Hugh Ready Mix & Supply Co. v. Massillon ( 2024 )

[Cite as Hugh Ready Mix & Supply Co. v. Massillon, 2024-Ohio-427.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
HUTH READY MIX AND SUPPLY : JUDGES:
COMPANY, : Hon. Patricia A. Delaney, P.J.
: Hon. Craig R. Baldwin, J.
Plaintiff - Appellant : Hon. Andrew J. King, J.
:
-vs- :
:
CITY OF MASSILLON, : Case No. 2023CA00094
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No.
2023CV00655
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: February 6, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ADAM M. RUNKLE JUSTIN W. RICHARD,
Starkey & Runkle, LLC Law Director
638 West Maple Street
Hartville, Ohio 44632 By: EDMOND J. MACK
Assistant Law Director
City of Massillon Law Department
Two James Duncan Plaza, 2nd Floor
Massillon, Ohio 44646
Stark County, Case No. 2023CA00094 2
Baldwin, J.
{¶1} The appellant, Huth Ready Mix and Supply Company, appeals the trial
court’s decision dismissing its administrative appeal for lack of jurisdiction due to
ineffective service. The appellee is the City of Massillon.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On November 16, 2022, the zoning official for the City of Massillon issued
a cease-and-desist order to the appellant stating that the official had learned that second-
hand or waste concrete materials were being crushed and/or processed on the
appellant’s property using a crushing machine. The order stated further that the breaking-
up of concrete by jackhammering or crushing was not a permitted use under the
property’s I-1 light industrial zoning designation, nor was it a permitted prior non-
conforming use, and ordered the appellant to immediately cease and desist said activities.
{¶3} On November 23, 2022, the appellant filed a timely appeal of the zoning
official’s cease-and-desist order with the appellee’s Board of Zoning Appeals (“BZA”). The
BZA heard the appellant’s appeal on January 12, 2023, and voted unanimously to deny
the appellant’s appeal and uphold the cease-and-desist order. The BZA’s decision was
memorialized with supporting conclusions of fact during a special meeting on February
23, 2023 with the passage of BZA Resolution 2023-2, which was sent to the appellant the
following day.
{¶4} The appellant filed a timely appeal of the BZA’s decision to the appellee’s
City Council. On March 20, 2023, appellee’s City Council heard the appeal and voted to
uphold the decision. The appellee’s City Council memorialized its decision and supporting
Stark County, Case No. 2023CA00094 3
conclusions of fact with the passage of Resolution 4-2023, which was sent to the appellant
on March 22, 2023.
{¶5} On April 11, 2023, the appellant filed a Notice of Appeal Pursuant to O.R.C.
2506 listing the City of Massillon as appellee in the case caption in which it appealed
“Resolution Nov. [sic] 4-2023 adopted by the Massillon City Council on March 20, 2023,
approving and affirming the decision of the Massillon Board of Zoning Appeals in Case
No. 2023-2 and denying the appeal” of the appellant. The Notice of Appeal included a
certificate of service in which the appellant certified that a true copy of the Notice was
served upon the “City of Massillon, Law Department, Attn. Edmond J. Mack, Assistant
Law Director, Two James Duncan Plaza, Massillon, OH 44646.” The appellant also filed
a Written Request for Service of Praecipe & Notice of Appeal by express mail service on
the “City of Massillon Law Department, ATTN: Edmond Mack, Esq., Two James Duncan
Plaza, Massillon OH 44646.” Finally, the appellant filed a “Praecipe to the Clerk of the
Massillon City Council for Transcript for Appeal.”
{¶6} On April 21, 2023, a return of service document was filed with the Stark
County Common Pleas Clerk of Courts showing proof of delivery of the Notice of Appeal
upon the “City of Massillon, Two James Duncan Plaza, Massillon, OH, US, 44646”. The
return of service provided information regarding the status of delivery, setting forth that
the item had been delivered to the receptionist/front desk by FedEx on April 14, 2023,
and had been signed for by “L. CLIFFORD.” Further, the court docket reflected the
following: “SERVICE COMPLETE FOR SERVICE ISSUED 04-11-2023- FEDERAL
EXPRESS 7718 2855 5566 - CITY OF MASSILLON SERVICE TYPE: L CLIFFORD ON
04-14-2023.”
Stark County, Case No. 2023CA00094 4
{¶7} On June 15, 2023, the appellee filed a motion to dismiss the administrative
appeal for lack of jurisdiction, arguing that the appellant failed to serve the clerk of
Massillon City Council with the notice of appeal, and thus failed to properly perfect service
upon the appellee, thereby depriving the trial court of jurisdiction.
{¶8} On July 12, 2023, the trial court issued a Judgment Entry Granting
Defendant City of Massillon’s Motion to Dismiss for lack of jurisdiction. The trial court
stated in its judgment entry that the appellant failed to properly serve the appellee, citing
R.C. 2505.07 and the Ohio Supreme Court case of Dudukovich v. Lorain Metropolitan
Housing Authority (1979), 58 Ohio St.2d 202, 203, 389 N.E.2d 1113 in support of its
decision.
{¶9} The appellant filed a timely notice of appeal of the trial court’s dismissal
setting forth the following two assignments of error:
{¶10} “I. THE TRIAL COURT ERRED BY USING [THE] STANDARD SET FORTH
IN DUDUKOVICH, RATHER THAN THE MORE BROAD STANDARD SET FORTH
LATER IN WELSH BY THE OHIO SUPREME COURT.”
{¶11} “II. THE TRIAL COURT ERRED BY NOT HOLDING AN EVIDENTIARY
HEARING ON THE ISSUE OF PROPER SERVICE ON MASSILLON.”
STANDARD OF REVIEW
{¶12} We review an appeal of a dismissal for lack of subject-matter jurisdiction
under Civ.R. 12(B)(1) de novo. Boylen v. Ohio Dep't of Rehab. & Corr., 182 Ohio App. 3d
265, 2009-Ohio-1953, 912 N.E.2d 624, ¶ 26.
Stark County, Case No. 2023CA00094 5
ANALYSIS
Assignment of Error Number One
{¶13} The appellant argues in its first assignment of error that the trial court erred
in dismissing its appeal for lack of jurisdiction based upon the standard set forth by the
Ohio Supreme Court in Dudukovich v. Lorain Metropolitan Housing Authority, 58 Ohio
St.2d 202, 389 N.E.2d 1113 (1979) rather than the standard set forth in the subsequent
Ohio Supreme Court case of Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning
Comm, 128 Ohio St.3d 471, 2011-Ohio-1604, 946 N.E.2d 215. We agree.
{¶14} R.C. 2505.04 addresses the perfection of appeals, and states in pertinent
part:
An 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. If a leave to appeal from a court first must be obtained, a notice of
appeal also shall be filed in the appellate court. After being perfected, an
appeal shall not be dismissed without notice to the appellant, and no step
required to be taken subsequent to the perfection of the appeal is
jurisdictional.
{¶15} The Ohio Supreme Court addressed issue of proper service of a notice of
administrative appeal in Welsh, supra: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
Stark County, Case No. 2023CA00094 6
particular claim is forthcoming, the notice of appeal has satisfied its purpose
and the legislative intent in R.C. 2505.04.
Turning to the facts in the instant case, we hold that Welsh and the
property owners “sufficiently complied” with R.C. 2505.04 by filing their
complaints against WCRPC and notices of appeal in the Warren County
Court of Common Pleas. The complaints and notices contained a praecipe
for the clerk of courts to serve WCRPC by certified mail, and WCRPC
received the service within the time prescribed by R.C. 2505.07 to file their
appeals. Because copies of the notices of appeal and complaints were
delivered timely to WCRPC, they were “filed” based on our definition of the
term as set forth in *478 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
(“The term ‘filed’ * * * requires actual delivery * * * ”).
Furthermore, the service of the notice of appeal served its purpose
because it informed and apprised WCRPC of the administrative appeal by
Welsh and the property owners. It is undisputed that the clerk of courts
served WCRPC and that WCRPC received a copy of the notices of appeal
and the complaint within the 30–day period prescribed by R.C. 2505.07.
Because WCRPC received notice of the appeal within the prescribed time
to file an administrative appeal, we hold that Welsh and the property owners
perfected their appeal pursuant to R.C. 2505.04.
Id. at ¶¶ 30-32.
Stark County, Case No. 2023CA00094 7
{¶16} The Welsh Court specifically decided to broadly interpret the standard it had
previously set forth in Dudukovich, stating: “[o]ur 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 an appeal.” Id. at ¶29.
{¶17} This court addressed the application of Welsh in Yeager v. City of Mansfield,
5th Dist. Richland No. 2011 CA 0085, 2012-Ohio-2908. In the Yeager case, Yeager
appealed the City of Mansfield’s order for demolition of his property, which was denied by
the Mansfield City Planning Commission on March 11, 2011. Yeager filed a complaint for
preliminary injunction with the common pleas court on April 8, 2011. The administrative
appeal named the City of Mansfield and members of the planning commission as
defendants. The clerk of courts served the City of Mansfield with the administrative appeal
on April 13, 2011. The City of Mansfield filed a motion to dismiss, arguing that Yeager
had not properly perfected his appeal because the administrative agency was served
thirty-three (33) days after the final order of the planning commission. In analyzing R.C.
2505.04 and 2505.07, this Court stated:
. . . The record shows that Yeager in fact complied with Welsh by having
the Richland County Clerk of Courts serve the notice of appeal upon the
City. A close examination of this case reveals we are not presented with the
question of whether Welsh is applicable to Yeager. The issue in this case is
whether Yeager complied with the time requirement found in R.C. 2505.07.
Stark County, Case No. 2023CA00094 8
Id. at ¶27. The Court thus found that Yeager had complied with the service requirements
by effectuating service upon the city.1
{¶18} In this case, the decision of the appellee’s City Council from which the
appellant appeals was made on March 20, 2023, thirty days from which was April 21,
2023. The appellant filed its Notice of Appeal on April 11, 2023, service of which was
perfected by FedEx upon the appellee City of Massillon, and signed for by an “L.
CLIFFORD,” on April 14, 2023, and the return of which is contained in the trial court’s
docket. This is well within the thirty-day time period within which the statute requires
service be made. The appellant’s Notice of Appeal need not be served upon Massillon
City Council, as argued by the appellee; timely service upon the City of Massillon of an
administrative appeal of a decision of the City Council sufficiently complies with R.C.
2505.04. As such, we sustain the appellant’s first assignment of error and remand the
matter back to the trial court for proceedings consistent with this opinion.
Assignment of Error Number Two
{¶19} The appellant argues in its second assignment of error that the trial court
erred in failing to conduct an evidentiary hearing on the issue of service. Because we find
that the appellant properly served the appellee within the statutory thirty-day time period,
the appellant’s second assignment of error is moot and is therefore overruled.
1 While the Yeager Court held that Yeager properly served the administrative agency through service upon
the City of Mansfield, he failed to do so within the thirty-day statutory time limit, and as a result the trial
court’s decision to dismiss the appeal was not error. Such is not this case herein, as the appellant served
the City of Massillon within the statutory thirty-day time period.
Stark County, Case No. 2023CA00094 9
CONCLUSION
{¶20} Based upon the foregoing, the judgment of the Stark County Court of
Common Pleas is reversed and remanded back to the trial court for further proceedings
consistent with this opinion.
By: Baldwin, J.
Delaney, P.J. and
King, J. concur.