jurisdiction, is no more essential than that the notice be filed at the place designated and that it be such in content as the statute requires.” (Citations omitted.) Zier, 151 Ohio St. at 125, 38 O.O. 573, 84 N.E.2d 746.

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{¶ 21} The language of R.C. 2505.04 expressly requires that the notice of appeal be filed with the board from which Welsh appeals. R.C. 2505.04; Dudukovich, 58 Ohio St.2d at 204, 12 O.O.3d 198, 389 N.E.2d 1113 (appeal must be filed with the board or agency from which the appeal is being taken and with the common pleas court); Nibert v. Ohio Dept. of Rehab. & Corr. (1998), 84 Ohio St.3d 100, 101, 702 N.E.2d 70 (R.C. 2505.04 “states that an appeal is perfected by the timely filing of the notice of appeal with the particular agency”); Guysinger, 66 Ohio App.3d at 357, 584 N.E.2d 48; Chapman v. Hous. Appeals Bd. (Aug. 13, 1997), Summit App. No. 18166, 1997 WL 537651.

{¶ 22} As Dudukovich held, R.C. 2505.04 does not prescribe a method of delivery when filing the notice of appeal. The statute is explicit, however, in requiring that the notice be filed with the agency or board. As we have consistently held, a clerk's service of a notice of...