Kosuke v. Franklin Cty. Bd. of Revision

2021 Ohio 4068

• Court: Ohio Court of Appeals
• Decided: November 16, 2021
• Docket: 21AP-211, 21AP-212, 21AP-213, 21AP-214, 21AP-215, 21AP-216, 21AP-217, 21AP-218, 21AP-219, 21AP-220, 21AP-221, 21AP-224, 21AP-225, 21AP-226, 21AP-227, 21AP-228, 21AP-229, 21AP-230, 21AP-231, 21AP-232, 21AP-233, 21AP-234, 21AP-235, 21AP-236, 21AP-237, 21AP-238, 21AP-239, 21AP-240, 21AP-241, 21AP-242, 21AP-244, 21AP-245, 21AP-246 & 21AP-247
• Status: Published

Opinion

[Cite as Kosuke v. Franklin Cty. Bd. of Revision, 2021-Ohio-4068.] IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Takahashi Kosuke, :

Appellant-Appellee, : Nos. 21AP-211 v. : 21AP-212 (BTA Nos. 2020-2309 & 2020-2350) Franklin County Board of Revision, et al., : (REGULAR CALENDAR) Appellees-Appellees, :

Board of Education of the : Dublin City School District, : Appellee-Appellant. : Takako Fujiki, : Nos. 21AP-213 Appellant-Appellee, 21AP-214 : (BTA Nos. 2020-2312 & 2020-2351) v. : (REGULAR CALENDAR) Franklin County Board of Revision et al., : Appellees-Appellees, : Board of Education of the Dublin City School District, :

Appellee-Appellant. :

Takako Fujiki, :

Appellant-Appellee, : Nos. 21AP-215 21AP-216 v. : (BTA Nos. 2020-2326 & 2020-2359)

Franklin County Board of Revision et al., : (REGULAR CALENDAR)

Appellees-Appellees, :

Board of Education of the : Dublin City School District, : Appellee-Appellant. :

Kimizuka Koichiro, : Nos. 21AP-211 et seq 2

Appellant-Appellee, : Nos. 21AP-217 21AP-218 v. : 21AP-219 21AP-220 Franklin County Board of Revision et al., : 21AP-221 (BTA Nos. 2020-2316. 2020-2318, Appellees-Appellees, : 2020-2356, 2020-2322, 2020-2357)

Board of Education of the : (REGULAR CALENDAR) Westerville City Schools District, : Appellee-Appellant. : Shinichi Yamamoto, : Appellant-Appellee, Nos. 21AP-224 : 21AP-228 v. (BTA Nos. 2020-2355 & 2020-2320) : Franklin County Board of Revision et al., (REGULAR CALENDAR) : Appellees-Appellees, : Board of Education of the Westerville City School District, :

Shinichi Uemura, :

Appellant-Appellee, : No. 21AP-225 (BTA No. 2020-2371) v. : (REGULAR CALENDAR) Franklin County Board of Revision et al., :

Board of Education of the : Worthington City School District, : Appellee-Appellant. :

Sekiko Kiyota, : Nos. 21AP-226 Appellant-Appellee, : 21AP-227 (BTA No. 2020-2333 & 2020-2368) v. : (REGULAR CALENDAR) Franklin County Board of Revision et al., : Nos. 21AP-211 et seq 3

Board of Education of the : Worthington City School District, : Appellee-Appellant. : Toshiyasu Nishii, : Appellant-Appellee, Nos. 21AP-229 : 21AP-230 v. (BTA No. 2020-2337 & 2020-2362) : Franklin County Board of Revision et al., (REGULAR CALENDAR) : Appellees-Appellees, : Board of Education of the Worthington City School District, :

Ayako Shimane, :

Appellant-Appellee, : Nos. 21AP-231 21AP-232 v. : (BTA No. 2020-2338 & 2020-2363)

Franklin County Board of Revision et al., : (REGULAR CALENDAR)

Board of Education of the : Worthington City School District, : Appellee-Appellant. :

Horoshi Nagano, :

Appellant-Appellee, : No. 21AP-233 (BTA No. 2020-2370) v. : (REGULAR CALENDAR) Franklin County Board of Revision et al., :

Board of Education of the : Worthington School District, : Appellee-Appellant. Nos. 21AP-211 et seq 4

: Nagatani Hirokazu, : Appellant-Appellee, No. 21AP-234 : (BTA No. 2020-2358) v. : (REGULAR CALENDAR) Franklin County Board of Revision et al., : Appellees-Appellees, : Board of Education of the Westerville School District, :

Nagae Koji, :

Appellant-Appellee, : No. 21AP-235 (BTA No. 2020-2347) v. : (REGULAR CALENDAR) Franklin County Board of Revision et al., :

Board of Education of the : Westerville City School District, : Appellee-Appellant. :

Tetsuo Lguchi, :

Appellant-Appellee, : No. 21AP-236 (BTA No. 2020-2354) v. : (REGULAR CALENDAR) Franklin County Board of Revision et al., :

Board of Education of the : Westerville City School District, : Appellee-Appellant. : Makoto Fujiki, : No. 21AP-237 Appellant-Appellee, (BTA No. 2020-2372) : v. (REGULAR CALENDAR) Nos. 21AP-211 et seq 5

: Franklin County Board of Revision et al., : Appellees-Appellees, : Board of Education of the Worthington City School District, :

Yasutaka Matsuzaki, : No. 21AP-238 Appellant-Appellee, : (BTA No. 2020-2349)

v. : (REGULAR CALENDAR)

Franklin County Board of Revision et al., :

Board of Education of the : Dublin City School District, : Appellee-Appellant. :

Yasutaka Matsuzaki, :

Appellant-Appellee, : No. 21AP-239 (BTA No. 2020-2336) v. : (REGULAR CALENDAR) Franklin County Board of Revision et al., :

Board of Education of the : Dublin City School District, : Appellee-Appellant. :

Yu Christopher Ishihara, :

Appellant-Appellee, : No. 21AP-240 (BTA No. 2020-2352) v. : (REGULAR CALENDAR) Franklin County Board of Revision et al., :

Appellees-Appellees, : Nos. 21AP-211 et seq 6

Board of Education of the : Dublin City School District, : Appellee-Appellant. :

Toshiki Sato, :

Appellant-Appellee, : No. 21AP-241 (BTA No. 2020-2348) v. : (REGULAR CALENDAR) Franklin County Board of Revision et al., :

Board of Education of the : Dublin City School District, : Appellee-Appellant. : Hirofumi Kasuga, : Appellant-Appellee, : Nos. 21AP-242 v. 21AP-244 : (BTA No. 2020-2341 & 2020-2369) Franklin County Board of Revision et al., : (REGULAR CALENDAR) Appellees-Appellees, : Board of Education of the Worthington City School District, :

Masahiro Sumita, :

Appellant-Appellee, :

v. : Nos. 21AP-245 21AP-246 Franklin County Board of Revision et al., : 21AP-247 (BTA No. 2020-2343, 2020-2344 Appellees-Appellees, : & 2020-2366)

Board of Education of the : (REGULAR CALENDAR) Worthington City School District, : Appellee-Appellant. : Nos. 21AP-211 et seq 7

D E C I S I O N

Rendered on November 16, 2021

On brief: Rich & Gillis Law Group, Mark H. Gillis, and Richelle L. Thoburn Ford, for appellants Boards of Education of the Dublin, Worthington, and Westerville City School Districts. Argued: Richelle L. Thoburn Ford.

APPEALS from the Ohio Board of Tax Appeals

PER CURIAM. {¶ 1} Invoking the rule of Megaland GP, L.L.C. v. Franklin Cty. Bd. of Revision, 145 Ohio St.3d 84, 2015-Ohio-4918, appellant school boards bring these interlocutory appeals from denials by the Board of Tax Appeals ("BTA") of school board motions to dismiss appeals to the BTA of real property valuation increase decisions by the Franklin County Board of Revision. Because the appeals here relate to BTA jurisdiction over cases on its small claims docket, we understand the binding precedent of Megaland to instruct that we consider them. See id. at ¶ 16-19. {¶ 2} The school boards present five assignments of error that they properly group under two main headings: I. The BTA's decisions are unlawful because they ignore the mandatory and jurisdictional requirement of R.C. 5717.01 that a notice of appeal must also be filed with the BOR within the appeal period.

II. The BTA's decisions are unlawful because they fail to address the issue of standing to file the notices of appeal with that Board and fail to dismiss the notices of appeal on that ground.

Appellants' Brief at i, iv. The school boards ask us to reverse the decisions of the BTA on their motions to dismiss, or "[i]n the alternative * * * [to] remand these matters to the BTA with instructions to rule" explicitly on the identified issues. No appellee property owner has filed a responsive brief. {¶ 3} The school boards did argue to the BTA that "[t]here is no evidence in the record to prove that the Notices of Appeal were timely filed with the BOR pursuant to R.C. 5717.01." Nos. 21AP-211 et seq 8

See, e.g., Appellee BOE's Motion to Dismiss Appeals in Kosuke v. Franklin Cty. BOR, et al., BTA No. 2020-2309, 2350 at 6 (emphasis omitted). Under R.C. 5717.01, a taxpayer authorized by Section 5715.19 may appeal a decision of a county board of revision to the BTA. "Such appeal shall be taken by the filing of a notice of appeal * * * with the board of tax appeals and with the county board of revision." R.C. 5717.01. The Supreme Court of Ohio has explained that "it is well established that the BTA is a creature of statute and as such has only the jurisdiction, power, and duties expressly provided by the General Assembly." Ross v. Cuyahoga Cty. Bd. of Revision, 155 Ohio St.3d 373, 2018-Ohio-4746, ¶ 9. "When, as here, 'a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right of appeal conferred.' " Id. at ¶ 10 (citation omitted). Supreme Court precedent "confirms that failure to comply with R.C. 5717.01's dual filing requirements, including the time limits for filing an appeal, 'is fatal to the appeal.' * * * * [T]imely dual filings with the BTA and the county board of revision were necessary to invoke the jurisdiction of the BTA under R.C. 5717.01." Id. at ¶ 11 (citations omitted). {¶ 4} In denying the motions to dismiss, the BTA did not advert to or explicitly rule on the question of whether the statutory dual filing requirement had been satisfied. See, e.g., BTA Order denying motion to dismiss in Kosuke, supra. Exploration of the record on such matters is best left in the first instance to the BTA, whose jurisdiction is at issue. We therefore sustain the school boards' assignments of error 2, 3, 4, and 5 to that extent and we remand these cases to the BTA so that it may determine whether the dual filing requirement of R.C. 5717.01 has been satisfied and whether the BTA has jurisdiction over the valuation appeals. {¶ 5} If the BTA finds that the dual filing requirements were satisfied, it also should address and analyze explicitly what we understand to be the school boards' further arguments that the property owners' representative who filed the notices of appeal with the BTA is not among the categories of authorized non-lawyer representatives who (they submit) may file valuation appeals on behalf of property owners pursuant to R.C. 5717.01 with its cross- reference to 5715.19. We construe the school boards to have argued in their motions to dismiss that R.C. 5717.01 (regarding BTA appeals from county boards of revision) establishes a regime distinct from that created by R.C. 5717.02 (regarding BTA appeals from the tax commissioner and others). Whereas R.C. 5717.02 imposes no limitation on who can represent a property owner in filing a notice of appeal and thus is governed by the precedent of Nascar Holdings, Inc. v. Testa, 152 Ohio St.3d 405, 2017-Ohio-9118, ¶ 15 (observing the "central point[] that Nos. 21AP-211 et seq 9

R.C. 5717.02 places no limits on the corporate taxpayer's authority to designate an agent to sign the notice of appeal"), the school boards urge that appeals noticed pursuant to R.C. 5717.01 are different because that section speaks of appeals brought by a "taxpayer authorized by section 5715.19," and R.C. 5715.19(A) allows valuation complaints to be filed by any property owner, or that person's spouse, or any "individual retained by such a person and who holds a designation from [various types of professional organizations]," or a public accountant, real estate appraiser, or real estate broker with various types of licenses and retained by such a person. See, e.g., Kosuke Motion to Dismiss at 5 (arguing that "the present case does not deal with R.C. 5717.02, but rather 5717.01" and restrictions on "who can act on behalf of the taxpayer" as arguably imposed through the cross-referenced 5715.19). {¶ 6} The BTA orders denying the school boards' motions to dismiss cited to Nascar without addressing the school boards' arguments that Nascar by its terms does not extend to BTA appeals brought pursuant to R.C. 5717.01, that notices of such appeals may not be filed on behalf of the property owners by anyone apart from lawyers and those categories of representatives listed by the General Assembly in R.C. 5715.19(A), and that the owners' representative did not appear to fit within those categories. Again, we decline to resolve those legal and factual issues here in the first instance, but remand these cases to the BTA so that it may determine such matters if necessary after resolution of the dual filing questions specified above. We sustain the school boards' assignments of error 1, 2, 3, and 5 to that further limited extent (even while noting that we find the school boards' attempt to lump these arguments under a rubric of "standing" to be confusing and unhelpful). {¶ 7} We vacate the BTA's Orders from which these appeals were taken, and remand these cases to the BTA for all further proceedings as may be appropriate and consistent with this decision. Orders vacated; cases remanded.

BEATTY BLUNT, MENTEL, and NELSON, JJ., concur.

NELSON, J., retired, of the Tenth Appellate District, assigned to active duty under the authority of the Ohio Constitution, Article IV, Section 6(C). ___________________