Southerland v. Montgomery Cty. Dept. of Job & Family Servs.

2011 Ohio 3738

• Court: Ohio Court of Appeals
• Decided: July 29, 2011
• Docket: 24304
• Status: Published

Opinion

[Cite as Southerland v. Montgomery Cty. Dept. of Job & Family Servs., 2011-Ohio-3738.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

KIMBERLY SOUTHERLAND :

Plaintiff-Appellant : C.A. CASE NO. 24304

vs. : T.C. CASE NO. 10CV2578

MONTGOMERY COUNTY DEPT. OF : (Civil Appeal From JOB AND FAMILY SERVICES Common Pleas Court

Defendant-Appellee :

. . . . . . . . .

O P I N I O N

Rendered on the 29th day of July, 2011.

Byron K. Shaw, Atty. Reg. No.0073124, 4800 Belmont Place, Huber Heights, Ohio 45424 Attorney for Plaintiff-Appellant

Mathias H. Heck, Jr., Pros. Attorney; John A. Cumming, Atty. Reg. No.0018710, Asst. Pros. Attorney, P.O. Box 972, Dayton, Ohio 45422 Attorney for Defendant-Appellee

GRADY, P.J.:

{¶ 1} This is an appeal from an order of the court of common

pleas dismissing a Chapter 2506 appeal to that court pursuant to

Civ.R. 12(B)(1) for a lack of subject matter jurisdiction.

{¶ 2} Plaintiff-Appellant, Kimberly Southerland, is a 2

licensed foster care provider. Following a complaint of neglect,

Defendant-Appellee, Montgomery County Department Of Job And Family

Services (“MCDJFS”), removed a child from Southerland’s care.

Southerland pursued an internal administrative appeal of the

decision by MCDJFS. By letter dated February 6, 2009, MCDJFS

notified Southerland that its prior decision to remove the child

“will remain as the dispositions” of that appeal.

{¶ 3} More than a year later, on March 25, 2010, Southerland

filed a combined notice of appeal and complaint in the court of

common pleas pursuant to R.C. 2506.01(A) from the February 6, 2009

decision of MCDJFS. Subsequently, MCDJFS filed a combined Civ.R.

12(B)(1) and (6) motion to dismiss the action Southerland commenced

because Southerland failed to file her R.C. 2506.01 appeal within

thirty days from the February 6, 2009 notice. The trial court

so found, and dismissed the action for a lack of subject matter

jurisdiction. Southerland appeals.

ASSIGNMENT OF ERROR

{¶ 4} “THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S CASE

AS UNTIMELY AND IN ACCORDANCE WITH CIVIL RULE 12(B)(6) WHEN COUNTY

AGENCIES NEVER ISSUED A FINAL APPEALABLE ORDER NOR PROVIDED NOTICE

TO APPELLANT OF ANY APPELLATE RIGHTS.”

{¶ 5} The trial court considered both the Civ.R. 12(B)(1) and

12(B)(6) grounds on which MCDJFS relied in its motion to dismiss. 3

The trial court relied on Civ.R. 12(B)(1), which authorizes a

dismissal “for lack of jurisdiction over the subject matter” of

an action.

{¶ 6} R.C. 2506.01 provides that final orders of

administrative agencies may be reviewed by the court of common

pleas “as provided in Chapter 2505 of the Revised Code.” The appeal

must be filed within thirty days of the decision being appealed.

R.C. 2505.07. The filing of a notice of appeal pursuant to R.C.

Chapter 2505 is essential to vest a common pleas court with

jurisdiction to hear an administrative appeal, and jurisdiction

does not vest in the common pleas court until its jurisdiction

is perfected. Welsh Development Company v. Warren County Regional

Planning Commission, 186 Ohio App.3d. 56, 2010-Ohio-592, at ¶15.

Failure to file the notice of appeal in the court of common pleas

within the thirty-day period prescribed by R.C. 2505.07 deprives

that court of jurisdiction in the appeal. Helms v. Akron Health

Dept., Summit App. No. 21735, 2004-Ohio-3408, at ¶12.

{¶ 7} The trial court found that Southerland had not timely

filed her appeal and dismissed the action for lack of subject matter

jurisdiction. Southerland does not argue that the court

improperly applied the applicable law. Instead, she argues that

the court should not have found her appeal was untimely filed

because (1) the February 6, 2009 notice she received from MCDJFS 4

does not contain a “final appealable order” designation, and (2)

because Southerland had been advised by Maria Geiger, who had signed

the February 9, 2009 letter, that “there was no further appeal

process through her office.” (Brief, p. 7).

{¶ 8} The “final appealable order” designation is a product

of Civ.R. 58(B), which requires the court to direct the clerk of

a court of record to serve notice of the judgment and its date

of entry upon the journal within three days thereafter. When there

is a failure of the notice Civ.R. 58(B) requires, the time for

filing an appeal prescribed by App.R. 4(A) does not begin to run.

Carter-Jones Lumber Co. v. Willard, Lucas App. No. L-06-1096,

2006-Ohio-1980. However, the Rules of Civil Procedure have no

application to the proceedings of administrative agencies, absent

some specific statutory provision. Southerland cites no such

provision that would apply to the notice she received from MCDJFS,

and we are aware of none. Therefore, we find that MCDJFS was not

required to designate the February 6, 2009 notice to Southerland

a “final appealable order.”

{¶ 9} With respect to Maria Geiger, who signed the February

6, 2009 notice, Southerland contends that Geiger advised her that

the notice was not subject to an appeal, and that Southerland could

instead contact the Ohio Department of Job and Family Services

concerning the matter. That advice dissuaded her from filing a 5

timely R.C. 2506.01 appeal, according to Southerland. However,

there is nothing in the nature of evidentiary support for that

contention in the record of this proceeding. Further, compliance

with the time requirements of R.C. 2506.07 for filing an appeal

is jurisdictional, and cannot be modified by the parties or because

of their conduct.

{¶ 10} The assignment of error is overruled. The judgment from

which the appeal is taken will be affirmed.

FAIN, J. And DONOVAN, J., concur.

Copies mailed to:

Byron K. Shaw, Esq. John A. Cumming, Esq. Hon. Dennis J. Adkins