[Cite as Hoover v. Elyria, 2014-Ohio-2227.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

JAMES P. HOOVER                                       C.A. No.       13CA010364

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CITY OF ELYRIA                                        COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   12CV177665

                                 DECISION AND JOURNAL ENTRY

Dated: May 27, 2014



        BELFANCE, Presiding Judge.

        {¶1}     The City of Elyria (“the City”) appeals the decision of the Lorain County Court of

Common Pleas. For the reasons set forth below, we vacate the order remanding the matter to the

Elyria Civil Service Commission for further proceedings and reverse the denial of the City’s

motion to dismiss.

                                                 I.

        {¶2}     During the course of his employment for the City, James Hoover cut an electrical

wire in order to facilitate the removal of a piece of equipment. According to the City, Mr.

Hoover failed to follow the proper safety procedures when he cut the wire. Following a meeting

with Mr. Hoover, Mary Siwierka, the Safety Service Director, decided to terminate Mr. Hoover’s

employment with the City. Mr. Hoover appealed Director Siwierka’s decision to the Elyria Civil

Service Commission, which affirmed the decision to terminate him on August 8, 2012.
                                                  2


       {¶3}      On August 29, 2012, Mr. Hoover filed a notice of appeal “from the Elyria Civil

Service Commission” in the Lorain County Court of Common Pleas, indicating on the notice that

the City’s law director had been “served” with the notice via e-mail that day. Attached to his

notice of appeal was a written decision issued on August 8, 2012. The clerk sent a copy of the

notice of appeal to “Elyria, Ohio (City of)” on September 6, 2012, and a notation was made on

the docket that the mail had been delivered on September 7, 2012.

       {¶4}      The City filed a motion to dismiss for lack of jurisdiction, which the common

pleas court denied. The court subsequently determined that the record did not contain enough

information to determine whether the City followed the disciplinary procedures in the collective

bargaining agreement and, thus, remanded the matter to the Civil Service Commission for further

consideration.

       {¶5}      The City has appealed, raising two assignments of error for our review.

                                                II.

                                   ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED
       TO DISMISS JAMES HOOVER’S APPEAL FOR LACK OF SUBJECT-
       MATTER JURISDICTION.

       {¶6}      In its first assignment of error, the City argues that the trial court should have

granted its motion to dismiss Mr. Hoover’s appeal because Mr. Hoover had not perfected it

pursuant to R.C. 2505.04 and R.C. 2505.07 and, therefore, the trial court lacked jurisdiction over

the appeal. We agree.

       {¶7}      “[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 Dev. Co. Inc. v. Warren Cty

Regional Planning Comm., 128 Ohio St.3d 471, 2011-Ohio-1604, ¶ 14. “After the entry of a
                                                3


final order of an administrative officer, agency, board, department, tribunal, commission, or

other instrumentality, the period of time within which the appeal shall be perfected, unless

otherwise provided by law, is thirty days.” R.C. 2505.07. “An 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.” R.C. 2505.04. “Although the person attempting to appeal does not have to use a

particular method to deliver his notice of appeal to the administrative body, ‘[f]iling does not

occur until there is actual receipt by the agency within the time prescribed by R.C. 2505.07.’”

Harris v. Akron, 9th Dist. Summit No. 25689, 2011-Ohio-6735, ¶ 5, quoting Welsh Dev. Co. Inc.

at ¶ 18, 39.

        {¶8}   In this case, the record does not contain evidence of the Civil Service

Commission’s actual receipt of the notice of appeal within the time prescribed by R.C. 2505.07.

As noted above, Mr. Hoover attempted to appeal the August 8, 2012 decision of the Civil

Service Commission. Mr. Hoover filed his notice of appeal in the trial court on August 29, 2012.

The clerk of courts then sent a copy of the notice of appeal via certified mail to “Elyria, Ohio

(City of)” on September 6, 2012, and the docket indicates that it was received by the City on

September 7, 2012.

        {¶9}   However, there is no indication in the record that Mr. Hoover’s notice of appeal

was actually received by the Elyria Civil Service Commission within 30 days of it rendering its

decision. See Harris at ¶ 5. In support of its motion to dismiss, the City submitted the affidavit

of Deborah Spangenberg, who averred that she is the Secretary for the Elyria Civil Service

Commission, that she is responsible for maintaining correspondence for the Commission, and

that her duties include issuing the Commission’s decisions via the postal service.            Ms.
                                                4


Spangenberg averred that the Elyria Civil Service Commission issued a written decision

affirming Mr. Hoover’s termination on August 8, 2012, and that she mailed this decision on

August 9, 2012. Ms. Spangenberg averred that she was the custodian of the Commission’s

records and that her review of the Commission’s records concerning Mr. Hoover’s termination

indicated “no receipt of any Notice of Appeal or other documents from James P. Hoover or his

legal counsel after August 8, 2012.” Thus, Ms. Spangenberg’s affidavit supports the evidence in

the record that Mr. Hoover did not perfect his appeal in compliance with R.C. 2505.04. In

addition, Mr. Hoover’s counsel submitted an affidavit in which he averred that he asked the

Clerk of Courts to mail the notice of appeal to the City of Elyria. He did not ask the clerk to

serve the notice of appeal upon the Civil Service Commission. Moreover, he has not provided

legal authority that the clerk’s mailing and ultimate receipt by the City of the notice of appeal

satisfied the requirement that the Civil Service Commission actually receive the notice of appeal.

See App.R. 16(A)(7).

       {¶10} Mr. Hoover argues that he did comply with R.C. 2505.04 because he gave notice

to Director Siwierka that he planned to appeal the Civil Service Commission’s decision.

However, he does not point to any part of the record to support this contention, and it is not

apparent from our own review of the record that Director Siwierka ever was served with a notice

of appeal. See App.R. 16(A)(7) (A brief shall contain citations to the “parts of the record on

which appellant relies.”). Mr. Hoover’s argument appears to essentially be that, if Director

Siwierka received the notice of appeal, she should have passed it along to the Civil Service

Commission. However, there is no evidence that Director Siwierka regularly received mail on

behalf of the Civil Service Commission. Compare with Smola v. Legeza, 11th Dist. Ashtabula

No. 2004-A-0038, 2005-Ohio-7059, ¶ 16-18 (Delivery to the offices where the administrative
                                                5


agency receives all of its mail satisfies R.C. 2505.04.). Furthermore, even assuming Director

Siwierka should have filed the notice of appeal for Mr. Hoover in the interest of fairness,1 there

is nothing in the record to suggest that she did any act to accomplish the filing of the notice of

appeal with the Civil Service Commission. See Harris, 2011-Ohio-6735, at ¶ 5, quoting Welsh

Dev. Co. Inc., 128 Ohio St.3d 471, 2011-Ohio-1604, at ¶ 18. Thus, we cannot conclude that,

assuming Director Siwierka received a notice of appeal, her receipt of the notice of appeal

satisfied the requirement contained in R.C. 2505.04.2 See id. See also Welsh Dev. Co. Inc. at ¶

14.

       {¶11}     Accordingly, we conclude that the trial court erred when it denied the City’s

motion to dismiss. Based upon the record on appeal, Mr. Hoover’s notice of appeal was never

filed with the Elyria Civil Service Commission. Thus, the common pleas court was without

jurisdiction to hear the appeal.

       {¶12} The City’s first assignment of error is sustained.

                                   ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN ITS “HYBRID” APPLICATION OF THE
       STANDARDS OF REVIEW SET FORTH UNDER R.C. 119.12 AND R.C.
       2506.04, CONSTITUTING AN ABUSE OF DISCRETION.

       {¶13} Due to our resolution of the City’s first assignment of error, this assignment of

error is moot, and, therefore, we decline to address it. See App.R. 12(A)(1)(c).


       1
          However, if the a notice of appeal was delivered to Director Siwierka or some other
employee of the Elyria government despite being addressed to the correct administrative agency,
the failure to file the notice with the agency may well not act as a bar to a common pleas court
taking jurisdiction over the appeal.
        2
          Assuming that Mr. Hoover emailed the notice of appeal to the Elyria law director, Mr.
Hoover has not cited any authority to suggest that this would satisfy R.C. 2505.04, see App.R.
16(A)(7), and, in any case, we cannot conclude that such would satisfy R.C. 2505.04 under the
circumstances of this case. See, e.g., Lorenzo Properties, II, Inc. v. Akron, 9th Dist. Summit No.
25807, 2011-Ohio-5369, ¶ 10-13.
                                                   6


                                                III.

       {¶14} The City’s first assignment of error is sustained, and its second assignment of

error is moot. The common pleas court’s denial of the City’s motion to dismiss is reversed, and

its order remanding the matter to the Civil Service Commission for further proceedings is

vacated as void.

                                                                          Judgment vacated in part,
                                                                              and reversed in part.




       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 Lorain, 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.

       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(C). 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 equally to both parties.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT



WHITMORE, J.
CONCURS.
                                               7




CARR, J.
CONCURRING IN JUDGMENT ONLY.

       {¶15} Although I sympathize with Hoover regarding notice to the City, the law is clear

that the notice of appeal must be filed with the administrative agency within the time period

required to appeal. Despite Hoover’s arguments that Welsh Dev. Co., Inc. v. Warren Cty.

Regional Planning Comm., 128 Ohio St.3d 471, 2011-Ohio-1604, changed this standard, the

Ohio Supreme Court in Welsh merely held that service on the administrative agency can be

accomplished through the Clerk of Courts. Id. at syllabus. It did not change the requirement of

service being made on the actual administrative agency.


APPEARANCES:

SCOTT F. SERAZIN, Law Director, and AMANDA R. DEERY, Assistant Law Director, for
Appellant.

MICHAEL P. HARVEY, Attorney at Law, for Appellee.
