US 23 Self Storage, L.L.C. v. Olentangy Local School Bd. of Edn. , 2011 Ohio 442 ( 2011 )

[Cite as US 23 Self Storage, L.L.C. v. Olentangy Local School Bd. of Edn., 2011-Ohio-442.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
US 23 SELF STORAGE, LLC : JUDGES:
:
: Hon. Julie A. Edwards, P.J.
Appellant : Hon. W. Scott Gwin, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 10 CAH 050039
OLENTANGY LOCAL SCHOOL :
BOARD OF EDUCATION, et al. :
:
:
Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ohio Board of Tax Appeals
Case No. 2006-M-1363
JUDGMENT: DISMISSED
DATE OF JUDGMENT ENTRY: January 26, 2011
APPEARANCES:
For Appellant: For Appellees:
JUAN JOSE PEREZ MARK H. GILLIS
ANGELA ALEXANDER SAVINO 6400 Riverside Dr., Suite D
8000 Ravines Edge Ct., Suite 300 Dublin, OH 43017
Columbus, OH 43235
WILLIAM J. OWEN
Assistant Prosecuting Attorney
Delaware County Prosecutor’s Office
140 N. Sandusky St., 3rd Floor
Delaware, OH 43015
[Cite as US 23 Self Storage, L.L.C. v. Olentangy Local School Bd. of Edn., 2011-Ohio-442.]
Delaney, J.
{¶1} Appellant, US 23 Self Storage, LLC, appeals the April 20, 2010 decision of
the Ohio Board of Tax Appeals. Appellees are the Olentangy Local School Board of
Education (“Olentangy”) and the Tax Commissioner.
STATEMENT OF THE CASE1
{¶2} Olentangy appealed a decision of the Delaware County Board of
Revisions to the Ohio Board of Tax Appeals as to the combined value of certain
permanent parcels owned by Appellant, US 23 Self Storage, LLC. By Decision and
Order issued on April 20, 2010, the Ohio Board of Tax Appeals declined to adopt the
valuation of the Board of Revisions and reinstated the auditor’s original value for the
parcels.
{¶3} Pursuant to R.C. 5717.04, Appellant filed its Notice of Appeal of the Ohio
Board of Tax Appeals Decision and Order with the Fifth District Court of Appeals on
May 20, 2010. The Certificate of Service of the Notice of Appeal showed that the Notice
of Appeal was served upon Appellee, Olentangy Local Schools Board of Education and
the Delaware County Prosecutor by electronic mail and ordinary mail on May 20, 2010.
The Tax Commissioner was not named as an Appellee by Appellant in the Notice of
Appeal, nor did the Notice of Appeal order service of the Notice of Appeal upon the Tax
Commissioner.
1
A statement of the facts is not necessary for the disposition of this appeal.
Delaware County, Case No. 10 CAH 050039 3
{¶4} On June 15, 2010, Olentangy filed a Motion to Dismiss Appellant’s appeal.
Olentangy argued that Appellant had failed to comply with the jurisdictional
requirements of R.C. 5717.04 in that Appellant had not named the Tax Commissioner
as an Appellee and Appellant had not served the Tax Commissioner with the Notice of
Appeal. Appellant filed multiple responses to the motion. In its July 21, 2010 response,
Appellant supplemented its response with Exhibit A. Exhibit A was a letter from
Appellant to the Tax Commissioner dated July 2, 2010. The letter, showing it was sent
by certified and ordinary mail, stated that enclosed was a copy of Appellant’s Notice of
Appeal of the April 20, 2010 Decision and Order of the Ohio Board of Tax Appeals.
Exhibit A also showed that service was complete on the Tax Commissioner on or about
July 6, 2010.
{¶5} On August 2, 2010, this Court denied Olentangy’s Motion to Dismiss
pursuant to the law presented in Olentangy’s Motion to Dismiss.
{¶6} On October 27, 2010, Olentangy renewed its Motion to Dismiss. In its
renewed motion, Olentangy raised the same argument that Appellant did not comply
with the jurisdictional requirements of R.C. 5717.04, but newly cited Berea City Sch. Bd.
of Educ. v. Cuyahoga County Bd. of Revision (2006), 111 Ohio St.3d 1219, 2006-Ohio-
5601, 857 N.E.2d 145 in support of its arguments. Appellant filed a response to the
motion and Olentangy filed a reply.
{¶7} Now before this Court is Appellant’s appeal of the April 20, 2010 Decision
and Order of the Ohio Board of Tax Appeals and Olentangy’s renewed Motion to
Dismiss. Because Olentangy’s renewed Motion to Dismiss raises the issue of whether
Delaware County, Case No. 10 CAH 050039 4
this Court has jurisdiction to consider Appellant’s appeal, we must first address the
motion.
{¶8} Appellant’s appeal of the Decision and Order of the Ohio Board of Tax
Appeals is brought pursuant to R.C. 5717.04. R.C. 5717.04 states in pertinent part:
{¶9} “* * *
{¶10} “Appeals from decisions of the board upon all other appeals or
applications filed with and determined by the board may be instituted by any of the
persons who were parties to such appeal or application before the board, by any
persons to whom the decision of the board appealed from was by law required to be
sent, or by any other person to whom the board sent the decision appealed from, as
authorized by section 5717.03 of the Revised Code.
{¶11} “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.
{¶12} “In all such appeals the tax commissioner or all persons to whom the
decision of the board appealed from is required by such section to be sent, other than
Delaware County, Case No. 10 CAH 050039 5
the appellant, shall be made appellees. Unless waived, notice of the appeal shall be
served upon all appellees by certified mail. The prosecuting attorney shall represent the
county auditor in any such appeal in which the auditor is a party. * * *”
{¶13} In Olympic Steel, Inc. v. Cuyahoga Cty. Bd. of Revision, 110 Ohio St.3d
1242, 2006-Ohio-4091, 852 N.E.2d 178, the Ohio Supreme Court addressed the issue
of whether the failure to serve the Tax Commissioner with the Notice of Appeal from a
Board of Tax Appeals decision deprives the reviewing court of jurisdiction. The Ohio
Supreme Court found that under R.C. 5717.03(B) and 5717.04, the Tax Commissioner
is a party to the appeal and the requirement of joinder and service is mandatory and
jurisdictional. Accordingly, the Court held that if the Tax Commissioner was not served
with the Notice of Appeal pursuant to statute, the reviewing court did not have
jurisdiction to hear the appeal.
{¶14} In this case, Appellant served the Tax Commissioner with the Notice of
Appeal; however, Appellant did not initiate service upon the Tax Commissioner until
July 2, 2010, more than thirty days after the Decision and Order was issued. We find
the case of Berea City Sch. Dist. Bd. of Educ., supra, to be directly on point with this
factual scenario. In that case, the Ohio Supreme Court held:
{¶15} “In Olympic Steel, Inc. v. Cuyahoga Cty. Bd. of Revision, 110 Ohio St.3d
1242, 2006-Ohio-4091, 852 N.E.2d 178, the BTA had issued a decision in an appeal
from a county board of revision, and we dismissed the appeal therefrom because the
appellant had failed to serve the Tax Commissioner who, by operation of R.C.
5717.03(B) and 5717.04, is a party to such appeals. We now hold that the certified-mail
service required by R.C. 5717.04 must be initiated within the thirty-day period
Delaware County, Case No. 10 CAH 050039 6
prescribed by R.C. 5717.04 for the filing of an appeal. For purposes of complying with
this requirement, service is ‘initiated’ when the notice of appeal is placed in the mail. In
this case, appellant initiated certified mailing of the notice of appeal to the Tax
Commissioner after the expiration of the thirty-day period, and that act failed to comply
with the jurisdictional requirement of service under R.C. 5717.04.” Id. at ¶2.
{¶16} The Ohio Supreme Court then dismissed the appeal for lack of jurisdiction.
Id. at ¶3.
{¶17} As in Berea City Sch. Dist. Bd. of Educ., supra, Appellant did not initiate
certified mail service of the Notice of Appeal upon the Tax Commissioner until July 2,
2010. July 2, 2010 is seventy-two days after the Decision and Order was issued by the
Ohio Board of Tax Appeals, well after the expiration of the thirty-day period required for
the initiation of an appeal pursuant to R.C. 5717.04.
{¶18} Upon the authority of Berea City Sch. Dist. Bd. of Educ., supra, we find
that because Appellant did not initiate service upon the Tax Commissioner within the
thirty-day period under R.C. 5717.04, Appellant has failed to meet the jurisdictional
requirements of R.C. 5717.04.
Delaware County, Case No. 10 CAH 050039 7
{¶19} We lack jurisdiction to consider Appellant’s appeal and therefore,
Appellant’s appeal is dismissed.
By: Delaney, J.
Edwards, P.J. and
Gwin, J. concur.
HON. PATRICIA A. DELANEY
HON. JULIE A. EDWARDS
HON. W. SCOTT GWIN
[Cite as US 23 Self Storage, L.L.C. v. Olentangy Local School Bd. of Edn., 2011-Ohio-442.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
US 23 SELF STORAGE, LLC :
:
:
Appellant :
:
-vs- : JUDGMENT ENTRY
:
OLENTANGY LOCAL SCHOOL :
BOARD OF EDUCATION, et al. :
:
: Case No. 10 CAH 050039
Appellees :
For the reasons stated in our accompanying Opinion on file, the appeal of the
judgment of the Ohio Board of Tax Appeals is DISMISSED. Costs assessed to
Appellant.
HON. PATRICIA A. DELANEY
HON. JULIE A. EDWARDS
HON. W. SCOTT GWIN