VENZELLA JACOBS v. CUYAHOGA METROPOLITAN HOUSING AUTHORITY
No. 102248
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
June 11, 2015
[Cite as Jacobs v. Cuyahoga Metro. Hous. Auth., 2015-Ohio-2278.]
BEFORE: Boyle, P.J., S. Gallagher, J., and Laster Mays, J.
Administrative Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-829646
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: June 11, 2015
Abigail C. Staudt
Hazel G. Remesch
Maria A. Smith
Legal Aid Society of Cleveland
1223 West 6th Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Harold C. Reeder
Cuyahoga Metropolitan Housing Authority
Office of Legal Affairs
8120 Kinsman Road
Cleveland, Ohio 44104
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
{¶2} Appellant, Venzella Jacobs, appeals from the trial court‘s judgment entry dismissing her administrative appeal for lack of jurisdiction. Finding merit to the appeal, we reverse and remand for further proceedings.
Procedural History and Facts
{¶3} Jacobs had been a participant in the Section 8 Housing Choice Voucher Program administered by appellee, Cuyahoga Metropolitan Housing Authority (“CMHA“). In April 2014, CMHA sent Jacobs a “Proposal for Termination” letter, seeking to terminate Jacobs from the voucher program after she missed her annual re-examination meeting. Jacobs requested a hearing on the matter, which was heard by a hearing officer on June 4, 2014. CMHA ultimately issued a hearing decision, dated June 13, 2014, which terminated Jacobs‘s participation in the voucher program, effective June 30, 2014.
{¶4} On July 11, 2014, Jacobs electronically filed a notice of appeal from the administrative hearing decision with the court of common pleas and mailed a copy of the notice of appeal to CMHA by regular U.S. mail. The notice of appeal contained a certificate of service stating that a copy had been served on CMHA by regular U.S. mail on July 11, 2014. Jacobs also electronically filed with the trial court a motion for stay of administrative decision pending appeal, praecipe to administrative agency for transcript,
{¶5} On September 18, 2014, the trial court scheduled a hearing on the motion for stay for the following week. The trial court, however, sua sponte cancelled the hearing and subsequently issued a journal entry stating the following:
Upon review of the docket and notice of appeal, the court is on notice that appellant has failed to properly serve appellee in this matter. Hearing on motion for stay of administrative decision pending appeal reset to 10/08/2014 at 1:30. Failure to perfect service may result in dismissal for failure to prosecute.
{¶6} On October 6, 2014, Jacobs hand-delivered an additional copy of the notice of appeal and the accompanying motions to CMHA and electronically filed a notice with the trial court of such action on the same day.
{¶7} Two days later, CMHA did not appear at the hearing on the motion for stay; instead, it moved to dismiss Jacobs‘s action under
To satisfy the jurisdictional requirement, the administrative agency must receive the appropriate complaint and notice within 30 days after entry of the final administrative order. * * * While appellant‘s certificate of service states that a copy of the notice of appeal was sent via ordinary U.S. mail, there is no evidence in the record that the administrative body actually received notice of the appeal within the required 30 days.
{¶9} From that decision, Jacobs appeals, raising two assignments of error, namely, that (1) the trial court erred in holding that the regular U.S. mail service on CMHA failed to effect proper and timely service on CMHA to satisfy the jurisdictional requirement, and (2) the sole ground asserted in CMHA‘s motion to dismiss is contrary to well-established law.
Standard of Review
{¶10} The issue of subject matter jurisdiction is a question of law that we review de novo. Bank of Am. v. Macho, 8th Dist. Cuyahoga No. 96124, 2011-Ohio-5495, ¶ 7. Here, although CMHA moved to dismiss the action on insufficiency of process and insufficiency of service of process grounds, the trial court dismissed the action based on a finding that jurisdiction was lacking. The trial court specifically referenced the 30-day filing deadline necessary to invoke the subject matter jurisdiction of the court. We therefore review the trial court‘s decision to dismiss the action under a de novo standard.
R.C. Chapter 2506 Administrative Appeal
{¶11} In her first assignment of error, Jacobs argues that “the trial court erred, as a matter of law, in holding that the regular U.S. mail service by Ms. Jacobs on CMHA failed to effect proper and timely service on CMHA in this
{¶12} Article IV, Section 4(B), of the Ohio Constitution provides, “The courts of common pleas * * * shall have * * * such powers of review of proceedings of administrative officers and agencies as may be provided by law.” In accordance with this provision, the General Assembly enacted
{¶13} When the right to appeal is conferred by statute, an appeal can be perfected only in the manner prescribed by the applicable statute. Welsh Dev. Co. Inc. v. Warren Cty. Regional Planning Comm., 128 Ohio St.3d 471, 2011-Ohio-1604, 946 N.E.2d 215, ¶ 14.
{¶14}
every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department, or other division of any political
subdivision of the state may be reviewed by the court of common pleas of the county in which the principal office of the political subdivision is located as provided in Chapter 2505 of the Revised Code.
{¶15} “While
{¶16} Under
{¶17}
{¶18} Notably, in Welsh, the Ohio Supreme Court emphasized that service by the clerk of court is not required. Specifically, the court stated that “[p]ractioners should not be confused or think that filing under
{¶19} In this case, Jacobs sent a copy of the notice of appeal by regular mail to a destination in the same city two days prior to the expiration of the statutory time limit. CMHA never disputed that it timely received a copy of Jacobs‘s notice of appeal. Nor is there any evidence that the envelope containing the notice of appeal was returned for failure of delivery. To the contrary, Jacobs‘s counsel represented to the court that the envelope was not returned for failure of delivery. There is nothing in the record to overcome the presumption of timely delivery in this case. See Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 206-207, 389 N.E.2d 1113 (1979) (“Appellant having presented no evidence of late delivery, a presumption of timely delivery controls[.]“); In re Jones-Smith, 8th Dist. Cuyahoga No. 93276, 2009-Ohio-6470, ¶ 14 (“We presume that service was effective when the certificate of service was entered on the record and the envelope was not returned for failure of delivery.“).
{¶21} The first assignment of error is sustained.
Application of Ohio Civil Rules of Procedure
{¶22} In her second assignment of error, Jacobs argues that the trial court erred in granting CMHA‘s motion to dismiss when the sole argument raised in support of the motion is contrary to well-established law. As stated above, CMHA did not move to dismiss the appeal on the basis that Jacobs failed to timely deliver the notice of appeal. Instead, its sole argument for dismissal was that Jacobs “wholly failed to instruct the clerk of court to serve her notice of appeal” upon CMHA, thereby failing to effect proper service of process.
{¶23} The crux of CMHA‘s argument on appeal is that
{¶24} The Rules of Civil Procedure prescribe the procedure to be followed in all courts of this state in the exercise of civil jurisdiction at law or in equity, subject to certain exceptions.
{¶25}
{¶26} In this appeal, the application of
{¶27} Further, the Ohio Supreme Court as well as this court has consistently recognized that a notice of appeal in an
{¶28} CMHA fails to cite a single case where a court has held that the Ohio Civil Rules of Procedure governing service of process apply in an administrative appeal pursuant to
Rules of Civil Procedure apply to proceedings initiated pursuant to
R.C. 4112.06 ; therefore, the petition for review of an order of the Civil Rights Commission must be served by a clerk of courts on all parties who appeared before the commission and on the commission itself within one year of the date that the petition was filed, as required byCiv.R. 3(A) .
This holding, however, relates specifically to proceedings initiated under
{¶29} Jacobs‘s second assignment of error is sustained.
{¶30} Judgment reversed, and case remanded for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee the costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, PRESIDING JUDGE
ANITA LASTER MAYS, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:
{¶31} I respectfully concur in judgment only with the majority‘s decision. Although