Digonna v. Hamilton , 2019 Ohio 2273 ( 2019 )

[Cite as Digonna v. Hamilton, 2019-Ohio-2273.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
NICHOLAS J. DIGONNO, :
Appellant, : CASE NO. CA2018-08-168
: OPINION
- vs - 6/10/2019
:
CITY OF HAMILTON, :
Appellee. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV 2018-04-0836
Millikin & Fitton Law Firm, Thomas A. Dierling, 9032 Union Centre Boulevard, Suite 200,
West Chester, Ohio 45069, for appellee
David T. Davidson, 2 South 3rd Street, Suite 301, Hamilton, Ohio 45011, for appellant
HENDRICKSON, P.J.
{¶ 1} Appellant, Nicholas J. Digonno, appeals from a decision of the Butler County
Court of Common Pleas dismissing his administrative appeal for lack of jurisdiction. For the
reasons set forth below, we affirm the court's decision.
{¶ 2} Appellant was notified in the fall of 2017 that the property he owned at 1203
Edison Avenue in Hamilton, Ohio had been declared a public nuisance by the city of
Butler CA2018-08-168
Hamilton's Public Health Commissioner, in accordance with Hamilton Municipal Ordinance
1767.03. In November 2017, appellant appealed this determination to the city's Nuisance
Appeals Board (hereafter, "the Board").
{¶ 3} The Board heard appellant's appeal on January 11, 2018, and ultimately denied
the appeal. The Board's decision was set forth in writing on March 7, 2018, and was sent to
appellant by ordinary mail.
{¶ 4} On April 11, 2018, appellant appealed the Board's decision by filing a notice of
appeal with the common pleas court. The notice of appeal was sent by the clerk of courts to
the Board by certified mail on April 17, 2018, and was received by the Board on April 25,
2018.
{¶ 5} The Board filed a motion to dismiss appellant's appeal pursuant to Civ.R.
12(B)(1) on the basis that appellant failed to perfect his administrative appeal within the 30-
day timeframe set forth in R.C. 2505.07. The Board argued appellant's failure to properly
perfect the appeal denied the common pleas court of subject-matter jurisdiction. In support
of its motion, the Board attached as exhibits copies of clerk of court's certified mailing of the
notice of appeal to the Board.
{¶ 6} Appellant filed a memorandum in opposition to the Board's motion to dismiss,
arguing he had not received the Board's March 7, 2018 decision until April 11, 2018.
Appellant stated that immediately upon receipt of the decision, he filed his notice of appeal
with the common pleas court. Appellant argued he was unable to simultaneously serve the
notice of appeal on the Board as the Board had not provided any "information as to [its]
physical address." In support of his argument, appellant attached his own affidavit, in which
he averred, in relevant part, that the Board's March 7, 2018 decision was
uninformative * * * to anyone wishing to appeal the [d]ecision.
First and foremost, there is no address for the Board, nor does
the decision state a date of the hearing. Further the [d]ecision
-2-
Butler CA2018-08-168
does not * * * state any language about the right to appeal the
[d]ecision, the length of time one would have to appeal the
[d]ecision, [or] the process of how to appeal the Board's decision.
Appellant also attached the envelope in which the Board's March 7, 2018 decision was
mailed. This envelope set forth a return address of 345 High Street, Hamilton, Ohio 45011
and contained two different date stamps. The first date stamp, March 8, 2018, was from the
city's postage meter. The second date stamp, March 12, 2018, was from the United States
Postal Service.
{¶ 7} The Board filed a memorandum in response, in which it stated that its March 7,
2018 decision had been mailed on March 8, 2018 to the address appellant had provided to
the Board. The Board argued appellant's claim that he did not know where to deliver the
notice of appeal filed in the common pleas court was "simply not credible" as appellant had
previously filed his November 2017 appeal with the Board by mailing it to the Board's
address. Attached to the Board's memorandum was appellant's November 2017 appeal and
the envelope the appeal had been sent in, both of which set forth an address of 345 High
Street, 3rd Floor Suite 330, Hamilton, Ohio 45011, as well as an affidavit from Tami Rose,
the individual responsible for mailing the Board's decisions. Rose averred that she mailed
the Board's March 7, 2018 decision to appellant on March 8, 2018.
{¶ 8} On July 31, 2018, the common pleas court granted the Board's motion to
dismiss, concluding that it lacked jurisdiction over the appeal as appellant failed to perfect his
appeal within the 30-day timeframe set forth in R.C. 2505.07. The court determined that the
Board's "final order * * * was entered on March 8, 2018 when it was mailed to [appellant] by
ordinary mail" and that the appeal had not been perfected until April 25, 2018, the date the
Board received the notice of appeal by certified mail from the clerk of courts.
{¶ 9} Appellant appealed the common pleas court's decision, raising two
-3-
Butler CA2018-08-168
assignments of error. As the assignments of error are related, we will address them together.
{¶ 10} Assignment of Error No. 1:
{¶ 11} THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO
DISMISS FOR LACK OF JURISDICTION UNDER CIV.R. 12(B)(1).
{¶ 12} Assignment of Error No. 2:
{¶ 13} THE TRIAL COURT ERRED IN FINDING THAT THE DATE THE APPEAL
WAS PERFECTED WAS THE DATE APPELLEE RECEIVED NOTICE FROM THE CLERK
OF COURTS.
{¶ 14} In his assignments of error, appellant argues the common pleas court erred by
granting the Board's motion to dismiss. Specifically, appellant argues in his first assignment
of error that the court erred when it considered the documents attached to the Board's motion
to dismiss and his memorandum in opposition without first converting the motion to dismiss
into a motion for summary judgement. Appellant contends that under the standard set forth
in Civ.R. 56(C), summary judgment in favor of the Board is improper as a genuine issue of
material fact exists as to whether the Board's decision was mailed to him on March 8, 2018
or was mailed on March 12, 2018. Appellant then argues, in his second assignment of error,
that the trial court erred when it found that his appeal had not been perfected until April 25,
2018, the date the Board received the notice of appeal by certified mail. Appellant contends
filing his appeal in the court of common pleas on April 11, 2018 was sufficient to perfect the
appeal and invoke the court's jurisdiction under R.C. 2505.04.
{¶ 15} "'Subject-matter jurisdiction of a court connotes the power to hear and decide a
case upon its merits' and 'defines the competency of a court to render a valid judgment in a
particular action.'" Cheap Escape Co. v. Haddox, L.L.C., 120 Ohio St.3d 493, 2008-Ohio-
6323, ¶ 6, quoting Morrison v. Steiner, 32 Ohio St. 2d 86, 87 (1972). Because a court
without subject-matter jurisdiction lacks the power to adjudicate the merits of a case, a party
-4-
Butler CA2018-08-168
may challenge jurisdiction at any time during the proceedings. Pratts v. Hurley, 102 Ohio
St.3d 81, 2004-Ohio-1980, ¶ 11.
{¶ 16} We review the common pleas court's decision to dismiss appellant's appeal for
lack of subject-matter jurisdiction under a de novo standard of review. Turner v. Tri-County
Baptist Church of Cincinnati, 12th Dist. Butler No. CA2018-03-050, 2018-Ohio-4658, ¶ 11. In
making a determination regarding subject-matter jurisdiction, the trial court is not restricted to
the pleadings and "may consider material pertinent to such inquiry without converting the
motion into one for summary judgment." Southgate Dev. Corp. v. Columbia Gas Transm.
Corp., 48 Ohio St.2d 211 (1976), paragraph one of the syllabus. See also Nemazee v. Mt.
Sinai Med. Ctr., 56 Ohio St.3d 109, 111 (1990), fn. 3 ("[a] trial court has authority to consider
any pertinent evidentiary materials when determining its own jurisdiction"). Accordingly, we
find that the common pleas court was not required to convert the Board's motion into one for
summary judgment and was permitted to consider the exhibits attached to the Board's motion
to dismiss and appellant's memorandum in opposition in determining whether it had subject-
matter jurisdiction over the appeal. Appellant's first assignment of error is, therefore,
overruled.
{¶ 17} Article IV, Section 4(B) of the Ohio Constitution provides that "[t]he courts of
common pleas * * * shall have * * * such powers of review of proceedings of administrative
officers and agencies as may be provided by law." Pursuant to this authority, the General
Assembly enacted R.C. 2506.01, which provides in pertinent part as follows:
Except as otherwise provided in sections 2506.05 to 2506.08 of
the Revised Code, and except as modified by this section and
sections 2506.02 to 2506.04 of the Revised Code, 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.
-5-
Butler CA2018-08-168
R.C. 2506.01(A).
{¶ 18} Although R.C. 2506.01 provides a party with the right to appeal a decision of an
administrative board, a common pleas court does not acquire subject-matter jurisdiction over
the appeal "unless and until the appeal is perfected." AT&T Communications of Ohio, Inc. v.
Lynch, 132 Ohio St.3d 92, 2012-Ohio-1975, ¶ 17. "[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. v. Warren Cty. Regional Planning Comm., 128 Ohio St.3d 471, 2011-Ohio-
1604, ¶ 14. R.C. 2505.04 governs the manner in which an administrative appeal is
perfected, and it provides in relevant part as follows:
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.
(Emphasis added.) Pursuant to R.C. 2505.07, "[a]fter the entry of a final order of an
administrative officer, agency, board, department, tribunal, commission, or other
instrumentality, the period of time within which the appeal shall be perfected, unless
otherwise provided by law, is thirty days." (Emphasis added.)
{¶ 19} In the present case, the Board rendered its final order in a decision dated
March 7, 2018, and the decision was subsequently sent to appellant by ordinary mail. When
an administrative board renders a final order in writing and sends the order by ordinary mail,
the timeframe to perfect an appeal under R.C. 2505.04 commences on the date the final
order was sent. See Farinacci v. Twinsburg, 14 Ohio App.3d 20, 21 (9th Dist.1984);
Cornacchione v. Akron Bd. of Zoning Appeals, 118 Ohio App.3d 388, 392 (9th Dist.1997);
601 Properties, Inc. v. Dayton, 2d Dist. Montgomery No. 11620, 1990 Ohio App. LEXIS 96,
-6-
Butler CA2018-08-168
*7-8 (Jan. 19, 1990); Gardner v. Ohio Veterinary Med. Licensing Bd., 12th Dist. Clinton No.
CA2002-05-026, 2002-Ohio-6682, ¶ 13. See also Hamilton Municipal Ordinance
1705.26(g)(5) ("For the purpose of appeal pursuant to Ohio Revised Code Chapter 2506, the
final order shall be deemed to have been entered on the date on which a copy of the decision
was mailed").
{¶ 20} Appellant urges this court to use the United States Postal Service's March 12,
2018 date stamp, rather than the city's March 8, 2018 postage-meter stamp, as the date
when Board's decision was sent. We find that regardless of which date is used – March 8,
2018 or the later date of March 12, 2018 – appellant's appeal was not timely perfected, as it
was not received by the Board until April 25, 2018.
{¶ 21} The Ohio Supreme Court has held that an "appeal is perfected pursuant to R.C.
2505.04 when a party files a notice of appeal with the clerk of courts with instructions to serve
a copy of the complaint and notice of the appeal on the administrative agency and the
agency is served and receives the notice of the appeal within the time period set forth in in
R.C. 2505.07." (Emphasis added.) Welsh, 2011-Ohio-1604 at ¶ 1. The express language of
R.C. 2505.04 requires a notice of appeal be filed with the administrative board involved, and
"[f]iling does not occur until there is actual receipt by the agency within the time prescribed by
R.C. 2505.07." Id. at ¶ 39. Furthermore, as the supreme court explained in Welsh,
[p]ractitioners should not be confused or think that filing under
R.C. 2505.04 is accomplished only if the clerk of courts serves
upon the administrative agency a copy of the notice of the appeal
filed in the court of common pleas. The administrative agency
must still receive the appropriate complaint and notice within 30
days after the entry of the final administrative order.
Id. at ¶ 40.
{¶ 22} Therefore, even if the United States Postal Service's March 12, 2018 date-
stamp is used as the date the Board's final order was entered, appellant still failed to perfect
-7-
Butler CA2018-08-168
his appeal as the 30-day timeframe prescribed by R.C. 2505.07 expired on April 11, 2018.
The Board did not receive appellant's administrative appeal until April 25, 2018. As the
appeal was not perfected within the time constraints of R.C. 2505.07, the common pleas
court's jurisdiction was not properly invoked. See, e.g., Yeager v. Mansfield, 5th Dist.
Richland No. 2011 CA 0085, 2012-Ohio-2908, ¶ 27-29.
{¶ 23} Appellant argues his ability to serve the notice of appeal on the Board within the
30-day timeframe set forth in R.C. 2505.07 was "complicate[d]" by the fact that the Board's
March 7, 2018 decision did not provide him with an address or instructions on where or how
to serve the notice of appeal. Appellant's arguments are without merit, as the Board's written
decision was sent in an envelope containing a return address of 345 High Street, Hamilton,
Ohio 45011. This address was subsequently used by the clerk of courts for service of the
notice of appeal on the Board. As appellant was in possession of the envelope the Board's
March 7, 2017 decision was mailed in, he clearly had notice of where to serve the Board to
perfect his appeal.
{¶ 24} Accordingly, for the reasons stated above, we find that appellant failed to
perfect his administrative appeal within the 30-day timeframe required by R.C. 2505.07. As a
result, appellant failed to properly invoke the jurisdiction of the common pleas court. The
common pleas court, therefore, did not err in granting the Board's motion to dismiss for lack
of subject-matter jurisdiction. Appellant's second assignment of error is overruled.
{¶ 25} Judgment affirmed.
RINGLAND and PIPER, JJ., concur.
-8-