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Friedman v. McClelland

Court of Appeals of Ohio, Eleventh District

September 30, 2013

ALEXANDER FRIEDMAN, Appellant,
v.
DAN MCCLELLAND, GEAUGA COUNTY SHERIFF, Appellee.

Administrative Appeal from the Geauga County Court of Common Pleas, Case No. 12A000458.

Charles R. Lazzaro For Appellant.

David P. Joyce, Geauga County Prosecutor, and Bridey Matheney, Assistant Prosecutor For Appellee.

OPINION

THOMAS R. WRIGHT, J.

(¶1} This case involves an administrative appeal pursuant to R.C. 119.12, which governs appeals by parties adversely affected by any order of an agency denying the issuance or renewal of a license. The underlying matter arises from appellant, Alexander Friedman's, application pursuant to R.C. 2923.125 requesting that appellee, Dan McClelland, Geauga County Sheriff, issue him a license to carry a concealed handgun. Appellant challenges the denial of his application, specifically, the trial court's decision that it did not have jurisdiction pursuant to R.C. 119.12 to consider the matter on appeal.

(¶2} Because dates are at issue in this matter, we include them in our recitation of the facts where applicable. Appellant submitted an application for a license to carry a concealed handgun to appellee on October 19, 2010. Appellee denied that application on December 14, 2010, citing appellant's two misdemeanor convictions for domestic violence as a reason for the denial. Appellee's order denying appellant's application stated:

(¶3} "You may appeal this decision to the Geauga County Common Please (sic) Court, or the Common Please (sic) Court of your county, pursuant to ORC section 119.12, by filing such appeal within 14 days of receipt of this notice."

(¶4} Appellant lived in Beachwood, Ohio at the time he received appellee's notice of denial. Relying on the instructions stated in appellee's order, appellant timely appealed to the Cuyahoga County Court of Common Pleas, the common pleas court of his residence. On June 14, 2011, the Cuyahoga County Court of Common Pleas granted appellee's motion to dismiss. Thereafter, appellant filed an appeal to the Eighth District Court of Appeals. Following submission of briefs and oral argument, on April 5, 2012, the Eighth District affirmed the trial court's decision, and held that it did not have jurisdiction to hear appellant's appeal.

(¶5} On May 10, 2012, almost 17 months after appellant's application for a license to carry a handgun was initially denied by appellee, appellant filed a second notice of appeal from that order of denial in the Geauga County Court of Common Pleas, arguing that he should be entitled to file his appeal on an untimely basis due to excusable neglect pursuant to Civ. R. 6(B)(Time; extension). Appellant argued that he was simply following the misleading and inaccurate notice contained in the order issued by appellee when he filed his appeal in Cuyahoga County, his county of residence, and therefore, his appeal period had not yet begun to run. The Geauga County Court of Common Pleas dismissed appellant's appeal because it was not timely filed in accordance with R.C. 119.12, stating that appellant's untimely filing divested it of jurisdiction to hear appellant's case.

(¶6} R.C. 119.12 states in pertinent part as follows:

(¶7} "Any party adversely affected by any order of any agency issued pursuant to an adjudication denying an applicant * * * the issuance or renewal of a license or registration of a licensee, or revoking or suspending a license * * * may appeal from the order of the agency to the court of common pleas of the county in which the place of business of the licensee is located or the county in which the licensee is a resident. * * * If any party appealing from the order is not a resident of and has no place of business in this state, the party may appeal to the court of common pleas of Franklin county.

(¶8} " * * *.

(¶9} "Unless otherwise provided by law relating to a particular agency, notices of appeal shall be filed within fifteen days after the mailing of the notice of the agency's order ...


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