THE HOMELESS CHARITY, et al. v. CITY OF AKRON
C.A. No. 29334
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
December 26, 2019
2019-Ohio-5330
STATE OF OHIO )
)ss:
COUNTY OF SUMMIT )
IN THE COURT OF APPEALS
NINTH JUDICIAL DISTRICT
THE HOMELESS CHARITY, et al.
Appellants
v.
CITY OF AKRON
Appellee
C.A. No. 29334
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. CV-2018-10-4270
DECISION AND JOURNAL ENTRY
Dated: December 26, 2019
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.
I.
{¶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
{¶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
{¶4} The Homeless Charity now appeals to this Court, raising two assignments of error.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED IN HOLDING THAT APPELLANTS FAILED TO PROVIDE EVIDENCE THAT IT IS SUFFICIENT TO SERVE THE NOTICE OF APPEAL REQUIRED UNDER
{¶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. 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}
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,
{¶8} “Although the person attempting to appeal does not have to use a particular method to deliver his notice of appeal to the administrative body, ‘[f]iling does not occur until there is actual receipt by the agency within the time prescribed by
{¶9} This Court has specifically stated that “we reject the argument that service of a notice of appeal on the opposing party’s lawyer is the same as filing it with the appropriate administrative body.” Lorenzo Properties, II, Inc. v. City of Akron, 9th Dist. Summit No. 25807, 2011-Ohio-5369, ¶ 12. In Highland Square Mgt. v. City of Akron, 9th Dist. Summit Nos. 27211 and 27372, 2015-Ohio-401, ¶ 10, we noted that other Ohio appellate courts had also determined that service upon an administrative body’s attorney does not satisfy the filing requirement of
{¶10} We also acknowledged Smola v. Legeza, 11th Dist. Ashtabula No. 2004-A-0038, 2005-Ohio-7059, where the notice of appeal from a decision of the Conneaut Board of Zoning Appeals was delivered to the Conneaut City Manager and Zoning Inspector Office. The
{¶11} The Homeless Charity points to this language, and argues that it provided factual support by showing: (1) the purpose of the
{¶12} The Homeless Charity’s first assignment of error is overruled.
THE TRIAL COURT ERRED IN HOLDING THAT THE FAILURE OF THE SUMMIT COUNTY CLERK OF COURT TO TIMELY SERVE THE NOTICE OF APPEAL TERMINATED THE SUBJECT-MATTER JURISDICTION OF THE SUMMIT COUNTY COURT OF COMMON PLEAS.
{¶13} In its second assignment of error, the Homeless Charity argues that the trial court erred in holding that the failure of the Clerk of Court to timely serve the notice of appeal terminated its subject-matter jurisdiction, because Ohio courts do not lose subject-matter jurisdiction due to a filing error committed by the Clerk of Courts. We disagree.
{¶14} The Homeless Charity’s argument is premised on the theory that “the Notice of Appeal, due to clerical error of the Clerk of Court for the Summit County Court of Common Pleas, was not timely served on the Akron Law Director.” Because we concluded in the first assignment of error that, in this matter, service upon the Law Director would not satisfy the filing requirement of
{¶15} The Homeless Charity’s second assignment of error is overruled.
III.
{¶16} The Homeless Charity’s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, J.
CONCURS.
CARR, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
JEFFREY ROWES, Attorney at Law, for Appellants.
DIANA K. SIMPSON, Attorney at Law, for Appellants.
REBECCA J. SREMACK, Attorney at Law, for Appellants.
EVE V. BELFANCE, Director of Law, and JOHN R. YORK and BRIAN D. BREMER, Assistant Directors of Law, for Appellee.