Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Digonno v. City of Hamilton

Court of Appeals of Ohio, Twelfth District, Butler

June 10, 2019

NICHOLAS J. DIGONNO, Appellant,
v.
CITY OF HAMILTON, Appellee.

          APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV 2018-04-0836

          Millikin & Fitton Law Firm, Thomas A. Dierling, for appellee

          David T. Davidson, for appellant

          OPINION

          HENDRICKSON, P.J.

         {¶ 1} Appellant, Nicholas J. Digonno, appeals from a decision of the Butler County Court of Common Pleas dismissing his administrative appeal for lack of jurisdiction. For the reasons set forth below, we affirm the court's decision.

         {¶ 2} Appellant was notified in the fall of 2017 that the property he owned at 1203 Edison Avenue in Hamilton, Ohio had been declared a public nuisance by the city of Hamilton's Public Health Commissioner, in accordance with Hamilton Municipal Ordinance 1767.03. In November 2017, appellant appealed this determination to the city's Nuisance Appeals Board (hereafter, "the Board").

         {¶ 3} The Board heard appellant's appeal on January 11, 2018, and ultimately denied the appeal. The Board's decision was set forth in writing on March 7, 2018, and was sent to appellant by ordinary mail.

         {¶ 4} On April 11, 2018, appellant appealed the Board's decision by filing a notice of appeal with the common pleas court. The notice of appeal was sent by the clerk of courts to the Board by certified mail on April 17, 2018, and was received by the Board on April 25, 2018.

         {¶ 5} The Board filed a motion to dismiss appellant's appeal pursuant to Civ.R. 12(B)(1) on the basis that appellant failed to perfect his administrative appeal within the 30-day timeframe set forth in R.C. 2505.07. The Board argued appellant's failure to properly perfect the appeal denied the common pleas court of subject-matter jurisdiction. In support of its motion, the Board attached as exhibits copies of clerk of court's certified mailing of the notice of appeal to the Board.

         {¶ 6} Appellant filed a memorandum in opposition to the Board's motion to dismiss, arguing he had not received the Board's March 7, 2018 decision until April 11, 2018. Appellant stated that immediately upon receipt of the decision, he filed his notice of appeal with the common pleas court. Appellant argued he was unable to simultaneously serve the notice of appeal on the Board as the Board had not provided any "information as to [its] physical address." In support of his argument, appellant attached his own affidavit, in which he averred, in relevant part, that the Board's March 7, 2018 decision was

uninformative * * * to anyone wishing to appeal the [d]ecision. First and foremost, there is no address for the Board, nor does the decision state a date of the hearing. Further the [d]ecision does not * * * state any language about the right to appeal the [d]ecision, the length of time one would have to appeal the [d]ecision, [or] the process of how to appeal the Board's decision.

         Appellant also attached the envelope in which the Board's March 7, 2018 decision was mailed. This envelope set forth a return address of 345 High Street, Hamilton, Ohio 45011 and contained two different date stamps. The first date stamp, March 8, 2018, was from the city's postage meter. The second date stamp, March 12, 2018, was from the United States Postal Service.

         {¶ 7} The Board filed a memorandum in response, in which it stated that its March 7, 2018 decision had been mailed on March 8, 2018 to the address appellant had provided to the Board. The Board argued appellant's claim that he did not know where to deliver the notice of appeal filed in the common pleas court was "simply not credible" as appellant had previously filed his November 2017 appeal with the Board by mailing it to the Board's address. Attached to the Board's memorandum was appellant's November 2017 appeal and the envelope the appeal had been sent in, both of which set forth an address of 345 High Street, 3rd Floor Suite 330, Hamilton, Ohio 45011, as well as an affidavit from Tami Rose, the individual responsible for mailing the Board's decisions. Rose averred that she mailed the Board's March 7, 2018 decision to appellant on March 8, 2018.

         {¶ 8} On July 31, 2018, the common pleas court granted the Board's motion to dismiss, concluding that it lacked jurisdiction over the appeal as appellant failed to perfect his appeal within the 30-day timeframe set forth in R.C. 2505.07. The court determined that the Board's "final order * * * was entered on March 8, 2018 when it was mailed to [appellant] by ordinary mail" and that the appeal had not been perfected ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.