Lead Opinion
{¶ 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
{¶ 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 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.
(¶ 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),
{¶ 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),
{¶ 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,
{¶ 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),
{¶ 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),
{¶ 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),
{¶ 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,
{¶ 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 appeal upon the WCRPC is insufficient to confer jurisdiction on the common pleas court pursuant to R.C. 2505.04. Ware v. Hamilton Civ. Serv. Comm. (Aug. 29, 1994), Butler App. No. CA94-01-020, at 3,
{¶ 23} Despite the contentions of both the dissent and Welsh that this court has ignored Ohio Supreme Court precedent set forth in Dudukovich, we find Dudukovich factually distinguishable from our prior cases and the case sub judice. In Dudukovich, the appellee herself mailed a copy of the notice of appeal directly to the administrative agency. In the present case, however, as in our prior cases Weatherholt and Ware, the clerk of courts caused the notice of appeal to be personally served on the administrative agency. Because the appellee in Dudukovich actually delivered her notice of appeal to the administrative agency, rather than having the clerk cause it to be served, these cases are distinguishable. See also Genesis Outdoor Advertising, Inc. v. Deerfield Twp. Bd. of Zoning Appeal, Portage App. No. 2001-P-0137,
{¶ 24} Although we recognize a split among appellate districts in determining whether service of a notice of appeal on an administrative agency is sufficient to
{¶ 25} The Eleventh District has consistently held that “[sjervice is not the equivalent of filing the notice with the [administrative agency]. Filing with the proper agency is essential in order to vest the court of common pleas with jurisdiction to hear the case.” Marks v. Streetsboro Planning Comm. (Dec. 3, 1999), Portage App. No. 98-P-0076,
{¶ 26} The Eleventh District Court of Appeals analyzed its holding under Dudukovich in Genesis Outdoor Advertising, Inc.,
{¶ 27} The court in Genesis then stated that although it might appear “at first blush” that its decisions in Trickett and other similar cases conflict with Dudukovich and Genesis, the cases are factually distinguishable. Id. at ¶ 16. The court reasoned that in Trickett and the like, the clerk of courts caused the notice to be personally served on the board, and because service is not the equivalent of filing the notice, the appellants in those cases failed to satisfy the requirements of R.C. 2505.04. In Dudukovich and Genesis, however, the parties actually delivered their notices of appeal to the administrative agency by mail. Therefore, the cases are not in conflict, as they are factually distinguishable.
{¶ 28} The Tenth District Court of Appeals has also consistently held that “a clerk of court’s service of a notice of appeal upon an appellee is not the filing of an appeal ‘with an administrative officer, agency, board, department, tribunal, commission, or other instrumentality involved.’ ” Black-Dotson v. Obetz, Franklin App. No. 06AP-112,
{¶ 29} In 1990, the Fourth District Court of Appeals addressed the issue in Guysinger,
{¶ 30} The appellants in Guysinger argued on appeal that service of the summons and notice of appeal is the functional equivalent of filing a notice of appeal with the zoning board. Id. The Fourth District held that the pleading, filed by the appellants, was not filed in the place designated by R.C. 2505.04 and therefore could not be considered as a notice of appeal sufficient to satisfy the jurisdictional prerequisite of the statute. Id. at 357,
{¶ 31} The Third and Ninth District Court of Appeals have also held that an appeal is not perfected pursuant to R.C. 2505.04 through a clerk of courts’ service on the administrative agency. See Jacobs v. Marion Civ. Serv. Comm. (1985)
{¶ 32} Although the Fifth District Court of Appeals has not specifically addressed whether an administrative appeal is perfected through a clerk of courts’ service of a notice of appeal on an agency, it has cited Guysinger for the proposition that a party must file a notice of appeal with the agency itself in order to vest the common pleas court with jurisdiction. Hagan v. Marlboro Twp. Bd. of Zoning Appeals (Jan. 29, 1996), Stark App. No. 95 CA 0086,
{¶ 33} The dissent claims this court and the appellate districts with whom we agree rely upon an “erroneous reading” of R.C. 2505.04 “due to [our] failure to follow the mandates of Dudukovich.” We, however, agree with the holding in the Ohio Supreme Court decision: R.C. 2505.04 requires that written notice be filed with the agency or board from which the appeal is being taken in order for the
{¶ 34} Moreover, we decline to extend Dudukovich to permit parties appealing administrative decisions to disregard the explicit requirements of R.C. 2505.04. Not only would such an extension ignore the Ohio Supreme Court mandate that an appeal can be perfected only in the manner prescribed by that statute, but the extension would ignore 16 years of established court precedent that has created stability and predictability when filing an administrative appeal in the Twelfth District. See Midwest Fireworks,
{¶ 35} The precedent established in this court over the last 16 years to perfect an administrative appeal pursuant to R.C. 2505.04 was not followed. The dissent asserts that this court should abandon its prior decisions because of a disagreement with our interpretation of R.C. 2505.04 after Dudukovich. Neither Welsh nor the dissent, however, has analyzed such a departure from the doctrine of stare decisis under the standard outlined by the Ohio Supreme Court in Galatis.
{¶ 36} As the Ohio Supreme Court explained, “[t]he doctrine of stare decisis is designed to provide continuity and predictability in our legal system. We adhere to stare decisis as a means of thwarting the arbitrary administration of justice as well as providing a clear rule of law by which the citizenry can organize their affairs.” Galatis,
{¶ 38} “Considerations in favor of stare decisis are at their acme * * * where reliance interests are involved.” Id. at ¶ 31, quoting Payne v. Tennessee (1991),
{¶ 39} This court will adhere to precedent unless “(1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it.” Galatis,
(¶ 40} The first element we consider is whether Ware and Weatherholt were wrongly decided at the time this court decided both cases: Ware in 1994 and Weatherholt in 2008. Our discussion above demonstrates why the cases were not wrongly decided, and we find no change in circumstances that would not justify continued adherence to those decisions. The language of R.C. 2505.04 is clear: a party must file a notice of appeal with the agency from which it is appealing. We will not modify the language of the statute to insert a phrase permitting a party to perfect an administrative appeal by filing a notice with the common pleas court and causing a copy to be served upon the agency through a clerk of courts. See Cline v. Ohio Bur. of Motor Vehicles (1991),
{¶ 41} Secondly, we consider whether our decisions defy practical workability. Galatis,
{¶ 42} Finally, we consider whether abandoning the precedent would create an undue hardship for those who have relied upon it. Galatis at ¶ 48. Litigants and lower courts within our district have a right to rely upon consistent case law and should not be subjected to arbitrary administration of justice. See id. at ¶ 43. Moreover, they are bound by our decisions until the Ohio Supreme Court overrules them. “At its core, stare decisis allows those affected by the law to order their affairs without fear that the established law upon which they rely will suddenly be pulled out from under them.” James B. Beam Distilling Co. v. Georgia (1991),
{¶ 43} Notably, the appellant in Weatherholt attempted to perfect her appeal through service of process in 2006, one year after Welsh. The dissent fails to recognize the undue hardship and unfairness resulting from a departure from our prior decisions. It would create confusion among those litigants and courts who have relied upon our long-standing decision in Ware, which was reaffirmed less than two years ago in Weatherholt.
{¶ 44} It is clear that this court should not abandon the principles of stare decisis in this case. The decisions upon which we rely were not wrongly decided, and any departure from established precedent would create undue hardship.
{¶ 45} Accordingly, we find unpersuasive Welsh’s argument extending Dudukovich to permit a request to serve the administrative agency with a copy of a notice of appeal as satisfaction of the explicit requirements set forth in R.C. 2505.04.
{¶ 46} Within its first assignment of error, Welsh also argues that it perfected its appeals by mailing copies of the cover letter, an unfiled complaint, an unfiled notice of supersedeas bond, and an unfiled praecipe to the WCRPC’s chief legal counsel within the required time period. Welsh asserts that the relationship between counsel and the WCRPC was sufficient to expect that delivery to counsel would put the WCRPC on notice of the appeal.
{¶ 47} Sending courtesy copies of documents to the Warren County assistant prosecutor does not constitute filing for purposes of R.C. 2505.04. Patrick Media Group, Inc. v. Cleveland Bd. of Zoning Appeals (1988),
{¶ 48} Therefore, service on the opposing counsel, despite a close relationship between counsel and the agency, is insufficient to satisfy R.C. 2505.04. Id. See also Bd. of Trustees Union Twp. v. Bd. of Zoning App. Union Twp. (Sept. 23, 1983), Licking App. No. CA-2965,
{¶ 49} Accordingly, Welsh has failed to employ the proper procedural channels to perfect its appeal, as prescribed in R.C. 2505.04. Welsh’s first assignment of error is overruled.
{¶ 50} Assignment of Error No. 2:
{¶ 51} “The trial court and magistrate erred to the prejudice of appellants by dismissing appellants’ corollary constitutional claims for failure to exhaust administrative remedies.”
{¶ 52} Welsh argues that the trial court erred in dismissing its constitutional claims against the WCRPC for failing to exhaust its administrative remedies. Welsh asserts that because it is challenging the constitutionality of various provisions of the Warren County Subdivision Regulations, it is not required to first exhaust its administrative remedies.
{¶ 53} Specifically, counts eight through ten of Welsh’s first complaint and counts seven through nine of its second complaint seek a declaratory determination that certain provisions of the regulations are unconstitutional as applied to Welsh. Its remaining claims, claims for regulatory taking, equal protection, and a violation of Section 1982, Title 42, U.S.Code, all stem from the alleged unconstitutionality of the subdivision regulations.
{¶ 54} Three elements are necessary to obtain a declarative judgment as an alternative to other remedies: (1) a real controversy exists between adverse
{¶ 55} The WCRPC raised in its answer, however, the affirmative defense that Welsh failed to exhaust its administrative remedies and is therefore barred from seeking declaratory relief. Prior to instituting a declaratory judgment action to determine the validity of the subdivision regulations, a party must ordinarily exhaust its administrative remedies. Karches v. Cincinnati (1988),
(¶ 56} Two exceptions to this rule exist, however. Id. First, exhaustion is not required if there is no available remedy that can provide the relief sought or if resorting to administrative remedies would be wholly futile. Second, exhaustion of remedies is unnecessary when the available remedy is onerous or unusually expensive. Karches,
{¶ 57} The first exception applies when it would be impracticable to pursue an administrative remedy because the administrative entity lacks the authority to render relief. Id. For instance, an administrative agency is without jurisdiction to determine the constitutional validity of a statute. Jones v. Chagrin Falls (1997),
{¶ 58} It is an entirely different matter, however, to assert that a party’s actions were unconstitutional. BP Communications,
{¶ 59} In Karches, the Ohio Supreme Court held that although the exhaustion of administrative remedies is usually required to determine the validity of a zoning ordinance as applied to a specific parcel of property, the property owners demonstrated through evidence of repeated applications and denials and evidence of a petition to change the city’s zoning ordinance that its attempts were futile.
Judgment affirmed.
Notes
. Marie Dudukovich was terminated from her employment with the housing authority. She appealed her termination to the common pleas court, and the court found in her favor. The
Concurrence in Part
concurring in part and dissenting in part.
{¶ 61} While I recognize that this district has followed this precedent since 1994, I believe this court’s decisions are an improper interpretation of R.C. 2505.04 and disregard clear Ohio Supreme Court precedent. Filing a notice of appeal with the court and service by the clerk of courts of a copy of the filed notice within the 30-day time limit constitutes a perfected appeal under R.C. 2505.04.
{¶ 62} This appellate district originally adopted the precedent followed by,the majority in the instant appeal in Ware v. Hamilton Civil Serv. Comm. (Aug. 29, 1994), Butler App. No. CA94-01-020,
{¶ 63} Guysinger was not adopted without criticism. Writing separately, Judge Koehler questioned the Ware majority. “I am not as certain as the majority that the notice of appeal in this cause was not ‘filed’ with the commission. The commission received notice of appeal within the time constraints established by statute. Appellant could have served the notice of appeal on the commission personally, by counsel, by his wife, or by any other agent he might have designated. The clerk of courts could be considered appellant’s agent. A filing stamp indicating the notice was also filed in the common pleas court would not prevent the notice of appeal from being sufficiently filed with the commission. No matter who presented the notice of appeal to the commission, the place designated by statute, and no matter how many other places it may have been filed before notice was given to the commission, it served its statutory purpose.”
{¶ 64} As the majority in the instant appeal indicates, the Ohio Supreme Court has issued one decision relating to the process of perfecting an administrative appeal under R.C. 2505.04, Dudukovich v. Lorain Metro. Hous. Auth. (1979),
{¶ 65} The majority mentions that four additional appellate districts similarly hold that an appeal is not perfected pursuant to R.C. 2505.04 through service by the clerk of court on the administrative agency. Like this court, each of these districts adopted Guysinger as the primary authority for this position with no mention of Dudukovich. See Andolsek v. Willoughby Hills Bd. of Zoning Appeals (Dec. 10, 1993), Lake App. No. 93-L-050,
{¶ 66} Indeed, the subsequent decisions issued by this court similarly contained no reference to the standard espoused in Dudukovich. See Kilburn v. S. Lebanon (Oct. 2, 1995), Warren App. No. CA94-12-105,
{¶ 67} In Dudukovich, a notice of appeal was sent via certified mail and received by the agency within the statutorily mandated time period.
{¶ 68} Ultimately, the court concluded that the appellee’s use of certified mail was sufficient under R.C. 2505.04. Id. at 205,
{¶ 69} Guysinger,
{¶ 70} The majority wishes to factually distinguish the instant appeal from Dudukovich based upon the differing method employed by Welsh to file its notice of appeal. In support, the majority submits a laundry list of subsequent decisions from those districts that follow the Guysinger logic, which similarly strain to distinguish Dudukovich factually. Yet Dudukovich states that “any method” is sufficient as long as it is “productive of certainty of accomplishment.”
{¶ 71} If certified mail is a sufficient form of delivery, as it was in Dudukovich, certainly service by the court clerk is an adequate method to satisfy the requirements of R.C. 2505.04. The method is not so unusual that delivery would be speculative. Like certified mail, service by the clerk is a dependable method that the legal system relies upon daily to effectuate delivery. Service by the clerk satisfies the Supreme Court’s definition of “filing.”
{¶ 72} R.C. 119.12 contains the procedure for perfecting an appeal from a state government agency. The provision provides, “Any party desiring to appeal shall file a notice of appeal with the agency setting forth the order appealed from and the grounds of the party’s appeal. A copy of the notice of appeal shall also be filed by the appellant with the court.”
{¶ 73} Distinct differences exist between the administrative procedures to perfect an appeal prescribed in R.C. 119.12 and 2505.04.
(¶ 74} R.C. 2505.04 states, “An appeal is perfected when a written notice of appeal is filed * * * in the case of an administrative-related appeal, with the
{¶ 75} R.C. 119.12 places distinct requirements when filing a notice of appeal to a state agency. The provision requires the notice of appeal to be filed with the agency and, thereafter, a copy of the notice filed with court. See Hughes v. Ohio Dept. of Commerce,
{¶ 76} By neglecting to include such requirements, the legislature does not believe these concerns are important or necessary. Rather, the legislature is interested only in requiring an appellant to provide the agency with notice of the appeal within the statutory time period. Once the agency receives a timely notice of appeal properly filed under the Dudukovich standard, the appeal is perfected. If the legislature wished to establish strict filing requirements in R.C. 2505.04, it would have included language similar to R.C. 119.12. See Patton v. Diemer (1988),
{¶ 77} Allowing perfection of an appeal when notice is served by the clerk, as authorized by the Second, Sixth, Fifth, and Eighth. Appellate Districts, is the better-reasoned approach and comports with the Supreme Court’s holding in Dudukovich.
{¶ 78} When the right to appeal is conferred by statute, like in an administrative appeal, it can be perfected only in the mode prescribed by statute. Zier v. Bur. of Unemployment Comp. (1949),
{¶ 79} “[T]he primary objective of a notice of appeal is to make it known that an appeal is being taken.” Richards v. Industrial Comm. (1955),
{¶ 80} “The Supreme Court has consistently held that the issue of service is one of due process.” McCormick v. Wellston Bd. of Zoning Adjustment (Oct. 18, 1982), Jackson App. No. 463,
{¶ 81} Timely service of the notice of appeal by the clerk of courts undoubtedly satisfies due process. The Guysinger line of cases is merely an example of courts favoring form over substance and denies litigants based upon superfluous technicalities. Receipt of a timely notice of appeal, whether hand-delivered, sent via certified mail, or served by the clerk of courts, apprises the agency of the pendency of an appeal.
{¶ 82} In Hanson v. Shaker Hts.,
{¶ 83} Similarly, in Evans by Evans v. Greenview Local School Dist. (Jan. 4, 1989), Greene App. No. 88 CA 40,
{¶ 84} Evans clearly demonstrates that whether the appellant or the clerk is the source for sending the certified mail is of no consequence as long as the notice is actually delivered within the statutory time period.
{¶ 85} The majority claims to agree with Dudukovich,
{¶ 86} Yet the Supreme Court has provided a definition for determining what methods of delivery satisfy the R.C. 2505.04 filing requirement: “[N]o particular method of delivery is prescribed by the statute. * * * ‘[A]ny method productive of certainty of accomplishment is countenanced.’ * * * [S]imply ‘[b]ecause the manner of delivery is unusual does not make it illegal.’ ” Dudukovich,
{¶ 87} In this case, Welsh filed its notices of appeal with the Warren County Court of Common Pleas with instructions to serve a copy of the notice and complaint to the WCRPC. The WCRPC acknowledges that it received the notices within the statutory time limit. The receipt of the notices by the agency properly perfected Welsh’s appeal under R.C. 2505.04. As a result, I would sustain Welsh’s first assignment of error.
{¶ 88} Moreover, the majority criticizes my decision to deviate from stare decisis of this court, citing an inapplicable standard. The majority engages in a lengthy analysis of the factors espoused in Westfield Ins. Co. v. Galatis,
{¶ 89} I recognize the importance of stare decisis in our legal system. See Welch v. Texas Dept. of Highways & Pub. Transp. (1987),
{¶ 90} The doctrine of stare decisis is not to be followed blindly. Cleveland v. Ryan (1958),
{¶ 91} “Considerations in favor of stare decisis are at their acme * * * where reliance interests are involved.” Id. at ¶ 31, citing Payne,
{¶ 92} The court further explained that “the opposite is true in cases * * * involving procedural and evidentiary rules, * * * because a procedural or evidentiary rule ‘does not serve as a guide to lawful behavior.’ ” Id., citing Payne,
{¶ 93} As support for the Silverman decision, the Ohio Supreme Court relied upon two decisions of the United States Supreme Court in which precedent relating to a rule of procedure was overturned. In Hohn v. United States (1998),
{¶ 94} As in Hohn and Pearson, the rule at issue in this case is purely procedural. The Galatis rule, which applies only to matters of substantive law, clearly has no application to the case at bar. Silve'nnan at ¶ 31. As a result, stare decisis, as used by the majority, does not require this court to continue with this precedent. As the Supreme Court reasoned in Silverman regarding its deviation from stare decisis of an evidentiary rule, no individual has a vested right in the way this court interprets R.C. 2505.04. Id.
{¶ 96} Finally, the majority opines that the position taken by the dissent fails to recognize the undue hardship and unfairness that would result from a departure of the majority’s prior decision. However, what hardships would occur when a party is allowed a forum to present its appeal instead of being summarily denied a chance to obtain recourse based upon an erroneous law? Welsh should not be punished for following the directive of the Supreme Court.
{¶ 97} Based upon the foregoing analysis, I respectfully dissent from the majority’s conclusion that Welsh failed to perfect its administrative appeal by serving a notice of appeal to the WCRPC through service by the clerk. I concur with the majority’s analysis and conclusion that delivery of a courtesy copy to the Warren County assistant prosecutor does not satisfy the filing requirements of R.C. 2505.04. I would overrule appellant’s second assignment of error as moot.