Possert v. City of Cincinati Dept. Bld., Unpublished Decision (12-22-2004)

Ohio Court of Appeals

Possert v. City of Cincinati Dept. Bld., Unpublished Decision (12-22-2004)

DecidedDecember 22, 2004

DocketAppeal No. C-030888.

StatusUnpublished

This text of Possert v. City of Cincinati Dept. Bld., Unpublished Decision (12-22-2004) (Possert v. City of Cincinati Dept. Bld., Unpublished Decision (12-22-2004)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Possert v. City of Cincinati Dept. Bld., Unpublished Decision (12-22-2004), (Ohio Ct. App. 2004).

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Opinion

JUDGMENT ENTRY. This appeal is considered on the accelerated calendar under App. R. 11.1(E) and Loc. R. 12, and this Judgment Entry shall not be considered an Opinion of the Court pursuant to S.Ct. R.Rep.Op. 3.

Intervenor-appellee Episcopal Retirement Homes, Inc. ("ERH") applied for a modification to a development plan to allow the upgrading of ERH's Marjorie P. Lee Retirement Community. The Cincinnati Director of Buildings and Inspections ("director") approved the modification. Appellant Thomas J. Possert appealed the director's decision to the Cincinnati Zoning Board of Appeals ("Board"). The Board affirmed the decision of the director. Possert then filed a notice of appeal in the Hamilton County Court of Common Pleas, and he requested service of the appeal papers on the Cincinnati Department of Buildings and Inspections. Possert did not file a notice of appeal with the Board. ERH and the Department of Buildings and Inspections filed a joint motion to dismiss Possert's appeal, which the trial court granted. Possert has appealed.

The sole assignment of error, alleging that the trial court erred in dismissing Possert's appeal, is overruled because Possert failed to file a notice of appeal with the Board within thirty days of his receipt of the Board's decision. Possert's failure to file a notice of appeal with the Board was a jurisdictional defect. The trial court was without jurisdiction to review the case, and, therefore, the court did not err in dismissing Possert's appeal. See R.C. 2505.04; Guysinger v.Chillicothe Bd. of Zoning Appeals (1990), 66 Ohio App.3d 353,584 N.E.2d 48; Patrick Media Group, Inc. v. Cleveland Bd. ofZoning Appeals (1988), 55 Ohio App.3d 124, 562 N.E.2d 921;Leifheit v. Bd. of Zoning Appeals of Palmyra Twp. (June 22, 2001), 11th Dist. No. 99-P-0112; Loveland Park Baptist Church v.Deerfield Twp. (Dec. 26, 2000), 12th Dist. No. CA2000-03-032.

Therefore, the judgment of the trial court is affirmed.

Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App. R. 27. Costs shall be taxed under App. R. 24.

Doan, P.J., Gorman and Painter, JJ.

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JUDGMENT ENTRY. This appeal is considered on the accelerated calendar under App. R. 11.1(E) and Loc. R. 12, and this Judgment Entry shall not be considered an Opinion of the Court pursuant to S.Ct. R.Rep.Op. 3.

Intervenor-appellee Episcopal Retirement Homes, Inc. ("ERH") applied for a modification to a development plan to allow the upgrading of ERH's Marjorie P. Lee Retirement Community. The Cincinnati Director of Buildings and Inspections ("director") approved the modification. Appellant Thomas J. Possert appealed the director's decision to the Cincinnati Zoning Board of Appeals ("Board"). The Board affirmed the decision of the director. Possert then filed a notice of appeal in the Hamilton County Court of Common Pleas, and he requested service of the appeal papers on the Cincinnati Department of Buildings and Inspections. Possert did not file a notice of appeal with the Board. ERH and the Department of Buildings and Inspections filed a joint motion to dismiss Possert's appeal, which the trial court granted. Possert has appealed.

The sole assignment of error, alleging that the trial court erred in dismissing Possert's appeal, is overruled because Possert failed to file a notice of appeal with the Board within thirty days of his receipt of the Board's decision. Possert's failure to file a notice of appeal with the Board was a jurisdictional defect. The trial court was without jurisdiction to review the case, and, therefore, the court did not err in dismissing Possert's appeal. See R.C. 2505.04; Guysinger v.Chillicothe Bd. of Zoning Appeals (1990), 66 Ohio App.3d 353,584 N.E.2d 48; Patrick Media Group, Inc. v. Cleveland Bd. ofZoning Appeals (1988), 55 Ohio App.3d 124, 562 N.E.2d 921;Leifheit v. Bd. of Zoning Appeals of Palmyra Twp. (June 22, 2001), 11th Dist. No. 99-P-0112; Loveland Park Baptist Church v.Deerfield Twp. (Dec. 26, 2000), 12th Dist. No. CA2000-03-032.

Therefore, the judgment of the trial court is affirmed.

Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App. R. 27. Costs shall be taxed under App. R. 24.

Doan, P.J., Gorman and Painter, JJ.

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