State Ex Rel. Iris Sales Co. v. Voinovich

332 N.E.2d 79, 43 Ohio App. 2d 18, 72 Ohio Op. 2d 162, 1975 Ohio App. LEXIS 5725

• Court: Ohio Court of Appeals
• Decided: January 23, 1975
• Docket: 33494
• Status: Published

Opinions

JacksoN, J.

On December 5, 1972, plaintiff appellant, Iris Sales Company, filed this action on relation of the State of Ohio and as a representative of a class consisting of all taxpayers of Cuyahoga County during the period of the complaint. The complaint alleges that the defendants, George Voinovich, County Auditor; Frank M. Brennan, County Treasurer; the Board of Tax Appeals; and the Board of Revision of Cuyahoga County, in violation of their statutory duties, established and maintained a discriminatory tax classification for country clubs and golf courses located in Cuyahoga County, Ohio.

The defendant Board of Tax Appeals filed a motion to dismiss the complaint on the grounds that: (1) it failed to state a proper cause for declaratory judgment relief under R. C. 2721.01 et seq.; (2) that the action was prohibited by R. C. 5703.38. The other defendants also joined in a motion to dismiss. This motion was based on the grounds that: (1) the complaint failed to state a claim upon which relief could be granted; (2) the court lacked jurisr diction of the subject matter. These motions to dismiss were granted on February 28, 1974.

Plaintiff appeals from this judgment granting the motions to dismiss. The single issue presented by this appeal is whether the trial court erred in granting defendants’ motions.

For the reasons set out below, we affirm the judgment of the trial court.

A general rule regarding declaratory judgments is that,where a special statutory method for the determination of a particular type of case has been provided,, it is not proper to by-pass this statutory procedure by means of a declaratory judgment action. Laub v. Wills (1943), 72 Ohio App. 496. 509-510, citing Borchard on Declaratory Judgments (2d Ed.) at 342. See also, Dayton Street Transit Co. v. Dayton Power & Light Co. (1937), 57 Ohio App. 299.

Plaintiff cites Rule 57 of the Ohio Rules of Civil Procedure for the proposition that declaratory judgment relief is permissible' in the present case. Civil Rule 57 reads as follows:

“The procedure for obtaining a declaratory judgment pursuant to Sections 2721.01 -to 2721.15, inclusive, of the Revised Code, shall be in accordance with these rules. The existence of another adequate remedy does not preclude judgment for declaratory relief in cases where it is appropriate. The court may advance on the trial list the hearing of an action for a declaratory judgment.” (Emphasis supplied.)

Plaintiff’s reliance on Civil Rule 57 is misplaced. In Katzenbach v. McClung (1964), 379 U. S. 294, 296, Justice Clark, while interpreting Federal Rule 57, which is practically identical to the Ohio rule, stated as follows:

“But even though Rule 57 of the Federal Rules permits declaratory relief although another adequate remedy exists, it should not be granted where a special statutory proceeding has been provided.”

The existence of a special statutory procedure for the correction of any inequalities in real property taxation rates makes declaratory relief particularly inappropriate in the case at bar.

Plaintiff’s declaratory judgment action essentiallly seeks two declarations:

(1) that a discriminatory classification of real property for tax purposes has been maintained by defendants;

(2) that said discriminatory classification is illegal and unconstitutional.

If such a discriminatory classification of real estate for tax purposes is maintained by defendants, a judgment declaring this discriminatory classification illegal and unconstitutional is unnecessary. Ample statutory and case law already exists on this subject. The second and third syllabi of State, ex rel. Park Invest. Co., v. Bd. of Tax Appeals (1971), 26 Ohio St. 2d 161, read as follows:

‘£ 2. The' Board of Tax Appeals has the mandatory duty, in the exercise of its supervisory power and duty, pursuant to R. 0. 5715.01, to take such steps as are necessary to effect an orderly correction of any inequalities in the percentage of true vdlue at which all real property and all classes thereof are assessed for taxation. (R. C. 5715.011, effective May 14, 1969.)

“3. Action taken pursuant to the mandatory provisions of B. C. 5715.01 and 5715.011 must carry out the constitutional command, set forth in Section 2 of Article XII of the Ohio Constitution, that ‘land and improvements thereon shall be taxed by uniform rule according to value,’ and the provisions of Section 1 of the Fourteenth Amendment to the Constitution of the United States.”

Thus, what plaintiff really seeks is a finding of fact by the Common Pleas Court that a discriminatory tax classification exists. A special statutory procedure exists whereby the expertise of administrative agencies especially created and designed to make such factual findings may be utilized.

The board of tax appeals directs and supervises the assessment for taxation of all real property. The board must adopt, prescribe and promulgate rules for the determination of true value and taxable value of real property by uniform rule. B. C. 5715.01.

The county auditor must determine the taxable value of all real property in the county in accordance with uniform rules and methods of valuing and assessing as adopted, prescribed and promulgated by the board of tax appeals. B. C. 5713.03.

Each county must establish a board of revision which shall hear complaints and revise assessments of real property for taxation. B. C. 5715.01; B. C. 5715.02.

Any taxpayer may file a complaint as to the valuation or assessment of his own or another’s real property. B. C. 5715.19. The procedure to be followed when such a complaint is filed is set forth in detail in B. C. 5715.19. 1

An appeal from a decision of the county board of revision may be taken to the board of tax appeals. R. C, 5717.-01.

The decision of the board of tax appeals may be appealed to either the Supreme Court of Ohio or the court of appeals for the county in which the property is situated. R. C. 5717.04.

As an alternative to the appeal to the board of tax appeals provided for in R. C. 5717.01, an appeal from the decision of a county board of revision may be taken di rectly to the court of common pleas by the person in whose name the property is listed or sought to be listed for taxation. R. C. 5717.05.

Rather than follow these statutory procedures, plaintiff has attempted to by-pass the county board of revision and the board of tax appeals by initiating this action in common pleas court.

Although Rule 57 of the Ohio Rules of Civil Procedure permits declaratory relief where appropriate, even when another adequate remedy exists, declaratory relief should not be granted in those situations where a special statutory proceeding has been provided for that purpose. Declaratory relief pursuant to Rule 57 of the Ohio Rules of Civil Procedure is inappropriate where it would result in the by-pass of a special statutory proceeding. The circumvention of these special statutory procedures would nullify the legislative intent to have specialized tax questions initially determined by boards and agencies specifically designed and created for that purpose.

Because Chapters 5715 and 5717 of the Ohio Revised Code establish special statutory procedures for testing the valuation and assessment of real property for tax purposes, declaratory judgment is an inappropriate remedy which should not be granted as an alternative to these statutory procedures.

In addition to the declaratory judgment relief, Count I of plaintiff’s complaint also asks the common pleas court to order defendants to “. . . take such steps as are necessary to effect an orderly correction of all inequalities in the determination of true value of such real property . ...” This is essentially a request for a writ of mandamus. Mandamus is not a proper remedy for plaintiff because he has a plain and adequate remedy in the ordinary course of law. State, ex rel. Corron, v. Wisner (1971), 25 Ohio St. 2d 160.

Count II of plaintiff’s complaint also requests the court to order defendants to correct all inequalities in the determination of true value of real property. Although plaintiff has termed Count II a request for mandatory in junction, it is in reality another request for a writ of mandamus, and as such is clearly prohibited. State, ex rel. Corron, v. Wisner, supra. Mandamus is a writ issued in the name of the state to an inferior tribunal, corporation, board or person commanding the performance of an act required by law. R. C. 2731.01. Plaintiff brings this action on relation of the State of Ohio. The “mandatory injunction” seeks an order requiring defendants to do what they are already obliged to do under R. C. 5715.011 and State, ex rel. Park Invest. Co, v. Bd. of Tax Appeals, supra.

Insofar as the prayer for relief in Count II may be interpreted as a request for an order suspending or staying a directive of the board of tax appeals, such relief is clearly impermissible. R. C. 5703.38 provides that:

“No injunction shall issue suspending or staying any order, determination, or direction of the department of taxation, or any action of the auditor of state, treasurer of state, or attorney general required by law to be taken in pursuance of any such order, determination, or direction. This section does not affect any right or defense in any action to collect any tax or penalty.” (Emphasis supplied.)

The decision of the trial court granting defendants’ motions to dismiss is, accordingly, affirmed.

Judgment affirmed.

Corrigan, J., concurs. KbeNzler, P. J., dissents.

1 rThe pertinent portion of R. C. 5715.19 states as follows:

“The county auditor shall present to the county board of revision all complaints filed with him, and each board shall notify any such complainant and' also the property owner, if his address is known, when the complaint is filed by one other than the property owner, by registered or certified mail, not less than ten days prior to the hearing, of the time and place the same will be heard, and shall hear and render its decision on such complaint within ninety days after the filing thereof with the said board.

“The determination of any such complaint shall relate back to the date when the lien for taxes for the current year attached or the date as of which liability for such year was determined, and liability for taxes for such year and each succeeding year until the complaint is finally determined and for any penalty for nonpayment thereof within the time required by law shall be based upon the valuation or assessment as finally determined. Each complaint shall state the amount of overvaluation, undervaluation, discriminatory valuation, or illegal valuation complained of, and the treasurer may accept any amount tendered as taxes upon property concerning which a complaint is then pending, computed upon the claimed' valuation as set forth in the complaint, and if such tender is not accepted no penalty shall be assessed because of the nonpayment thereof. The acceptance of such tender shall be without prejudice to the claim for taxes upon the balance of the valuation or assessment. A like tender may be made, with like effect, in case of the pendency of any proceeding in court based upon an allegedly excessive, discriminatory, or illegal valuation. If a complaint filed under this section for the current year is not determined by the board within the time prescribed for such determination, the complaint and any proceedings in relation thereto shall be continued by the board as a valid complaint for any ensuing year until such complaint is finally determined by the board. In such ease, the original complaint shall continue in effect without further filing by the original taxpayer, his assignee, or any other person or entity authorized to file a complaint under this section.

“Upon request of a complainant, the board of tax appeals shall determine the common level of assessment of real property in the county for the year stated in the request, which common level of assessment shall be expressed as a percentage of true value. Such determination shall be made on the basis of the most recent available sales ratio studies of the board of tax appeals and such other factual data as the board deems pertinent. Any valuation which varies from said common level of assessment by more than ten per cent thereof is prima facie discriminatory.”