Colonial Village v. Bd. of Rev.

Decision Date26 September 2007
Docket NumberNo. 2006-1000.,2006-1000.
Citation873 N.E.2d 298,114 Ohio St.3d 493,2007 Ohio 4641
PartiesCOLONIAL VILLAGE LTD., Appellant, v. WASHINGTON COUNTY BOARD OF REVISION et al., Appellees.
CourtOhio Supreme Court

Karen H. Bauernschmidt Co., L.P.A., Karen H. Bauernschmidt, Cleveland, and Susan K. French-Skaggs, for appellant.

Rich, Crites & Dittmer, L.L.C., and James R. Gorry, Columbus, for appellees.

PFEIFER, J.

{¶ 1} This appeal concerns the valuation of federally subsidized housing in Marietta, in Washington County, for the 2003 tax year. As a threshold matter, we confront a jurisdictional issue based on the appellant's assertion that appellee Washington County Board of Revision ("BOR") failed to send its decision to the appellant by certified mail, as required by R.C. 5715.20. We hold that under the particular circumstances of this case, a waiver of the prescribed method of certification has occurred. On the merits, we conclude that the Board of Tax Appeals ("BTA") acted unlawfully when it affirmed the BOR and upheld the auditor's original, cost-based valuation. Given the record before it, the BTA should have performed its duty to make an independent valuation of the property. On remand, we instruct the BTA to do so.

I

{¶ 2} Appellant, Colonial Village, filed a motion to remand, which asserts, for the first time, that the BOR sent its decision to Colonial Village by regular mail, rather than by certified mail. This allegation, if true, potentially affects the BTA's jurisdiction and, derivatively, our own jurisdiction to address the merits of this appeal.

{¶ 3} R.C. 5715.20(A) requires a board of revision to "certify its action by certified mail to the person in whose name the property is listed or sought to be listed and to the complainant if the complainant is not the person in whose name the property is listed or sought to be listed." R.C. 5717.01 provides that an appeal "may be taken to the board of tax appeals within thirty days after the notice of the decision of the county board of revision is mailed as provided in division (A) of section 5715.20 of the Revised Code."

{¶ 4} Colonial Village argues that because the BOR failed to send its decision by certified mail as required by R.C. 5715.20, the period for filing an appeal to the BTA never began to run under R.C. 5717.01. Colonial Village contends, therefore, that the notice of appeal that it filed was premature and that the BTA did not have jurisdiction. Colonial Village further reasons that because the BTA did not have jurisdiction, the BTA's decision is a nullity and its ruling on the merits cannot properly be addressed by this court. Colonial Village argues that this case should be remanded so that the BOR can properly certify its decision in compliance with R.C. 5715.20. See Cleveland Elec. Illum. Co. v. Lake Cty. Bd. of Revision, 96 Ohio St.3d 165, 2002-Ohio-4033, 772 N.E.2d 1160. That act would start the whole process of appeal all over again. Id. at ¶ 22.

{¶ 5} Central to this argument is the factual contention that the BOR did not send its decision by certified mail. Colonial Village submits no evidence to support this allegation. The record contains the BOR's formal certification to the BTA, stating that the BOR "mailed the decision by certified mail to all parties as prescribed by R.C. 5715.20." Colonial Village did not apprise the BTA that the county's certification was inaccurate, and it even stated in its brief to the BTA that it had "filed a timely appeal to the Ohio Board of Tax Appeals." Based on this information, the BTA could reasonably have understood itself to have jurisdiction over the case.

{¶ 6} The auditor argues that the case should not be remanded, but he does not state whether the BOR mailed its decision by certified mail. The BOR did not join in the response to Colonial Village's motion. In this context, we find it appropriate to admonish litigants that when a significant jurisdictional issue is raised, we expect the contending parties to state the facts, as they believe them, and to present evidence in support of their material allegations.

{¶ 7} Although the evidence is not conclusive in this case, we deny the motion to remand even assuming that the BOR did not send its decision by certified mail. The failure to use certified mail as required by R.C. 5715.20(A) belongs to that limited class of jurisdictional defects that may be waived under appropriate circumstances. See Mantho v. Bd. of Liquor Control (1954), 162 Ohio St. 37, 54 O.O. 1, 120 N.E.2d 730. We conclude that a waiver occurred in this case.

{¶ 8} In Mantho, an applicant for a liquor permit appealed from a denial under the Administrative Procedure Act. After the court of common pleas ruled in favor of the applicant, state liquor authorities appealed, and the court of appeals reversed. The permit applicant in Mantho moved the court of appeals to vacate its decision on the grounds that the appellate court did not have jurisdiction relying on Corn v. Bd. of Liquor Control (1953), 160 Ohio St. 9, 50 O.O. 479, 113 N.E.2d 360. The court of appeals vacated its judgment, and on appeal to this court, we concluded: "The Board of Liquor Control submitted itself to the jurisdiction of the Court of Appeals. The applicants had the right at that time to raise objections to the prosecuting of the appeals and to move for their dismissal. They did not exercise that right but proceeded in such manner as to constitute approval of the appeals. By such conduct they waived their right to raise the question of jurisdiction over the parties after judgment." Mantho, 162 Ohio St. at 41-42, 54 O.O. 1, 120 N.E.2d 730.

{¶ 9} In this case, the BOR's valuation of Colonial Village's property constitutes a subject matter that ordinarily lies within the BTA's jurisdiction when a proper notice of appeal is filed pursuant to R.C. 5717.01. Colonial Village was plainly a proper party to pursue an appeal and was the type of party R.C. 5715.20(A) sought to protect by requiring certified mail service of the BOR decision. It follows that when none of the parties before the BTA raised the improper method of certification, that particular irregularity was waived. Accordingly, even though the BTA may not originally have had jurisdiction, it ultimately rendered a valid judgment, which is subject to appeal to this court on the merits. See Mantho at paragraph two of the syllabus.

{¶ 10} Our decision does not affect the many cases in which we have held that conditions for pursuing an appeal are mandatory and jurisdictional. See, e.g., Am. Restaurant & Lunch Co. v. Glander (1946), 147 Ohio St. 147, 34 O.O. 8, 70 N.E.2d 93, paragraph one of the syllabus ("Where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred"); Cleveland Elec. Illum., 96 Ohio St.3d 165, 2002-Ohio-4033, 772 N.E.2d 1160, at ¶ 14-16; Sun Refining & Marketing Co. v. Brennan (1987), 31 Ohio St.3d 306, 31 OBR 584, 511 N.E.2d 112, syllabus ("The fifteen-day appeal period provided in R.C. 119.12 does not commence to run until the agency whose order is being appealed fully complies with the procedural requirements set forth in R.C. 119.09"). Moreover, there are times when jurisdiction can be raised late in the proceedings, including for the first time on appeal. Cleveland Elec. Illum., 96 Ohio St.3d 165, 2002-Ohio-4033, 772 N.E.2d 1160, at ¶ 16; H.R. Options, Inc. v. Zaino, 100 Ohio St.3d 373, 2004-Ohio-1, 800 N.E.2d 740, ¶ 8 (though raised late, an objection based on a jurisdictional defect was "preserved because a party cannot waive subject-matter jurisdiction, regardless of procedural deficiencies"); Jenkins v. Keller (1966), 6 Ohio St.2d 122, 126, 35 O.O.2d 147, 216 N.E.2d 379 ("where a court has no jurisdiction over the subject matter of an action, a challenge to jurisdiction on such ground may effectively be made for the first time on appeal in a reviewing court").

{¶ 11} The present case, however, is governed by Mantho. The defect in this case concerns not subject-matter jurisdiction but the method by which parties receive notice and exercise their right to litigate. Similar to the issue in Mantho, the question in this case is whether the BTA "acquired jurisdiction of the persons" despite the BOR's failure to properly certify its decision. Mantho, 162 Ohio St. at 41, 54 O.O. 1, 120 N.E.2d 730. Similar to the board in Mantho, Colonial Village, by appealing, "submitted itself to the jurisdiction" of the BTA, and the parties "had the right at that time to raise objections to the prosecuting of the appeals." Id. Failure to object at the BTA means that the parties "waived their right to raise the question of jurisdiction over the parties after judgment." Id. at 41-42, 54 O.O. 1, 120 N.E.2d 730. In other words, a party to a BTA appeal pursuant to R.C. 5717.01 may waive the method of certification as to itself when it pursues an appeal and when no party contests jurisdiction before the BTA. The issuance of a BTA decision on the merits completes the waiver, and such a decision is valid and binding.

{¶ 12} Our holding does not conflict with the principles we articulated in Cleveland Elec. Illum. for two different reasons. First, the parties in Cleveland Elec. Illum. fully litigated before the BTA the board of revision's failure to certify its decision to the Tax Commissioner. 96 Ohio St.3d 165, 2002-Ohio-4033, 772 N.E.2d 1160, at ¶ 8. The parties in this case could have raised improper certification to the BTA, and the BTA would have been obliged to dismiss, if the certification was improper. But the issuance of the BTA's decision on the merits, under color of the BTA's jurisdiction, and in the absence of an objection, completed a waiver of that defect.

{¶ 13} Second, in Cleveland Elec. Illum., the boards of revision failed to certify their decisions to a third party — the Tax Commissioner — who did not himself pursue an...

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