Friedman v. McClelland

2012 Ohio 1538

• Court: Ohio Court of Appeals
• Decided: April 5, 2012
• Docket: 97036
• Status: Published

Opinion

[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