Harris v. Akron , 2011 Ohio 6735 ( 2011 )

[Cite as Harris v. Akron, 2011-Ohio-6735.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
CARL HARRIS C.A. No. 25689
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CITY OF AKRON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CV 2010-02-1233
DECISION AND JOURNAL ENTRY
Dated: December 28, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Somebody allegedly drove Carl Harris’s car through an active school zone in the
City of Akron at a speed of 34 miles per hour. Nestor Traffic Systems, under a contract with the
City, was operating an “Automated Mobile Speed Enforcement System” in the zone and issued
Mr. Harris a notice of civil violation for exceeding the applicable 20-miles-per-hour limit. Mr.
Harris requested and received an administrative hearing, after which the hearing officer declared
him liable for the violation. He attempted to appeal the hearing officer’s decision to the Summit
County Common Pleas Court. That court, however, determined that he had failed to timely
perfect his appeal, and he has appealed the Common Pleas Court’s decision to this Court. We
affirm the decision of the Common Pleas Court because Mr. Harris failed to file his notice of
appeal with the hearing officer within 30 days of her decision.
2
BACKGROUND
{¶2} The hearing officer, who is an employee of the City, issued her decision on
January 19, 2010. According to Mr. Harris, he attempted to file his notice of appeal with the
Summit County Clerk of Courts on February 12, 2010. The record does include a poverty
affidavit completed by Mr. Harris and notarized by an employee of the clerk’s office on that
date. Mr. Harris has argued that the clerk should have accepted his notice of appeal that day. In
fact, the clerk did not file his notice of appeal until February 23, 2010, the day after the Common
Pleas judge to whom this matter was assigned approved his poverty affidavit.
{¶3} The hearing officer who conducted Mr. Harris’s administrative hearing completed
an affidavit on May 11, 2010, in which she asserted that she had not, as of that date, received a
copy of Mr. Harris’s notice of appeal. The City moved to dismiss Mr. Harris’s attempted appeal
to the Common Pleas Court, arguing that he had failed to timely file his notice of appeal with
either the hearing officer or the Common Pleas Court. The Common Pleas Court granted the
City’s motion, and Mr. Harris has appealed.
DISCUSSION
{¶4} Mr. Harris has argued that the Common Pleas Court incorrectly determined that
he failed to timely perfect his appeal to that court. He has focused his argument on the Common
Pleas Clerk’s failure to accept his notice of appeal for filing at the same time he completed his
poverty affidavit.
{¶5} Section 2505.07 of the Ohio Revised Code requires a party wishing to appeal an
administrative decision to perfect his appeal within 30 days after the administrative body enters
that decision. Under Section 2505.04 of the Ohio Revised Code, a party perfects an
administrative appeal by filing “a written notice of appeal . . . with the administrative officer,
3
agency, board, department, tribunal, commission, or other instrumentality involved.” 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 R.C. 2505.07.” Welsh Dev. Co. Inc. v. Warren County
Reg’l Planning Comm’n, 128 Ohio St. 3d 471, 2011-Ohio-1604, at ¶18, 39.
{¶6} In this case, the City presented evidence, in the form of the hearing officer’s
affidavit, that, as of May 11, 2010, 132 days after the hearing officer issued her decision, Mr.
Harris had still not caused a copy of his notice of appeal to be delivered to her. Mr. Harris has
not disputed the City’s evidence regarding his failure to cause a copy of his notice of appeal to be
timely delivered to the hearing officer. Regardless of whether the clerk of courts should have
taken his notice of appeal at the same time he delivered his poverty affidavit, therefore, he did
not timely perfect his appeal. “[W]hen 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 County Reg’l Planning Comm’n, 128 Ohio St. 3d 471, 2011-Ohio-1604, at ¶14.
CONCLUSION
{¶7} Mr. Harris failed to timely perfect his administrative appeal to the Common Pleas
Court in the manner required by Section 2505.07 of the Ohio Revised Code. Accordingly, the
Common Pleas Court correctly dismissed his appeal. His assignment of error is overruled, and
the decision of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
4
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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(E). 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.
CLAIR E. DICKINSON
FOR THE COURT
BELFANCE, P. J.
CARR, J.
CONCUR
APPEARANCES:
CARL HARRIS, pro se, Appellant.
CHERI B. CUNNINGHAM, Director of Law, and STEPHEN A. FALLIS, Assistant Director of
Law, for Appellee.