Village of Waterville v. Spencer Tp.

• Decision Date: 20 February 1974
• Docket Number: Nos. 73-693 and 73-697,s. 73-693 and 73-697
• Citation: 307 N.E.2d 542,66 O.O.2d 189,37 Ohio St.2d 79
• Parties: , 66 O.O.2d 189 VILLAGE OF WATERVILLE, Appellant, v. SPENCER TOWNSHIP et al., Appellees. CITY OF SYLVANIA, Appellant, v. LUCAS COUNTY BUDGET COMMISSION et al., Appellees.
• Court: Ohio Supreme Court

Page 79

37 Ohio St.2d 79

307 N.E.2d 542, 66 O.O.2d 189

VILLAGE OF WATERVILLE, Appellant, v. SPENCER TOWNSHIP et al., Appellees.

CITY OF SYLVANIA, Appellant, v. LUCAS COUNTY BUDGET COMMISSION et al., Appellees.

Nos. 73-693 and 73-697.

Supreme Court of Ohio.

Feb. 20, 1974.

On December 8, 1972, the Lucas County Budget Commission allocated the estimated 1973 undivided local government fund of Lucas County, totaling $5,585,965.04, among 23 political subdivisions located within the county. Subsequently, seven dissatisfied subdivisions filed separate notices of appeal with the Board of Tax Appeals pursuant to R.C. 5747.55. All of these notices of appeal named either Lucas County or the city of Toledo, or both, as appellees; additionally, two subdivisions which filed notices of appeal, and hence were appellants, were named as appellees by other appellant subdivisions. Consequently, only ten of the original 23 subdivisions which participated in the original allocation by the Lucas County Budget Commission were parties before the Board of Tax Appeals. The total amount allocated to these ten parties by the budget commission was $5,397,376.81, and therefore the Board of Tax Appeals proceeded to reallocate this amount among the ten parties in a de novo hearing as provided by R.C. 5747.55 and 5705.37. Six of the seven appellants before the board had their shares of the fund decreased; one appellant received a slight increase; appellee Lucas County retained the same amount originally allocated to it by the budget commission; appellees city of Toledo and Sylvania Township received increases in their shares.

The cause is now before this court as a matter of right pursuant to the filing of two separate notices of appeal from the Board of Tax Appeals' decision. Appellant in case No. 73-693 is the village of Waterville; appellant in case No. 73-697 is the city of Sylvania. Each appellant has named as appellees before this court the Lucas County Budget Commission and the other nine subdivisions that were parties before the Board of Tax Appeals.

William H. Heywood, III, Toledo, for appellant village of Waterville.

Carl F. Dorcas, director of law, and Miller, Downing & Dorcas, Toledo, for appellant city of Sylvania.

Cruey, Kelb, Hewes & Chase and George R. Hewes, Toledo, for appellee Lucas County.

Frank T. Pizza, director of law, and John O. Celusta, Toledo, for appellee city of Toledo.

Boxell, Bebout, Torbet & Baker, James V. Shindler, Jr., and William R. Ahern, Jr., Toledo, for appellee Sylvania Township.

PER CURIAM.

Prior to determining the substantive issues presented by each appellant, two motions to dismiss the appeals must be considered. The first, in case No. 73-693, was filed by Sylvania Township, one of 11 appellees listed in the caption of the notice of appeal filed by the village of Waterville in case No. 73-693. The basis of this motion is an allegation, supported by two affidavits, that appellant, village of Waterville, failed to serve the township with a notice of appeal, as expressly required by R.C. 5717.04 and Section 6, Rule I of this court's Rules of Practice. Appellant's 'Proof of Service' lists the names and addresses of the parties to whom the notice of appeal was sent; Sylvania Township is not among them. Sylvania Township's motion seeks to have itself dismissed as a party appellee in case No. 73-693.

Failure to serve notice of appeal upon an appellee, as expressly required by R.C. 5717.04, is one factor that this court has considered in sustaining a motion to dismiss an appeal from a decision of the Board of Tax Appeals. Motorway Corp. v. Bowers (1959), 170 Ohio St. 139, 163 N.E.2d 164; Elmer Borchardt, Inc., v. Bowers (1962), 173 Ohio St. 13, 179 N.E.2d 48. Appellant, village of Waterville, has presented absolutely no defense for its action, and this court perceives no reason for deviating from its past practice. Therefore, Sylvania Township's motion to dismiss is sustained and it is dismissed as a party appellee in case No. 73-693.

The dismissal of Sylvania Township as a party to case No. 73-693 does not destroy the jurisdiction of this court to decide the case upon its merits with respect to appellant village of Waterville and those named appellees who were served with notices of appeal. This court has held that an appellate court acquires jurisdiction in a case as soon as a timely notice of appeal is filed. State, ex rel. Curran v. Brookes (1943), 142 Ohio St. 107, 50 N.E.2d 995. The fifth paragraph of R.C. 5717.04, which specifies the time and place for filing and the required contents of the notice of appeal, reads as follows:

'Such appeals shall be taken within thirty days after the date of the entry of the decision of the board on the journal of its proceedings, as provided by such section, by the filing by appellant of a notice of appeal with the court to which the appeal is taken and the board. Such notice of appeal shall set forth the decision of the board appealed from and the errors therein complained of. * * *'

Appellant village of Waterville has complied with the above-quoted requirements of the statute, and hence this court has jurisdiction to review the decision of the Board of Tax Appeals in case No. 73-693. The requirement contained in the sixth paragraph of R.C. 5717.04, that appellant serve all appellees with notice of appeal, although mandatory, is a procedural, not a jurisdictional, requirement. See Zier v. Bureau of Unemployment Compensation (1949), 151 Ohio St. 123, 84 N.E.2d 746. Therefore, appellant's failure to serve one named appellee diminishes the number of parties before this court but does not affect its jurisdiction.

For the reasons that will be stated subsequently in this court's discussion of the merits, the village of Waterville is entitled to an increased share. Because the fund from which the increase must come remains constant, the enlargement of the share taken by Waterville will necessarily diminish the shares taken by at least some of the parties. Since Sylvania Township, solely because of Waterville's failure to serve it with notice of appeal, is no longer a party to case No. 73-693, Waterville may not recover that part of the increase in its share which would have come from a reduction in the share originally allocated to the township by the board. To allow Waterville to recover the full amount from the remaining appellees would shift the detrimental consequences of Waterville's procedural error from appellant to the remaining appellees. Such a result would be both unfair and unwarranted.

A second motion-to dismiss the appeals in case Nos. 73-693 and 73-697-has been filed by Lucas County, an appellee in both cases. That motion is based upon the grounds that neither notice of appeal states a cause upon which relief can be granted and that this court is without jurisdiction. Alternatively, the motion seeks to have Lucas County dismissed as a party in both appeals. The motion is denied.

Movant Lucas County claims that both appellants are, in effect, seeking to have the local government fund reallocated by this court in a trial de novo. Movant correctly notes that this court repeatedly has held that it does not have jurisdiction where the actual relief sought is a trial de novo. This court stated in Bd. of County Commrs. v. Willoughby Hills (1968), 14 Ohio St.2d 163, 164, 237 N.E.2d 138, 139, in an appeal from a decision of the Board of Tax Appeals: '* * * this court * * * is confined to deciding whether the board has acted unreasonably or unlawfully in what it has done.'

Neither appellant is seeking a trial de novo before this court. Both allege in their notices of appeal that the decision of the Board of Tax Appeals is unreasonable and unlawful in that it failed to comply with certain provisions of R.C. 5747.51(E)(4). Thus, both notices of appeal state a cause upon which this court can grant relief. See State, ex rel. Midwestern Film Exchange, Inc., v. Clifton (1928), 118 Ohio St. 91, 160 N.E. 625.

Movant's jurisdictional argument is based upon its statement that 'Section 5747.55 does not provide for an appeal beyond the Board of Tax Appeals * * *.' Movant is correct. R.C. 5747.55 sets forth the procedure for an appeal to the board of the allocation of a county's local government fund by the county budget commission. However, the procedure for appeal from the decisions of the board of this court is provided in R.C. 5717.04, and movant has failed to allege that either notice of appeal fails to conform to R.C. 5717.04.

Movant's attempt to buttress its jurisdictional argument by contending that R.C. 5717.04 does not vest this court with either exclusive or concurrent jurisdiction in an appeal from a decision of the Board of Tax Appeals allocating a county's local government fund is also without merit. Toledo v. Budget Comm. (1973), 33 Ohio St.2d 62, 294 N.E.2d 661.

Movant also argues taht the amount it received from the board can not be reduced, and therefore it should be dismissed as a party appellee in both cases. This argument must be rejected for two reasons. First, it is based upon an assumption, the validity of which goes to the merits of both cases. It is impossible to...