McDonald's Corp. v. Union Cty. Bd. of Revision

2012 Ohio 3751

• Court: Ohio Court of Appeals
• Decided: August 20, 2012
• Docket: 14-12-14
• Status: Published

Opinion

[Cite as McDonald's Corp. v. Union Cty. Bd. of Revision, 2012-Ohio-3751.]

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

McDONALD'S CORPORATION, SUCCESSOR- IN-INTEREST BY MERGER WITH FRANCHISE REALTY INTERSTATE CORPORATION,

APPELLEE, CASE NO. 14-12-14

v.

UNION COUNTY BOARD OF REVISION, ET AL.,

APPELLEES, -and- OPINION

CONNOLLY CONSTRUCTION CO.,

APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 2011-A-3302

Judgment Affirmed

Date of Decision: August 20, 2012

APPEARANCES:

Luther L. Liggett, Jr. and Heather Logan Melick for Appellant

Charles L. Bluestone for Appellee, Franchise Realty

David W. Phillips for Appellee, Union Co. Prosecutor

Mike DeWine for Appellee, Tax Commissioner Case No. 14-12-14

PRESTON, J.

{¶1} Appellant, Connolly Construction Corporation, appeals the Board of

Tax Appeal’s judgment granting a motion filed by appellee, McDonald’s

Corporation, Successor-in-Interest by Merger with Franchise Realty Interstate

Corporation, to dismiss Connolly Construction’s underlying complaint for lack of

a valid signature. Connolly Construction argues the Board of Tax Appeals erred

in dismissing the complaint. Connolly Construction contends that the complaint

was valid because it was signed by a salaried employee pursuant to statute. For

the reasons that follow, we affirm.

{¶2} On March 31, 2011, Connolly Construction filed a complaint with the

Union County Board of Revision to challenge the valuation of McDonald’s

property in Marysville, Ohio. Connolly Construction challenged the valuation of

McDonald’s property because the property was located in an area where Connolly

Construction had received tax increment financing (“TIF”). TIF “is a method of

financing that is used to pay for public improvements. A public entity will sell

bonds for public improvements and recoup the money from the increase in value

of property that is enhanced by the public improvements.” Sugarcreek Twp. v.

Centerville, 184 Ohio App.3d 480, 2009-Ohio-4794, ¶ 24 (2d Dist.). According to

Connolly Construction, the value of McDonald’s property would affect the value

of the TIF property as a whole and if the property was undervalued, Connolly

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Construction could be liable for the reduced tax revenue. Connolly Construction

argued the auditor’s valuation of the property was less than the true value based on

comparable sales, appraisal evidence, and similar valuations. Connolly

Construction’s complaint was signed by “John R. Connolly,” but did not indicate

what John Connolly’s relationship was to Connolly Construction. McDonald’s

filed a counter-complaint challenging the validity of Connolly Construction’s

complaint.

{¶3} Following a hearing, the Union County Board of Revision issued a

decision increasing the value of McDonald’s property from $900,000 to

$1,120,000. On October 18, 2011, McDonald’s filed a notice of appeal with the

Board of Tax Appeals.

{¶4} On January 20, 2012, McDonald’s filed a motion requesting that the

Board of Tax Appeals remand the case to the Union County Board of Revision

with instructions to dismiss the underlying complaint. McDonald’s argued

Connolly Construction failed to correctly identify the owner of the subject

property in its complaint, that as a salaried employee, John Connolly was

unauthorized to sign the complaint on behalf of Connolly Construction, and that

Connolly Construction’s reliance on the Union County auditor’s records when

determining the owner of the subject property did not prevent the dismissal of

Connolly Construction’s complaint.

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{¶5} On January 24, 2012, Connolly Construction filed its motion in

response. Connolly Construction argued its complaint adequately identified the

owner of McDonald’s property and that R.C. 5715.19(A) permits a salaried

employee to sign a complaint to the Board of Revision on behalf of a corporation.

{¶6} On March 27, 2012, the Board of Tax Appeals issued its decision and

order granting McDonald’s motion. The Board of Tax Appeals decided the record

was insufficient to determine the accuracy of the listed owner of the subject

property. The Board of Tax appeals did address whether John Connolly was

permitted to sign the complaint pursuant to R.C. 5715.19(A), and determined that

he was unauthorized to sign the complaint on behalf of Connolly Construction

because preparing and filing the complaint constituted the unauthorized practice of

law.

{¶7} On April 10, 2012, Connolly Construction filed a notice of appeal.

Connolly Construction now raises one assignment of error for our review.

Assignment of Error

The Board of Tax Appeals erred in dismissing Connolly Construction Co.’s underlying complaint for lack of a valid signature, as the record established that the signatory is a salaried employee of the corporation, on express authority of the Ohio Revised Code §5715.19(A)(1).

{¶8} In its sole assignment of error, Connolly Construction argues the

Board of Tax Appeals erred by dismissing its underlying complaint for lack of a

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valid signature. Connolly Construction relies on R.C. 5715.19(A)(1), which

permits a “salaried employee” to file a complaint with the Board of Revision on

behalf of a corporation. Connolly Construction contends that John Connolly was a

salaried employee and filed the complaint pursuant to statute. Connolly

Construction argues the Board of Tax Appeals erred by determining John

Connolly had engaged in the unauthorized practice of law by signing and filing the

complaint, and that the Board of Revision lacked jurisdiction to consider the

complaint as a result.

{¶9} Pursuant to R.C. 5717.04, we review a decision of the Board of Tax

Appeals to determine whether it is reasonable and lawful. Mobile Instrument

Service and Repair, Inc., v. Tax Commr., 3d Dist. No. 8-2000-20, *2 (Dec. 6,

2000). “As long as there is evidence which reasonably supports the conclusion

reached by the board, its decision must stand.” Highlights for Children, Inc. v.

Collins, 50 Ohio St.2d 186, 187-188 (1977). However, in the present case, we

must consider a legal question regarding R.C. 5715.19(A)(1) rather than review a

factual determination. “Because this analysis requires us to construe and apply the

language of the statute, we confront a question of law, and our review is de novo.”

Bd. of Edn. Huber Heights City Schools v. Montgomery Cty. Bd. of Revision, 2d

Dist. No. 24686, 2012-Ohio-193, ¶ 12.

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{¶10} The issue before this Court is whether a non-attorney salaried

employee of a corporation, who signs and files a complaint with a board of

revision on behalf of that corporation pursuant to R.C. 5715.19(A), engages in the

unauthorized practice of law. The Ohio Constitution grants the Supreme Court of

Ohio jurisdiction over the practice of law. Ohio Constitution, Article IV, Section

2(B)(1)(g). The Court has prohibited the unauthorized practice of law, which it

has defined as “the rendering of legal services for another by any person not

admitted to practice in Ohio.” Gov.Bar. R. VII(2)(A). The Court has further

stated:

“The practice of law is not limited to the conduct of cases in court.

It embraces the preparation of pleadings and other papers incident to

actions and special proceedings and the management of such actions

and proceedings on behalf of clients before judges and courts, and in

addition conveyancing, the preparation of legal instruments of all

kinds, and in general all advice to clients and all action taken for

them in matters connected with the law.”

Dayton Supply & Tool Co., Inc. v. Montgomery Cty. Bd. of Revision, 111 Ohio

St.3d 367, 2006-Ohio-5852, ¶ 7, quoting, Land Title Abstract & Trust Co. v.

Dworken, 129 Ohio St. 23 (1934), paragraph one of the syllabus.

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{¶11} The Supreme Court of Ohio has previously held that the preparation

and filing of a complaint with a board of revision by a non-attorney on behalf of a

taxpayer constitutes the practice of law. Sharon Village Ltd. v. Licking Cty. Bd. of

Revision, 78 Ohio St.3d 479, 483 (1997). Subsequent to that decision, the General

Assembly enacted Sub.H.B. No 694, effective March 30, 1999, which amended

R.C. 5715.19. Bd. of Edn. of the Whitehall City School Dist. v. Franklin Cty. Bd.

of Revision, 10th Dist. Nos. 01AP-878, 01-AP-879, 2002-Ohio-1256, *4. The

pertinent provision of R.C. 5715.19 now permits a filing of a complaint with a

board of revision by:

[a]ny person owning taxable real property in the county or in a

taxing district with territory in the county * * * if the person is a

firm, company, association, partnership, limited liability company,

or corporation, an officer, a salaried employee, a partner, or a

member of that person * * *.

{¶12} In the present case, Connolly Construction contends its complaint

was valid because John Connolly is a salaried employee and permitted to file a

complaint with a board of revision pursuant to R.C. 5715.19. McDonald’s argues

the Board of Tax Appeals correctly determined it lacked jurisdiction over the case

because R.C. 5715.19 unconstitutionally permits the unauthorized practice of law.

It is undisputed that John Connolly is a non-attorney salaried employee of

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Connolly Construction, and thus authorized to sign and file the complaint with the

board of revision pursuant to R.C. 5715.19(A). This Court must thus address the

question of whether the relevant provision of R.C. 5715.19(A) is unconstitutional.

{¶13} “An enactment of the General Assembly is presumed to be

constitutional, and before a court may declare it unconstitutional it must appear

beyond a reasonable doubt that the legislation and constitutional provisions are

clearly incompatible.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142

(1955), paragraph one of the syllabus. “That presumption of validity of such

legislative enactment cannot be overcome unless it appear[s] that there is a clear

conflict between the legislation in question and some particular provision or

provisions of the Constitution.” Xenia v. Schmidt, 101 Ohio St. 437 (1920),

paragraph two of the syllabus.

{¶14} Two district courts of appeals have addressed whether revised R.C.

5715.19 permits the unauthorized practice of law and is, consequently,

unconstitutional. The Eighth District Court of Appeals first addressed the issue in

C.R. Truman, L.P. v. Cuyahoga Cty. Bd. of Revision, 8th Dist. No. 76713 (July 27,

2000). In that case, a non-attorney partner and owner of the limited partnership

filed the complaint on behalf of the partnership. Id. at *1. The Eighth District

found R.C. 5715.19 unconstitutional because it violated the separation of powers

between the judiciary and legislative branches. Id. at *3. “The essential principle

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underlying the policy of the division of powers * * * is that powers properly

belonging to one of the departments ought not be directly and completely

administered by either of the other departments, and further that none of them

ought to possess directly or indirectly an overruling influence over the others.”

Id., quoting State ex rel. Bryant v. Akron Metro. Park Dist., 120 Ohio St. 464, 473

(1929). The Eighth District stated, “[t]he General Assembly has no authority to

authorize lay persons to engage in the practice of law in a representative capacity

for another entity * * *.” Id. at *4. The Tenth District Court of Appeals next

addressed this issue as applied to a 50% owner of a limited liability company.

Whitehall City School Dist., 10 Dist. Nos. 01AP-878, 01AP-879, 2002-Ohio-1256.

The Tenth District agreed with the Eighth District that the General Assembly did

not have the authority to authorize lay persons to engage in the practice of law in a

representative capacity, holding that R.C. 5715.19(A) was unconstitutional

“insofar as it permits persons that are not attorneys or owners of the property to

file a complaint before a board of revision on behalf of the owner.” Id. at *5.

{¶15} Subsequent to the Eighth and Tenth District cases, the Supreme

Court of Ohio addressed a similar issue in Dayton Supply, 111 Ohio St.3d 367,

2006-Ohio-5852. In that case, the Court considered whether a corporate officer

engages in the unauthorized practice of law by preparing and filing a complaint

before a board of revision. Id. The Court acknowledged that preparing and filing a

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complaint and participating in a board of revision proceeding on behalf of

someone else constituted the practice of law. Id. at ¶ 30. However, the Court

found that public interest factors justified an exception to the rule in the case of a

corporate officer preparing and filing a complaint on behalf of a corporation. Id.

The Court stated:

Specifically, corporate officers have a fiduciary duty to the

corporation such that accountability and loyalty are not an issue in

permitting them to act on behalf of the corporation. Further,

assuming that no legal issues are involved or arise in the case before

the BOR, hiring an attorney is not necessary, a situation that makes

filing a complaint by a corporation more convenient and less

expensive.

Id. The Court thus permitted a corporate officer to prepare and file a complaint

with the board of revision, as long as the corporate officer did not perform any

other legal tasks. Id. at ¶ 32.

{¶16} Following Dayton Supply, the Board of Tax Appeals addressed the

issue of whether a salaried employee was authorized to file a complaint with a

board of revision pursuant to R.C. 5715.19. Bd. of Edn. of the Springfield City

School Dist. v. Clark Cty. Bd. of Revision, BTA No. 2008-M-2522 (Mar. 4, 2011).

In that case, as in the case before this Court, the Board of Tax Appeals determined

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there was no evidence that the salaried employee had a fiduciary duty to the

corporation. Id. Consequently, the Board of Tax Appeals found that the factors

the Supreme Court of Ohio applied in Dayton Supply were inapplicable and the

salaried employee engaged in the unauthorized practice of law, invalidating the

complaint. Id. Since the complaint was invalid, the board of revision lacked

jurisdiction. Id.

{¶17} After reviewing the relevant law, we agree with the Board of Tax

Appeals that the provision of R.C. 5715.19 permitting a salaried employee to sign

and file a complaint constitutes the unauthorized practice of law. As previously

discussed, the Supreme Court of Ohio has authority over all matters relating to the

practice of law. Ohio Constitution, Article IV, Section 2(B)(1)(g). Preparing and

filing a complaint with a board of revisions falls within the definition of the

practice of law. Dayton Supply, 2006-Ohio-5852, at ¶ 30. R.C. 5715.19(A)

permits certain lay persons, including “salaried employees,” to prepare and file

complaints on behalf of a corporation. We decline to extend the exception the

Supreme Court of Ohio created for corporate officers to file and prepare

complaints on behalf of a corporation to a salaried employee. Id. As a result, R.C.

5715.19(A) is unconstitutional beyond a reasonable doubt to the extent that it

permits a salaried employee to prepare and file a complaint on behalf of a

corporation. Since John Connolly is a non-attorney salaried employee and

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Connolly Construction has not provided any evidence that he is a corporate

officer, John Connolly was unauthorized to prepare and file the complaint on

behalf of Connolly Construction with the Union County Board of Revision. Thus,

the Board of Tax Appeals did not err in dismissing Connolly Construction’s

complaint on that basis.

{¶18} Connolly Construction’s assignment of error is, therefore, overruled.

{¶19} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr

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