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The Homeless Charity v. City of Akron

Court of Appeals of Ohio, Ninth District, Summit

December 26, 2019

THE HOMELESS CHARITY, et al. Appellants
v.
CITY OF AKRON Appellee

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2018-10-4270

          JEFFREY ROWES, ATTORNEY AT LAW, FOR APPELLANTS.

          DIANA K. SIMPSON, ATTORNEY AT LAW, FOR APPELLANTS.

          REBECCA J. SREMACK, ATTORNEY AT LAW, FOR APPELLANTS.

          EVE V. BELFANCE, DIRECTOR OF LAW, AND JOHN R. YORK AND BRIAN D. BREMER, ASSISTANT DIRECTORS OF LAW, FOR APPELLEE.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO JUDGE.

         {¶1} Sage Lewis LLC, Sage Lewis, and the Homeless Charity (collectively "the Homeless Charity") appeal the judgment of the Summit County Court of Common Pleas granting the City of Akron's motion to dismiss. We affirm.

         I.

         {¶2} On October 16, 2018, the Homeless Charity filed an administrative appeal with the Summit County Court of Common Pleas, appealing the September 18, 2018, decision of the Akron City Council denying a conditional use permit for the property located at 15 Broad Street in Akron. The Homeless Charity filed instructions for service with the Summit County Clerk of Courts requesting certified mail service of the notice of appeal be made upon "City of Akron, c/o Law Director Eve Belfance" at the law director's address: 161 South High Street, Suite 202, Akron, Ohio 44308. The Clerk of Courts' website indicated that service was made upon the law director on October 18, 2018, however the corresponding document provided by the United States Postal Service indicates that the recipient of the certified mail was signed for by "C.O.C" at "205 S. High[.]" 205 South High Street, Akron, Ohio, is the address of the Summit County Clerk of Courts.

         {¶3} In December 2018, the City of Akron filed its motion to dismiss the administrative appeal, and attached three affidavits in support. The motion argued that because a notice of the appeal was not filed with Akron City Council pursuant to R.C. 2505.04, the administrative appeal was not perfected and the trial court did not have jurisdiction. On February 14, 2019, the trial court granted the City of Akron's motion to dismiss, concluding that it was, in fact, without jurisdiction because the Homeless Charity had failed to perfect the administrative appeal.

         {¶4} The Homeless Charity now appeals to this Court, raising two assignments of error.

         II.

ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED IN HOLDING THAT APPELLANTS FAILED TO PROVIDE EVIDENCE THAT IT IS SUFFICIENT TO SERVE THE NOTICE OF APPEAL REQUIRED UNDER R.C. 2505.04 ON COUNSEL FOR THE AKRON CITY ...

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