Frantz v. Wooster Planning Comm.

2011 Ohio 2197

• Court: Ohio Court of Appeals
• Decided: May 9, 2011
• Docket: 10CA0014
• Status: Published

Opinion

[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. 2

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. 3

{¶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. 4

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.