Court of Appeals of Ohio, Twelfth District, Butler
NICHOLAS J. DIGONNO, Appellant,
CITY OF HAMILTON, Appellee.
FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV
Millikin & Fitton Law Firm, Thomas A. Dierling, for
T. Davidson, for appellant
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
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.
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
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 ...