Van de Hey v. Ashtabula Cnty. Auditor

• Decision Date: 06 February 2023
• Docket Number: 2021-A-0038
• Citation: 2023 Ohio 346
• Parties: DAVID VAN DE HEY, Appellant, v. ASHTABULA COUNTY AUDITOR, et al., Appellees.
• Court: Ohio Court of Appeals

2023-Ohio-346

DAVID VAN DE HEY, Appellant, v. ASHTABULA COUNTY AUDITOR, et al., Appellees.

No. 2021-A-0038

Court of Appeals of Ohio, Eleventh District, Ashtabula

February 6, 2023

Administrative Appeal from the Court of Common Pleas rial Court No. 2021 CV 00310

David Van De Hey, pro se, (Appellant).

Colleen M. O'Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, (For Appellees Ashtabula County Auditor and Ashtabula County Board of Revision).

Jason L Fairchild, Andrews & Pontius, LLC, (For Appellee Superintendent of Public Schools, Ashtabula, Ohio).

OPINION

MARY JANE TRAPP, J.

{¶1} Appellant, David Van De Hey ("Mr. Van De Hey"), appeals the judgment of the Ashtabula County Court of Common Pleas granting the motion to dismiss filed by appellee, Ashtabula County Board of Revision ("the BOR"). The trial court determined that it lacked subject matter jurisdiction over Mr. Van De Hey's appeal because he failed to file a notice of appeal with the BOR pursuant to R.C. 5717.05. {¶2} Mr. Van De Hey presents four assignments of error, contending that the trial court erred (1) by failing to find that the BOR was estopped from seeking dismissal on jurisdictional grounds; (2) by failing to find that the BOR's receipt of the court's scheduling order before the 30-day deadline was sufficient to satisfy the filing requirement in R.C. 5717.05; (3) by failing to incorporate a "mailbox rule" into R.C. 5717.05; (4) by failing to deem his notice of appeal "filed" when the local post office issued notice that certified mail was available for pickup; and (5) by failing to hold an evidentiary hearing to determine what happened to the certified mail.

{¶3} After a careful review of the record and pertinent law, we find that Mr. Van De Hey's assignments of error are without merit:

{¶4} (1) The doctrine of equitable estoppel may not be applied against a state agent performing a governmental function. Even if the doctrine applied, however, a court's subject-matter jurisdiction cannot be conferred by equitable estoppel, and a mistake does not provide a basis for the doctrine's application.

{¶5} (2) The BOR's receipt of a scheduling order did not excuse Mr. Van De Hey's statutory obligation to file a timely notice of appeal with the BOR. The Supreme Court of Ohio has consistently held that other legal documents cannot substitute for a proper notice of appeal.

{¶6} (3) The filing requirement in R.C. 5717.05 is not ambiguous. The Supreme Court of Ohio has held that statutes that provide for "filing" documents require physical delivery to the official or agency unless the statute at issue contains a "mailbox rule," which R.C. 5717.05 does not contain.

{¶7} (4) Even if Mr. Van De Hey has accurately described the post office's delivery policies, we have no authority to modify the Supreme Court of Ohio's legal definition of "filed" to accommodate a particular factual setting.

{¶8} (5) Since Mr. Van De Hey did not contend or purport to establish that his notice of appeal was actually delivered to the BOR, he failed to present any conflicting evidence to warrant an evidentiary hearing.

{¶9} Thus, we affirm the judgment of the Ashtabula County Court of Common Pleas.

Substantive and Procedural History

{¶10} In March 2021, Mr. Van De Hey filed a complaint against the valuation of real property for tax year 2020 with the Ashtabula County Auditor (the "county auditor"). Mr. Van De Hey sought a reduction in the market value of his residential property located at 1811 Walnut Boulevard in Ashtabula, Ohio. In June 2021, the BOR held a hearing on Mr. Van De Hey's complaint, where he presented testimony and submitted evidence. On July 16, 2021, the BOR mailed its decision to Mr. Van De Hey indicating there would be no change in value.

{¶11} On July 21, 2021, Mr. Van De Hey filed a notice of appeal in the trial court, naming as appellees the county auditor, the BOR, and "Superintendent of Public Schools Ashtabula OH 44004." Mr. Van De Hey also filed instructions for service requesting that the clerk of courts serve a copy of his notice of appeal on each appellee by certified mail. Mr. Van De Hey did not take any other action to file the notice of appeal with the BOR. The next day, the clerk of courts issued certified mail service to each appellee.

{¶12} On July 28, 2021, the trial court filed a scheduling order that was mailed to the parties.

{¶13} On August 4, 2021, a certified mail receipt was filed reflecting that the superintendent was successfully served with Mr. Van De Hey's notice of appeal on July 26, 2021. No certified mail receipts were ever filed reflecting successful service on the county auditor or the BOR.

{¶14} The Ashtabula Area City Schools Board of Education (the "school board") appeared through counsel and filed a motion to intervene in the appeal, which the trial court granted.

{¶15} On September 8, 2021, counsel for the BOR and county auditor filed a certified transcript of the BOR's proceedings. The BOR's certified transcript stated that it "never received" Mr. Van De Hey's notice of appeal.

{¶16} On September 16, 2021, the BOR moved to dismiss Mr. Van De Hey's appeal pursuant to Civ.R. 12(B)(1) (lack of jurisdiction), (B)(4) (insufficiency of process), (B)(5) (insufficiency of service of process), and (B)(6) (failure to state a claim upon which relief can be granted). The BOR contended that Mr. Van De Hey failed to file a notice of appeal with it within 30 days pursuant to R.C. 5717.05. In support, the BOR attached an affidavit from David Thomas, the county auditor and the BOR's secretary, who averred that as of September 14, 2021, the BOR had not received Mr. Van De Hey's notice of appeal.

{¶17} Mr. Van De Hey filed a response in opposition to the BOR's motion to dismiss. The school board filed a reply brief in support of the BOR's motion to dismiss. With leave of court, Mr. Van De Hey filed a surreply.

{¶18} According to Mr. Van De Hey, he was "informed and believes" that the Jefferson Post Office does not deliver certified mail to the county building where the BOR is located. Rather, the post office delivers a notice to the BOR's mailbox at the county building. A county employee must physically claim the certified mail from the post office. At that time, the post office scans the certified mail, the county employee provides a signature, and a return receipt is transmitted to the sender.

{¶19} Mr. Van De Hey contended that the certified letter containing his notice of appeal arrived at the Jefferson Post Office on July 26, 2021. However, the U.S. Postal Service's tracking system did not subsequently indicate successful delivery or return to sender. Therefore, he speculated that the post office "must have erroneously transferred possession" of the certified letter. In support of his assertions, Mr. Van De Hey attached a purported copy of the U.S. Postal Service's certified mail tracking information.

{¶20} The trial court filed a judgment entry granting the BOR's motion to dismiss based on lack of subject matter jurisdiction. The trial court determined that Mr. Van De Hey failed to strictly comply with R.C. 5717.05 by filing his notice of appeal with the BOR. The trial court stated, in relevant part, "While using the Clerk of Court's [sic] to complete a 'filing' with the [BOR] may be an acceptable means of doing so, the onus remains on [Mr. Van De Hey] to ensure that the [BOR] actually received a copy of the Notice of Appeal. In the instant case, [Mr. Van De Hey] never followed up with the board, and in fact the board never received a copy of the Notice of Appeal."

{¶21} Mr. Van De Hey appealed and raises four assignments of error:

{¶22} "[1.] In an error of omission, the CCP [Ashtabula County Court of Common Pleas] failed to rule on the Appellant's argument that the BOR be estopped from asserting that the Appellant needed to take some action other than or in addition to that which the Appellant took, which was to comply strictly with the instructions in the form of notice of appeal made available on the website of the Auditor for use in appealing a BOR decision to the CCP under the provisions of R.C. 5717.05.

{¶23} "[2.] In an error of omission, the CCP failed to rule on the Appellant's argument that the Scheduling Order (T.d. 5), which was sent to the BOR by ordinary mail on July 28, 2021 (T.p. 11), was sufficient to satisfy the filing requirements of R.C. 5717.05.

{¶24} "[3.] In an error of omission, the CCR [sic] failed to rule on the Appellant's argument that, if the rule of law applied in this case were that the filing of a notice of appeal by certified mail requires actual (physical) receipt of the notice of appeal by the county board of revision during the thirty-day appeal period, that rule of law and the facts of this case must be analyzed in the context of the JPO's [Jefferson Post Office] policy of never delivering certified mail to the BOR and an evidentiary hearing may be necessary."

{¶25} "[4.] The CCP erred in granting the Motion to Dismiss on the basis that 'the onus remains on the appellant to ensure that the board actually received a copy of the Notice of Appeal' (T.d. 23, p. 3) under R.C. 5717.05 when the Notice of Appeal was filed with the BOR by certified mail."

Standard of Review

{¶26} Subject matter jurisdiction is a court's power to hear and decide a case on the merits. State ex rel. Jones v Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998). Civ.R. 12(B)(1) permits a defendant to challenge by motion a court's jurisdiction over the subject matter of the action brought against it. In ruling upon a Civ.R. 12(B)(1) motion, the trial court is not confined to the allegations of the complaint and may consider material pertinent to such inquiry...