[Cite as Rauch v. Jefferson Twp. Bd. of Zoning Appeals, 2016-Ohio-967.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY


STEVEN R. RAUCH

        Appellant-Appellee

v.

JEFFERSON TOWNSHIP BOARD
OF ZONING APPEALS

        Appellee-Appellant

Appellate Case No. 26941


Trial Court Case No. 2014 CV 06029


(Civil Appeal from Common Pleas Court)

                            DECISION AND FINAL JUDGMENT ENTRY
                                       March 8, 2016

PER CURIAM:

        {¶ 1} This case arises from an administrative appeal taken from the Jefferson

Township Board of Zoning Appeals (“BZA”) to the Montgomery County Court of Common

Pleas. Steven R. Rauch appealed to the common pleas court when the BZA denied his

request for a conditional use permit. On November 5, 2015, the common pleas court

reversed the BZA’s decision and remanded the matter to the BZA with directions to issue
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the permit.

       {¶ 2} On December 4, 2015, the BZA filed a notice of appeal, instituting the

appeal currently before this court. No other parties have appealed or cross-appealed, and

the time in which to do so has elapsed. App.R. 4.

       {¶ 3} On December 11, 2015, Rauch moved to dismiss this appeal. He argues

that the BZA lacks standing to appeal the common pleas court’s decision.       In response,

the BZA argues that it was Rauch’s error in naming only the BZA in his appeal to the

common pleas court that caused the problem.           The BZA asserts that Rauch’s error

deprived the common pleas court of jurisdiction. It also argues that because Rauch made

it a party below, it may appeal pursuant to R.C. 2506.04 (allowing “any party” to appeal).

       {¶ 4} In the alternative, the BZA seeks to substitute other parties. On December

21, 2015, the BZA, “joined by” the Jefferson Township Board of Trustees (the “Board”)

and Jeffrey Payne, the Jefferson Township Zoning Director (the “Zoning Director”), filed a

motion to substitute the Board and Zoning Director for the BZA pursuant to App.R. 29(B).

Rauch argues in response that substitution cannot be used to “repair” a notice of appeal in

this manner.    The parties appear to agree that amendment of the notice of appeal

pursuant to App.R. 3(F) would be untimely and focus their arguments on substitution

pursuant to App.R. 29(B). They both advance arguments as to whether substitution is

“necessary” under that rule.

       {¶ 5} We conclude that the BZA lacks standing to appeal, and that the lack of

standing is a jurisdictional defect. We are therefore required to dismiss the appeal without

allowing the substitution of entities who did not timely appeal.

                                          Standing
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      {¶ 6} “It is a fundamental rule that an appeal may generally be instituted only by

‘parties who are able to demonstrate a present interest in the subject matter of the

litigation which has been prejudiced by the judgment of the lower court.’ ” In re

Guardianship of Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683, ¶ 5,

citing Willoughby Hills v. C.C. Bar’s Sahara, Inc., 64 Ohio St.3d 24, 26, 591 N.E.2d 1203

(1992). A party has standing when it has a “right to make a legal claim or seek judicial

enforcement of a duty or right.” Ohio Pyro Inc. v. Ohio Dept. of Commerce, 115 Ohio

St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, quoting Black’s Law Dictionary (8th

Ed.2004) 1442.

      {¶ 7} Rauch argues that the BZA lacks standing to appeal the common pleas

court’s decision.   The Supreme Court of Ohio directly held, in 1952, that “[n]either a

township board of zoning appeals nor any of its members as such have a right to appeal

from the judgment of a court, rendered on appeal from a decision of such board and

reversing and vacating that decision.” Di Cillo & Sons, Inc. v. Chester Zoning Bd. of

Appeals, 158 Ohio St. 302, 109 N.E.2d 8 (1952), syllabus. As the Fourth Appellate District

explained:

      “In an appeal to the board of zoning appeals, the board does not become a

      party to that appeal,” but rather is a body to decide whether the issuance of

      a variance is appropriate. [Di Cillo] at 304-305, 109 N.E.2d 8. “[T]he board

      should be as disinterested in deciding matters brought before it as a court

      should be.” Id. at 305, 109 N.E.2d 8. “Just as a common pleas court is not a

      party in a case it decides and may not appeal from a decision of a court of

      appeals that reverses the common pleas’ decision, the board of zoning
                                                                                          4


      appeals is not a party to [an] appeal and has no standing to appeal.” Parker

      v. Swancreek Twp. Bd. of Zoning Appeals, 6th Dist. Fulton Nos. F-04-035,

      F-04-036, F-04-038, 2005-Ohio-538, ¶ 4. Instead, the proper party to appeal

      under R.C. Chapter 2506 is “the city, the city official responsible for

      enforcing the zoning regulations, or other persons aggrieved by the court’s

      decision.” Sich v. Bd. of Zoning Appeals for the City [of] Middletown, 12th

      Dist. Butler No. CA83-08-093, 1984 WL 3386, *1 (July 16, 1984), citing Di

      Cillo at 305, 109 N.E.2d 8; Gold Coast Realty, Inc. v. Bd. of Zoning Appeals,

      26 Ohio St.2d 37, 39, 268 N.E.2d 280 (1971).

Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 2013-Ohio-5610, 5 N.E.3d

694, ¶ 11 (4th Dist.). This court has dismissed a case, on nearly identical procedural

facts, because the appellant, a board of zoning appeals, lacked standing. See Bd. of

Zoning Appeals for Harrison Twp. v. Resident Home Assn. for the Mentally Retarded of

Greater Dayton, Inc., 2d Dist. Montgomery No. 6894, 1981 WL 2715, *2 (Mar. 6, 1981)

(“Resident Home”). We held that “a township board of zoning appeals is not a person

adversely affected by an order of the common pleas court reversing one of its decisions,

and thus may not institute an appeal to the court of appeals in which the order of reversal

of the common pleas court is challenged.” Id.

      {¶ 8} The Supreme Court’s decision in Di Cillo considered a board of zoning

appeals’ standing pursuant to Section 3180-39 of the General Code, which allowed “[a]ny

person adversely affected by a decision of a township board of zoning appeals” to appeal.

Di Cillo at 304. That statute’s replacement, R.C. 2506.04, provides that the “judgment of

the court may be appealed by any party on questions of law as provided in the Rules of
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Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of

the Revised Code.” (Emphasis added.) The BZA asserts that it was a “party” to the lower

court proceedings, and it therefore may appeal.

       {¶ 9} We have rejected this argument, as have other courts. In Resident Home,

for example, we said that “[t]he fact that Section 2506.04, Revised Code, provides that any

party may appeal from a decision does not authorize one who was not a proper party to

appeal.” Id. at *2; Spencer v. Bd. of Zoning Appeals of Perry Twp., 171 N.E.2d 914, 918

(5th Dist.1960).   We also find persuasive cases from across the districts that have

continued to dismiss appeals by boards of zoning appeals for lack of standing or

otherwise.   See, e.g., Safest Neighborhood Assn. at ¶ 11; Rickard v. Trumbull Twp.

Zoning Bd. of Appeals, 11th Dist. Ashtabula No. 2008-A-0024, 2009-Ohio-2619, ¶ 41-44;

Parker v. Swancreek Twp. Bd. of Zoning Appeals, 6th Dist. Fulton No. F-04-035, 2005-

Ohio-538, ¶ 4; but see Sich v. Bd. of Zoning Appeals for City of Middletown, 12th Dist.

Butler No. CA83-08-093, 1984 WL 3386, *1-2 (July 16, 1984) (acknowledging the

Supreme Court’s directive in Di Cillo, but hearing appeal because there had been no

objection to standing). We conclude that the BZA lacks standing to appeal the decision of

the common pleas court that reversed the BZA.

                                       Substitution

       {¶ 10} The BZA asks this court to substitute the Board and the Zoning Director for

the BZA as appellants in this action.        Before considering whether substitution is

“necessary” or appropriate under App.R. 29(B), we first consider the effect of the lack of

standing on our jurisdiction.

       {¶ 11} The Supreme Court of Ohio recently held that standing is “a jurisdictional
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requirement; a party’s lack of standing vitiates the party’s ability to invoke the jurisdiction of

a court – even a court of competent subject-matter jurisdiction – over the party’s attempted

action.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d

1040, ¶ 22.

       {¶ 12} “For over 15 years, standing challenges were addressed by * * * Ohio courts

by relying on State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, [77,] 701 N.E.2d 1002

(1998), a plurality opinion holding that a lack of standing does not deprive the court of

subject matter jurisdiction and can be cured under Civ.R. 17.” JPMC v. Cochran, 11th

Dist. Ashtabula No. 2014-A-0048, 2015-Ohio-2452, ¶ 15. “Following a split among the

districts, the Supreme Court of Ohio in 2012 ultimately dismissed the Suster analysis as

non-binding, noting its plurality status.” Cochran at ¶ 16, citing Fed. Home Loan Mtge.

Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 29. The

court held that “[b]ecause standing to sue is required to invoke the jurisdiction of the

common pleas court, ‘standing is to be determined as of the commencement of suit.’ ”

Schwartzwald at ¶ 24 (internal citation omitted). It also departed from Suster in holding

that “a common pleas court cannot substitute a real party in interest for another party if no

party with standing has invoked its jurisdiction in the first instance.” Id. at ¶ 38.

       {¶ 13} In 2014, the Supreme Court again discussed the connection between

standing and jurisdiction. It held that a “determination of standing necessarily looks to the

rights of the individual parties to bring the action, as they must assert a personal stake in

the outcome of the action in order to establish standing.” (Emphasis in original.) Bank of

Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 23, citing

Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875
                                                                                              7


N.E.2d 550, ¶ 27. The court held that “[l]ack of standing is certainly a fundamental flaw

that would require a court to dismiss the action, Schwartzwald at ¶ 40, and any judgment

on the merits would be subject to reversal on appeal.” Kuchta at ¶ 23.

       {¶ 14} The Supreme Court’s analysis was conducted in the context of foreclosure

proceedings instituted in the common pleas courts.           The zoning matter before us

originated in the BZA, was then appealed to the common pleas court, and then further

appealed to this court. We have found little direct guidance as to whether the Supreme

Court’s analysis would extend to appeals in appellate courts. The analysis has, however,

been applied to other kinds of cases at the trial court level. See, e.g. Murray v. Miller, 5th

Dist. Richland No. 15CA02, 2015-Ohio-3726 (legal malpractice claim brought by

bankruptcy debtor); Shefkiu v. Worthington Industries, Inc., 2014-Ohio-2970, 15 N.E.3d

394 (6th Dist.) (workplace injury claim by bankruptcy debtor). Similar analysis was applied

prior to Schwartzwald and Kuchta to dismiss an administrative appeal without allowing

substitution. See Hills & Dales v. Ohio Dept. of Edn., 10th Dist. Franklin No. 06AP-1249,

2007-Ohio-5156 (affirming common pleas court’s dismissal of appeal and denial of

substitution as moot where appellant lacked standing). And, courts have explicitly held

they “cannot allow new parties to be amended into a notice of appeal that was insufficient

to invoke the court's jurisdiction in the first place,” because of a lack of standing. State v.

Langston, 6th Dist. Lucas No. L-12-1014, 2012-Ohio-6249, ¶ 12, citing Ambrosia Coal &

Constr. Co. v. C.B.G., Inc., 7th Dist. No. 00 C.A. 101, 2001 WL 1123901 (Sept. 14, 2001);

see also Beneficial Mtge. Co. v. Dickerson, 10th Dist. Franklin No. 14AP-282, 2014-Ohio-

5045, ¶ 10, citing Ambrosia Coal.

       {¶ 15} We see no principled reason the Schwartzwald/Kuchta analysis should not
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apply here. Given that an appellant must also have standing in the court of appeals, In re

Guardianship of Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683, ¶ 5, and

given the Supreme Court’s unambiguous statement that lack of standing is a fundamental,

jurisdictional flaw requiring a court to dismiss an action, we conclude that the BZA’s lack of

standing requires this court to dismiss its appeal. Kuchta at ¶ 23, citing Schwartzwald at ¶

40. Further, the Supreme Court’s holding that lack of standing cannot be “cured” later in

the proceedings persuades us that we may not permit the type of substitution sought here

by the BZA. Schwartzwald at ¶ 38-39.

       {¶ 16} Even if this court could permit the BZA to “cure” the lack of standing, we are

not convinced that App.R. 29, under which the BZA seeks substitution, should be used in

the manner suggested. Before Schwartzwald and Kuchta, standing problems in the trial

court could be cured by substitution or correction pursuant to Civ.R. 17’s real party in

interest provision. See Suster, supra. The Appellate Rules contain no analog to Civ.R.

17. Rather, the Appellate Rules contain a substitution rule analogous to Civ.R. 25. Civ.R.

25 allows substitution of parties because of death, incompetency, transfer of interest, or

when a named public officer dies, resigns, or otherwise ceases to hold office. Similarly,

App.R. 29 permits substitution upon a party’s death, when a named public officer dies,

resigns, or otherwise ceases to hold office, or where it “is necessary for any reason other

than death.” App.R. 29(B).

       {¶ 17} Both Civ.R. 25 and App.R. 29 contemplate substitution when there is some

equivalence between the new party and the old, e.g., a personal representative and her

decedent, or a public official and his predecessor. There is no such relationship here.

The Board of Zoning Appeals, the Board of Township Trustees, and the Township Zoning
                                                                                                            9


Director1 all appear to be separate entities, with separate statutory rights and

responsibilities. Compare R.C. 519.13 and R.C. 519.14 (concerning boards of zoning

appeals); R.C. 505.01 et seq. (concerning boards of township trustees); R.C. 519.16

(concerning township zoning inspectors). They are not equivalent as a matter of fact, and

we decline to construe “necessary” in this context to allow them to be treated as such as a

matter of law.

        {¶ 18} We also do not believe that App.R. 29(B) was intended to be used as a real

party in interest rule. Parties who substitute into an appeal in the customary situation seek

to vindicate or protect the rights of the original party.              A personal representative, for

example, asserts the rights of her decedent, not her own rights. We do not view App.R.

29(B) as a mechanism to introduce a new party seeking to pursue its own rights. We

decline to construe the word “necessary” under the rule to include situations where

substitution is the only way for an appeal to proceed, not because a proper party became

unable to litigate, but because an improper party appealed and the proper parties did not.

The contrary result would allow placeholder appeals to be filed by entities without any

cognizable interest in the outcome, and the later substitution by entities that, as here,

failed to intervene or timely assert their rights in these proceedings or the proceedings

below. We decline to construe “necessary” in this manner.

        {¶ 19} Finally, even if we had discretion to allow a lack of standing to be cured by

substitution, we would not exercise our discretion to do so here. The Board and the

Zoning Director failed to file a timely notice of appeal.               As they argue, they have an

interest in the matter and could properly be parties. See Gold Coast Realty, Inc. v. Bd. of


1The statute contemplates a zoning inspector, necessary assistants, and a fiscal officer. R.C. 519.16. While
not directly addressed by the parties, we observe that the Zoning Director in this case appears to have acted
                                                                                               10


Zoning Appeals of City of Cleveland, 26 Ohio St.2d 37, 39, 268 N.E.2d 280 (1971) (finding

that a municipality has standing to appeal a decision of the common pleas court that

reversed the BZA). By finding it “necessary” for them to be substituted in, we would create

a loophole through which litigants could apply to this court for relief in violation of this

court’s primary jurisdictional requirement: that the appellant timely filed a notice of appeal.

See App.R. 4(A).

        {¶ 20} We are cognizant that the Supreme Court of Ohio has held that the only

jurisdictional requirement for a valid appeal is the timely filing of a notice of appeal, without

specifying who must file it.       Transamerica Inc. Co. v. Nolan, 72 Ohio St.3d 320, 649

N.E.2d 1229 (1995), syllabus.       To the extent that this statement survives or incorporates

the mandates of Schwartzwald and Kuchta, we would note that Transamerica considered

a motion to amend a notice of appeal, not a motion to substitute a party. Transamerica

also considered errors in the form of the notice of appeal itself, not the appellant’s lack of

standing. See Beneficial Mtge. Co. v. Dickerson, 10th Dist. Franklin No. 14AP-282, 2014-

Ohio-5045, ¶ 10 (distinguishing Transamerica and finding the court’s jurisdiction not

properly invoked by a notice of appeal filed by a non-existent entity who lacked standing).

Together, these cases persuade us that the timely filing of a notice of appeal by a person

with standing to file it is required.

        {¶ 21} Under the circumstances presented here, we conclude that the motion to

substitute parties pursuant to App.R. 29(B) is not well-taken.

                                           Conclusion

        {¶ 22} The BZA lacks standing to appeal the common pleas court’s decision

overruling the BZA. Rauch’s motion to dismiss this appeal is therefore SUSTAINED. The


similarly to a zoning inspector.
                                                                                    11


motion to substitute parties is OVERRULED.             Montgomery App. No. 26941 is

DISMISSED.

      {¶ 23} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the

Montgomery County Court of Appeals shall immediately serve notice of this judgment

upon all parties and make a note in the docket of the mailing.

      SO ORDERED.


                                                MARY E. DONOVAN, Presiding Judge



                                                MIKE FAIN, Judge



                                                MICHAEL T. HALL, Judge


Copies to:

Jeffrey Turner
Dawn Frick
Kevin Lantz
Surdyk, Dowd & Turner Co., LPA
8163 Old Yankee Street, Suite C
Dayton, Ohio 45458
Attorneys for Appellant, Jefferson Township Board of Zoning Appeals

Terry Posey, Jr.
Scott King
Thompson Hine, LLP
Austin Landing I
10050 Innovation Drive, Suite 400
Miamisburg, Ohio 45342
Attorneys for Appellee, Steven R. Rauch



Hon. Mary Wiseman
Montgomery County Common Pleas Court
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41 N. Perry Street
P.O. Box 972
Dayton, Ohio 45422
CA3/KY
