Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning Comm.Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning Comm.
(Nos. 2010-0611 and 2010-0858 — Submitted February 2, 2011 — Decided April 7, 2011.)
APPEAL from and CERTIFIED by the Court of Appeals for Warren County, No. CA2009-07-101, 186 Ohio App.3d 56, 2010-Ohio-592.
SYLLABUS OF THE COURT
An administrative appeal is considered filed and perfected for purposes of
O’CONNOR, C.J.
{¶ 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
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.
{¶ 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 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
{¶ 8} The magistrate found that the property owners had failed to properly file their notices of appeal with the WCRPC in accordance with {¶ 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. {¶ 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 {¶ 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 {¶ 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} {¶ 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 {¶ 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 N.E. 636, paragraph one of the syllabus. {¶ 19} We then held that “there [was] evidence in the record that [the housing authority] did eventually receive the mailed copy of the notice,” and thus the salient question was “whether it received the notice within the * * * time limit prescribed” by {¶ 20} Since our holding in Dudukovich, appellate courts frequently have interpreted {¶ 21} Some appellate courts have narrowly construed our holding in Dudukovich by distinguishing between the terms “service” and “filing.” These appellate courts hold that a clerk of courts’ service of a notice of appeal upon an administrative agency is not a filing of an appeal with the agency for purposes of perfecting an administrative appeal pursuant to {¶ 22} These appellate courts hold that a party who uses the clerk of courts to serve the notice of appeal upon the agency has not filed an appeal and therefore has not perfected a notice of appeal as required by {¶ 23} Here, the Twelfth District followed the same analyses set forth by the foregoing precedent and interpreted Dudukovich narrowly, distinguishing between service and filing for purposes of {¶ 24} “As Dudukovich held, {¶ 25} The Twelfth District further determined that extending Dudukovich would not only disturb precedent but would also encourage parties, such as Welsh {¶ 26} But other appellate courts have interpreted our decision in Dudukovich broadly. In Price v. Margaretta Twp. Bd. of Zoning Appeals, Erie App. No. E-02-029, 2003-Ohio-221, a property owner filed his notice of appeal with the common pleas court and requested the clerk of courts to advise the board of zoning appeals of his appeal. The Sixth District held that ” {¶ 27} In Evans v. Greeneview Local School Dist. (Jan. 4, 1989), Greene App. No. 88 CA 40, 1989 WL 569, students filed a notice of appeal with the clerk of courts. The clerk sent a copy of the notice of appeal by certified mail to the school district. The Second District concluded: “[I]n light of Dudukovich[,] * * * notice was timely and properly given to the School District. Since a copy of the notice of appeal was actually delivered to the School District, the notice of appeal was “filed” with the School District.” Id. at *2. {¶ 28} As the dissent in the court of appeals in this case recognized, we have not interpreted {¶ 29} Our decision to broadly interpret Dudukovich is consistent with our precedent setting forth the purpose of notices of appeals. We have long held that the purpose of a notice of appeal is to inform the opposing party of the taking of {¶ 30} When service of a notice of an appeal by the clerk of courts informs and apprises the administrative agency of the taking of an appeal, sets forth the names of the parties, and advises those parties that an appeal of a particular claim is forthcoming, the notice of appeal has satisfied its purpose and the legislative intent in {¶ 31} Turning to the facts in the instant case, we hold that Welsh and the property owners “sufficiently complied” with {¶ 32} Furthermore, the service of the notice of appeal served its purpose because it informed and apprised WCRPC of the administrative appeal by Welsh {¶ 33} Our holding today does not minify the statutory requirements of perfecting an appeal. In fact, our holding is consistent with our previous decisions delineating the purpose of filing a notice of appeal. {¶ 34} Nor does our holding today mean that we are adopting a new rule of substantial compliance with respect to {¶ 35} WCRPC challenges the process used here to invoke appellate jurisdiction and argues that the clerk of courts is not authorized to “file” a notice of an appeal with an administrative agency, although the clerk has the ability to make service of process. WCRPC reads {¶ 36} Those appellate courts that have held that a clerk of courts could not file an appeal from an administrative order on behalf of the appellant have distinguished “filing” from “service” without the benefit of clear definitions of either term in the appellate rules. In the general sense, filing is actual delivery. It means taking a document to a clerk of courts for file-stamping as a court record. {¶ 37} In Zanesville, we considered whether lack of a clerk’s file-stamp would defeat the act of filing. We stated that the filing of a document does not depend on a clerk’s certification, for the clerk’s duty to certify arises only after a document has been presented: “A party “files” by depositing a document with the clerk of court, and then the clerk’s duty is to certify the act of filing. In short, the time or date stamp does not cause the filing; the filing causes the certification.” Zanesville at ¶ 7. {¶ 38} The concepts of service and filing both relate to notice, which is the crucial point. A person or entity is served when actual delivery is made to the intended target, usually a party to a lawsuit. Filing is accomplished when actual and timely delivery is made to the correct tribunal. No appellate rule makes the identity of the actor critical. And so, contrary to what WCRPC argues before us, nothing prevents a clerk who serves process from being requested by praecipe to transmit a complaint and notice of appeal to an administrative agency so that it may be deemed filed with that agency when it is received. The clerk is not an agent of the appellant. At most, the clerk is a delivery conduit in the same way as mail service or Federal Express. {¶ 39} We are not redefining the word “filing” in holding that an administrative appeal may be perfected when a party files a notice of appeal with the clerk of courts accompanied by a praecipe for the clerk to serve the complaint {¶ 40} Practitioners should not be confused or think that filing under {¶ 41} We hold today that the purpose of Judgment reversed and cause remanded. PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. Frost Brown Todd, L.L.C., Matthew C. Blickensderfer, Scott D. Phillips, and Benjamin J. Yoder, for appellants. Surdyk, Dowd & Turner Co., L.P.A., Robert J. Surdyk, and Kevin A. Lantz, for appellee.Analysis
Dudukovich v. Lorain Metro. Hous. Auth.
Conflicting Decisions of Appellate Courts Interpreting
Application to This Case