NVR, INC. v. CITY OF CENTERVILLE, et al.
C.A. CASE NO. 27021
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
September 23, 2016
2016-Ohio-6960
T.C. NO. 15CV5505 (Civil Appeal from Common Pleas Court)
OPINION
Rendered on the 23rd day of September, 2016.
MICHAEL P. McNAMEE, Atty. Reg. No. 0043861 and GREGORY B. O’CONNOR, Atty. Reg. No. 0077901, 2625 Commons Blvd., Beavercreek, Ohio 45431 Attorneys for Plaintiff-Appellant
SCOTT A. LIBERMAN, Atty. Reg. No. 0058432 and
FROELICH, J.
{¶ 1} NVR, Inc., d.b.a. Ryan Homes, appeals from a judgment of the Montgomery County Court of Common Pleas, which sustained a motion by the City of Centerville to dismiss NVR’s administrative appeal. Centerville had denied NVR’s preliminary development plan for a particular parcel of land, and NVR filed an administrative appeal pursuant to
{¶ 2} For the following reasons, the judgment of the trial court will be reversed.
I. Facts and Procedural History
{¶ 3} It appears from the record that there have been multiple attempts to develop the property that is at issue in this appeal, which is an approximately 33-acre parcel of land on East Alex Bell Road in Centerville. We will discuss this history only insofar as it is relevant to this appeal.
{¶ 4} NVR filed a preliminary development plan with the City of Centerville in May 2015. In June 2015, the planning commission voted to approve the plan, subject to eight conditions. However, on September 21, 2015, the Centerville City Council voted to reverse the approval in its entirety. On September 25, 2015, the Centerville Clerk of Council mailed a letter to NVR, informing it of the City Council’s action on the preliminary development plan.
{¶ 5} On October 19, 2015, the Centerville City Council adopted the minutes of its September 21, 2015 meeting. On October 20, NVR filed its notice of administrative appeal in the court of common pleas. This notice was served on the city on October 26, 2015.
{¶ 6} On November 16, 2015, NVR filed a petition for writ of mandamus in the trial court, arguing that the city council did not have authority to modify or reverse the decision of the planning commission with respect to approval of a preliminary or final development plan, that the city council’s actions precluded NVR from submitting -- and the planning commission from approving -- a final development plan, and that NVR did not have an adequate remedy at law.
{¶ 7} On November 25, 2015, the petition for writ of mandamus (Case No. 2015 CV 6026) and the administrative appeal (Case No. 2015 CV 5505) were consolidated by the court of common pleas.
{¶ 8} On January 6, 2016, Centerville filed a
{¶ 9} On February 9, 2016, the trial court filed a “Decision, Order, and Entry” sustaining Centerville’s motion to dismiss for lack of subject matter jurisdiction. The court concluded that city council’s September 25, 2015, letter to NVR had
{¶ 10} NVR raises one assignment of error on appeal, which challenges the trial court’s conclusion that it lacked subject matter jurisdiction. NVR challenges the trial court’s conclusions in several respects, arguing that 1) the September 25, 2015, letter from the Clerk of Council informing it of the city council’s decision was not a final order, 2) the letter “was not an order at all,” 3) the 30-day deadline for commencing an appeal was extended by the fact that the 30th day fell on a Sunday, and 4) the date on which the letter was mailed did not start the 30-day appeal period.
II. Standard for Appellate Review of an Administrative Decision
{¶ 11} When an appellate court reviews a common pleas court’s decision regarding an administrative order, the appellate court uses two distinct standards of review. On a question of fact, an appellate court’s review is limited to an abuse of discretion; however, on a question of law, an appellate court’s review is de novo. Key Ads, Inc. v. Dayton Bd. of Zoning Appeals, 2014-Ohio-4961, 23 N.E.3d 266, ¶ 13 (2d Dist.), citing Lamar Outdoor Advertising v. Dayton Bd. of Zoning Appeals, 2d Dist. Montgomery No. 18902, 2002 WL 1349600, * 2 (June 21, 2002) and Ohio Dept. of Commerce, Div. of Real Estate v. DePugh, 129 Ohio App.3d 255, 261, 717 N.E.2d 763 (4th Dist.1998).
III. If the 30th Day for Filing an Administrative Appeal is a Sunday, is the Deadline Extended?
{¶ 12} We begin with NVR’s argument that, if the September 25, 2015, letter were the city’s final order, NVR’s filing of a notice of appeal on October 26 was timely.
{¶ 13} “The filing of a notice of appeal under
{¶ 14} There are several authorities for the proposition that, where a period in which to perform an action is set forth by statute, and the final day of the period falls on a Sunday, the action can be performed on the following business day. Most importantly,
{¶ 15} Centerville argues that
applies to the calculation of the statute of limitations, notwithstanding that statutes setting forth limitation periods do not specifically incorporate
{¶ 16}
{¶ 17}
(A) Every final order, judgment, or decree of a court and, when provided by law, the final order of any administrative officer, agency, board, department, tribunal, commission, or other instrumentality may be reviewed on appeal by a court of common pleas, a court of appeals, or the supreme court, whichever has jurisdiction.
(B) Unless, in the case of an administrative-related appeal,
Chapter 119. or other sections of the Revised Code apply, such an appeal is governed by this chapter and, to the extent this chapter does not contain a relevant provision, the Rules of Appellate Procedure. * * *
(Emphasis added.)
{¶ 18}
{¶ 19} Centerville also argues that NVR is not permitted to rely on such “procedural” rules “to try to expand the jurisdiction of” the trial court “for the first time on appeal,” and that NVR waived any argument related to the calculation of the deadline by failing to raise it in the trial court. Centerville asserts that the trial court was not “presented with the opportunity to consider whether
{¶ 20} The applicability of
{¶ 21} “A defect in subject-matter jurisdiction cannot be waived or forfeited and may, therefore, be raised at any time.” Engelhart at ¶ 6, citing State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 10; State v. Wilson, 73 Ohio St.3d 40, 46, 652 N.E.2d 196 (1995) (“The issue of a court’s subject matter jurisdiction cannot be waived. A party’s failure to challenge a court’s subject matter jurisdiction cannot be used, in effect, to bestow jurisdiction on a court where there is none.“); State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27 (“invited error” is a branch of the waiver doctrine and is also inapplicable to an attack on the subject matter jurisdiction); Vilk v. Dinardo, 8th Dist. Cuyahoga No. 103755, 2016-Ohio-5245, ¶ 10 (“the question of a court’s subject matter jurisdiction can be raised at any time -- even after judgment or on appeal“); Leist v. Mad River Twp. Bd. of Trustees, 2d Dist. Clark No. [2015]-CA-86, 2016-Ohio-2960, ¶ 6 (issues related to subject matter jurisdiction cannot be waived and may be raised sua sponte by an appellate court). See also United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (because subject matter jurisdiction goes to the power of the court to adjudicate the merits of a case, it “can never be forfeited or waived“); Rote v. Zel Custom Mfg, LLC, 816 F.3d 383, 392 (6th Cir.2016) (holding that jurisdictional arguments not raised in the district court are not waived on appeal). Although most cases addressing this issue deal with an alleged lack of subject matter jurisdiction, whereas NVR’s argument here asserts the existence of subject matter jurisdiction, we apply the doctrine of waiver equally to both sides of an argument.
{¶ 22} Furthermore, even assuming that an argument as to the presence of a trial court’s subject matter jurisdiction could be
{¶ 23} Goldfuss held that plain error should not be applied in a civil case where the Appellant did not object to certain jury instructions; in fact, counsel indicated that the proposed instruction was “a hundred percent correct.” Goldfuss at 119. Unlike Goldfuss, the issue in this case is not that NVR failed to argue to the trial court that the court had jurisdiction, but rather that it did not explicitly argue one of the reasons why the court did have jurisdiction. Moreover, issues related to jurisdiction are qualitatively different from issues related to jury instructions, admissibility of evidence, and the like, where a party’s acquiescence might reasonably factor into a court’s decision.
{¶ 24} Our duty is to address NVR’s assignment of error that the trial court erred in determining it did not have jurisdiction, i.e., the statutory or constitutional power to adjudicate the case; a court either has or does not have that power, as a matter of law. Controversies should be decided, whenever possible, on their merits.
{¶ 25} We also note that to interpret
{¶ 26} The parties do not dispute that the 30th day following the mailing of the city council’s decision on September 25 was October 25, a Sunday. Under these circumstances, pursuant to
{¶ 27} NVR’s other assignments are moot. Regardless of whether the final order were the September 25 letter or the October 19 adoption of the minutes from the city council’s prior meeting, the October 26 notice of appeal conferred the trial court with subject matter jurisdiction.
{¶ 28} The assignment of error is sustained.
IV. Conclusion
{¶ 29} The judgment of the trial court will be reversed, and the matter will be remanded for further proceedings.
WELBAUM, J., concurs.
I agree that
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Michael P. McNamee
Gregory B. O’Connor
Scott A. Liberman
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Cristina Neuman
Hon. Mary Katherine Huffman