Gillis v. Delaware Cty. Bd. of Revision

2024 Ohio 2443, 246 N.E.3d 721

• Court: Ohio Court of Appeals
• Decided: June 26, 2024
• Docket: 24 CAH 01 0001, 24 CAH 01 0002, 24 CAH 01 0003
• Status: Published

Opinion

[Cite as Gillis v. Delaware Cty. Bd. of Revision, 2024-Ohio-2443.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

MARK GILLIS, et al. JUDGES: Hon. Patricia A. Delaney, P.J. Appellees Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case Nos. 24 CAH 01 0001 DELAWARE COUNTY BOARD OF 24 CAH 01 0002 REVISION, et al. 24 CAH 01 0003

Appellees OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Ohio Board of Tax Appeals, Case Nos. 2023-1475, 1476 and 1477

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: June 26, 2024

APPEARANCES:

For Appellees Gillis and Olentangy For Appellants NorthLake, Powell and Rushmore KAROL C. FOX KELLEY A. GORRY NICHOLAS M.J. RAY RICH & GILLIS LAW GROUP, LLC LAUREN M. JOHNSON 5747 Perimeter Drive STEVEN L. SMISEK Suite 150 MEGAN SAVAGE KNOX Dublin, Ohio 43017 VORYS SATER SEYMOUR & PEASE 52 East Gay Street For Appellees BOR and Auditor Columbus, Ohio 43216

MICHAEL P. CAVANAUGH ASSISTANT PROSECUTOR 145 North Union Street, 3rd Floor Delaware, Ohio 43015 Delaware County, Case Nos. 24 CAH 01 0001, 0002, 0003 2

Wise, J.

{¶1} In these consolidated appeals, Appellants Northlake Summit LLC, Powell

Grand Communities LLC, and Rushmore OH Partners LLC, appeal the decisions of the

Ohio Board of Tax Appeals denying their motions to dismiss.

{¶2} Appellees are the Olentangy Local School Board of Education, Delaware

County Auditor, Delaware County Board of Revision, and property owner Mark Gillis.

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant facts and procedural history are as follows:

Board of Revision

{¶4} On March 24, 2023, these cases commenced with Appellee Mark H. Gillis,

a resident and taxpayer of Delaware County, as a “third-party complainant" pursuant to

amended R.C. §5715.19(A), filing three Complaints with the Delaware County Board of

Revision (BOR) for tax year 2022, seeking an increase in valuation upon certain real

property owned by the following:

{¶5} Appellant Northlake Summit LLC, property identified as Delaware County

Auditor's Parcel Number 417-220-02-036-001. Appellee Gillis sought an increase in

valuation from the Auditor's original value of $24,896,000 to $43,872,000. Mr. Gillis

indicated on line 9 of the Complaint that the Subject Property sold on December 18, 2020,

for the purchase price of $43,872,000.

{¶6} Appellant Rushmore OH Partners LLC, property identified as Delaware

County Auditor’s Parcel Number 417-412-02-004-005. Appellant Gillis sought an increase

in the property’s value from $15,952,200 to $26,108,800. Mr. Gillis indicated that the

Subject Property sold on June 1, 2021, for the purchase price of $26,108,800. Delaware County, Case Nos. 24 CAH 01 0001, 0002, and 0003 3

{¶7} Appellant Powell Grand Communities LLC, properties identified as

Delaware County Auditor's Parcel Numbers. 319-423-02-001-0007 and 319-423-02-001-

008. Mr. Gillis sought an increase in the property’s value from $40,194,000 to

$70,750,000. Mr. Gillis indicated that the Subject Properties sold on December 18, 2020,

for the purchase price of $70,750,000.

{¶8} Attached to the Complaints were several documents in support of the recent

sales of the property, including, inter alia, a Press Release of seller Schottenstein Real

Estate Group issued on February 2, 2021, several months after the sale, announcing that

Schottenstein had sold three of their developments for a total purchase price of $177

Million. The two Delaware County developments that were sold included "Northlake

Summit located at 36/37 and I-71" and "Powell Grand Communities, located on Sawmill

Parkway and Seldom Seen Roads." The two Delaware County developments "were sold

to Cortland" pursuant to the Press Release. Appellee Gillis also attached two reports

from Co-Star, a real estate service used by real estate appraisers and brokers, detailing

the sale of the two properties, including the subject properties.

{¶9} Shortly after filing the Complaint, Appellee Gillis and Appellee Olentangy

Local School District Board of Education (BOE) requested that the BOR invoke its

subpoena power pursuant to R.C. §5715.10 and require Appellant Northlake to produce

additional documentation relating to the sale, including the purchase contract, settlement

statement, and any appraisals prepared for financing in the December, 2020, sale. It also

requested the information directly from the property owners, by written request conveyed

to their counsel. Delaware County, Case Nos. 24 CAH 01 0001, 0002, and 0003 4

{¶10} On July 13, 2023, Appellants each filed motions to dismiss Mr. Gillis’

Complaints, asserting that the Complaints failed to meet the jurisdictional requirements

of R.C. §5715.19(A)(6) because they did not establish that the parcels either sold in a

recent arm's length sale or that the purchase prices were above the statutory threshold

required for filing, i.e., $500,000 and 10% above the current true value.

{¶11} On September 20, 2023, the BOR held a consolidated hearing on Mr. Gillis’

Complaints. At said hearing, Mr. Gillis and Appellee Board of Education presented the

documents attached to their Complaints and contended that they met the jurisdictional

thresholds set forth in R.C. §5715.19(A)(6) with the information attached to the complaint

and requested that the BOR increase the subject properties true value to $43,800,000.

{¶12} The BOR did not rule on the pending Motions to Dismiss but heard the

Complaints and by decision filed September 21, 2023, denied the requested increase in

value and retaining the Auditor's original values.

Board of Tax Authority

{¶13} Mr. Gillis appealed the BOR’s decisions to the BTA and filed discovery

requests seeking extensive information regarding the subject property.

{¶14} Appellants moved the BTA dismiss the appeals and remand the matter to

the BOR with instructions to vacate its decision and dismiss the original complaints for

lack of jurisdiction. Appellants argued that Appellees’ Complaints did not meet the

jurisdictional requirements set forth in R.C. §5715.19(A), which provides:

(6) The legislative authority of a subdivision, the mayor of a municipal

corporation, or a third-party complainant shall not file an original complaint Delaware County, Case Nos. 24 CAH 01 0001, 0002, and 0003 5

with respect to property the subdivision or complainant does not own or

lease unless both of the following conditions are met:

(a) If the complaint is based on a determination described in division

(A)(1)(d) or (e) of this section, the property was (i) sold in an arm's length

transaction, as described in section 5713.03 of the Revised Code, before,

but not after, the tax lien date for the tax year for which the complaint is to

be filed, and (ii) the sale price exceeds the true value of the property

appearing on the tax list for that tax year by both ten per cent and the

amount of the filing threshold determined under division (J) of this section;

***

(J) For the purpose of division (A)(6)(b) of this section, the filing

threshold for tax year 2022 equals five hundred thousand dollars. …

{¶15} Compliance with each of these requirements (arm’s length sale, sale price

exceeding 10%, $500,000 threshold) is necessary in order for a complaint filed by a

legislative authority or third-party complainant with respect to property it neither owns nor

leases to vest jurisdiction in the board of revision.

{¶16} Appellants also objected to the BOE's discovery requests and moved for a

stay of the discovery period.

{¶17} Mr. Gillis responded that any alleged deficiency in the record regarding the

sale prices in the entity sales was due to Appellants’ failure to respond to Mr. Gillis' and

the BOE's subpoena requests at the BOR, and that allowing the parties to proceed to

discovery would enable Mr. Gillis to present the purchase contracts and settlement Delaware County, Case Nos. 24 CAH 01 0001, 0002, and 0003 6

statements substantiating the sale prices. Mr. Gillis contemporaneously objected to

Appellants’ motions to stay discovery upon the same basis.

{¶18} The BTA construed Appellants’ motions as motions to remand the matters

to the BOR with instructions to dismiss Mr. Gillis' Complaints.

{¶19} On December 19, 2023, the BTA issued its Interim Order denying

Appellants’ motions to dismiss/remand and motions to stay the discovery period. The BTA

found it was "unnecessary and premature" for the BTA to consider whether a third party

or a political subdivision had complied with the exceptions to R.C. §5715.19(A)(6) until

after the matter had gone through the BTA proceedings to merit hearing.

{¶20} On January 10, 2024, Appellants commenced appeals from the BTA’s

December 19, 2023, decision to this Court.

{¶21} On January 31, 2024, Appellee Gillis moved to dismiss Appellants’ appeals,

arguing that the BTA order being appealed was not a final, appealable order.

{¶22} On February 13, 2024, Appellants moved to consolidate their three

separate appeals. (24 CAH 01 0001, 24 CAH 01 0002, 24 CAH 01 0003).

{¶23} By Order dated March 8, 2024, the Court took the motion under advisement

and held the ruling in abeyance.

{¶24} By Order date March 12, 2024, this Court consolidated the three appeals.

{¶25} Appellants raise the following assignments of error:

ASSIGNMENTS OF ERROR

{¶26} “I. THE BTA ERRED IN FINDING THAT MR. GILLIS WAS NOT

REQUIRED TO ESTABLISH THAT HE MET THE EXCEPTIONS TO THE STATUTORY

PROHIBITION ON FILING A COMPLAINT AT EITHER THE TIME OF FILING WITH OR Delaware County, Case Nos. 24 CAH 01 0001, 0002, and 0003 7

BEFORE THE BOARD OF REVISION. ALLOWING MR. GILLIS TO PROCEED

THROUGH MERIT HEARING ON APPEAL TO THE BTA IS CONTRARY TO THE

GENERAL ASSEMBLY'S EXPRESS PROHIBITION ON THE FILING OF INCREASE

COMPLAINTS. R.C. 5715.19(A)(6). BECAUSE HE FAILED TO ESTABLISH THAT HE

MET THE THRESHOLD JURISDICTIONAL EXCEPTIONS TO THE FILING

PROHIBITION BEFORE THE BOR, MR. GILLIS' COMPLAINT SHOULD HAVE BEEN

DISMISSED. ELKEM METALS CO. V. WASHINGTON CTY. BD. OF REVISION, 81

OHIO ST.3D 683, 686, 693 N.E.2D 276 (1998).

{¶27} “II. THE BTA SHOULD HAVE DISMISSED MR. GILLIS' COMPLAINT

BECAUSE HE FAILED TO ESTABLISH BEFORE THE BOR THAT THE ALLEGED

TRANSACTION HAD A SALE PRICE ABOVE THE $500,000 AND 10% REQUIRED BY

R.C. 5715.19(A)(6)(A)(II). CONTRARY TO THE BTA'S ORDER IN SNIDER CROSSING,

R.C. 5715.19(A)(6)(A)(II) IS A JURISDICTIONAL EXCEPTION TO THE FILING

PROHIBITION THAT CANNOT BE TREATED AS "UNNECESSARY AND

PREMATURE" TO THE BOARD OF REVISION'S JURISDICTION.

{¶28} “III. THE BTA ERRED IN FINDING THAT ANY FORM OF TRANSFER IS

A SALE THAT WOULD ESTABLISH JURISDICTION UNDER R.C. 5715.19(A)(6). THE

ALLEGED TRANSFER MR. GILLIS RELIES UPON IS NOT RECENT "ARM'S LENGTH

TRANSACTION" UNDER R.C. 5715.19(A)(6) AND R.C. 5713.03.”

I., II., III.

{¶29} The issue before this Court is whether the Board of Tax Appeals erred in

not dismissing Appellee Gillis’ Complaints. Delaware County, Case Nos. 24 CAH 01 0001, 0002, and 0003 8

{¶30} More specifically, Appellants ask this Court to find that the BTA erred by not

remanding the matter to the BOR with instructions to dismiss the original complaints.

Appellants also ask this Court to find that the BTA erred in permitting the matter to move

forward because Appellants’ rights would be irreparably harmed by disclosure of non-

public information and, once released, such disclosure would foreclose appropriate relief

in the future.

{¶31} Appellees moved this Court to dismiss the appeals from the BTA’s interim

orders, arguing that this Court lacks jurisdiction to hear said appeals because the property

owners did not appeal final orders.

Jurisdiction

{¶32} Article IV, Section 3(B)(2) of the Ohio Constitution establishes that courts

of appeals “have such jurisdiction as may be provided by law to review and affirm, modify,

or reverse judgments or final orders of the courts of record inferior to the court of appeals

within the district.” Consequently, an order must be final before an appellate court may

review it. Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, ¶14. If

an order is not final, then an appellate court has no jurisdiction over it. Id

{¶33} Although R.C. §5717.04 provides for appeals from BTA decisions, it does

not specifically address the nature of decisions that may be appealed or finality. Southside

Community Dev. Corp. v. Levin, 116 Ohio St.3d 1209, 2007-Ohio-6665, ¶ 5.

Consequently, to determine whether a BTA decision constitutes a final order, we look to

R.C. §2505.02, which lists the types of orders that qualify as final orders. Id. Specifically,

R.C. §2505.02(B)(2) applies to interim orders issued by the BTA. Id. Under that provision, Delaware County, Case Nos. 24 CAH 01 0001, 0002, and 0003 9

an order is final if it “affects a substantial right made in a special proceeding.” R.C.

§2505.02(B)(2).

{¶34} A “[s]ubstantial right” is defined as “a right that the United States

Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure

entitles a person to enforce or protect.” R.C. §2505.02(A)(1). An order affects a

substantial right only when it is an order that “if not immediately appealable, would

foreclose appropriate relief in the future.” Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 63

(1994).

{¶35} The same fact situation and issues raised herein have recently been

considered and decided by the Tenth District Court of Appeals in Stanley J. Bahorek v.

Franklin County Board of Revision et al. and Willows Apartment Community, LLC, 24AP-

14, 24AP-17, 24AP-18, 24AP-19, 24AP-22, 24AP-24, 24AP-25, 24AP-26, 24AP-27,

24AP-26, 24AP-48, 24AP-54 (10th Dist. March 29, 2024), wherein it held:

Here, the property owners contend that the substantial right

impacted by the interim orders is the right to protect their trade secrets and

sensitive business information. The property owners claim that the interim

orders require them to disclose trade secrets and sensitive information that

others can use to the property owners’ detriment. But the interim orders only

refused to remand with instructions to vacate the BOR decisions; the interim orders

did not compel the disclosure of any information or document. True, the interim

orders allowed discovery to proceed, thus requiring the property owners to

respond to discovery requests. However, the property owners can object to

those discovery requests and move for protective orders if the requests

seek trade secrets or confidential information, See Ohio Adm. Code §717- Delaware County, Case Nos. 24 CAH 01 0001, 0002, and 0003 10

1-12(D) (permitting the BTA to issue protective orders restricting discovery

of trade secrets and other confidential information). If the BTA refuses to

issue protective orders or mandates the disclosure of protected documents

or information, then the property owners can appeal and present the

argument they are now making. At this point, the property owners’ appeals

are premature. Without an order requiring them to disclose trade secrets or

other indiscoverable material, their alleged substantial rights are not

affected. See Lollini v. Brown, 7th Dist. No. 10 JE 8, 2010-Ohio 2697, ¶ 8-

9 (holding no substantial right was affected, and no final order existed,

where no discovery order requiring the disclosure of confidential or

privileged material had yet occurred). Consequently, the interim orders are

not final orders under R.C. 2505.02(B)(2).

Some of the property owners also argue that the interim orders are

final orders under R.C. 2505.02(B)(4), which provides that an order granting

or denying a provisional remedy is a final order if both of the following apply

(a) The order in effect determines the action with respect to the

provisional remedy and prevents a judgment in the action in favor of

the appealing party with respect to the provisional remedy

(b) The appealing party would not be afforded a meaningful or

effective remedy by an appeal following final judgment as to all

proceedings, issues, claims, and parties in the action.

This argument, like the first argument, relies on the erroneous

presumption that the interim orders require the property owners to release Delaware County, Case Nos. 24 CAH 01 0001, 0002, and 0003 11

sensitive business information the property owners argue that they will not

be afforded a meaningful remedy by an appeal following a final order if they

must turn over sensitive business information in discovery. They assert that

once such information is handed over, the harm cannot be undone. As we

explained above, the interim orders do not require the disclosure of any

document or information. Consequently, we are not persuaded by the

property owners’ argument, and we conclude that the interim orders are not

final orders under R.C. 2505.02(B)(4)

For the foregoing reasons, we determine that we lack jurisdiction

over these Appeals because the BTA’s interim orders are not final orders,

and we thus grant the motions to dismiss

{¶36} Upon review, we agree with the Tenth District’s reasoning in Bahorek,

supra. The BTA’s interim orders denying Appellants’ Motions to Dismiss/Remand herein

are not final appealable orders under R.C. §2505.02(B)(2), and the property owners’

appeals are premature. Delaware County, Case Nos. 24 CAH 01 0001, 0002, and 0003 12

{¶37} Based on the foregoing we grant Appellees’ Motion to Dismiss the instant

appeal.

{¶38} Accordingly, the appeal from the Ohio Board of Tax Appeals is dismissed.

By: Wise, J.

Delaney, P. J., and

Hoffman, J., concur.

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