Duncan v. Portage Cty. Bd. of Revision

2023 Ohio 3022

• Court: Ohio Court of Appeals
• Decided: August 28, 2023
• Docket: 2023-L-035
• Status: Published

Opinion

[Cite as Duncan v. Portage Cty. Bd. of Revision, 2023-Ohio-3022.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

RICHARD DUNCAN, CASE NO. 2023-L-035

Appellant, Administrative Appeal from the - vs - Ohio Board of Tax Appeals

PORTAGE COUNTY BOARD OF REVISION, Trial Court No. 2022-1120

Appellee.

MEMORAMDUM OPINION

Decided: August 28, 2023 Judgment: Appeal dismissed

Richard Duncan, pro se, 1101 East Boulevard, Aurora, OH 44202 (Appellant).

Victor V. Vigluicci, Portage County Prosecutor, and Allison Blakemore Manayan, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee).

EUGENE A. LUCCI, J.

{¶1} Appellant, Richard Duncan (“property owner”) filed a complaint with the

Portage County Board of Revision (“appellee”) seeking to decrease the value of certain

real property from $85,400 to $40,000. After a hearing, appellee issued a decision

decreasing the property’s value from $85,400 to $57,600. The property owner filed a

notice of appeal with the Ohio Board of Tax Appeals (“BTA”) and, after considering the

parties’ relative positions, the BTA reinstated the auditor’s original value of $85,400. The

property owner now appeals that decision. {¶2} On June 7, 2023, appellee filed a motion to dismiss the underlying appeal

for lack of subject matter jurisdiction. Appellee’s motion is premised upon the property

owner’s failure to meet the necessary statutory criteria for invoking this court’s appellate

jurisdiction. Specifically, appellee asserts the property owner failed to submit a copy of

his notice of appeal with the Portage County Board of Revision and the Portage County

Auditor, as required by R.C. 5717.04; the property owner did not serve a copy of his notice

of appeal with the Portage County Board of Revision and the Portage County Auditor, as

required by R.C. 5717.04; the property owner did not name the Portage County Auditor

in his notice of appeal, as required by R.C. 5717.04; and, the property owner did not file

his notice of appeal in the county in which the parcel of property is located or the county

in which he resides as required by R.C. 5717.04.

{¶3} The property owner filed a memorandum in opposition to appellee’s motion.

The property owner did not specifically deny appellee’s allegations but instead claimed

that his notice of appeal and its service was perfected with the prosecutor, the attorney

representing the auditor, and the appellee. The property owner further contends he

properly perfected his appeal by filing in the court of appeals in which the property is

located; namely, within the Eleventh Appellate District.

{¶4} R.C. 5717.04 governs appeals from the BTA to this court as they relate to,

inter alia, land valuations. It provides, in relevant part:

Appeals from decisions of the board determining appeals from decisions of county boards of revision may be instituted by any of the persons who were parties to the appeal before the board of tax appeals, by the person in whose name the property involved in the appeal is listed or sought to be listed, if such person was not a party to the appeal before the board of tax appeals, or by the county auditor of the county in which the property involved in the appeal is located. 2

Case No. 2023-L-035 ***

Such appeals shall be taken within thirty days after the date of the entry of the decision of the board on the journal of its proceedings, as provided by such section, by the filing by appellant of a notice of appeal with the court to which the appeal is taken and the board. If the appeal is of a decision of the board on an action originally brought under section 5717.01 of the Revised Code[, from the county Board of Revision], the appellant also shall submit, at the same time, a copy of the notice of appeal to the county board of revision and the county auditor. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten days of the date on which the first notice of appeal was filed or within the time otherwise prescribed in this section, whichever is later. A notice of appeal shall set forth the decision of the board appealed from and the errors therein complained of. Proof of the filing of such notice with the board of tax appeals shall be filed with the court to which the appeal is being taken.

The court in which notice of appeal is first filed shall have exclusive jurisdiction of the appeal.

In all such appeals the commissioner or all persons to whom the decision of the board appealed from is required by such section to be sent, other than the appellant, shall be made appellees. Unless waived, notice of the appeal shall be served upon all appellees by certified mail. The prosecuting attorney shall represent the county auditor in any such appeal in which the auditor is a party.

(Emphasis added.)

{¶5} The Supreme Court of Ohio has observed that compliance with statutory

appeal requirements is jurisdictional only when those requirements “run to the core of

procedural efficiency.” Akron Std. Div. of Eagle-Picher Industries, Inc. v. Lindley, 11 Ohio

St.3d 10, 12, 462 N.E.2d 419 (1984) (failure to verify a reassessment petition was not

jurisdictional because the verification requirement did not run to the core of procedural

efficiency); compare Shinkle v. Ashtabula Cty. Bd. of Revision, 135 Ohio St.3d 227, 2013- 3

Case No. 2023-L-035 Ohio-397, 985 N.E.2d 1243, ¶ 17-18 (requirement that complainant state amount of value

at issue was jurisdictional because it ran to the core of procedural efficiency); Austin Co.

v. Cuyahoga Cty. Bd. of Revision, 46 Ohio St.3d 192, 194, 546 N.E.2d 404 (1989) (R.C.

5717.01’s requirement that an appeal to the BTA be filed at the board of revision “provides

that agency with statutory notice of the appeal” so that it may fulfill its duty to “notify all

parties of the appeal and transmit to the BTA a transcript of the board’s proceedings[.]”).

{¶6} The question before this court is, primarily, whether service of the notice of

appeal upon the prosecutor, i.e., counsel for appellee, was sufficient to invoke this court’s

jurisdiction in light of the requirements set forth under R.C. 5717.04. The concomitant

issue, in light of the above, is also whether service on the appellee as well as the auditor

runs “to the core of procedural efficiency” such that failure to do so amounts to a failure

to perfect the instant appeal. We answer the former question in the negative and the

latter in the affirmative.

{¶7} The Supreme Court of Ohio has observed that service of the notice of

appeal on all the parties jurisdictional. See Mason City School Dist. Bd. of Edn. v. Warren

Cty. Bd. of Revision, 138 Ohio St.3d 153, 2014-Ohio-104, 4 N.E.3d 1027, ¶ 22

(“Procedurally, all interests must be notified so that each may participate in litigating the

value of the property—the owner interest in a lower value, the school-district interest in a

greater value, the county interest in proper valuation generally, and the statewide-

equalization interest represented by the tax commissioner.”).

{¶8} The Court in Mason City School Dist. addressed the service requirements

of R.C. 5717.01, i.e., an appeal from the Board of Revision’s valuation. Still, we see no

reason why the reasoning would not apply with similar force to the service requirements

Case No. 2023-L-035 of R.C. 5717.04. The Tenth Appellate District has addressed this very issue and drawn

the same conclusion.

{¶9} In Gallick v. Franklin County Board of Revision, 10th Dist. Franklin Nos.

17AP-811, 17AP-812, 2018-Ohio-717, the county board of revision downwardly valued

the property owner’s property. An appeal was taken to the board of tax appeals, which

reinstated the county auditor’s original values. Id. at ¶ 2. The property owner filed two

notices of appeal to the Tenth District (relating to two separate valuations), where a

motion to dismiss was filed for failure to comply with the procedural requirements of R.C.

5717.04. Gallick at ¶ 3-4. The property owner’s notice of appeal included a certificate of

service providing that he served the notice upon counsel for one of the two parties (the

county board of education); the certificate also provided that the property owner served

the Franklin County prosecutor of record who represented the board of revision. Id. at ¶

6. The certificate of service did not name the auditor as a party served, even though the

prosecutor was the counsel of record for the auditor. Id. Moreover, the property owner

did not directly submit a copy of the notices of appeal to the to the board of revision or

the auditor. Id.

{¶10} In dismissing the appeal for lack of subject-matter jurisdiction, the Gallick

court observed that “the plain language of * * * R.C. 5717.04 does require an appellant to

submit copies of the notice directly to the BOR and auditor, and appellant has accordingly

failed to perfect his appeal.” Id. at ¶ 9. The court pointed out that, “[e]ven assuming

proper service on all named appellees, appellant has not complied with the statutory

requisites to perfect his appeal. * * * To find otherwise would be to ignore the plain

Case No. 2023-L-035 language of R.C. 5717.04, which is written in mandatory terms (‘shall submit, at the same

time, a copy of the notice of appeal.’).” (Emphasis sic.) Gallick at ¶ 10.

{¶11} The Supreme Court of Ohio has held, for purposes of an appeal to the Board

of Tax Appeals pursuant to R.C. 5717.01, that delivering a copy of the notice of appeal to

a prosecutor is insufficient to meet the requirement that a copy be filed with the board of

revision. See Salem Med. Arts and Dev. v. Columbiana Cty, 80 Ohio St.3d 621, 623, 687

N.E.2d 746 (1998) (because R.C. 5717.01 required that the appealing party serve the

board of revision, service of a copy of the notice of appeal upon the board’s counsel was

insufficient, and the appeal was properly dismissed). By extension, R.C. 5717.04, which

requires an appealing party to submit “a copy of the notice of appeal to the county board

of revision and the county auditor,” is a necessary requirement for triggering this court’s

jurisdiction.

{¶12} In light of the foregoing authority, we conclude that filing a copy of the notice

of appeal with the county board of revision and the county auditor, pursuant to R.C.

5717.04, runs to the core of procedural efficiency. The statute plainly provides that a

copy of the notice of appeal shall be filed with the board of revision and the auditor. This

is not a glorification of procedural form over meaningful substance. The board of revision

and auditor have a clear stake in the judgment appealed and are therefore entitled to

actual notice of the filing. The county prosecutor, as counsel for each, is a representative

of the parties. Counsel, while a legal conduit to a party in an instituted proceeding, cannot

be deemed equivalent to the statutory individual or party, especially where a statute

specifically requires additional filings placing specific parties on notice of a statutory

appeal. This requirement places the board of revision and the auditor on notice of

Case No. 2023-L-035 matters that will affect previously established rights and obligations. Actual notice of a

pending proceeding is an element of traditional notions due process. Accordingly, we

hold that the requirement that an appealing party file a copy of the notice of appeal with

the county board of revision and the county auditor goes to the core of procedural

efficiency. It is therefore a jurisdictional requirement for perfecting an appeal under R.C.

5717.04.

{¶13} The property owner served only the prosecutor with a copy of the notice of

appeal, but did not specifically file a copy of the notice with appellee or the auditor contrary

to the express language of R.C. 5717.04. Accordingly, the property owner failed to perfect

his appeal and, as a result, has not properly invoked this court’s jurisdiction to consider

the appeal.

{¶14} Because the foregoing analysis is sufficient to support our disposition, we

need not address appellee’s remaining arguments in support of its motion.

{¶15} For the reasons set forth in this opinion, appellee’s motion to dismiss is

granted. The appeal is dismissed for the property owner’s failure to comply with

necessary statutory procedures for invoking this court’s subject-matter jurisdiction under

R.C. 5717.04.

JOHN J. EKLUND, P.J.,

ROBERT J. PATTON, J.,

concur.

Case No. 2023-L-035