Friedman v. McClelland

[Cite as Friedman v. McClelland, 2012-Ohio-1538.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97036
ALEXANDER FRIEDMAN
PLAINTIFF-APPELLANT
vs.
DAN MCCLELLAND,
GEAUGA COUNTY SHERIFF
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-744515
BEFORE: Stewart, P.J., Sweeney, J., and Cooney, J.
RELEASED AND JOURNALIZED: April 5, 2012
ATTORNEY FOR APPELLANT
Charles B. Lazzaro
1565 Woodrow Avenue
Mayfield Heights, OH 44124
ATTORNEYS FOR APPELLEE
David P. Joyce
Geauga County Prosecutor
BY: Bridey Matheney
Assistant County Prosecutor
231 Main Street, Suite 3A
Chardon, OH 44024
MELODY J. STEWART, P.J.:
{¶1} Plaintiff-appellant Alexander Friedman appeals from the trial court’s
dismissal of his administrative appeal from the denial of his application for a license to
carry a concealed handgun. He complains that defendant-appellee Geauga County Sheriff
Dan McClelland’s interpretation of Ohio’s concealed carry statute creates an unnecessary
conflict between, and is contrary to, state and federal law, and thereby prejudices his right
to obtain a license. We affirm the judgment of the trial court.
{¶2} Friedman applied for a license to carry a concealed handgun in Geauga
County on October 19, 2010. Sheriff McClelland denied his application on December 14,
2010, and stated that Friedman had been “[d]isqualified by background check * * * results
of criminal records check: domestic violence 2005, 2007.” The denial notice also
contained language informing Friedman that “[y]ou may appeal this decision to the
Geauga County Common Please [sic] Court, or the Common Please [sic] Court of your
county, pursuant to ORC section 119.12 * * *.”
{¶3} Friedman, a resident of Beachwood, timely filed a notice of appeal in the
General Division of Cuyahoga County Court of Common Pleas pursuant to R.C. 119.12.
McClelland filed a motion to dismiss the appeal on the grounds that federal and state law
prohibited issuance of the license to Friedman. After hearing oral arguments on the
motion, the trial court granted McClelland’s motion to dismiss.
{¶4} Ohio courts of common pleas have jurisdiction “and such powers of review
of proceedings of administrative officers and agencies as may be provided by law.” Ohio
Constitution, Article IV, Section 4(B); see, e.g., Adams Robinson Ent. v. Envirologix
Corp., 111 Ohio App.3d 426, 430, 676 N.E.2d 560 (2d Dist.1996) (“subject matter
jurisdiction of Ohio’s courts is governed by the Ohio Constitution and state statutes”).
“Subject matter jurisdiction is the power of a tribunal to hear and decide cases upon their
merits * * * [and] is a condition precedent to the court’s ability to hear the case.” Turner
v. Ohio Dept. of Rehab. & Corr., 180 Ohio App.3d 86, 2008-Ohio-6608, 904 N.E.2d 566,
¶ 9 (10th Dist.). A court having general subject matter jurisdiction possesses the initial
authority to determine its own jurisdiction over the subject matter absent a patent and
unambiguous lack of jurisdiction. State ex rel. Enyart v. O’Neill, 71 Ohio St.3d 655, 656,
646 N.E.2d 1110 (1995).
{¶5} Friedman initiated his appeal of the administrative order denying his
application for a concealed carry license in Cuyahoga County pursuant to the provisions of
R.C. 119.12, which states in pertinent part, that:
[a]ny party adversely affected by any order of an agency issued pursuant to
an adjudication denying the applicant * * * the issuance of * * * a license * *
* may appeal from the order of the agency to the court of common pleas of
the county in which the place of business of the licensee is located or the
county in which the licensee is a resident * * *.
{¶6} Compliance with the provisions of R.C. 119.12 concerning the filing of the
notice of appeal, the time and place of filing, and the content of the notice as specified in
the statute are all conditions precedent to jurisdiction. Williams v. Drabik, 115 Ohio
App.3d 295, 296, 685 N.E.2d 293 (10th Dist.1996), citing Zier v. Bur. of Unemp. Comp.,
151 Ohio St. 123, 127, 84 N.E.2d 746 (1949). However,“[i]f the venue provisions of
R.C. 119.12 conflict with another statute, the court will examine both statutes carefully to
determine which controls.” Painter & Pollis, Baldwin’s Ohio Appellate Practice, Section
9.24, at 270 (2011-2012 Ed.)
{¶7} The General Assembly enacted Am.Sub.H.B. No. 12 in January 2004. The
bill created a licensing procedure for handgun owners in Ohio and became effective in
April 2004. R.C. 2923.125 governs applications to carry a concealed handgun and
“specifically sets out the eligibility requirements and procedures one must follow to
receive a permit * * *.” State v. Pawelski, 178 Ohio App.3d 426, 2008-Ohio-5180, 898
N.E.2d 85, ¶ 25 (2d Dist.).
{¶8} Well-established principles of statutory construction require that specific
statutory provisions prevail over conflicting general statutes. R.C. 1.51 states that:
If a general provision conflicts with a special or local provision, they shall be
construed, if possible, so that effect is given to both. If the conflict between
the provisions is irreconcilable, the special or local provision prevails as an
exception to the general provision, unless the general provision is the later
adoption and the manifest intent is that the general provision prevail.
{¶9} In the instant case, Friedman, after being denied the issuance of a license to
carry a concealed handgun, received erroneous information in the denial notice from
McClelland informing him that he had a choice of forums in which to pursue his appeal;
namely, Cuyahoga County or Geauga County. R.C. 2923.125 designates a
statutorily-specified county for appeal, and unequivocally instructs an appellant who is
denied a license to carry a concealed handgun to “appeal the denial pursuant to section
119.12 of the Revised Code in the county served by the sheriff who denied the
application.” R.C. 2923.125(D)(2)(b).
{¶10} It is clear that the intent of the legislature was to require persons appealing
the denial of a license to carry a concealed handgun to file an appeal in the county where
the application was denied. Geauga County is the proper forum for Friedman to pursue
his appeal. Therefore, the trial court did not err when it dismissed this case, even if the
dismissal was for other reasons.
{¶11} Judgment affirmed.
It is ordered that appellee recover of appellant his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
COLLEEN CONWAY COONEY, J., CONCUR