Frantz v. Wooster Planning Comm. , 2011 Ohio 2197 ( 2011 )

[Cite as Frantz v. Wooster Planning Comm., 2011-Ohio-2197.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
DAMON FRANTZ C.A. No. 10CA0014
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CITY OF WOOSTER, COURT OF COMMON PLEAS
OHIO PLANNING COMMISSION COUNTY OF WAYNE, OHIO
CASE No. 10CV0018
Appellee
DECISION AND JOURNAL ENTRY
Dated: May 9, 2011
BELFANCE, Presiding Judge.
{¶1} Damon Frantz appeals from the judgment of the Wayne County Court of
Common Pleas dismissing his appeal from a decision of the City of Wooster, Ohio Planning
Commission. For reasons that follow, we reverse.
I.
{¶2} On January 7, 2010, Mr. Frantz filed a notice of appeal with the Wayne County
Court of Common Pleas, appealing the Wooster Planning Commission’s decision granting a
conditional use for certain specified properties. He also asked the clerk of courts to serve the
notice of appeal upon the Commission via certified mail. The Commission received the notice of
appeal within the thirty day deadline for filing a notice of appeal set forth in R.C. 2505.07.
Relying upon this Court’s prior precedent, the trial court determined that the appeal was not
timely perfected and dismissed the case. Mr. Frantz now appeals, presenting one assignment of
error.
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II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN DISMISSING THE ADMINISTRATIVE
APPEAL ON THE GROUNDS THAT IT LACKED SUBJECT MATTER
JURISDICTION.”
{¶3} R.C. 2505.04 provides that “[a]n appeal is perfected when a written notice of
appeal is filed, * * * in the case of an administrative-related appeal, with the administrative
officer, agency, board, department, tribunal, commission, or other instrumentality involved.” It
is undisputed that R.C. 2505.04 requires the notice of appeal from the Commission’s decision to
be filed with the Commission within the thirty day appeal period set forth in R.C. 2505.07. The
issue before this Court is whether Mr. Frantz satisfied the filing requirement within the meaning
of the statute.
{¶4} The clerk of court sent a summons and copy of the notice of appeal to the
Commission via certified mail and the Commission received the notice of appeal before the time
for perfecting the appeal had run. Mr. Frantz did not, however, separately mail his notice of
appeal to the Commission. The Commission moved to dismiss, arguing the notice of appeal was
not considered filed when the Commission received it from the clerk of court and so the appeal
was not timely perfected pursuant to R.C. 2505.04.
{¶5} The trial court properly determined that the case was controlled by Thrower v.
City of Akron, 9th Dist. No. 21061, 2002-Ohio-5943. In Thrower, this Court held that the filing
requirement was not satisfied when the clerk of courts served the notice of appeal that had been
filed in the common pleas court upon the agency, regardless of whether the agency received the
notice within the time period for perfecting the appeal. Id. at ¶19.
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{¶6} However, our holding in Thrower does not comport with Welsh Dev. Co., Inc., v.
Warren Cty. Regional Planning Comm., Slip Opinion No. 2011-Ohio-1604, a recent decision of
the Ohio Supreme Court. In Welsh, the Supreme Court considered 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 R.C. 2505.04 if the agency receives the notice within the time prescribed by R.C. 2505.07.”
Id. at ¶1.
{¶7} Answering that question in the affirmative, the Welsh Court held:
“An administrative appeal is considered filed and perfected for purposes of R.C.
2505.04 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 and the administrative
agency is served within the time period prescribed by R.C. 2505.07.” Id. at
syllabus.
{¶8} The Welsh holding abrogates Thrower and is dispositive in this case. As the
parties do not dispute that the Commission received timely actual delivery of the notice of
appeal, the appeal was timely filed and perfected. Id.
{¶9} Because Mr. Frantz’s appeal was timely filed and perfected, his single assignment
of error is sustained and the trial court's judgment granting the motion to dismiss is reversed.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, 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.
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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 Appellee.
EVE V. BELFANCE
FOR THE COURT
CARR, J.
MOORE, J.
CONCUR
APPEARANCES:
BRUCE M. BROYLES, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Director of Law, for Appellee.