Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision

• Decision Date: 05 January 2000
• Docket Number: No. 99-82.,99-82.
• Parties: CINCINNATI SCHOOL DISTRICT BOARD OF EDUCATION, APPELLANT, v. HAMILTON COUNTY BOARD OF REVISION ET AL., APPELLEES.
• Court: Ohio Supreme Court

87 Ohio St.3d 363

721 NE 2d 40

CINCINNATI SCHOOL DISTRICT BOARD OF EDUCATION, APPELLANT, v. HAMILTON COUNTY BOARD OF REVISION ET AL., APPELLEES.

No. 99-82.

Supreme Court of Ohio.

Submitted June 23, 1999.

Decided January 5, 2000.

Wood & Lamping, L.L.P., and David C. DiMuzio, for appellant, Cincinnati School District Board of Education.

Keating, Muething & Klekamp, P.L.L., Kenneth P. Kreider and Dwight A. Packard II, for appellee Candlewood, Ltd.

Per Curiam.

The BOE contends that the BTA had no authority to set aside the BOR's order of August 18, 1997. We agree.

A timely complaint against the valuation of the property was filed by the BOE seeking an increase in taxable value of $151,900 for tax year 1996. R.C. 5715.19(B) provides that when a complaint is filed by someone other than the owner and the amount of the stated undervaluation is at least $17,500 the auditor is to give notice of the complaint to the property owner. R.C. 5715.19(B) further provides that within thirty days after receiving the notice the property owner may file a complaint objecting to the claim of undervaluation and be made a party to the action. R.C. 5715.19(C) also provides that the board of revision shall notify the property owner at least ten days prior to a hearing of its time and place. In addition to the notice requirements of R.C. 5715.19, R.C. 5715.12 provides that the board of revision shall not increase any valuation without giving notice to the person in whose name the property affected is listed and affording him or her the opportunity to be heard. Finally, when the board of revision renders its decision, R.C. 5715.20 requires that it give notice of its action by certified mail to the person in whose name the property is listed. In this case, none of the required notices listed above was given to Candlewood in a timely fashion either before the hearing on July 2, 1997, or the decision of August 18, 1997.

The BOE contends that the BOR's actions were proper because the BOE's complaint named as property owner, and notices were given to, the person listed as owner on the auditor's records. A review of the various provisions of R.C. Chapter 5715 shows that different terms are used to describe the person to whom the required notice is to be given. R.C. 5715.19 requires notice to the "property owner"; R.C. 5715.12 requires notice to be given "to the person in whose name the property affected * * * is listed"; R.C. 5715.20 requires notice to "the person in whose name the property is listed."

In State ex rel. Rolling Hills Local School Dist. Bd. of Edn. v. Brown (1992), 63 Ohio St.3d 520, 521, 589 N.E.2d 1265, 1266, we stated, "The auditor prepares the tax list pursuant to R.C. 319.28. On the tax list, he records, inter alia, all the parcels in the county, the names of their owners, and the taxing district in which each parcel is located." R.C. 319.20 describes how the auditor shall transfer ownership of land on the tax list: "[T]he county auditor shall transfer any land * * * charged with taxes on the tax list, from the name in which it stands into the name of the owner, when rendered necessary by a conveyance * * *." See, also, R.C. 323.17. Clearly, the auditor's tax list is to contain the name of the owners. It is presumed that the auditor does his or her job correctly and that the tax list contains the correct names of the owners of the property. However, as demonstrated by the facts in this case, when a complainant filing a complaint for valuation of real property relies upon the auditor's tax list he or she does so at his or her peril. If the auditor's tax list is not correct and a complainant files a complaint listing an incorrect name, then the notices given by the board of revision will be given to the wrong persons, the notice requirement of R.C. Chapter 5715 will not be met, and the actual owner will not receive any of the required notices.

The giving of notice to a person who is incorrectly listed on the auditor's tax list as the owner does not meet the notice requirements of R.C. Chapter 5715. In Columbus Apartments Assoc. v. Franklin Cty. Bd. of Revision (1981), 67 Ohio St.2d 85, 89-90, 21 O.O.3d 54, 57, 423 N.E.2d 147, 150, we stated, "In that it is the owner's, not the school board's, property which is the subject of the complaint and evaluation proceeding before a board of revision, the owner is an indispensable party to that proceeding."

The consequences of not giving notice to an indispensable party, like the actual owner, were set forth in Lincoln Tavern, Inc. v. Snader (1956), 165 Ohio St. 61, 64, 59 O.O. 74, 75-76, 133 N.E.2d 606, 610, where we stated, "It is axiomatic that for a court to acquire jurisdiction there must be a proper service of summons or an entry of appearance, and a judgment rendered without proper service or entry of appearance is a nullity and void." Without the required notices being given to Candlewood, the BOR acquired no jurisdiction.

Because the notices required by R.C. Chapter 5715 were not given to Candlewood prior to the BOR's July 2, 1997 hearing and after its August 18, 1997 decision, and no voluntary appearance was made by Candlewood, the BOR's August 18, 1997 decision is a nullity and void as regards Candlewood. As one Texas appellate court so aptly stated concerning a void judgment, "[i]t is good nowhere and bad everywhere." Dews v. Floyd (Tex.Civ.App.1967), 413 S.W.2d 800, 804.

Almost a year after the original complaint had been filed the BOR discovered that no notices had been sent to Candlewood. In an attempt to remedy the lack of notice, the BOR sent a letter to Candlewood on March 16, 1998, notifying it that a complaint had been filed by the BOE. On April 7, 1998, the BOR notified Candlewood that a hearing was to be held on April 30, 1998.

A review of the relevant statute shows that neither of the notices sent to Candlewood by the BOR was timely. R.C. 5715.19 requires that the notice of the filing of the complaint was to have been sent to Candlewood by April 30, 1997. No notice of the filing of the BOR complaint was sent to Candlewood until March 16, 1998. In addition, Candlewood was never notified of the original BOR hearing on July 2, 1997. No notice of any hearing was sent to Candlewood until April 7, 1998.

R.C. 5715.20 provides that any decision of the BOR rendered on a complaint filed under R.C. 5715.19 is to be sent to the person in whose name the property is listed. The notice of the result of the July 2, 1997 hearing was sent out August 18, 1997, but no copy was sent to Candlewood.

R.C. 5717.01 and 5717.05 permit an appeal of a board of revision decision to be taken either to the BTA or common pleas court within thirty days. No appeal of the BOR's August 18, 1997 decision was filed within thirty days. This case presents the question whether a board of revision can vacate a void decision after the time for appeal of the decision has expired.

When it eventually was informed of the BOR's 1997 decision, Candlewood filed a countercomplaint on April 14, 1998, requesting that the complaint filed by the BOE be dismissed for lack of jurisdiction. In addition Candlewood also filed a motion requesting the BOR to dismiss the BOE complaint and to vacate its prior order. The BOR granted Candlewood's requests and vacated its August 18, 1997 decision and reinstated the prior valuation.

A board of revision is a creature of statute and is limited to the powers conferred upon it by statute. Morgan Cty. Budget Comm. v. Bd. of Tax Appeals (1963), 175 Ohio St. 225, 24 O.O.2d 340, 193 N.E.2d 145, paragraph three of the syllabus. Steward v. Evatt (1944), 143 Ohio St. 547, 28 O.O. 472, 56 N.E.2d 159, paragraph one of the syllabus. The authority granted to a board of revision by R.C. 5715.01 is to "hear complaints and revise assessments of real property for taxation." We know of no statutory authority for a board of revision to vacate a void decision after the appeal time has expired. Having no statutory authority to vacate void decisions after the expiration of the appeal time, does a board of revision have nonstatutory authority to vacate a void decision after the appeal time has expired?

In Patton v. Diemer (1988), 35 Ohio St.3d 68, 518 N.E.2d 941, the defendant, using Civ.R. 60(B), sought to vacate a judgment that was void ab initio. The plaintiff contended that the defendant had failed to demonstrate any of the grounds for relief prescribed by Civ.R. 60(B). We held that the court could vacate the judgment, stating, "The authority to vacate a void judgment is not derived from Civ.R. 60(B) but rather constitutes an inherent power possessed by Ohio courts." Paragraph four of the syllabus. See, also, Staff Notes to Civ.R. 60(B). In Van DeRyt v. Van DeRyt (1966), 6 Ohio St.2d 31, 36, 35 O.O.2d 42, 45, 215 N.E.2d 698, 704, we stated, "A court has an inherent power to vacate a void judgment because such an order simply recognizes the fact that the judgment was always a nullity." The term "inherent power" used in the two preceding cases is defined in Black's Law Dictionary (6 Ed.1990) 782 as "[a]n authority possessed without its being derived from another. A right, ability, or faculty of doing a thing, without receiving that right, ability, or faculty from another."

While we have recognized the inherent power of courts to vacate void judgments, we have recognized the inherent power of administrative boards to reconsider their decisions only in very limited circumstances. In Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, 28 OBR 83, 502 N.E.2d 590, paragraph three of the syllabus, we held that prior to the actual institution of an appeal or expiration of the time for appeal, administrative agencies generally "have inherent authority to reconsider their own decisions since the power to decide in the first instance carries with it the power to reconsider." See, also, Natl. Tube Co. v. Ayres (1949), 152 Ohio St. 255, 262, 40 O.O. 312, 315, 89 N.E.2d...