Rambacher v. Testa

[Cite as Rambacher v. Testa, 2016-Ohio-2897.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
Frances L. Rambacher, (et al.), :
:
Appellant(s), : Case No. 16CA7
:
v. :
:
Joseph W. Testa, Tax Commissioner :
of Ohio, (et al.), :
: DECISION AND JUDGMENT ENTRY
Appellee(s). :
: RELEASED: 5/5/2016
______________________________________________________________________
APPEARANCES:
Frances L. Rambacher, Ironton, Ohio pro se Appellant.
Michael DeWine, Attorney General of Ohio, Melissa W. Baldwin, Assistant Attorney
General, Columbus, Ohio, for Appellee Joseph W. Testa, Tax Commissioner of Ohio.
______________________________________________________________________
HARSHA, A.J.
{¶1} Appellant Frances L. Rambacher filed an appeal in this Court from a
decision and order of the Ohio Board of Tax Appeals pursuant to R.C. 5717.04, which
gives concurrent appellate jurisdiction to the Supreme Court of Ohio and the Court of
Appeals for Lawrence County. Appellee Joseph W. Testa, Tax Commissioner of Ohio
filed a motion to dismiss the appeal on the grounds that Rambacher’s failure to comply
with several of the filing and service requirements of R.C. 5717.04 deprives this Court of
jurisdiction to hear the appeal. Rambacher filed a motion for summary judgment and
reply to Appellee’s motion to dismiss. Although Rambacher’s response primarily
Lawrence App. No. 16CA7 2
addresses the merits of her underlying appeal, she responds, in part, to the Tax
Commissioner’s argument that she failed to comply with certain notice and service
requirements of R.C. 5717.04. Rambacher also filed a supplement to her response in
which she acknowledges she failed to serve the tax commissioner by certified mail and
seeks a waiver of this service requirement. The Tax Commissioner filed a response to
Rambacher’s supplemental filing.
{¶2} We find that Rambacher did not comply with the certified-mail service
requirement of R.C. 5717.04 and dismiss the appeal for lack jurisdiction. We grant
Appellee’s motion to dismiss and DISMISS this appeal. All other pending motions are
DENIED as MOOT.
I.
{¶3} The Tax Commissioner issued a tax assessment in April, 2015 for
$222.05 against Rambacher. Several months later the Tax Commissioner issued a final
determination, which vacated the assessment and cancelled it in full. Rambacher filed a
notice of appeal to the Ohio Board of Tax Appeals. The Tax Commissioner filed a
motion to dismiss the appeal on the ground that the assessment had been cancelled
and the case presented no justiciable controversy. The BTA agreed, granted the
motion, and dismissed Rambacher’s appeal. Rambacher v. Testa, BTA No. 2015-789
(Mar. 3, 2016).
{¶4} Rambacher filed a timely notice of appeal from the BTA’s decision and
order with this Court. The Tax Commissioner filed a motion to dismiss on several
grounds under R.C. 5717.04. The Tax Commissioner argues that Rambacher failed to
Lawrence App. No. 16CA7 3
give this Court proper “proof of filing” of her notice of appeal with the BTA and that this
failure is a jurisdictional flaw that precludes our review of the appeal. The Tax
Commissioner also argues that Rambacher failed to serve the notice of the appeal on
the Tax Commissioner by certified mail, which also is a jurisdictional requirement that
requires dismissal. Finally, the Tax Commissioner argues that Rambacher’s claimed
errors have no merit.
II.
{¶5} The relevant provisions of R.C. 5717.04 state:
The proceeding to obtain a reversal, vacation, or modification of a decision
of the board of tax appeals shall be by appeal to the supreme court or the
court of appeals for the county in which the property taxed is situate or in
which the taxpayer resides. * * *
Such appeals shall be taken within thirty days after the date of the entry of
the decision of the board on the journal of its proceedings, as provided by
such section, by the filing by appellant of a notice of appeal with the
court to which the appeal is taken and the board. If a timely notice of
appeal is filed by a party, any other party may file a notice of appeal within
ten days of the date on which the first notice of appeal was filed or within
the time otherwise prescribed in this section, whichever is later. A notice of
appeal shall set forth the decision of the board appealed from and the
errors therein complained of. Proof of the filing of such notice with the
board shall be filed with the court to which the appeal is being taken.
The court in which notice of appeal is first filed shall have exclusive
jurisdiction of the appeal.
In all such appeals the commissioner or all persons to whom the decision
of the board appealed from is required by such section to be sent, other
than the appellant, shall be made appellees. Unless waived, notice of
the appeal shall be served upon all appellees by certified mail.
(Emphasis added.)
R.C. 5717.04.
{¶6} Rambacher timely filed her notice of appeal in this Court on March 23,
Lawrence App. No. 16CA7 4
2016. According to the certificate of service attached to her notice of appeal,
Rambacher also served a copy of the notice of appeal on the BTA on March 23, 2016.
Without citing supporting case law or statutes, the Tax Commissioner argues that
Rambacher’s “certificate of service” giving notice that the appeal was filed with the BTA
is not the same as the statutorily required “proof of filing.” In response, Rambacher
states that the clerk for the BTA acknowledged her timely filing of the notice of appeal
and Rambacher attaches a copy of the notice of appeal she filed with the BTA, which is
file-stamped as received by the BTA on March 25, 2016, within the 30-day time
requirement.
{¶7} The Supreme Court of Ohio addressed this issue in Satullo v. Wilkins, 111
Ohio St.3d 399, 2006-Ohio-5856, 856 N.E.2d 954. In Satullo, the Tax Commissioner
argued that appellants’ “proof of filing” attached to the notice of appeal – which was also
referred as the “certificate of service” by the Court – was defective because it did not
show that the notice of appeal filed in the court was also filed with the BTA. The Court
characterized appellants’ failure as a “procedural wrinkle” and held that while the
appellants should have indicated in their notice of appeal that they had also timely filed
it with the BTA, they later did provide proof of the timely filing and thus, the Court was
satisfied that the notice of appeal was timely filed with the BTA. Id. at ¶ 18-20.
{¶8} Here, the facts are distinguishable from Satullo in Rambacher’s favor:
Rambacher did, in fact, include in her certificate a service a statement that she mailed
the notice of appeal to the BTA for filing. And, like the appellants in Satullo, she has
subsequently provided proof that the notice of appeal was timely filed in the BTA.
Lawrence App. No. 16CA7 5
Rambacher’s attachment to her reply to the motion to dismiss shows that the BTA
timely received and file-stamped the notice of appeal on March 25, 2016. After the case
was assigned a case number, she refiled the notice of appeal with case number in the
BTA on March 28, 2016. Like the proof appellants eventually provided the Court in
Satullo, Rambacher’s subsequent filing provides us with adequate proof that she timely
filed her notice of appeal in the BTA.
{¶9} However, the Tax Commissioner’s second argument has merit. An
appellant must serve the notice of appeal on the Tax Commissioner by certified mail
unless waived. R.C. 5717.04. Neither party claims that the Tax Commissioner waived
certified-mail service and this is no evidence of any written waiver in the record.
Rambacher’s certificate of service shows service was made by ordinary mail. In her
supplemental response, Rambacher acknowledges her failure to serve the Tax
Commissioner by certified mail, but asks us to waive this requirement because “the
Court Clerk did not know or convey the rules” to her and because the U.S. Mail service
was timely made. The Supreme Court of Ohio has repeatedly held that the failure to
serve the Tax Commissioner by certified mail within the 30-day period is a jurisdictional
defect. Berea City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 111 Ohio
St.3d 1219, 2006-Ohio-5601, 857 N.E.2d 145, ¶ 2 (“certified-mail service required by
R.C. 5717.04 must be initiated within the thirty-day period prescribed by R.C. 5717.04
for the filing of an appeal”); Olympic Steel, Inc. v. Cuyahoga Cty. Bd. of Revision, 110
Ohio St.3d 1242, 2006-Ohio-4091, 852 N.E.2d 178, ¶ 2 (“appellant’s failure in this case
to comply with its statutory obligation to serve the notice of appeal on the Tax
Lawrence App. No. 16CA7 6
Commissioner in the prescribed manner deprives this court of jurisdiction to consider
the appeal”).
{¶10} Again we find guidance in Satullo, supra. In Satullo, the appellants did, in
fact, serve the Tax Commissioner by both ordinary and certified mail but they identified
only ordinary mail service in their certificate of service. The Court held, “The fact that the
original certificate of service filed with this court listed ‘ordinary U.S. mail’ as the method
of service on the Tax Commissioner, when in fact the notice of appeal had been sent by
both ordinary and certified mail within the 30-day appeal period, is not a jurisdictional
defect under the statute.” Id. at ¶ 20. Here, unlike the appellants in Satullo, Rambacher
does not assert that she properly served the Tax Commissioner by certified mail, nor
does she attach any evidence in her reply that would show that she made certified mail
service on the Tax Commissioner. As a result, we find that Rambacher has failed to
serve the Tax Commissioner with the notice of appeal by certified mail. Her non-
compliance with R.C. 5717.04 in this respect is a jurisdictional flaw that we cannot
waive as the decision to waive service by certified mail rests with the Tax
Commissioner, not this court.
{¶11} Because we dismiss the appeal for lack of jurisdiction, we need not
address the Tax Commissioner’s argument that Rambacher’s appeal lacks merit.
App.R. 12(A)(1)(c).
III.
{¶12} We find that Rambacher timely filed a notice of appeal in both this Court
and the Board of Tax Appeals. However, she failed to comply with the provision in R.C.
Lawrence App. No. 16CA7 7
5717.04 that requires her to serve the notice of appeal on the Tax Commissioner by
certified mail. As a result, we have no jurisdiction to hear this matter. We GRANT the
Tax Commissioner’s motion and DISMISS this appeal. All other pending motions are
hereby DENIED as MOOT. IT IS SO ORDERED. The clerk shall serve a copy of this
entry on all counsel of record and all unrepresented parties at their last known
addresses by ordinary mail.
Abele, J. & McFarland, J.: Concur.
FOR THE COURT
_____________________________
William H. Harsha
Administrative Judge