City of Painesville v. Lake County Budget Commission

• Decision Date: 07 December 1978
• Docket Number: No. 78-248,78-248
• Citation: 10 O.O.3d 411,383 N.E.2d 896,56 Ohio St.2d 282
• Parties: , 10 O.O.3d 411 CITY OF PAINESVILLE, Appellant, v. LAKE COUNTY BUDGET COMMISSION et al., Appellees.
• Court: Ohio Supreme Court

Page 282

56 Ohio St.2d 282

383 N.E.2d 896, 10 O.O.3d 411

CITY OF PAINESVILLE, Appellant, v. LAKE COUNTY BUDGET COMMISSION et al., Appellees.

No. 78-248.

Supreme Court of Ohio.

Dec. 7, 1978.

In December, 1976, appellee, the Lake County Budget Commission ("commission"), issued, pursuant to R. C. Chapter 5747, an order allocating its local government fund among participating subdivisions of Lake County. In that order the commission allocated $186,536.29 to appellant, the city of Painesville. In January 1977, appellant filed a notice of appeal with the Board of Tax Appeals (the "board"). Approximately ten months later, on November 14, 1977, the Board of Tax Appeals notified appellant that a hearing on its appeal was scheduled for January 1978. Later in November, the board issued an order for a partial distribution of the local government fund. Under that order, which was agreed to by appellant, by the commission, by the Board of Lake County Commissioners, and by other Lake County subdivisions entitled to share in the local government fund, ¹ the auditor of Lake County was authorized to distribute all but $100,000 of that fund. In December 1977, the commission and the county filed a motion to dismiss the appeal on the grounds that the notice of appeal was not sufficiently specific to comply with the requirements of R. C. 5747.55, the statute governing appeal to the Board of Tax Appeals from decisions of county budget commissions. The board granted the commission's motion.

The cause is now before this court on an appeal as of right from the board's order.

Cannon, Stern & Aveni and Charles E. Cannon, Painesville, for appellant.

John E. Shoop, Pros. Atty., and Donald J. Ezzone, Painesville, for appellees Lake County Budget Commission, Lake County Board of County Commissioners, Township of Leroy and Township of Perry.

Barry M. Byron and I. James Hackenberg, Painesville, for appellees City of Willoughby Hills, City of Willowick, Village of Lakeline, City of Mentor, Village of Madison and Village of Kirtland Hills.

E. W. Mastrangelo, director of law, and Mr. Theodore R. Klammer, Willoughby, for appellees City of Wickliffe and City of Eastlake.

PER CURIAM.

The issues raised by the instant cause are (1) whether the Board of Tax Appeals may determine that it does not have subject-matter jurisdiction to hear an appeal from the allocation of a local government fund once the board has already ordered a partial distribution of that fund; and (2) whether a notice of appeal to the board which sets forth the exact amount of money a local subdivision claims to have been under-allocated by the county budget commission but which otherwise is couched in general terms complies with the requirements of R. C. 5747.55(A)(2). ²

I.

The right to appeal an allocation of a local government fund to the Board of Tax Appeals is created by statute. (R. C. 5747.55.) Therefore, if appellant has failed to comply with the appropriate statutory requirements, the board lacks subject-matter jurisdiction to hear the appeal. Queen City Valves, Inc., v. Peck (1954), 161 Ohio St. 579, 584, 120 N.E.2d 310; American Restaurant & Lunch Co. v. Glander (1946), 147 Ohio St. 147, 70 N.E.2d 93. Appellant contends, however, that the budget commission waived its right to raise the question of lack of subject-matter jurisdiction, I. e., that the "budget commission cannot invoke the jurisdiction of the B. T. A. for the partial distribution by approving it and later attempt to deny the jurisdiction on the basis the notice of appeal was not specific."

Appellant's waiver theory is without merit. In Baltimore & Ohio Ry. Co. v. Hollenberger (1907), 76 Ohio St. 177, 81 N.E. 184, this court stated, at pages 182 and 183, 81 N.E. at page 186:

"(I)t has * * * long been a universal rule that an objection to the jurisdiction of the 'subject-matter' cannot be waived; because, while parties may voluntarily submit their persons to the jurisdiction of a court which has jurisdiction over the cause, they cannot confer power on the court as to the subject-matter, for the reason that the court can derive its general jurisdiction only from the power which created it, the sovereignty."

Over 60 years later that principle was reiterated by Justice Duncan in Gates Mills Investment Co. v. Parks (1971), 25 Ohio St.2d 16, 266 N.E.2d 552, when he stated for the court, at pages 19-20, 266 N.E.2d at page 555:

"The failure of a litigant to object to subject-matter jurisdiction at the first opportunity is undesirable and procedurally awkward. But it does not give rise to a theory of waiver, which would have the force of investing subject-matter jurisdiction in a court which has no such jurisdiction." (See, also, Civ.R. 12(H).)

It may have been more graceful for the commission to file its motion to dismiss before the partial distribution was ordered, but the commission is not barred by its lack of procedural grace from raising the issue of lack of subject-matter jurisdiction after the partial distribution was ordered. We find, therefore, that appellant's first argument is not well taken.

II.

The second issue raised by the instant cause is whether appellant's notice of appeal complied with the requirements of R. C. 5747.55(A)(2) and (3). It is established law in Ohio that " 'where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred.' " Queen City Valves, Inc., v. Peck, supra, 161 Ohio St. at page 581, 120 N.E.2d at page 312, citing American Restaurant & Lunch Co. v. Glander, supra, 147 Ohio St. at page 150, 70 N.E.2d 93. R. C. 5747.55 provides that "(t)he action of the county budget commission * * * may be appealed to the board of tax appeals * * * in accordance with the following rules * * * ." The statute thus confers the right of appeal to the board from a decision of the budget commission. Therefore, unless appellant complied with the rules for appeal set forth in the subdivisions of R. C. 5747.55, it may not enjoy the right of appeal.

The subsection of R. C. 5747.55 pertinent to the instant cause is R. C. 5747.55(A)(2). It provides:

"(A) The notice of appeal shall be signed by the authorized fiscal officer and shall set forth in clear and concise language:

" * * *

"(2) The error or errors the taxing district believes the budget commission made * * * ."

Appellant's notice of appeal asserts that appellant is "dissatisfied" with its allocated share of the local government fund, a share which appellant finds to be "grossly understated" in light of its actual needs, and that it "believes it should have received the sum of $224,999.29." ³ The Board of Tax Appeals found that notice to be defective under R. C. 5747.55(A)(2) and (3). We do not find the board's decision with regard to R. C. 5747.55(A)(2) to be unreasonable or unlawful. ⁴

The instant cause is the first occasion this court has had to evaluate the R. C. 5747.55(A) requirements for a notice of appeal. However, we have had ample opportunity to evaluate such notices under similar statutes. (Former R. C. 4903.10 and R. C. 5717.02 and 5717.04, governing appeals from the Public Utilities Commission and appeals to and from the Board of Tax Appeals, require appellants to set forth "specifically" the grounds complained of, and to "specify" and "set forth" the errors complained of. The requirements of the above statutes are sufficiently analogous to the R. C. 5747.55(A) mandate to set forth errors and specific relief in "clear and concise" language, so that the case law developed under the above statutes also applies to R. C. 5747.55 challenges to a notice of appeal.)

The law established under the statutes governing appeals from the Public Utilities Commission and appeals to and from the Board of Tax Appeals is clear. There is no subject-matter jurisdiction to hear an appeal when the notice of appeal "state(s) no more than a conclusion" (Marion v. Pub. Util. Comm. (1954), 161 Ohio St. 276, 278, 119 N.E.2d 67, 68); fails to "enumerate in definite and specific terms the precise errors claimed" (Lawson Milk Co. v. Bowers (1961), 171 Ohio St. 418, 420, 171 N.E.2d 495, 496); or asserts errors "such as might be advanced in nearly any case" and which "are not of a nature to call the attention of the board to those precise determinations * * * with which appellant took issue" (Queen City Valves, Inc., v. Peck, supra, 161 Ohio St. at page 583, 120 N.E.2d at page 312).

Appellant asserts, in its notice of appeal, that it is "dissatisfied" with its allocated share of the local government fund and that it believes that share to...