COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68374 HIRT'S GREENHOUSE, INC. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF STRONGSVILLE : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION SEPTEMBER 7, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 266888 JUDGMENT VACATED AND DISMISSED. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: J. ANTHONY LOGAN JOHN RYAN, Law Director Attorney at Law City of Strongsville 4266 Tuller Road, #101 18688 Royalton Road Dublin, Ohio 43017 Strongsville, Ohio 44136 - 2 - JOHN V. CORRIGAN, J., Hirt's Greenhouse, Inc. ("Hirt's") is appealing the decision of the Cuyahoga County Court of Common Pleas which affirmed a resolution of the Strongsville City Council (the "City") rejecting the application of Hirt's to place its land in an agricultural district pursuant to R.C. 929.02. For the following reasons, we vacate the judgment of the common pleas court affirming the decision of the City, and, rendering the judgment that the common pleas court should have made, we dismiss the appeal to the common pleas court for lack of jurisdiction and dismiss the appeal to this court for the same reason. No record of the proceedings before the City's council is contained in the record of this appeal. The relevant facts upon which we base our decision are contained in papers originating in the lower court and are as follows. Hirt's filed an application to place its land in an agricultural district on December 16, 1993 with the City. Following the receipt of testimony, evidence and affidavits, the City rejected the application on February 15, 1994. On March 10, 1994, Hirt's filed a "Notice of Appeal" in the Cuyahoga County Court of Common Pleas as follows: Appellant Hirt's Greenhouse, Inc. hereby gives notice of its Appeal from the decision of the Strongsville City Council set forth in Resolution No. 1994-28 pursuant to 2505.03 - 3 - R.C. (Exhibit "A"). Said decision was issued on or about February 15, 1994 and communicated to the Appellants by Certified U.S. Mail on February 26, 1994. This appeal is on issues of law and fact. Counsel certified that a copy of the notice was sent via ordinary mail on March 8, 1994, to Leslie Seefried, Clerk, Strongsville City Council. On March 10, Hirt's also filed a 1 "Praecipe" in the lower court as follows: TO THE CLERK OF STRONGSVILLE: Please forward a complete copy of the record to the Clerk, Court of Common Pleas of Cuyahoga County for filing. Approximate size of the record is unknown. A transcript of pro- ceedings will be ordered. In August, the court conducted a pretrial conference and issued a briefing schedule. After the parties filed briefs on the merits, the City filed a "Motion to Dismiss or, in the Alterna- tive, for Leave to File Transcript of Proceedings and Ordinances and Accompanying Documentation." The City argued, inter alia, that the common pleas court lacked jurisdiction to hear the "appeal" of Hirt's because Hirt's failed to file the original notice of appeal with the City's council. The City attached as an exhibit the original letter of counsel for Hirt's dated March 8, 1994, serving a copy of the notice upon the Clerk of the City as follows: Dear Ms. Seefried: 1 Although the filing of a praecipe is not recorded on the docket, a file-stamped original is contained in the papers of the trial court record. - 4 - Enclosed please find a copy of the Notice of Appeal which I have prepared and mailed for filing in the Cuyahoga County Court of Common Pleas in the above referenced case. Best regards, The letter contained the following "received" stamp in the lower right corner indicating the clerk received the notice of appeal: RECEIVED MAR 10, 1994 CITY OF STRONGSVILLE COUNCIL OFFICE The City argued in the alternative that, should the trial court determine it had jurisdiction, the City be granted leave to file the transcript and evidence since Hirt's did not serve a praecipe upon the clerk of council to secure transmission of the record. On December 1, 1994, the court concluded it had jurisdiction over Hirt's appeal and denied the City's motion to dismiss. The court ordered the City to file the transcript and other evidence within ten days. Prior to the expiration of the ten-day period and prior to receiving the administrative record, the common pleas court, on December 9, 1994, issued an opinion affirming the deci- sion of the City. Hirt's appealed. In its answer brief, before responding to Hirt's assignments of error, the City challenged the jurisdiction of this court to entertain this appeal. Hirt's responded that the City cannot raise this issue at this time since it did not file a cross appeal from - 5 - the decision of the lower court denying the City's motion to dismiss for lack of jurisdiction. Cross appeals are governed by App. R. 3(C), which provides as follows: (1) Cross appeal required. A person who in- tends to defend a judgment or order against an appeal taken by an appellant and who also seeks to change the judgment or order or, in the event the judgment or order may be reversed or modified, an interlocutory ruling merged into the judgment or order, shall file a notice of cross appeal within the time allowed by App. R. 4. (2) Cross appeal not required. A person who intends to defend a judgment or order appealed by an appellant on a ground other than that relied on by the trial court but who does not seek to change the judgment or order is not required to file a notice of cross appeal. Under other circumstances, this court would not address an 2 issue raised by the City, even pursuant to R.C. 2505.22, since the City meets the specifications of App. R. 3(C)(1) which require the filing of a cross appeal, which the City did not do. In this instance, however, the City is challenging the jurisdiction of this court. A demonstration of a lack of subject matter jurisdiction is fatal to any action, and a party or the court sua sponte may challenge jurisdiction at any time during the tenure of a case. Fox v. Eaton Corp. (1976), 48 Ohio St.2d 236, 358 N.E.2d 536, overruled on other grounds, Manning v. Ohio Library Board (1991), 2 The viability of R.C. 2505.22 in light of the amendment to App. R. 3 governing cross appeals effective July 1, 1994 is questionable. We choose not to reach this issue since our opinion would be dicta under the facts of the case before us. - 6 - 62 Ohio St.3d 24, 577 N.E.2d 650; Jenkins v. Keller, Admr. (1966), 6 Ohio St.2d 122, 216 N.E.2d 379, paragraph five of the syllabus (jurisdictional challenge made for the first time on appeal); Cohen v. Karavasales (1960), 171 Ohio St. 46, 167 N.E.2d 768 (jurisdictional issue raised during oral argument before Ohio Supreme Court). Subject matter jurisdiction is never waived, and neither a court nor the parties may confer jurisdiction where none existed originally. Patton v. Diemer (1988), 35 Ohio St.3d 68, 518 N.E.2d 941; Fox, 48 Ohio St.2d at 238; Freeland v. Pfeiffer (1993), 87 Ohio App.3d 55, 621 N.E.2d 857; Wandling v. Ohio Dept. of Transportation (1992), 78 Ohio App.3d 368, 604 N.E.2d 825. Thus, the filing of a cross appeal is not a prerequisite to challenging 3 the subject matter jurisdiction of this court. The issue regarding jurisdiction is properly before us. The City contends this court is without jurisdiction to hear this appeal on the merits because the common pleas court was not vested with jurisdiction to hear the appeal of Hirt's from the decision rendered by the City's council. The City argues that the appeal of Hirt's to the common pleas court was never perfected because Hirt's filed its notice of appeal with the court instead of with the City's clerk of council. Hirt's counters with the allegation that its action before the City's council was a special 3 The preferred method to question the jurisdiction of this court to hear an appeal is through a motion to dismiss appeal for lack of jurisdiction at the earliest opportunity. See, generally, App. R. 15. - 7 - statutory proceeding pursuant to R.C. 929.02(B), which does not specify that appeals are governed by R.C. 2505.01 et seq. Addi- tionally, Hirt's contends that if the appellate statutes apply, Hirt's has sufficiently complied with the jurisdictional prerequi- sites because Hirt's timely served the clerk of the City's council with a copy of the notice of appeal and thus the City was not prejudiced in any way by the failure to file the notice of appeal with the City's clerk. The relevant portion of R.C. 929.02(B) cited by Hirt's pro- vides as follows: An applicant may appeal a decision to modify or reject an application to the court of common pleas of the county in which the application was filed within thirty days of the receipt of the notice of modification or rejection. While Hirt's is correct that the statute is nonspecific with respect to appellate procedure, it does not follow that the gener- al statutes governing appeals would not apply. Actually, the opposite is true. The lack of any specific statutory diversion from the normal appellate requirements means that the usual appel- late procedure applies. In fact, Hirt's stated in its notice of appeal that it was appealing pursuant to the regular appellate statutes and not pursuant to R.C. 929.02(B). In the absence of any authority to the contrary, appeals from orders of administrative officers and agencies are governed by R.C. Chapter 2506. Specifically, R.C. 2506.01, which governs appeals - 8 - from decisions of agencies of political subdivisions, as in this case, provides, in relevant part, that: Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department, or other division of any political subdivision of the state may be reviewed by the court of common pleas of the county in which the principal office of the political subdivision is located as provided in Chapter 2505. of the Revised Code, except as modified by this chapter. This section provides that appeals to the common pleas court from a political subdivision authority are governed by the general appellate statutes contained in R.C. Chapter 2505 except as modi- fied by any statute in Chapter 2506. Because R.C. Chapter 2506 is silent as to where the notice of appeal is to be filed, we look to Chapter 2505. Thomas v. Webber (1968), 15 Ohio St.2d 177, 239 N.E.2d 26, paragraph one of the syllabus. Pursuant to R.C. 2505.04, an appeal is perfected as follows: An appeal is perfected when a written notice of appeal is filed, in the case of an appeal of a final order, judgment, or decree of a court, in accordance with the Rules of Appellate Procedure or the Rules of Practice of the Supreme Court, or, in the case of an administrative-related appeal, with the admin- istrative officer, agency, board, department, tribunal, commission, or other instrumentality involved. If a leave to appeal from a court first must be obtained, a notice of appeal also shall be filed in the appellate court. After being perfected, an appeal shall not be dismissed without notice to the appellant, and no step required to be taken subsequent to the perfection of the appeal is jurisdictional. A timely filing of a written notice of appeal in the proper place is the only jurisdictional requirement. Moore v. Cleveland - 9 - Civil Service Commission (1983), 11 Ohio App.3d 273, 465 N.E.2d 482. Any other deficiency in the notice of appeal or in any subsequent procedural step, although not favored or condoned, may be amended upon approval of the appellate court. R.C. 2505.04- .05; Kertes Enterprises, Inc. v. Orange Village Planning Zoning Commission (1990), 71 Ohio App.3d 151, 593 N.E.2d 306; Moore, 11 Ohio App.3d 273. Hirt's filed its notice of appeal in the common pleas court and served a copy on the clerk of the City. "Service" of a notice of appeal is not tantamount to "filing" a notice of appeal. In Patrick Media Group, Inc. v. Cleveland Board of Zoning Appeals (1988), 55 Ohio App.3d 124, 562 N.E.2d 921, this court held that the filing of a notice of appeal with the common pleas court in an administrative appeal with service of the notice of appeal on adverse counsel did not satisfy the requirements of R.C. 2505.04. In Jacobs v. Marion Civil Service Commission (1985), 27 Ohio App.3d 194, 500 N.E.2d 321, with procedural facts identical to the facts herein, the Court of Appeals for Marion County held that the filing of a notice of appeal in the common pleas court with service of a copy of the notice of appeal on the Commission was insufficient to confer jurisdiction on the common pleas court. Whether an adverse party is prejudiced in any way is not an issue or determinative when jurisdiction is confronted since jurisdiction cannot be conferred by the parties or the court if it does not or did not exist as a matter of law. R.C. 2505.04 clearly requires that a - 10 - notice of appeal from an administrative decision be filed with the administrative entity in order to perfect the appeal. Hirt's filing of the notice of appeal with the common pleas court and serving a copy on the clerk of the City's council was insufficient to satisfy the statutory requirement. Consequently, the common pleas court never acquired jurisdiction to hear the appeal of Hirt's. Any "judgment" rendered by a court lacking subject matter jurisdiction is a nullity and void ab initio. Patton v. Diemer (1988), 35 Ohio St.3d 68, 518 N.E.2d 941, paragraph three of the syllabus. Accordingly, we vacate as null and void the judgment of the trial court affirming the decision of the City and, rendering the judgment that the Cuyahoga County Court of Common Pleas should have made, we dismiss the appeal to the common pleas court for lack of jurisdiction. Since the common pleas court never acquired jurisdiction to hear the appeal of Hirt's, this court likewise lacks jurisdiction to hear the merits of Hirt's appeal. Vacated and dismissed. - 11 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, P.J., and DIANE KARPINSKI, J., CONCUR JOHN V. CORRIGAN* JUDGE (*Judge John V. Corrigan, Retired, Eighth Appellate District, Sitting by Assignment.) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .