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Massey v. Ohio Election[s] Commission

Court of Appeals of Ohio, Tenth District

August 13, 2013

Michael J. Massey, Appellant-Appellant,
v.
Ohio Election[s] Commission, Appellate-Appellee.

APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 12CVF-10-12512

David Glenn Phillips, for appellant.

Michael DeWine, Attorney General, Richard N. Coglianese, and Sarah E. Pierce, for appellee.

DECISION

SADLER, J.

(¶ 1} Appellant, Michael J. Massey, appeals from a judgment of the Franklin County Court of Common Pleas granting a motion to dismiss filed by appellee, Ohio Elections Commission, on grounds that the appeal was untimely. For the following reasons, we reverse the trial court's judgment and dismiss appellant's appeal.

I. BACKGROUND

(¶ 2} Appellant filed a complaint with appellee in the fall of 2011, alleging that several individuals violated the election law under R.C. 3517.21(B)(4), (8), and (10) by defaming him while he was a candidate for office. On December 15, 2011, appellee determined that there was no probable cause to support appellant's complaint and that his complaint was frivolous. On December 20, 2011, appellee sent appellant a letter informing him of the decision and indicating that it would reconvene to determine whether to order appellant to pay the attorney fees of those he filed the complaint against.

(¶ 3} Appellant filed an appeal of appellee's decision, and appellee moved to dismiss on grounds that its decision was not a final appealable order. The trial court granted appellee's motion, but expressed "concerns with whether Appellant had proper notice of and an opportunity to be heard regarding the * * * finding that his Complaint was frivolous." (Apr. 18, 2012 Decision, 4.)

(¶ 4} On August 23, 2012, appellee conducted another hearing and determined that appellant's complaint was frivolous and awarded attorney fees in the amount of $5, 775. On September 18, 2012, appellee sent appellant a letter informing him of its decision and indicating that "[i]t is hereby certified that the foregoing is a true and exact reproduction of the original Order of the Ohio Elections Commission for this case as entered on its journal." (Sept. 18, 2012 letter to appellant.) The letter also stated that, if appellant wanted to pursue an appeal, he had to file a notice of appeal within 15 days after the order was mailed. The letter indicated that the notice must be filed with appellee and the trial court.

(¶ 5} Appellant filed a notice of appeal with the trial court on October 2, 2013 and with appellee on October 4, 2013. Appellee moved to dismiss the appeal on grounds that the trial court lacked jurisdiction to entertain the appeal because appellant did not file his notice of appeal with appellee within the 15-day period. In his memorandum in opposition to the motion to dismiss, appellant asserted, pursuant to R.C. 119.09, that the 15-day time period for filing a notice of appeal had not yet commenced because appellee failed to journalize an original order. Thus, he contended that the appeal was not ripe for review. Appellee conceded that there was no original entry on the journal, but contends that its September 18, 2012 letter to appellant triggered the time for him to perfect an appeal.

(¶ 6} The trial court concluded that the time to file an appeal started to run when appellee mailed its decision to appellant and that appellant failed to timely file a notice of appeal with appellee. Therefore, the trial court determined that the appeal was untimely and that it lacked jurisdiction to entertain appellant's appeal and granted appellee's motion to dismiss.

II. ASSIGNMENT OF ERROR

(¶ 7} Appellant filed a timely notice of appeal and assigns the following as error:

The court of common pleas erred in granting the appellee administrative agency's motion to dismiss for the reasons advanced in the agency's motion; appellant's administrative appeal to the court of common pleas was not ripe because the agency failed to ...

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