The opinion
[Cite as Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning Comm., 128 Ohio St.3d 471,
2011-Ohio-1604.]
WELSH DEVELOPMENT COMPANY, INC. ET AL., APPELLANTS, v. WARREN
COUNTY REGIONAL PLANNING COMMISSION, APPELLEE.
[Cite as Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning Comm., 128
Ohio St.3d 471, 2011-Ohio-1604.]
Administrative appeals — R.C. 2505.04 — Filing of notice of appeal — Service of
notice by clerk of courts.
(Nos. 2010-0611 and 2010-0858 — Submitted February 2, 2011 — Decided
April 7, 2011.)
APPEAL from and CERTIFIED by the Court of Appeals for Warren County,
No. CA2009-07-101, 186 Ohio App.3d 56, 2010-Ohio-592.
__________________
SYLLABUS OF THE COURT
An administrative appeal is considered filed and perfected for purposes of R.C.
2505.04 if the clerk of courts serves upon the administrative agency a
copy of the notice of the appeal filed in the court of common pleas and the
administrative agency is served within the time period prescribed by R.C.
2505.07.
__________________
O’CONNOR, C.J.
{¶ 1} In this appeal, we are asked to decide whether a service of
summons by a clerk of courts upon an administrative agency, together with a copy
of a notice of appeal filed in the common pleas court, is sufficient to perfect an
administrative appeal pursuant to R.C. 2505.04 if the agency receives the notice
within the time prescribed by R.C. 2505.07. For the reasons stated below, we
reaffirm and clarify our decision in Dudukovich v. Lorain Metro. Hous. Auth.
(1979), 58 Ohio St.2d 202, 204, 12 O.O.3d 198, 389 N.E.2d 1113, by holding that
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an administrative appeal is perfected pursuant to R.C. 2505.04 when a party files
a notice of appeal with the clerk of courts with instructions to serve a copy of the
complaint and notice of the appeal on the administrative agency and the agency is
served and receives notice of the appeal within the time period set forth in R.C.
2505.07.
Relevant Background
{¶ 2} Welsh Development Company, Inc. (“Welsh”) is an Ohio
corporation with its principal place of business in Harrison, Ohio. Daniel and
Angela Proeschel, Robert and Mary Proeschel, and Jeraldine and Karl Hoffer are
all residents of Ohio. In 2004, Welsh obtained options to purchase the
Proeschels’ and the Hoffers’ properties for the development of a subdivision of
single-family homes.
{¶ 3} Soon after Welsh entered into the purchase agreements, it began
moving forward with its plan for the development of the property. The plan
consisted of two phases. On February 1, 2005, Welsh submitted an application
for approval of a preliminary plat for Phase I to the Warren County Regional
Planning Commission (“WCRPC”). On February 24, 2005, the WCRPC
executive committee denied approval of the preliminary plat for Phase I. On
March 1, 2005, the executive director of WCRPC informed Welsh of the planning
commission’s decision.
{¶ 4} On March 25, 2005, Welsh and the property owners filed a
complaint and notice of appeal in the Warren County Court of Common Pleas
against WCRPC for its denial of Phase I. The notice and complaint contained a
praecipe for the clerk of courts to serve WCRPC by certified mail. WCRPC was
served on March 28, 2005. An unfiled courtesy copy of the initial pleadings was
sent to the Warren County assistant prosecutor, which he received on March 24,
2005.
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{¶ 5} On March 1, 2005, Welsh submitted an application for approval of
a preliminary plat to the WCRPC for Phase II. On March 24, 2005, the WCRPC
approved the preliminary plat for Phase II subject to Welsh’s dedication of an
interior collector thoroughfare. Welsh and the property owners objected to the
conditional approval, arguing that Phase II should have been approved without the
requirement of the interior collector street.
{¶ 6} On April 25, 2005, Welsh and the property owners filed another
notice of appeal and complaint in the Warren County Court of Common Pleas for
WCRPC’s conditional approval of Phase II. The notice and complaint contained
a praecipe for service upon WCRPC by certified mail. Service was completed on
April 27, 2005, and the Warren County assistant prosecutor received an unsigned
courtesy copy of this initial pleading on April 25, 2005. The cases were
subsequently consolidated.
{¶ 7} In its answers to both cases, WCRPC raised the affirmative
defense that Welsh and the property owners had failed to exhaust their
administrative remedies. WCRPC then moved to dismiss both of the
administrative appeals on grounds that although Welsh and the property owners
had served their notices of appeal upon WCRPC within 30 days of the final
decisions being appealed, the property owners in both instances had failed to file
notices of appeal with the WCRPC as required by R.C. 2505.04.
{¶ 8} The magistrate found that the property owners had failed to
properly file their notices of appeal with the WCRPC in accordance with R.C.
2505.04. The magistrate therefore concluded that the Warren County Court of
Common Pleas was without subject-matter jurisdiction to entertain the
administrative appeals and dismissed the appeals.
{¶ 9} WCRPC, Welsh, and the property owners filed objections to the
magistrate’s decision. The trial court overruled the parties’ objections and
adopted the magistrate’s decision.
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{¶ 10} On January 31, 2008, Welsh attempted to voluntarily dismiss the
remaining causes of action pursuant to Civ.R. 41(A)(1)(a). WCRPC filed a
motion to dismiss the appeal for lack of subject-matter jurisdiction, which the
Twelfth District Court of Appeals granted, holding that Welsh could not create a
final, appealable order by filing a voluntary dismissal as to the remaining claims.
Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning Comm., Warren App. No.
CA2008-02-026, 2009-Ohio-1158.
{¶ 11} Following remand, Welsh moved for leave to file amended
consolidated complaints, which the trial court granted. Welsh filed its amended
complaints to eliminate the unadjudicated claims. Welsh then filed its second
notice of appeal to the Twelfth District, raising two assignments of error.
{¶ 12} In overruling Welsh’s two assignments of error, the appellate court
refused to extend Dudukovich and hold that timely service upon an administrative
agency with a copy of a notice of appeal satisfied the explicit requirements set
forth in R.C. 2505.04. The court of appeals also held that service on the adverse
party’s counsel, despite a close relationship between counsel and the agency, is
insufficient to satisfy R.C. 2505.04.
{¶ 13} Welsh appealed to this court for discretionary review and secured
an order from the court of appeals certifying that its decision in this case is in
conflict with that of other courts of appeals, namely the Second and Sixth
Appellate Districts. We granted discretionary review, 125 Ohio St.3d 1461,
2010-Ohio-2753, 928 N.E.2d 737, and recognized the conflict, 125 Ohio St.3d
1460, 2010-Ohio-2753, 928 N.E.2d 737, which presents the following question:
“Is a service of summons by a clerk of courts upon an administrative agency,
together with a copy of a notice of appeal filed in the common pleas court,
sufficient to perfect an administrative appeal pursuant to R.C. 2505.04 as long as
the agency receives the notice within the time prescribed by R.C. 2505.07?” We
answer the question affirmatively and hold that an administrative appeal is
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considered filed and perfected for purposes of R.C. 2505.04 if the clerk of courts
serves upon the administrative agency a copy of the notice of the appeal filed in
the court of common pleas and the administrative agency is served within the time
period prescribed by R.C. 2505.07. Accordingly, we reverse the judgment of the
court of appeals.
Analysis
Dudukovich v. Lorain Metro. Hous. Auth.
{¶ 14} We have held repeatedly that when the right to appeal is conferred
by statute, an appeal can be perfected only in the manner prescribed by the
applicable statute. E.g., McCruter v. Bur. of Emp. Servs. Bd. of Review (1980), 64
Ohio St.2d 277, 279, 18 O.O.3d 463, 415 N.E.2d 259, citing Zier v. Bur. of
Unemp. Comp. (1949), 151 Ohio St. 123, 38 O.O. 573, 84 N.E.2d 746, paragraph
one of the syllabus.
{¶ 15} R.C. 2505.04 governs the manner in which an administrative
appeal is perfected. It provides:
{¶ 16} “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
administrative officer, agency, board, department, tribunal, commission, or other
instrumentality involved.”
{¶ 17} In Dudukovich, we addressed whether a party had sufficiently
complied with R.C. 2505.04 by mailing a copy of the notice of appeal to an
agency. Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d at 203, 12
O.O.3d 198, 389 N.E.2d 1113. Dudukovich presented an employee who had
appealed her termination from the employ of a municipal housing authority. The
agency challenged the trial court’s assumption of jurisdiction and contended that
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the employee had not properly filed a notice of appeal from the agency’s decision
by mailing the notice of appeal directly to the municipal housing authority.
{¶ 18} We held: “[T]he act of depositing the notice in the mail, in itself,
does not constitute a ‘filing,’ at least where the notice is not received until after
the expiration of the prescribed time limit. Rather, ‘the term “filed” * * * requires
actual delivery * * *.’ However, no particular method of delivery is prescribed by
the statute. Instead, as was aptly stated in Columbus v. Arlington (1964), 94 Ohio
Law Abs. 392, 397, 31 O.O.2d 351, 201 N.E.2d 305, ‘any method productive of
certainty of accomplishment is countenanced.’ Having considered [the
employee’s] method of service, we find that simply ‘[b]ecause the manner of
delivery is unusual does not make it illegal.’ ” (Citations omitted.) Id. at 204, 12
O.O.3d 198, 389 N.E.2d 1113, quoting Fulton v. State ex rel. Gen. Motors Corp.
(1936), 130 Ohio St. 494, 5 O.O. 142, 200 N.E. 636, paragraph one of the
syllabus.
{¶ 19} We then held that “there [was] evidence in the record that [the
housing authority] did eventually receive the mailed copy of the notice,” and thus
the salient question was “whether it received the notice within the * * * time limit
prescribed” by R.C. 2505.07. Id. at 205, 12 O.O.3d 198, 389 N.E.2d 1113. In so
doing, we held that the “presumption of timely delivery * * * should control.” Id.
Because the “copy of the notice of appeal was sent by certified mail, to a
destination within the same city, five days prior to the expiration of the statutory
time limit,” and the housing authority “presented no evidence of late delivery,”
we concluded that “a presumption of timely delivery controls.” Id. Thus, we held
in Dudukovich that the trial court “correctly assumed jurisdiction.” Id.
Conflicting Decisions of Appellate Courts Interpreting R.C. 2505.04
{¶ 20} Since our holding in Dudukovich, appellate courts frequently have
interpreted R.C. 2505.04 and have considered whether an administrative appeal is
perfected through a clerk of courts’ service of a notice of appeal on an agency.
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January Term, 2011
The appellate courts that have interpreted this issue have reached conflicting
results.
{¶ 21} Some appellate courts have narrowly construed our holding in
Dudukovich by distinguishing between the terms “service” and “filing.” These
appellate courts hold that a clerk of courts’ service of a notice of appeal upon an
administrative agency is not a filing of an appeal with the agency for purposes of
perfecting an administrative appeal pursuant to R.C. 2505.04.
{¶ 22} These appellate courts hold that a party who uses the clerk of
courts to serve the notice of appeal upon the agency has not filed an appeal and
therefore has not perfected a notice of appeal as required by R.C. 2505.04. See,
e.g., Black-Dotson v. Obetz, Franklin App. No. 06AP-112, 2006-Ohio-5301, 2006
WL 2869543 (holding that a taxpayer who filed her notice of appeal with the trial
court and requested that the clerk mail the notice of appeal to the village failed to
perfect her appeal, as service is not the filing of an appeal with the administrative
agency); Jura v. Hudson, Summit App. No. 22135, 2004-Ohio-6743, 2004 WL
2896415 (holding that service of the complaint by the trial court on the board of
zoning appeals was not sufficient to comply with the procedures set forth in R.C.
2505.04, because the property owner failed to send a copy of her notice of appeal
in any fashion to the board of zoning appeals); Genesis Outdoor Advertising v.
Deerfield Twp. Bd. of Zoning Appeals, Portage App. No. 2001-P-0137, 2002-
Ohio-7272, 2002 WL 31886723 (stating that service is not equivalent to filing a
notice of appeal for the purpose of satisfying the filing requirement of R.C.
2505.04, but holding that a citizen who mailed his notice of appeal directly to the
secretary of the board of zoning appeals within the time for appeal did file his
notice with the board); Guysinger v. Chillicothe Bd. of Zoning Appeals (1990), 66
Ohio App.3d 353, 584 N.E.2d 48 (holding that a notice that was filed with the
common pleas court and then served on the board of zoning appeals was not filed
“in the place designated” by R.C. 2505.04 and therefore was not sufficient to
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satisfy the jurisdictional requirement of the statute); Patrick Media Group, Inc. v.
Cleveland Bd. of Zoning Appeals (1988), 55 Ohio App.3d 124, 562 N.E.2d 921
(holding that a party failed to perfect its appeal when it filed its notice of appeal
from a board of zoning appeals’ decision with the common pleas court but did not
mail a copy to the city board of zoning appeals itself or otherwise file it with the
board and that the party’s service on the city’s law director did not satisfy its
statutory obligation to file the notice with the board itself); Jacobs v. Marion Civ.
Serv. Comm. (1985), 27 Ohio App.3d 194, 27 OBR 233, 500 N.E.2d 321 (holding
that a notice of appeal that is filed in the court of common pleas with service of a
copy on the civil service commission does not perfect the appeal and is
insufficient to confer jurisdiction on the trial court).
{¶ 23} Here, the Twelfth District followed the same analyses set forth by
the foregoing precedent and interpreted Dudukovich narrowly, distinguishing
between service and filing for purposes of R.C. 2505.04. As the appellate court in
this case stated:
{¶ 24} “As Dudukovich held, R.C. 2505.04 does not prescribe a method of
delivery when filing the notice of appeal. The statute is explicit, however, in
requiring that the notice be filed with the agency or board. As we have
consistently held, a clerk’s service of a notice of appeal upon the WCRPC is
insufficient to confer jurisdiction on the common pleas court pursuant to R.C.
2505.04. Directing a clerk of courts to serve a copy of a notice of appeal upon an
agency is not the equivalent of filing a notice of appeal with the agency from
which a party is appealing, as expressly set forth in R.C. 2505.04.” (Emphasis
sic; citations omitted.) Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning
Comm., 186 Ohio App.3d 56, 2010-Ohio-592, 926 N.E.2d 357, at ¶ 22.
{¶ 25} The Twelfth District further determined that extending Dudukovich
would not only disturb precedent but would also encourage parties, such as Welsh
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and the property owners, to disregard the strict guidelines of R.C. 2505.04 in
order to perfect an administrative appeal. Id. at ¶ 34.
{¶ 26} But other appellate courts have interpreted our decision in
Dudukovich broadly. In Price v. Margaretta Twp. Bd. of Zoning Appeals, Erie
App. No. E-02-029, 2003-Ohio-221, a property owner filed his notice of appeal
with the common pleas court and requested the clerk of courts to advise the board
of zoning appeals of his appeal. The Sixth District held that “R.C. 2505.04, as
interpreted by Dudukovich, imposes no prohibition of a timely copy of a notice of
appeal from a clerk of courts to perfect an administrative appeal.” Id. at ¶ 20.
Thus, the court of appeals in Price held that the owner had properly perfected his
appeal pursuant to R.C. 2505.04.
{¶ 27} In Evans v. Greeneview Local School Dist. (Jan. 4, 1989), Greene
App. No. 88 CA 40, 1989 WL 569, students filed a notice of appeal with the clerk
of courts. The clerk sent a copy of the notice of appeal by certified mail to the
school district. The Second District concluded: “[I]n light of Dudukovich[,] * * *
notice was timely and properly given to the School District. Since a copy of the
notice of appeal was actually delivered to the School District, the notice of appeal
was ‘filed’ with the School District.” Id. at *2.
{¶ 28} As the dissent in the court of appeals in this case recognized, we
have not interpreted R.C. 2505.04 since our decision in Dudukovich. Therefore, it
is not surprising that so many appellate courts have reached conflicting decisions
interpreting the statute. For the reasons that follow, we hold that the broad
interpretation of Dudukovich endorsed by the Second and Sixth Districts is better
reasoned in light of our precedent regarding notices of appeal.
Application to This Case
{¶ 29} Our decision to broadly interpret Dudukovich is consistent with our
precedent setting forth the purpose of notices of appeals. We have long held that
the purpose of a notice of appeal is to inform the opposing party of the taking of
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an appeal. Maritime Mfrs., Inc. v. Hi-Skipper Marina (1982), 70 Ohio St.2d 257,
259, 24 O.O.3d 344, 436 N.E.2d 1034; see also Wells v. Chrysler Corp. (1984),
15 Ohio St.3d 21, 24, 15 OBR 18, 472 N.E.2d 331 (holding that the purpose of a
notice of appeal is to set forth the names of the parties and to advise those parties
that an appeal of a particular claim is forthcoming); Couk v. Ocean Acc. & Guar.
Corp. (1941), 138 Ohio St. 110, 116, 20 O.O. 65, 33 N.E.2d 9, quoting Capital
Loan & Sav. Co. v. Biery (1938), 134 Ohio St. 333, 339, 12 O.O. 128, 16 N.E.2d
450 (“the purpose of the notice of appeal is ‘to apprise the opposite party of the
taking of an appeal.’ If this is done beyond danger of reasonable
misunderstanding, the purpose of the notice of appeal is accomplished”).
{¶ 30} When service of a notice of an appeal by the clerk of courts
informs and apprises the administrative agency of the taking of an appeal, sets
forth the names of the parties, and advises those parties that an appeal of a
particular claim is forthcoming, the notice of appeal has satisfied its purpose and
the legislative intent in R.C. 2505.04.
{¶ 31} Turning to the facts in the instant case, we hold that Welsh and the
property owners “sufficiently complied” with R.C. 2505.04 by filing their
complaints against WCRPC and notices of appeal in the Warren County Court of
Common Pleas. The complaints and notices contained a praecipe for the clerk of
courts to serve WCRPC by certified mail, and WCRPC received the service
within the time prescribed by R.C. 2505.07 to file their appeals. Because copies
of the notices of appeal and complaints were delivered timely to WCRPC, they
were “filed” based on our definition of the term as set forth in Fulton v. State ex
rel. Gen. Motors Corp. (1936), 130 Ohio St. 494, 5 O.O. 142, 200 N.E. 636,
paragraph one of the syllabus (“The term ‘filed’ * * * requires actual delivery * *
*”).
{¶ 32} Furthermore, the service of the notice of appeal served its purpose
because it informed and apprised WCRPC of the administrative appeal by Welsh
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and the property owners. It is undisputed that the clerk of courts served WCRPC
and that WCRPC received a copy of the notices of appeal and the complaint
within the 30-day period prescribed by R.C. 2505.07. Because WCRPC received
notice of the appeal within the prescribed time to file an administrative appeal, we
hold that Welsh and the property owners perfected their appeal pursuant to R.C.
2505.04.
{¶ 33} Our holding today does not minify the statutory requirements of
perfecting an appeal. In fact, our holding is consistent with our previous
decisions delineating the purpose of filing a notice of appeal.
{¶ 34} Nor does our holding today mean that we are adopting a new rule
of substantial compliance with respect to R.C. 2505.04. Our holding today is to
explain what “filing” with an administrative agency means. We must read the
actual statute when determining the procedure for filing an appeal, since an appeal
can be perfected only in the mode prescribed by that statute. Ramsdell v. Ohio
Civ. Rights Comm. (1990), 56 Ohio St.3d 24, 27, 563 N.E.2d 285.
{¶ 35} WCRPC challenges the process used here to invoke appellate
jurisdiction and argues that the clerk of courts is not authorized to “file” a notice
of an appeal with an administrative agency, although the clerk has the ability to
make service of process. WCRPC reads R.C. 2505.04 to mean that an appellant
must actually deliver the documents directly to the administrative agency;
otherwise, there is no subject-matter jurisdiction. In the WCRPC’s view, the
identity of the actor is important, and the activity may not be delegated to the
clerk of courts.
{¶ 36} Those appellate courts that have held that a clerk of courts could
not file an appeal from an administrative order on behalf of the appellant have
distinguished “filing” from “service” without the benefit of clear definitions of
either term in the appellate rules. In the general sense, filing is actual delivery. It
means taking a document to a clerk of courts for file-stamping as a court record.
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Zanesville v. Rouse, 126 Ohio St.3d 1, 2010-Ohio-2218, 929 N.E.2d 1044, ¶ 7,
vacated in part on reconsideration on other grounds, 126 Ohio St.3d 1227, 2010-
Ohio-3754, 933 N.E.2d 260. “[H]istorically, ‘filing’ occurs when a person
manually presents a paper pleading to the clerk of courts. See, e.g., King v.
Paylor (1942), 69 Ohio App. 193, 196, 23 O.O. 594, 43 N.E.2d 313 (‘a filing can
only be accomplished by bringing the paper to the notice of the officer, so that it
can be accepted by him as official custodian’).” Louden v. A.O. Smith Corp., 121
Ohio St.3d 95, 2009-Ohio-319, 902 N.E.2d 458,¶ 15.
{¶ 37} In Zanesville, we considered whether lack of a clerk’s file-stamp
would defeat the act of filing. We stated that the filing of a document does not
depend on a clerk’s certification, for the clerk’s duty to certify arises only after a
document has been presented: “A party ‘files’ by depositing a document with the
clerk of court, and then the clerk’s duty is to certify the act of filing. In short, the
time or date stamp does not cause the filing; the filing causes the certification.”
Zanesville at ¶ 7.
{¶ 38} The concepts of service and filing both relate to notice, which is
the crucial point. A person or entity is served when actual delivery is made to the
intended target, usually a party to a lawsuit. Filing is accomplished when actual
and timely delivery is made to the correct tribunal. No appellate rule makes the
identity of the actor critical. And so, contrary to what WCRPC argues before us,
nothing prevents a clerk who serves process from being requested by praecipe to
transmit a complaint and notice of appeal to an administrative agency so that it
may be deemed filed with that agency when it is received. The clerk is not an
agent of the appellant. At most, the clerk is a delivery conduit in the same way as
mail service or Federal Express.
{¶ 39} We are not redefining the word “filing” in holding that an
administrative appeal may be perfected when a party files a notice of appeal with
the clerk of courts accompanied by a praecipe for the clerk to serve the complaint
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and notice of the appeal on the administrative agency. Filing does not occur until
there is actual receipt by the agency within the time prescribed by R.C. 2505.07.
Filing and service are still distinct terms.
{¶ 40} Practitioners should not be confused or think that filing under R.C.
2505.04 is accomplished only if the clerk of courts serves upon the administrative
agency a copy of the notice of the appeal filed in the court of common pleas. The
administrative agency must still receive the appropriate complaint and notice
within 30 days after entry of the final administrative order. The appellant may
use any method reasonably certain to accomplish delivery to the agency within
the required 30 days, which is filing that satisfies the jurisdictional requirement
for an administrative appeal.
{¶ 41} We hold today that the purpose of R.C. 2505.04 is to give timely
notice of the appeal to the administrative agency.
Judgment reversed
and cause remanded.
PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
__________________
Frost Brown Todd, L.L.C., Matthew C. Blickensderfer, Scott D. Phillips,
and Benjamin J. Yoder, for appellants.
Surdyk, Dowd & Turner Co., L.P.A., Robert J. Surdyk, and Kevin A
Lantz, for appellee.
______________________
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