[Cite as In re Appeal in the Cty. Ditch known as Spallinger Ditch , 2020-Ohio-2671.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY

IN RE: CASE NO. 2-19-10 THE APPEAL IN THE COUNTY DITCH KNOWN AS SPALLINGER DITCH PETITIONED BY SCOTT SPALLINGER AND SHARON HELMLINGER O P I N I O N [ELFIE PROPERTIES, LLC - APPELLANT]

Appeal from Auglaize County Common Pleas Court Trial Court No. 2019 CV 0079 Judgment Affirmed Date of Decision: April 27, 2020

APPEARANCES: 

### Taryn A. Douglas for Appellant 

### Matthew T. Watson, Dennis Faller, Edwin A. Pierce for AppelleesCase No. 2-19-10

-2- ZIMMERMAN, J. {¶1} Appellant, Elfie Properties, LLC (“Elfie”), appeals the August 27, 2019 judgment of the Auglaize County Court of Common Pleas dismissin g its appeal of the Auglaize County Board of Commissioners’ (“Board”) authoriza tion of ditch improvements requested by petitioners, Scott Spallinger (“Spall inger”) and Sharon Helmlinger (“Helmlinger”) (collectively, “petitioners”). For t he reasons that follow, we affirm. {¶2} On October 18, 2018, the petitioners filed a petition under R.C . Chapter 6131 with the Board requesting that the Board authorize certain ditch improvements to property located in the Rolling Acres Estates subdivision. (Doc. No. 27, Ex. A). Elfie, which owns 19 of 38 parcels of land benefited by the pet ition, appeared in opposition to the petition at a June 27, 2019 public hearing be fore the Board. 1 (Doc. Nos. 1, 27). At the June 27, 2019 hearing, the Board passed a resolution approving the ditch petition by a voice vote. (Doc. No. 1). The Board a dopted the resolution on July 2, 2019. (Doc. Nos. 1, 27). {¶3} On July 18, 2019, Elfie appealed the Board’s resolution approvi ng the ditch petition to the Auglaize County Court of Common Pleas und er R.C. 6131.25, naming the Board, the Auglaize County Engineer, the City of Wap akoneta, and the petitioners (collectively, “appellees”) as appellees. (Doc. No . 1). On July 29, 2019,

1 Elfie represented to the trial court that it owned either 20 o r 29 parcels of land that are benefited by the ditch petition at the August 26, 2019 hearing. (Aug. 26, 2019 Tr. at 4, 42).Case No. 2-19-10

-3- the Board and the Auglaize County Engineer filed a motion to di smiss, arguing that the trial court lacked subject matter jurisdiction to address t he appeal. 2 (Doc. No. 18). On August 7, 2019, the petitioners filed a motion to dism iss, also arguing that the trial court lacked subject matter jurisdiction to address t he appeal. (Doc. No. 24). On August 15, 2019, Elfie filed a memorandum in oppositio n to the appellees’ motions to dismiss. (Doc. No. 27). After a hearing on August 26, 2019, the trial court on August 27, 2019 granted the appellees’ motions to dism iss. (Doc. No. 30). {¶4} On September 24, 2019, Elfie filed its notice of appeal, and ra ises one assignment of error for our review. (Doc. No. 34). Assignment of Error The Auglaize County Court of Common Pleas had subject matter jurisdiction over this matter because Appellant timely perfecte d its appeal and therefore granting Appellees Motion to Dismiss w as improper, because the proper test for determining whether a court has jurisdiction to hear a matter pursuant to statutory language of R.C. § 6131.26 is whether the Appellant has substantially complied with the statutory requirements to perfe ct the appeal. {¶5} In its assignment of error, Elfie argues that the trial court e rred by granting the appellees’ motions to dismiss. Specifically, Elfi e contends that the trial court erred by concluding that it lacked subject matter jurisdi ction to address its appeal after (erroneously) concluding that Elfie must strictly comply with the

2 On August 5, 2019, the City of Wapakoneta filed a motion concu rring with the Board and the Auglaize County Engineer’s motion to dismiss. (Doc. No. 22).Case No. 2-19-10

-4- requirements of R.C. 6131.26 to perfect an administrative appea l of decision of a board of county commissioners regarding ditch improvements. Standard of Review {¶6} A motion to dismiss an administrative appeal for lack of subjec t-matter jurisdiction involves a question of law, which this court revie ws de novo. Courtyard Lounge v. Bur. of Environmental Health , 190 Ohio App.3d 25, 2010-Ohio-4442, ¶ 5 (10th Dist.), citing Morris v. Ohio Real Estate Appraiser Bd. , 10th Dist. Franklin No. 06AP-669, 2006-Ohio-6743, ¶ 5, citing Heskett v. Ohio Dept. of Adm. Servs. , 166 Ohio App.3d 311, 2006-Ohio-2074, ¶ 9 (10th Dist.), and citi ng All Children Matter v. Ohio Secy. of State , 10th Dist. Franklin No. 09AP-322, 2010-Ohio-371, ¶

7. See also Cuyahoga Cty. Bd. of Commrs. v. Daroczy , 178 Ohio App.3d 625, 2008- Ohio-5491, ¶ 4 (8th Dist.). “De novo review requires us to con duct an independent

review of the record without deference to the trial court’s dec ision.” Matrix Technologies, Inc. v. Kuss Corp. , 6th Dist. Lucas No. L-07-1301, 2008-Ohio-1301, ¶ 11, citing Brown v. Cty. Commrs. of Scioto Cty. , 87 Ohio App.3d 704, 711 (4th Dist.1993). Analysis {¶7} “Subject-matter jurisdiction is the statutory or constitutional power of a court to hear and decide the merits of a particular class of ca ses.” Karvo Cos., Inc. v. Ohio Dept. of Trans. , 9th Dist. Summit No. 29294, 2019-Ohio-4556, ¶ 7, citingCase No. 2-19-10

-5- Groveport Madison Loc. Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision , 137 Ohio St.3d 266, 2013-Ohio-4627, ¶ 25, citing Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11, and citing Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, ¶ 19. “The O hio Constitution provides a common pleas court with the authority to review proceedings of administrative offi cers and agencies as

set forth in the law.” Id. , citing Abt v. Ohio Expositions Comm. , 110 Ohio App.3d 696, 699 (10th Dist.1996), quoting Article IV, Section 4(B), Oh io Constitution. As relevant here, R.C. Chapter 6131 governs a common pleas court’s jurisdiction to review an administrative appeal of a decision by a board of cou nty commissioners authorizing ditch improvements. See Clevenger v. Bd. of Cty. Commrs. , 3d Dist. Allen No. 1-94-97, 1995 WL 347993, *1 (June 9, 1995). See also Karvo Cos., Inc. at ¶ 7, citing Abt at 699. {¶8} Under R.C. 6131.25, “[a]ny owner may appeal to the court of com mon pleas within twenty-one days of the date that any order was iss ued by the board of county commissioners” authorizing ditch improvements. When an affected owner elects to appeal an order of a board of county commissioners au thorizing ditch improvements, R.C. 6131.26 requires the owner (“[t]o perfect an appeal” under R.C. 6131.25) to file an appeal bond, with surety to be approved by the clerk of the court of common pleas, to pay all costs on appeal if the decisi on or order appealed from is sustained on a hearing or trial thereof. The owner shall also file with the bond a statement of the decision or orderCase No. 2-19-10

-6- appealed from and of the claims of the owner in ordinary and co ncise language. (Emphasis added.) R.C. 6131.26. See Clevenger at *1. Further, “[t]he amount of the appeal bond shall be not less than five hundred dollars, pl us the sum of two dollars for each parcel of land in excess of two hundred parcel s averred in the petition to be benefited.” R.C. 6131.26. {¶9} In this case, Elfie appealed (to the court of common pleas) the Board’s resolution approving the petitioners’ ditch petition under R.C. 6131.25. Because Elfie appealed the Board’s resolution under R.C. 6131.25, Elfie was required to file with the clerk of courts a bond, with surety to be approved by the clerk of courts, to pay all costs on appeal should its appeal be rejected. Elfie d eposited $500 cash (in addition to the required filing fee) along with a document, whi ch provides: On this 18th day of July, 2019, Appellant filed his Statement of Appeal and deposited with the Clerk of Courts a cash bond in th e amount of $500.00, pursuant to Ohio Revised Code Section 6131.2 6, to pay all costs of appeal if the decision or order appealed fr om is sustained on a hearing or trial thereof. The above bond is approved this 18th day of July, 2019. Respectfully submitted,

JAUBERT & BURTON LLP By /s/ I. Jean Meckstroth I. Jean Meckstroth, Clerk of Courts Prepared by: /s/ Taryn A. DouglasCase No. 2-19-10

-7- Taryn A. Douglas (0095906) (Emphasis sic.) (Doc. No. 9). Further, Elfie did not indicate in its statement filed in support of its appeal the number of parcels subject to the d itch petition. The trial court, applying this court’s decision in Clevenger , dismissed Elfie’s appeal after concluding that it lacked subject matter jurisdiction to addres s Elfie’s appeal. {¶10} On appeal, Elfie does not dispute that the plain and unambiguou s language of R.C. 6131.26 requires a bond, with surety to be app roved by the clerk of courts, to perfect an appeal under R.C. 6131.25. Instead, E lfie urges this court to conclude that substantial compliance with R.C. 6131.26 is suffi cient to perfect an appeal under R.C. 6131.25. That is, Elfie suggests that, becau se the Supreme Court of Ohio has adopted and applied a substantial-compliance standa rd applicable to statutory-bond requirements relative to bonding issues in admin istrative appeals, we should conclude in this case that it substantially complied wit h the tenor of R.C.

6131.26. {¶11} Even if we agree with Elfie and conclude that an administrative appeal can be perfected when a party substantially complies with a sta tutory-bond requirement, the cash deposit submitted by Elfie in this case d oes not substantially comply with the statute. In general, the statutory conditions to invoke the court of common pleas’ jurisdiction to hear an appeal under R.C. 6131.25 must be strictly

followed. Clevenger , 1995 WL 347993, at *1, citing Holmes v. Union Gospel Press ,Case No. 2-19-10

-8- 64 Ohio St.2d 187, 188 (1980). See Taft v. Cuyahoga Cty. Bd. of Elections , 110 Ohio St.3d 471, 2006-Ohio-4204, ¶ 18 (noting that, “in general, ‘[t]he procedure prescribed by statute to bring an election contest within the j urisdiction of a judge must be strictly followed’”), quoting McCall v. E. Local School Dist. Bd. of Edn. , 169 Ohio St. 50 (1950), paragraph one of the syllabus, and citi ng Maschari v. Tone , 103 Ohio St.3d 411, 2004-Ohio-5342, ¶ 10 (“Because ‘election co ntests are special in nature, the procedure prescribed by statute, to invoke a cou rt’s jurisdiction to hear such an action, must be strictly followed’”), quoting Hitt v. Tressler , 4 Ohio St.3d 174, 175 (1983). However, (as Elfie suggests) the Supreme Cour t of Ohio has “adopted and applied a substantial-compliance standard for the statutory bond requirement” relative to other statutory-administrative appeals

. Taft at ¶ 18, citing

McClintock v. Sweitzer , 138 Ohio St. 324, 325 (1941) (“We hold that there was a substantial compliance with [the statutory bond requirement for election contests], and that no error prejudicial to appellee resulted”), Williams v. O’Neill , 142 Ohio St. 467, 475-476 (1944) (Hart, J., dissenting) (noting that sub stantial compliance, when no prejudice is shown, is sufficient to satisfy bond requi rement of electioncontest statute), and Hitt at 175 (“We disagree with the result reached by the

Williams v. O’Neill majority and adopt the reasoning set forth in Judge Hart’s dissent”).Case No. 2-19-10

-9- {¶12} Specifically, addressing the statutory-bond requirement for ele ction contests, the Supreme Court of Ohio concluded that cash bonds a re not defective. Taft at ¶ 19 (noting that “[t]he fact that the bond was in cash did not render it defective”), citing Monnette v. Malone , 60 Ohio St.2d 5, 5-6 (1979). In particular, the Supreme Court concluded in Taft that the cash bond at issue in that case substantially complied with R.C. 3519.09 because the appellant deposited $100 in cash along with a “bond form” in which the appellant “obligate[ d] him to pay ‘the costs incurred’ by him if he loses.” Id. In other words, the Supreme Court contemplates a deposit of cash along with an additional promise on the part of the applicant, obligating him to pay all the costs of the appeal if the appeal is rejected— that is, a cash bond, not a deposit of cash— for an appellant t o substantially comply with a statutory-bond requirement. Indeed, a “bond” is general ly defined as “[a]n obligation; a promise.” Black’s Law Dictionary 211 (10th Ed.2014). It is further defined as “[a] written promise to pay money or do some act if certain circumstances occur” or “a promise that is defeasible upon a condition subseq uent; esp[ecially], an instrument under seal by which (1) a public officer undertakes to pay a sum of money if he or she does not faithfully discharge the responsibi lities of office, or (2) a surety undertakes the responsibility to pay if the public off icer so fails.” (Emphasis added.) Id.Case No. 2-19-10

-10- {¶13} Here, we cannot say that Elfie filed a cash bond—that is, a dep osit of

cash plus a promise to pay all the costs of the appeal if its challenge is not sustained. That is, other than depositing $500 cash with the Auglaize Coun ty Clerk of Courts, Elfie did not submit an assurance to the court asserting a prom ise to pay all costs incurred with its administrative appeal if its appeal is reject ed. See In re Sugar Run Single Cty. Ditch No. 40 , 5th Dist. Delaware No. 84-CA-14, 1984 WL 7955, *1 (Oct. 30, 1984) (“Appellant’s tendering of the $500.00 in check form did not comport with the strict requirements of the statute.”). See also In re Contest of Special Election in Village of N. Baltimore , 136 Ohio St. 279, 282 (1940) (concluding that “the deposit of the cash under [the] circumsta nces [presented] was in no sense a compliance with this statute”). Although a docum ent (assuming that

the document could be construed as a promise to pay all costs) was filed with the clerk of courts indicating that “a cash bond in the amount of $ 500.00” was “deposited with the Clerk of Courts” “to pay all costs of appea l” if Elfie’s appeal is rejected, the document does not bear a signature on behalf of E lfie. See Hitt at 175- 176. Further, (assuming such signature is proper) any attestat ion to the document by Elfie’s attorney or law firm is equivocal. Accordingly, bas ed on the deficiencies with the document, we are constrained from construing it as a b onding instrument. Thus, because we cannot construe the document accompanying Elfi e’s $500 deposit as a promise to pay all costs of the appeal if its appeal is re jected, we cannot reachCase No. 2-19-10

-11- the conclusion that Elfie’s deposit constitutes a cash bond, wh ich could substantially comply with the bond requirement of R.C. 6131.26. Therefore, b ased on the specific facts and circumstances of this case, we conclude that Elfie did not perfect its appeal under R.C. 6131.25 and the trial court was without j urisdiction to consider its administrative appeal. {¶14} For these reasons, we conclude that the trial court did not err by dismissing Elfie’s administrative appeal after concluding that it lacked subject matter jurisdiction to address the merits of the appeal. See Hulbert v. Buehrer , 10th Dist. Franklin No. 16AP-474, 2017-Ohio-844, ¶ 12. {¶15} Accordingly, Elfie’s assignment of error is overruled. {¶16} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed SHAW, P.J. and WILLAMOWSKI, J., concur. /jlr