4747 Mann, L.L.C. v. Cuyahoga Cty. Bd. of Revision , 2011 Ohio 2593 ( 2011 )

[Cite as 4747 Mann, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 2011-Ohio-2593.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95596
4747 MANN, LLC
PLAINTIFF-APPELLANT
vs.
CUYAHOGA COUNTY BOARD OF
REVISION, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Administrative Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-569963
BEFORE: Stewart, P.J., Sweeney, J., and Keough, J.
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEYS FOR APPELLANT
Charles J. Pawlukiewicz
Christina E. Niro
McCarthy, Lebit, Crystal & Liffman Co., L.P.A.
101 West Prospect Avenue, Suite 1800
Cleveland, OH 44115-1088
ATTORNEYS FOR APPELLEES CUYAHOGA COUNTY BOARD OF REVISION, ET
AL.
William D. Mason
Cuyahoga County Prosecutor
BY: Saundra J. Curtis-Patrick
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE CLEVELAND MUNICIPAL SCHOOL DISTRICT
BOARD OF EDUCATION
David A. Rose
David H. Seed
Jennifer A. Hoehnen
Brindza, McIntyre & Seed, LLP
111 Superior Avenue, Suite 1025
Cleveland, OH 44114
MELODY J. STEWART, P.J.:
{¶ 1} Appellant-landowner, 4747 Mann, LLC, appeals from the
dismissal of its administrative appeal of a land valuation issued by the
Cuyahoga County Board of Revision. The board rejected 4747 Mann’s
complaint for a reappraisal of its property, finding the market value of the
property to be unchanged from the original appraisal. 4747 Mann appealed
to the court of common pleas, but the court dismissed the appeal on two
grounds: (1) that 4747 Mann failed to name the county auditor as a party to
the appeal and (2) that 4747 Mann’s complaint to the board had been signed
by a non-attorney.
{¶ 2} R.C. 5717.05 states that “an appeal from the decision of a county
board of revision may be taken directly to the court of common pleas of the
county by the person in whose name the property is listed or sought to be
listed for taxation” and that “[t]he county auditor and all parties to the
proceeding before the board, other than the appellant filing the appeal in the
court, shall be made appellees, and notice of the appeal shall be served upon
them by certified mail unless waived.”
{¶ 3} The jurisdiction of the common pleas court is fixed by statute.
Mattone v. Argentina (1931), 123 Ohio St. 393, 397,175 N.E. 603. See, also,
Article IV, Section 4(B) of the Ohio Constitution (“The courts of common pleas
and divisions thereof shall have such original jurisdiction over all justiciable
matters and such powers of review of proceedings of administrative officers
and agencies as may be provided by law.”). When the right to appeal to the
court of common pleas is conferred by statute, “[t]he exercise of the right
conferred is conditioned upon compliance with the accompanying mandatory
requirements.” Zier v. Bur. of Unemp. Comp. (1949), 151 Ohio St. 123, 84
N.E.2d 746, paragraph one of the syllabus. In Huber Hts. Circuit Courts Ltd.
v. Carne, 74 Ohio St.3d 306, 308, 1996-Ohio-157, 658 N.E.2d 744, the
supreme court held that the requirements of R.C. 5717.05 are “mandatory
and jurisdictional.” Id. at 307.
{¶ 4} 4747 Mann concedes that its notice of appeal to the court of
common pleas failed to name the county auditor as party. It tries to
distinguish Huber Hts., however, arguing that unlike the appellants in that
case who both failed to name the correct party and serve notice to that party,
the present case involves only the failure to name the auditor – 4747 Mann
did serve the auditor with notice of appeal by certified mail. By serving the
auditor with the notice of appeal, 4747 Mann argues that it complied with the
spirit of the statute because the auditor had notice of the pending appeal.
{¶ 5} The supreme court impliedly rejected this argument in Olympic
Steel, Inc. v. Cuyahoga Cty. Bd. of Revision, 110 Ohio St.3d 1242,
2006-Ohio-4091, 852 N.E.2d 178, stating that the “mandatory and
jurisdictional” language used in R.C. 5717.05 and addressed in Huber Hts.
applied to “the requirement of joinder and service[.]” Id. at ¶2 (emphasis
added). By stating joinder and service in the conjunctive, Olympic Steel
confirmed that these were separate statutory requirements, both of which
were mandatory and jurisdictional.
{¶ 6} Olympic Steel is consistent with a long line of cases that require
strict compliance with statutorily-granted rights of appeal in administrative
law cases. See, e.g., Austin Co. v. Cuyahoga Bd. of Revision (1989), 46 Ohio
St.3d 192, 193, 546 N.E.2d 404 (actual notice insufficient substitute to satisfy
appeal notice requirements); Clippard Instrument Lab., Inc. v. Lindley (1977),
50 Ohio St.2d 121, 122, 363 N.E.2d 592 (letter an insufficient substitute for
statutorily required copy of a notice of appeal); Salem Med. Arts & Dev. v.
Columbiana Cty., 80 Ohio St.3d 621, 1998-Ohio-657, 687 N.E.2d 746 (delivery
of a copy of a notice of appeal to an assistant prosecutor with whom the
taxpayer had been negotiating a settlement did not satisfy the R.C. 5717.01
requirement that an appellant must file a copy of its notice of appeal from a
Board of Revision with the Board of Revision).
{¶ 7} 4747 Mann cites to decisions suggesting that the need for strict
compliance with the notice requirements of a statute authorizing an appeal
from an administrative decision arises only when “notice goes to the very core
of procedural efficiency.” Cleveland Elec. Illuminating Co. v. Lake Cty. Bd. of
Revision, 80 Ohio St.3d 591, 596, 1988-Ohio-179, 687 N.E.2d 723. But those
decisions do not address the type of jurisdictional component omitted in this
case — the failure to join a party. The courts have, for example, cautioned
that liberality in construing App.R. 3(A) procedural defects should not be
applied to administrative appeals that set forth specific jurisdictional
limitations: “Of critical importance is the fact that the defect in the present
case [attaching an opinion to a notice of appeal rather than a judgment entry]
does not involve an administrative appeal: administrative appeals are
authorized by statutes that set forth the conditions for the exercise of judicial
authority, and those conditions call for strict compliance.” See State ex rel.
Arcadia Acres v. Ohio Dept. of Job & Family Servs., 123 Ohio St.3d 54,
2009-Ohio-4176, 914 N.E.2d 170, ¶12. See, also, Hafiz v. Levin, 120 Ohio
St.3d 447, 2008-Ohio-6788, 900 N.E.2d 181, ¶8.
{¶ 8} It is uncontested that 4747 Mann failed to name the auditor as a
party in its notice of appeal. This was a jurisdictional failure of joinder, thus
depriving the court of subject matter jurisdiction to hear the appeal. George
Whalley Co. v. Cuyahoga Cty. Bd. of Revision (Nov. 21, 1984), 8th Dist. Nos.
47890 and 47984. Our holding necessarily moots any consideration of the
second assignment of error: whether 4747 Mann’s complaint was invalid
because it was signed by a non-attorney. See App.R. 12(A)(1)(c).
{¶ 9} Finally, we reject 4747 Mann’s complaint that the case should be
remanded because the board failed to serve the named corporate
representative with notice of its decision as required by R.C. 5715.20(A).
That section states that whenever the board issues a decision, it “shall certify
its action by certified mail to the person in whose name the property is listed
or sought to be listed and to the complainant if the complainant is not the
person in whose name the property is listed or sought to be listed.”
Assuming without deciding that R.C. 5715.20(A) is jurisdictional, the statute
falls within that limited class of jurisdictional defects that may be waived
under certain circumstances. Colonial Village Ltd. v. Washington Cty. Bd. of
Revision, 114 Ohio St.3d 493, 2007-Ohio-4641, 873 N.E.2d 298, at ¶7. R.C.
5715.20(A) only requires the board to send notice of its decision by certified
mail to “an address that is reasonably calculated to give notice to the owner.”
Meadows Dev., L.L.C. v. Champaign Cty. Bd. of Revision, 124 Ohio St.3d 349,
2010-Ohio-249, 922 N.E.2d 209, ¶18. The board issued notice to the attorney
who represented 4747 Mann in proceedings before the board. In Meadows
Dev., the court found this sufficient compliance with R.C. 5715.20(A), stating
that issuing notice to the owner’s attorney is reasonable when the attorney
has actively represented the owner at proceedings before the board, and
noting that “sending the [board of review] decision to the attorney generally
constitutes the best practice for the [board of review] to follow.” Id. at ¶21.
4747 Mann plainly had notice of the board’s decision as shown by its timely
appeal to the court of common pleas, so its failure to raise this issue to the
court constituted a forfeiture of the right to raise it in an appeal to this court.
Judgment affirmed.
It is ordered that appellees recover of appellant their costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR