[Cite as Yeager v. Mansfield, 2012-Ohio-2908.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


CARL YEAGER                                      :      JUDGES:
                                                 :
                                                 :      Hon. Patricia A. Delaney, P.J.
       Plaintiff-Appellant                       :      Hon. William B. Hoffman, J.
                                                 :      Hon. John W. Wise, J.
-vs-                                             :
                                                 :      Case No. 2011 CA 0085
CITY OF MANSFIELD, ET AL.                        :
                                                 :
                                                 :
       Defendants-Appellees                      :      OPINION


CHARACTER OF PROCEEDING:                             Appeal from the Richland County Court of
                                                     Common Pleas, Case No. 2011 CV 0450



JUDGMENT:                                            AFFIRMED




DATE OF JUDGMENT ENTRY:                              June 25, 2012




APPEARANCES:

For Appellant:                                          For Appellees:

BYRON D. CORLEY                                         JOHN R. SPON
3 North Main Street                                     LAW DIRECTOR
Suite 714                                               City of Mansfield
Mansfield, OH 44902                                     30 N. Diamond St.
                                                        Mansfield, OH 44902


Delaney, P.J.
       {¶1} Plaintiff-Appellant Carl Yeager appeals the August 24, 2011 judgment

entry of the Richland County Court of Common Pleas adopting the July 25, 2011

Magistrate’s Decision dismissing Yeager’s administrative appeal for lack of

jurisdiction.

                       FACTS AND PROCEDURAL HISTORY

       {¶2} On December 24, 2007, the City of Mansfield issued a demolition order

for the property located at 462 Lily Street in Mansfield, Ohio. Yeager is the owner of

the property. Yeager appealed the demolition order to the Mansfield City Planning

Commission.

       {¶3} On March 11, 2011, the Mansfield City Planning Commission denied

Yeager’s appeal of the demolition order.

       {¶4} Yeager filed a Complaint for Preliminary Injunction on April 8, 2011 with

the Richland County Court of Common Pleas. The administrative appeal named the

Appellants City of Mansfield and the members of the Mansfield City Planning

Commission as defendants. The Richland County Clerk of Courts served the City of

Mansfield with the administrative appeal on April 13, 2011.

       {¶5} The City of Mansfield filed a Motion to Dismiss on April 18, 2011. The

motion argued pursuant to R.C. 2505.04 and R.C. 2505.07, Yeager did not properly

perfect his appeal because the administrative agency was served with the appeal on

April 13, 2011, 33 days after the final order of the Mansfield City Planning

Commission. This was not within 30 days of the final order of the Mansfield City

Planning Commission; therefore, Yeager’s administrative appeal should be dismissed

for lack of subject matter jurisdiction. The City’s argument was based in part on the
Ohio Supreme Court decision, Welsh Dev. Co. v. Warren Cty. Regional Planning

Comm., 128 Ohio St.3d 471, 2011-Ohio-1604, 946 N.E.2d 215, issued March 29,

2011.

        {¶6} Yeager filed a response on April 26, 2011. Yeager argued Welsh was

not applicable to his case because the final order was issued on March 11, 2011 and

Welsh was decided on March 29, 2011.

        {¶7} The case was assigned to the magistrate.         On March 25, 2011, the

magistrate held an evidentiary hearing on the City’s Motion to Dismiss.

        {¶8} The magistrate issued his magistrate’s decision on July 25, 2011. The

magistrate applied Welsh and found Yeager did not comply with R.C. 2505.07. The

magistrate recommended the City’s Motion to Dismiss be granted for lack of

jurisdiction of the administrative appeal.   The magistrate’s decision contained the

requisite Civ.R. 53 language notifying the parties of the right to file objections to the

decision.

        {¶9} No objections were filed. On August 24, 2011, the trial court adopted the

July 25, 2011 magistrate’s decision and entered judgment.

        {¶10} It is from this decision Yeager now appeals.

                              ASSIGNMENT OF ERROR

        {¶11} Yeager raises one Assignment of Error:

        {¶12} “WHETHER YEAGER IS ENTITLED TO RELIEF FROM THE TRIAL

COURT’S DENIAL OF PRELIMINARY INJUNCTION.”
                                       ANALYSIS

       {¶13} Yeager argues in his sole Assignment of Error the trial court erred in

dismissing his administrative appeal. We disagree.

                FAILURE TO OBJECT TO MAGISTRATE’S DECISION

       {¶14} The underlying case was assigned to the magistrate. On March 25, 2011,

the magistrate held an evidentiary hearing on the City’s Motion to Dismiss.           The

magistrate issued his decision on July 25, 2011, recommending the motion to dismiss

be granted. The magistrate’s decision included the requisite Civ.R. 53 language, which

stated: “Within fourteen (14) days of the filing of a magistrate’s order, a party may file

written objections to the magistrate’s order. Objections shall be specific and state with

particularity the grounds of objection. A party shall not assign as error on appeal the

court’s adoption of any finding of fact or conclusion of law in that decision unless the

party timely and specifically objects to that finding or conclusion as required by Civ.R.

53(E)(3).”

       {¶15} Yeager did not file an objection to the magistrate’s decision. On August

24, 2011, the trial court adopted the decision of the magistrate and entered judgment

in the case.

       {¶16} When a party fails to file objections to a magistrate's decision, Civ.R.

53(D)(3)(b)(iv) provides that “a party shall not assign as error on appeal the court's

adoption of any factual finding or legal conclusion * * * unless the party has objected to

that finding or conclusion as required by Civ.R. 53(D)(3)(b).” Postel v. Koksal, 5th Dist.

No. 08–COA–0002, 2009–Ohio–252, ¶ 25.
       {¶17} We note, however, that authority exists in Ohio law for the proposition that

Yeager’s failure to object to the magistrate's decision does not bar appellate review for

“plain error.”    In re Lemon, 5th Dist. No. 2002 CA 00098, 2002–Ohio–6263.              The

doctrine of plain error is limited to exceptionally rare cases in which the error, left

unobjected to at the trial court, “rises to the level of challenging the legitimacy of the

underlying judicial process itself.” See Goldfuss v. Davidson, 79 Ohio St.3d 116, 122,

1997–Ohio–401, 679 N.E.2d 1099.

       {¶18} We will review Yeager’s Assignment of Error under the plain error

doctrine.

                   COMPLIANCE WITH R.C. 2505.04 AND R.C. 2505.07

       {¶19} “[W]hen the right to appeal is conferred by statute, an appeal can be

perfected only in the manner prescribed by the applicable statute.” Welsh, 128 Ohio

St.3d 471, 2011-Ohio-1604, 946 N.E.2d 215, ¶ 14 citing McCruter v. Bur. Of Emp.

Servs. Bd. Of Review, 64 Ohio St.2d 277, 279, 415 N.E.2d 259 (1980).

       {¶20} R.C. 2504.04 governs the manner in which an administrative appeal is

perfected. The statute reads:

                 An appeal is perfected when a written notice of appeal is filed, in

       the case of an appeal of a final order, judgment, or decree of a court, in

       accordance with the Rules of Appellate Procedure or the Rules of

       Practice of the Supreme Court, or, in the case of an administrative-

       related     appeal,   with   the   administrative   officer,   agency,   board,

       department, tribunal, commission, or other instrumentality involved.
      {¶21} R.C. 2505.07 requires a party wishing to appeal an administrative

decision to perfect his appeal within 30 days after the administrative body enters that

decision.

      {¶22} “The requirements of R.C. 2505.04 and 2505.07 are jurisdictional rather

than merely procedural.” Deaconess Hosp. v. Ohio Dept. Job & Family Servs., 10th

Dist. No. 11AP-259, 2012-Ohio-95, ¶ 15 citing Roberts v. Pleasant Local School Dist.

Bd. of Edn., 3rd Dist. No. 9–11–04, 2011–Ohio–4560, ¶ 13.

      {¶23} The issue of how an administrative appeal is perfected was discussed in

Welsh Dev. Co. v. Warren Cty. Regional Planning Comm., 128 Ohio St.3d 471, 2011-

Ohio-1604, 946 N.E.2d 215. The Ohio Supreme 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.

Welsh, supra, at the syllabus.

      {¶24} In Welsh, the Ohio Supreme Court recognized there was a conflict in the

appellate districts as to whether an administrative appeal is perfected through a clerk

of courts’ service of a notice of appeal on an agency or whether the party must file the

notice of the appeal directly with the administrative agency. The question before the

Court in Welsh was: “Is 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, sufficient to perfect an administrative appeal pursuant to R.C. 2504.04 as
long as the agency receives the notice within the time prescribed by R.C. 2505.07?”

Welsh, supra at ¶ 13. As stated above, the Court answered the question affirmatively.

Id. The question in Welsh went directly to the method of delivery of the notice of

appeal pursuant to R.C. 2504.04.

      {¶25} Welsh, however, did not address the time requirement in R.C. 2505.07.

Welsh made no clarification or adjustment to R.C. 2505.07, which states an appeal

must be perfected within 30 days from the date of the final order.

      {¶26} The Court stated:

             We are not redefining the word “filing” in holding that an

      administrative appeal may be perfected when a party files a notice of

      appeal with the clerk of courts accompanied by a praecipe for the clerk

      to serve the complaint and notice of the appeal on the administrative

      agency. Filing does not occur until there is actual receipt by the agency

      within the time prescribed by R.C. 2505.07. Filing and service are still

      distinct terms.

             Practitioners should not be confused or think that filing under R.C.

      2505.04 is accomplished only 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.        The administrative agency must still receive the

      appropriate complaint and notice within 30 days after entry of the final

      administrative order.    The appellant may use any method reasonably

      certain to accomplish delivery to the agency within the required 30 days,
       which is filing that satisfies the jurisdictional requirement for an

       administrative appeal.

Welsh, supra at ¶ 39-40.

       {¶27} Yeager argues that Welsh is not applicable to his administrative appeal

because it was decided on March 29, 2011, which was after the final order was

entered in this case on March 11, 2011.         The record shows that Yeager in fact

complied with Welsh by having the Richland County Clerk of Courts serve the notice

of appeal upon the City.        A close examination of this case reveals we are not

presented with the question of whether Welsh is applicable to Yeager. The issue in

this case is whether Yeager complied with the time requirement found in R.C.

2505.07.

       {¶28} In this case, the final order was entered on Friday, March 11, 2011.

Thirty days from Friday, March 11, 2011 was Sunday, April 10, 2011. Under R.C.

1.14, “[t]he time within which an act is required by law to be done shall be computed

by excluding the first and including the last day; except that, when the last day falls on

Sunday or a legal holiday, the act may be done on the next succeeding day that is not

Sunday or a legal holiday.” Therefore, Yeager was required to perfect his appeal by

Monday, April 11, 2011. The City received service of Yeager’s administrative appeal

on April 13, 2011.

       {¶29} The record shows that the City did not receive the administrative appeal

within 30 days of the March 11, 2011 final order as required by R.C. 2505.07. Thus,

Yeager did not properly invoke the jurisdiction of the common pleas court. We find no

plain error in the trial court’s decision to dismiss Yeager’s administrative appeal.
                                CONCLUSION

       {¶30} For the foregoing reasons, Yeager’s sole Assignment of Error is

overruled.

       {¶31} The judgment of the Richland County Court of Common Pleas is

affirmed.

By: Delaney, P.J.

Hoffman, J. and

Wise, J. concur.



                                   HON. PATRICIA A. DELANEY



                                   HON. WILLIAM B. HOFFMAN



                                   HON. JOHN W. WISE


PAD:kgb
                   IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


                                   :
CARL YEAGER                        :
                                   :
   Plaintiff - Appellant           :     JUDGMENT ENTRY
                                   :
                                   :
-vs-                               :
                                   :     Case No.   2011 CA 0085
CITY OF MANSFIELD, et al.          :
                                   :
   Defendants-Appellees            :
                                   :
   For the reasons stated in our accompanying Opinion on file, the judgment of the

Richland County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                     HON. PATRICIA A. DELANEY



                                     HON. WILLIAM B. HOFFMAN



                                     HON. JOHN W. WISE
