[Cite as Lykes v. Akron Dept. of Public Serv., 2014-Ohio-578.]


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

MICHAEL D. LYKES                                            C.A. No.   26570

        Appellant

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
CITY OF AKRON, DEPARTMENT OF                                COURT OF COMMON PLEAS
PUBLIC SERVICE                                              COUNTY OF SUMMIT, OHIO
                                                            CASE No.   CV 2011-12-7034
        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: February 19, 2014



        CARR, Judge.

        {¶1}     Appellant Michael Lykes appeals the judgment of the Summit County Court of

Common Pleas. This Court reverses and remands.

                                                       I.

        {¶2}     This case presents a unique set of facts and procedural history meriting

consideration beyond the scope of a typical R.C. Chapter 2506 administrative appeal.

        {¶3}     For many years, beginning in October 2004, neighbors complained about the

condition of a home located at 240 Storer Avenue in Akron, parcel number 68-34166. The

property changed ownership over the years, but remained in a state of disrepair and lack of

habitability. After over 30 inspections by the city of Akron, many resulting in warnings, orders

to comply with the local environmental housing code, and the assessment of administrative

penalties, the matter was finally referred to the Housing Appeals Board for review.         On

November 15, 2011, the board held a hearing and issued an order that the structure on the
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property be razed and that the cost of demolition be assessed as a tax lien on the property. The

owner of the property at that time was Quadrant Residential Capital IV LP.

          {¶4}   A city housing complaint form in the record indicates that on December 9, 2011,

Mr. Lykes telephoned a city sanitarian, identified by the initials “JF.” JF noted that Mr. Lykes

had closed on the house at 240 Storer Avenue that day and that he inquired regarding his

necessary course of action [given the issuance of the condemnation order]. JF noted that she

informed him that he must file an appeal, presumably from the housing board’s demolition order,

by 4:30 p.m., on December 15, 2011. The note later indicated that an appeal had been received

on December 15, 2011.

          {¶5}   Mr. Lykes filed his administrative appeal regarding parcel number 68-34166, 240

Storer Avenue, in the Summit County Court of Common Pleas by and through counsel. Counsel

appended a copy of the affidavit of condemnation proceedings regarding that property to the

appeal.     The affidavit was executed by Jodie Forester, the sanitarian who conducted the

November 15, 2011 hearing before the housing board. The city filed a notice of filing of the

record on February 3, 2012. Subsequently, the trial court issued a briefing schedule, ordering

that Mr. Lykes’ assignments of error and brief were due on or before March 30, 2012. The

scheduling order was copied to be served on Mr. Lykes’ counsel of record.

          {¶6}   On April 9, 2012, after Mr. Lykes had failed to file a brief and assignments of

error, the city moved to dismiss the appeal for failure to prosecute. While the city’s motion is

docketed and appears on the clerk of courts’ web site, the motion does not bear a time-stamp.

The assistant law director who filed the motion to dismiss certified that he had sent a copy by

regular mail to Mr. Lykes’ counsel of record on April 9, 2012.
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       {¶7}    On April 30, 2012, Mr. Lykes, purportedly by and through counsel, filed a motion

for preliminary and permanent injunction.1 Although the motion bore the trial court case number

relevant to the instant matter, the caption named Summit Construction Company, rather than the

Akron Department of Public Service and the secretary of the Akron Housing Appeals Board, as

the defendant. Moreover, the motion referenced three parcel numbers at 835 Moon Street, in

Akron, rather than the parcel number relevant to 240 Storer Avenue and this case. In addition,

the page purportedly containing the memorandum in support of the motion for injunctions was

missing from the record.

       {¶8}    On May 11, 2012, Mr. Lykes’ counsel of record filed a combined “brief and

opposition of motion to dismiss” and motion to stay the condemnation proceedings. On June 6,

2012, the city opposed the motion to stay and renewed its motion to dismiss.

       {¶9}    On June 28, 2012, the trial court issued a judgment entry in which it granted the

city’s motion to dismiss the administrative appeal for the reasons that Mr. Lykes’ “brief and

opposition of motion to dismiss” was filed beyond the trial court’s deadline for appellant’s brief

and because the brief failed to identify and discuss any assignments of error from the

administrative hearing. In addition, the trial court apparently consolidated and construed Mr.

Lykes’ motion to stay the condemnation proceedings as a motion for injunctive relief. It denied

the motion to stay based on Lykes’ “fail[ure] to list, analyze, or otherwise discuss any factors for




       1
          The clerk’s transcript of docket and journal entries noted that the motion for preliminary
and permanent injunction was filed by Michael D. Lykes, Jr. As the memorandum for the
motion is missing from the record, there is no signature page attached. The certificate of service
accompanying the motion is purportedly signed by Mr. Lykes’ counsel of record, although it
certifies service of a “Motion for Extension” on Summit Construction Company on a date 9 days
in advance of the filing of the motion for injunction.
                                                4


the Court to consider * * * except a brief statement that the property is undergoing

‘renovations.’” Mr. Lykes appealed to this Court and raises one assignment of error for review.

       {¶10} After the appeal was argued to the Court, the case was stayed to allow the parties

to attempt to resolve the matter.     They were ultimately unsuccessful, and the appeal was

reactivated.

                                                I.

                                 ASSIGNMENT OF ERROR

       MY FORMER ATTORNEY DID NOT                         FOLLOW       PROTOCOL        TO
       CORRECTLY PRESENTING MY CASE.

       {¶11} Mr. Lykes argues that the trial court erred by dismissing his administrative appeal

because he was entitled to a stay of the condemnation order which was unconstitutional, illegal,

arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,

and probative evidence on the whole record. Moreover, he argues that his trial counsel failed to

proceed with the administrative appeal in an appropriate manner.

       {¶12} As an initial matter, this Court notes that there are numerous peculiarities evident

in the documents filed in the case below. For example, after the city filed an initial motion to

dismiss for failure to prosecute, Mr. Lykes filed a motion for preliminary and permanent

injunction. Mr. Lykes’ motion was unusual for several reasons: 1. The type font varied within

the document and from other documents filed by Mr. Lykes’ counsel of record; 2. The

memorandum page of the document was missing; 3. The document was double-sided and

progressed from page 1 (the caption and introductory paragraph) to page 3 (the certificate of

service; 4. The caption identified Summit Construction Company as the defendant, although that

entity was not a party to the case; 5. The property identified in the introductory paragraph of the

motion did not match the property at issue in this case by either address or parcel number; 6. The
                                                 5


certificate of service referenced a “motion for extension,” rather than the motion for injunctions;

and 7. Despite a purported signature by counsel on the document, the clerk’s office noted on the

transcript of docket and journal entries that Mr. Lykes had filed the motion.

       {¶13} In addition, soon thereafter, Mr. Lykes’ counsel filed a “brief and opposition of

motion to dismiss and motion to stay condemnation proceedings.” This document, too, was

unusual. The body of the motion asserted that Mr. Lykes was in the process of renovating the

property and had actually received a permit from the city to do so. The document referred to

“Exhibit A” to identify the property.      However, there were three “Exhibit A” documents

appended to the brief and motion, to wit: 1. A copy of a quit claim deed indicating that Melanie

Thiede conveyed three parcels at an unidentified address to Mr. Lykes. None of the parcel

numbers coincided with the parcel number at issue in this case.          Copies of Ms. Thiede’s

Canadian passport and identity card were inexplicably appended to the quitclaim deed. 2. A

legal description of the property, listing a parcel number and a lot in a named allotment, neither

of which represented the property at issue in the appeal and condemnation order. 3. A Tax Maps

description of two parcels of land, neither of which bore the parcel number relevant to this case.

This exhibit further included handwritten information identifying a third parcel number not

relevant to the condemnation order, the 835 Moon Street address, and a trial case number from a

different case below.

       {¶14} To the extent that Mr. Lykes argues that his trial counsel was ineffective,

however, he cannot prevail. The right to the effective assistance of counsel arises relative to a

defense in criminal prosecutions.     Sixth Amendment, U.S. Constitution; but see Liming v.

Damos, 133 Ohio St.3d 509, 2012-Ohio-4783 (although recognizing the potential right to

counsel in civil contempt proceedings where personal liberty is at stake, rejecting the notion that
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the right continues to exist with regard to a civil purge hearing). Because Mr. Lykes had no right

to counsel for purposes of his administrative appeal, he cannot be heard to complain that trial

counsel was ineffective in his representation. While the issue may be one suited to a legal

malpractice action or a bar complaint, it is not appropriate for this Court’s consideration.

       {¶15} Mr. Lykes’ substantive challenge to the trial court’s order dismissing his

administrative appeal, on the other hand, is appropriate for our review, although it presents some

unconventional considerations.

       {¶16} As this Court has previously recognized, the trial court necessarily grants a

motion to dismiss an administrative appeal for failure to prosecute pursuant to Civ.R. 41(B)(1).

Burch v. Akron Housing Appeals Bd., 9th Dist. Summit No. 17201, 1995 WL 569106 (Sept. 27,

1995). The rule provides: “Where the plaintiff fails to prosecute, or comply with these rules or

any court order, the court upon motion of a defendant or on its own motion may, after notice to

the plaintiff’s counsel, dismiss an action or claim.” Civ.R. 41(B)(1).

       {¶17} A dismissal pursuant to Civ.R. 41(B) operates as an adjudication upon the merits

and, therefore, constitutes a dismissal with prejudice. Civ.R. 41(B)(3); Esser v. Murphy, 9th

Dist. Summit No. 25945, 2012-Ohio-1168, ¶ 8. The notice requirement in Civ.R. 41(B)(1)

supports “the fundamental tenet of judicial review in Ohio [] that courts should decide cases on

their merits.” See State ex rel. Becker v. Eastlake, 93 Ohio St.3d 502, 505 (2001). Although this

Court reviews the trial court’s dismissal of an action for an abuse of discretion, “dismissals with

prejudice are subject to heightened scrutiny.” Esser at ¶ 9, citing Quonset Hut, Inc. v. Ford

Motor Co., 80 Ohio St.3d 46, 47-48 (1997). The Ohio Supreme Court elaborated:

       The extremely harsh sanction of dismissal should be reserved for cases when an
       attorney’s conduct falls substantially below what is reasonable under the
       circumstances evidencing a complete disregard for the judicial system or the
       rights of the opposing party. In other words, dismissal is reserved for those cases
                                                 7


       in which the conduct of a party is so negligent, irresponsible, contumacious, or
       dilatory as to provide substantial grounds for a dismissal with prejudice for failure
       to prosecute or obey a court order. Absent such extreme circumstances, a court
       should first consider lesser sanctions before dismissing a case with prejudice.

(Internal quotations and citations omitted) Sazima v. Chalko, 86 Ohio St.3d 151, 158 (1999). In

addition, this Court has recognized that “[a]lthough the notice requirement [of Civ.R. 41(B)(1)]

may be satisfied by virtue of an opposing party’s motion seeking dismissal as a sanction,

nonetheless, there must be some notice that provides the party with an indication that the action

is actually in jeopardy of being dismissed and a corresponding opportunity to explain or cure the

deficiency.” Esser at ¶ 11.

       {¶18} In this case, the city filed two motions to dismiss Mr. Lykes’ administrative

appeal. Admittedly, Mr. Lykes did not file his brief by the date ordered by the trial court.

However, he was responsive to the city’s motions, filing a motion for injunctions, a motion to

stay the condemnation proceedings, and a brief and opposition to the city’s motion to dismiss.

Without passing judgment on the substance or merits of these documents, their filing evidenced

Mr. Lykes’ involvement in prosecuting this action. Accordingly, the trial court had before it Mr.

Lykes’ brief in support of his administrative appeal and opposition to the city’s motion to

dismiss the appeal for its consideration.

       {¶19}      The trial court granted the city’s motion to dismiss with little discussion other

than to state that the appellate brief was not timely filed and the untimely brief failed to discuss

Mr. Lykes’ assignments of error from the administrative hearing. The trial court then refused to

“consider” Mr. Lykes’ request for injunctive relief because he had “fail[ed] to list, analyze, or

otherwise discuss” certain unidentified “factors” relevant to his motion to stay the condemnation

proceedings. It moreover denied his motion to stay. In this way, the trial court combined Mr.

Lykes’ brief and motions, consolidating their disposals as though they were one and the same.
                                                8


       {¶20} The trial court did not consider the unique posture of this administrative appeal

before imposing the harshest sanction possible. What is clear from the judgment entry, however,

is that the trial court construed Mr. Lykes’ “brief and opposition of motion to dismiss” as a merit

brief in support of his administrative appeal.       The trial court then rejected the brief as

substantively deficient. Again, we reiterate that we form no conclusions as to the merit of Mr.

Lykes’ administrative appeal. However, the filing of an appellant’s brief, irrespective of its

substantive merit, necessarily precludes a finding of a failure to prosecute. Accordingly, under

the unique circumstances of this action, this Court concludes that the trial court erred by

dismissing Mr. Lykes’ administrative appeal on the basis of his failure to prosecute.

       {¶21} Mr. Lykes did not receive notice of the hearing before the Akron Housing

Appeals Board and did not participate in those proceedings because he had no ownership interest

in the 240 Storer Avenue property at that time. He acquired ownership of the property after the

board issued the condemnation order. It is not clear what assignments of error he might have

raised regarding the administrative hearing, and that issue is not now before this Court.

However, when he contacted the city after acquiring the property about his options to prevent the

demolition of the house he just purchased, he was advised by the hearing officer that his only

recourse was to file an administrative appeal. He did just that. Thereafter, based on his status as

the after-the-fact owner of the property, he sought, albeit clumsily, a stay of the condemnation

order and equitable relief from an order which only subsequently implicated his interests after it

was issued.

       {¶22} Rather than according Mr. Lykes the opportunity to try his case under extremely

unusual circumstances, the trial court commingled and confused the issues raised and improperly

dismissed the matter despite Mr. Lykes’ active prosecution of his appeal. The record is clear that
                                                 9


Mr. Lykes in fact attempted to prosecute his appeal, notwithstanding the inartful manner in

which he proceeded. Therefore, this is not the case where the party was dilatory in prosecuting

his administrative appeal. Under these circumstances, this Court concludes that the trial court

abused its discretion and acted unreasonably in dismissing the administrative appeal. Mr. Lykes’

assignment of error is sustained.

                                                III.

       {¶23} Mr. Lykes’ assignment of error is sustained. The judgment of the Summit County

Court of Common Pleas is reversed and the cause remanded for further proceedings consistent

with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       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 Summit, 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.
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      Costs taxed to Appellee.




                                            DONNA J. CARR
                                            FOR THE COURT




WHITMORE, J.
CONCURS.

MOORE, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

MICHAEL D. LYKES, pro se, Appellant.

CHERI B. CUNNINGHAM, Director of Law, and JOHN R. YORK and SEAN W. VOLLMAN,
Assistant Directors of Law, for Appellee.
