2200 Carnegie, L.L.C. v. Cuyahoga Cnty. Bd. of Revision

• Decision Date: 06 December 2012
• Docket Number: No. 2011–2147.,2011–2147.
• Parties: 2200 CARNEGIE, L.L.C., Appellee, v. CUYAHOGA COUNTY BOARD OF REVISION et al., Appellees; Cleveland Municipal School District Board of Education, Appellant.
• Court: Ohio Supreme Court

135 Ohio St.3d 284

986 N.E.2d 919

2200 CARNEGIE, L.L.C., Appellee,

v.CUYAHOGA COUNTY BOARD OF REVISION et al., Appellees;

Cleveland Municipal School District Board of Education, Appellant.

No. 2011–2147.

Supreme Court of Ohio.

Submitted Aug. 22, 2012.

Decided Dec. 6, 2012.

Zukerman, Daiker & Lear Co., L.P.A., S. Michael Lear, and Larry W. Zukerman, Cleveland, for appellee 2200 Carnegie L.L.C.

Hewitt Law L.L.C. and James H. Hewitt III, Cleveland, for appellant.

Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor General, Michael J. Hendershot, Chief Deputy Solicitor, and Daniel W. Fausey, Assistant

Attorney General, urging reversal for amicus curiae, state of Ohio.

CUPP, J.

[Ohio St.3d 284]{¶ 1} When a complaint has been filed that contests the county auditor's valuation of a particular parcel, and when that complaint asks for a value increase or reduction of $17,500 or more, R.C. 5715.19(B) requires that “[w]ithin thirty days after the last date such complaints may be filed, the auditor shall give notice of [the] complaint” to the other affected party that did not file the complaint—be it the property owner or the board of education. That notice affords the recipient the opportunity to file a countercomplaint and make itself a party to the proceedings. Id. This case presents the question whether that notification is a jurisdictional prerequisite to further proceedings before the board of revision and, if so, whether the 30–day deadline itself is jurisdictional.

{¶ 2} We hold that under R.C. 5715.19(B), the notification itself is jurisdictional, but the 30–day requirement is not. As a result, the original failure of the auditor in this case to give notice (or to prove that notice had been given) was cured when notice was later given after remand by the court of common pleas. Because the Eighth District Court of Appeals held the contrary, we reverse its decision.

Facts

{¶ 3} On March 27, 2007, appellant, the Cleveland Municipal School District Board of Education (“school board”) filed a valuation complaint seeking an increase in the value of the property of appellee 2200 Carnegie, L.L.C., for tax year 2006 on account of a recent arm's-length sale. The true-value increase sought by the school board was $97,800.

[Ohio St.3d 285]{¶ 4} The record shows a letter dated April 27, 2007, from the auditor to the property owner, informing 2200 Carnegie of the filing of the complaint. Pursuant to R.C. 5715.02, the auditor is a member of the Cleveland County Board of Revision, also an appellee. Although the face of the letter indicates certified mailing, the record does not contain the documentation of the mailing. 2200 Carnegie asserts that it never received the notification, the school board does not contend otherwise, and the tribunals below accepted as the premise for deciding the case that the notice required by R.C. 5715.19(B) had not been given.

{¶ 5} But 2200 Carnegie did receive notification of the hearing on the complaint pursuant to R.C. 5715.19(C) to be held on August 30, 2007. On that date, it filed a motion to dismiss. Attached to the motion was an affidavit attesting that the owner had not received any notification that the complaint had been filed. The motion argued that because the owner had not received notification of the filing of the complaint, R.C. 5715.19(B) had been violated, and therefore, the board was forever without jurisdiction to proceed on the complaint. For those reasons, 2200 Carnegie urged that the case be dismissed.

{¶ 6} The board of revision nevertheless conducted the hearing and, implicitly overruling 2200 Carnegie's motion to dismiss, the board issued an order dated October 11, 2007, that increased the property's value to its recent sale price. 2200 Carnegie appealed to the common pleas court from the board's decision, and on September 6, 2008, the common pleas court remanded with instruction that notification of the complaint be given to 2200 Carnegie under R.C. 5715.19(B) and that further proceedings be held. On remand, notification was issued, another hearing was held, and by order dated August 6, 2009, the board once again increased the property's value to the sale price.

{¶ 7} 2200 Carnegie again appealed to the common pleas court, which affirmed the board's increase of value on March 9, 2011. Next, 2200 Carnegie appealed to the Eighth District Court of Appeals.

{¶ 8} On October 20, 2011, the court of appeals issued its decision. 2200 Carnegie, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 195 Ohio App.3d 713, 2011-Ohio-5397, 961 N.E.2d 726. The majority of a divided panel agreed with 2200 Carnegie that the failure of the auditor to give notice within the 30–day time frame prescribed by the statute permanently barred jurisdiction to hear the complaint, and the defect, being jurisdictional, was not curable. Id. at ¶ 13. A dissenting opinion relied on Knickerbocker Properties, Inc. XLII v. Delaware Cty. Bd. of Revision, 119 Ohio St.3d 233, 2008-Ohio-3192, 893 N.E.2d 457, ¶ 13, in concluding that (1) compliance with R.C. 5715.19(B) is not jurisdictional and (2) a failure to notify may be cured by ordering that the requisite notice be given.

{¶ 9} We accepted the school board's motion for discretionary appeal, 2200 Carnegie, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 131 Ohio St.3d 1483, 2012-Ohio-1143, 963 N.E.2d 824, and we now reverse the judgment of the court of appeals.

[Ohio St.3d 286]Analysis

{¶ 10} This appeal calls upon the court to determine whether R.C. 5715.19(B)'s requirement of notification within 30 days of the last day for filing valuation complaints is a prerequisite to the exercise of jurisdiction by the board of revision. In the area of administrative procedure, jurisdictional issues that call for construction of the statutes present questions of law that we review de novo on appeal. Akron Centre Plaza, L.L.C. v. Summit Cty. Bd. of Revision, 128 Ohio St.3d 145, 2010-Ohio-5035, 942 N.E.2d 1054, ¶ 10.

I

{¶ 11} An owner or a board of education that is dissatisfied with the value found by the auditor for a particular tax year may challenge that valuation before the board of revision by filing a complaint. The complaint must be filed pursuant to R.C. 5715.19(A) by March 31 of the “ensuing tax year” after the tax year at issue, and the filing of that complaint must be in accordance with the statutory requirements for the board of revision to exercise jurisdiction. Compare Am. Restaurant & Lunch Co. v. Glander, 147 Ohio St. 147, 151, 70 N.E.2d 93 (1946) (“It must be conceded that the filing of the required notice of appeal [from the tax commissioner's determination to the BTA] must be within the time prescribed by the statute* * * ”); accord Worthington City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 124 Ohio St.3d 27, 2009-Ohio-5932, 918 N.E.2d 972, ¶ 17 (“[W]e have consistently treated full compliance with R.C. 5715.19 as an indispensible prerequisite for the exercise of jurisdiction by a board of revision”).

{¶ 12} Other divisions of R.C. 5715.19(A) set forth additional requirements that govern proceedings before the boards of revision. Most importantly for this case, as previously mentioned, R.C. 5715.19(B) requires the board of revision to notify certain property owners, like appellee, that a complaint has been filed. That notice is to be provided within 30 days of the last day for filing valuation complaints—i.e., the end of April of the year following the tax year at issue. See R.C. 5715.19(A)(1). Next, R.C. 5715.19(C) requires the board of revision to provide notice of the hearing to the complainant and to the owner (if different) no fewer than 10 days before the scheduled hearing.

{¶ 13} The parties recognize that our decision in Knickerbocker, 119 Ohio St.3d 233, 2008-Ohio-3192, 893 N.E.2d 457, is crucial to the proper resolution of this case. Knickerbocker addresses both R.C. 5715.19(B), which provides for notification of the complaint, and 5715.19(C), which provides for notification of the [Ohio St.3d 287]hearing. The property owner had argued that the board of education's valuation complaint was jurisdictionally defective on two grounds. First, the owner claimed that the complaint was defective because it set forth the wrong address for the owner, and as a result, the board of revision had sent the complaint notification to the wrong address. Second, the owner contended that it had not been notified of the hearing under R.C. 5715.19(C), because that notification had also been sent to the wrong address.

{¶ 14} With respect to the notification of the filing of the complaint under R.C. 5715.19(B), we held that placing the proper address on the valuation complaint did not constitute a jurisdictional prerequisite because R.C. 5715.19(B) made it the auditor's duty to ascertain the property owner's address and send the complaint to the proper address. Id. at ¶ 10, 12, 14. Moreover, we noted that there was no actual default under R.C. 5715.19(B), because the notification had been forwarded by the recipient to the owner within the statutory time frame. The owner had had the time to file a countercomplaint and did in fact timely ask for a continuance of the hearing. Id. at ¶ 4, 16, fn. 2.

{¶ 15} As for the owner's argument that it had not been timely notified of the board of revision hearing, we held that the failure to notify of the hearing as required by R.C. 5715.19(C)did involve a jurisdictional defect. Id. at ¶ 18. The hearing had been held with no appearance by the owner, and the board of revision issued its decision, sending it first to the wrong address, then to the correct address. When the owner appealed to the BTA, that board rejected its jurisdictional argument and adopted the board of education's proposed valuation. On appeal we reversed, holding that lack of notice of the board of revision hearing was a jurisdictional defect, but that it could be corrected on remand. Id. at ¶ 18, 24.

{¶ 16} Against this backdrop, 2200...