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State of Ohio v. Lorenzo Properties

October 19, 2011

STATE OF OHIO
APPELLANT
v.
LORENZO PROPERTIES, II, INC.
APPELLEE



APPEAL FROM JUDGMENT ENTERED IN THE CITY OF AKRON COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2010-10-6836

The opinion of the court was delivered by: Dickinson, Judge.

Cite as

Lorenzo Properties II, Inc. v. Akron,

DECISION AND JOURNAL ENTRY

INTRODUCTION

{¶1} Lorenzo Properties II Inc. applied to the City of Akron for a conditional-use permit that would have allowed three apartments in a building it owns. City Council denied the requested permit, and Lorenzo filed a notice of appeal in the Summit County Common Pleas Court. City Council did not receive a copy of the notice of appeal from either Lorenzo or the Clerk of Courts within the time allowed for appeal. Lorenzo did serve a praecipe on the City Law Department, which the Law Department received within the time allowed for appeal. The common pleas court dismissed Lorenzo's attempted appeal as untimely. This Court affirms because Lorenzo's praecipe was not a notice of appeal and, even if it could be viewed as one, serving it on the City Law Department was not effective to file it with City Council.

BACKGROUND

{¶2} Lorenzo applied for a conditional-use permit for property on Tanglewood Drive in Akron. City Council denied the requested permit on September 13, 2010, and the clerk of council mailed notice of that denial to Lorenzo on September 14, 2010. On October 7, 2010, Lorenzo filed a notice of appeal in the common pleas court. Lorenzo included as part of its notice of appeal instructions to the clerk to serve a copy of the notice of appeal on the City at the address of the City Law Department. The clerk sent a copy of the notice of appeal to the City Law Department by Federal Express, and the law department received that copy on October 15, 2010, one day after expiration of the time for appeal. Lorenzo did not otherwise file the notice of appeal with the City.

{¶3} Lorenzo filed a praecipe with the common pleas court at the same time it filed its notice of appeal. By that praecipe, it requested the City to prepare and file a transcript of "all the original papers, testimony, and the evidence offered, heard, and taken into consideration in issuing the final decision with regard to the captioned matter." According to the praecipe, the cost of the transcript would be "taxed as part of the cost of the appeal." Lorenzo served the praecipe on the City at the address of the City Law Department on October 7, 2010. The City has not denied that the Law Department received a copy of the praecipe within the time allowed for appeal.

{¶4} The common pleas court dismissed Lorenzo's attempted appeal as untimely. Lorenzo's single assignment of error is that the common pleas court incorrectly dismissed its appeal.

DISCUSSION

{¶5} A party entitled to appeal an administrative agency's decision must perfect its appeal within 30 days after the agency mails the decision to that party or its lawyer. Cornacchione v. Akron Bd. of Zoning Appeals, 118 Ohio App. 3d 388, 392 (1997). Under Section 2505.04 of the Ohio Revised Code, a party perfects an administrative appeal by filing "a written notice of appeal . . . with the administrative officer, agency, board, department, tribunal, commission, or other instrumentality involved." Lorenzo's argument is twofold: (1) that its praecipe constituted a notice of appeal; and (2) that its service of the praecipe on the City Law Department was sufficient to file it with City Council.

LORENZO'S PRAECIPE WAS NOT A NOTICE OF APPEAL

{ΒΆ6} In Wells v. Chrysler Corp., 15 Ohio St. 3d 21, 24 (1984), the Ohio Supreme Court wrote that "the purpose of a notice of appeal is to set forth the names of the parties and to advise those parties that an appeal of a particular claim is forthcoming." Lorenzo has argued that its ...


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