Buckeye Foods v. Cuyahoga Cty. Bd. of Revision

[This opinion has been published in Ohio Official Reports at 78 Ohio St.3d 459.]

BUCKEYE FOODS, APPELLANT, v. CUYAHOGA COUNTY BOARD OF REVISION ET

AL., APPELLEES.

[Cite as Buckeye Foods v. Cuyahoga Cty. Bd. of Revision, 1997-Ohio-199.]

Taxation—Real property valuation—Party lacks standing to file a complaint

seeking a decrease in the value of property when it has no legal or

financial relationship with the subject property that would qualify it as the

real party in interest—R.C. 5715.13, applied.

(Nos. 96-1577, 96-1578, 96-1579 and 96-1580—Submitted January 14, 1997—

Decided May 21, 1997.)

APPEALS from the Board of Tax Appeals, Nos. 94-T-317, 94-T-320, 94-T-321 and

94-T-318.

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{¶ 1} Buckeye Foods, appellant, was named as complainant in four separate

complaints filed with the Cuyahoga County Board of Revision (“BOR”), appellee.

Buckeye Foods did not own the property listed on the complaint, fast food

restaurants; Buckeye Foods, moreover, did not lease or operate these restaurants.

According to the affidavit of Michael A. Eanes, president and shareholder of

Buckeye Foods, Inc., Buckeye Foods is a name he allows various corporations that

he has an interest in to use in leasing and operating these restaurants.

{¶ 2} In case No. 96-1577, Buckeye Foods Limited Partnership Number

One is the property’s sublessee. In case No. 96-1578, Buckeye Foods-Kinsman,

Inc. is the property’s sublessee; in case No. 96-1579, Buckeye Foods-Harvard, Inc.

is the property’s sublessee; and in case No. 96-1580, Buckeye Superior/Euclid, Inc.

is the property’s lessee and franchisee.

{¶ 3} The complaints also gave the address of Buckeye Foods, the

complainant, as:

SUPREME COURT OF OHIO

“c/o Michael A. Eanes

Buckeye Foods, Inc.

P.O. Box 20297

Shaker Heights, OH 44120”

{¶ 4} The BOR, after a hearing, affirmed the true values that the Cuyahoga

County Auditor, appellee, had placed on the properties. Buckeye Foods appealed

these decisions to the Board of Tax Appeals (“BTA”).

{¶ 5} At the BTA, the Cleveland Board of Education (“Cleveland”),

appellee, which had filed counter-complaints, moved to dismiss the appeals.

Cleveland contended that Buckeye Foods was not an owner, a party affected by the

complaint, or an agent. Thus, reasoned Cleveland, Buckeye Foods lacked standing

to file the complaints. The BTA agreed with Cleveland.

{¶ 6} The BTA concluded that Buckeye Foods is a fictitious name, since it

does not identify any particular legal entity having an interest in the property. The

BTA, even assuming that Buckeye Foods referred to Buckeye Foods, Inc., rejected

the argument that Buckeye Foods, Inc., had any relationship to the subject

properties. The BTA stated:

“*** Buckeye Foods is not an owner of the subject property, nor is it a

lessee or sublessee. Buckeye Foods has not demonstrated that it operates, manages,

or is responsible for the payment of tax for the subject property. Finally, the record

supports the conclusion that Buckeye Foods has no legal or financial relationship

with the subject property that would qualify it as the real party in interest.

Consequently, we find that Buckeye Foods lacks standing to file a decrease

complaint with the Board of Revision as it is not a ‘party affected thereby or his

agent.’ R.C. 5715.13; Middleton [v. Cuyahoga Cty. Bd. of Revision (1996), 74 Ohio

St.3d 226, 658 N.E. 2d 267].”

{¶ 7} Consequently, the BTA dismissed the cases. Buckeye Foods

appealed these decisions to this court, and we consolidated the appeals.

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January Term, 1997

{¶ 8} These causes are now before this court upon appeals as of right.

Arter & Hadden and Karen H. Bauernschmidt, for appellant.

Armstrong, Mitchell & Damiani, Timothy J. Armstrong and Victor V.

Anselmo, for appellee Cleveland Board of Education.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and David

Lambert, Assistant Prosecuting Attorney, for appellees Cuyahoga County Board of

Revision and Cuyahoga County Auditor.

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Per Curiam.

{¶ 9} Buckeye Foods, first, claims that Cleveland waived the standing issue

by not raising it at the BOR, its first opportunity to challenge Buckeye Foods’

status. Cleveland replies that standing is jurisdictional and cannot be waived. We

agree with Cleveland.

{¶ 10} According to New Boston Coke Corp. v. Tyler (1987), 32 Ohio St.3d

216, 218, 513 N.E. 2d 302, 305, “*** the issue of standing, inasmuch as it is

jurisdictional in nature, may be raised at any time during the pendency of the

proceedings. See United States v. Storer Broadcasting Co. (1956), 351 U.S. 192,

197 [76 S.Ct. 763, 767, 100 L.Ed. 1081, 1088].”

{¶ 11} These complaints were filed under R.C. 5715.19, which sets forth

the general complaint process, and R.C. 5715.13, which prevents a board of

revision from decreasing any valuation complained of unless filed by “the party

affected thereby or his agent.” Middleton v. Cuyahoga Cty. Bd. of Revision (1996),

74 Ohio St.3d 226, 658 N.E. 2d 267. Complaints filed under these statutes are

jurisdictional. In Stanjim Co. v. Mahoning Cty. Bd. of Revision (1974), 38 Ohio

St.2d 233, 235, 67 O.O. 2d 296, 298, 313 N.E.2d 14, 16, we held, “full compliance

with R.C. 5715.19 and 5715.13 is necessary before a county board of revision is

empowered to act on the merits of a claim.” Accord N. Olmsted v. Cuyahoga Cty.

Bd. of Revision (1980), 62 Ohio St.2d 218, 220, 16 O.O. 3d 249, 250, 404 N.E. 2d

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SUPREME COURT OF OHIO

757, 759 (“We held [R.C. 5715.19] to be jurisdictional in Stanjim Co. v. Bd. of

Revision ***.”). Under this authority, Buckeye Foods’ standing to file valuation

complaints on these properties is jurisdictional, and Cleveland could not waive its

challenge to Buckeye Foods’ standing.

{¶ 12} Turning to the standing question, Buckeye Foods primarily argues

that “Buckeye Foods” is a generic name that refers to all the various corporations

and entities in which Eanes had an interest. Thus, Buckeye Foods claims, Eanes

was the party affected thereby and could file the complaints. Cleveland, of course,

disagrees, as do we.

{¶ 13} We agree with the BTA that Buckeye Foods is a fictitious name.

R.C. 1329.01 defines “fictitious name” as “a name used in business or trade that is

fictitious and that the user has not registered or is not entitled to register as a trade

name ***.” R.C. 1329.10(B) prevents a person from commencing or maintaining

an action in a fictitious name until the person has registered the name with the

Secretary of State.

{¶ 14} A person places himself in a precarious position when he operates

under a fictitious name. A person doing business under an unregistered, fictitious

name lacks the legal capacity to sue. GMS Mgt. Co. v. Axe (1982), 5 Ohio Misc.

2d 1, 8, 5 OBR 53, 61, 449 N.E. 2d 43, 51; Thomas v. Columbus (1987), 39 Ohio

App. 3d 53, 55-56, 528 N.E. 2d 1274, 1277.

{¶ 15} In Queen City Valves, Inc. v. Peck (1954), 161 Ohio St. 579, 583-

584, 53 O.O. 430, 432-433, 120 N.E.2d 310, 313, we said:

“This court has no disposition to be hypertechnical and to deny the right of

appeal on captious grounds but it cannot ignore statutory language which demands

that certain conditions be met to confer jurisdiction upon an appellate tribunal.”

{¶ 16} Because full compliance with R.C. 5715.13 is necessary and

jurisdictional, we require a complainant to be an entity that has legal capacity.

Buckeye Foods exists in the mind of Eanes. On the other hand, Buckeye Foods

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January Term, 1997

Limited Partnership Number One, Buckeye Superior/Euclid, Inc., Buckeye Foods-

Kinsman, Inc., and Buckeye Foods-Harvard, Inc., which have legal relationships

with the disputed properties, exist in the records of the Secretary of State’s Office.

These latter entities are real, but Buckeye Foods is not. Since Buckeye Foods is

fictitious, it cannot file a complaint seeking a reduced valuation for real estate under

R.C. 5715.13.

{¶ 17} The complexity of names in these cases points out why a

complainant must have legal existence and be better identified than occurred here.

In these cases, each property in dispute had lessees, sublessees, franchisees,

franchisors, some with the words “Buckeye Foods” as part of their corporate name,

some that did not. The taxing authorities and other interested parties are to have,

by these statutes, the ability to discern who is complaining about the value of real

property.

{¶ 18} Buckeye Foods also argues that Eanes is the real party in interest,

since he owns an interest in these corporations and is a franchisee for three of the

properties. We reject this contention. The complaint does not list Eanes as the

complainant; his name appears as the person in the care of which the complainant’s

mail is to be sent. According to Webster’s Third New International Dictionary

(1986) 338, the word “care” means “CUSTODY: temporary charge—used esp. in

the phrase care of or in care of on mail sent to a person through another person or

other agency *** abbr. c/o.” (Emphasis sic.) Since Eanes is the person to whom

the mail for Buckeye Foods is to be sent, he is not the complainant.

{¶ 19} Accordingly, since Buckeye Foods is a fictitious name that has no

capacity to litigate these complaints, it is not the party affected by these complaints.

We, thus, affirm the BTA’s dismissal of the complaints. Middleton v. Cuyahoga

Cty. Bd. of Revision, supra.

Decisions affirmed.

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SUPREME COURT OF OHIO

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

PFEIFER and LUNDBERG STRATTON, JJ., concur separately.

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LUNDBERG STRATTON, J., concurring.

{¶ 20} I concur with the majority; however, I believe that these filings

should not preclude the correct party or parties from filing another complaint on the

same properties within the same triennium.

{¶ 21} R.C. 5715.19(A)(2) provides:

“No person, board, or officer shall file a complaint against the valuation or

assessment of any parcel that appears on the tax list if it filed a complaint against

the valuation or assessment of that parcel for any prior tax year in the same interim

period * * *.”

{¶ 22} I would not deem it a violation of R.C. 5715.19(A)(2) if the proper

parties attempted to file decrease complaints on the subject properties because they

would not be the same parties that filed the complaints that are the subject of this

appeal.

{¶ 23} Because the complainant in these cases was fictitious and, thus,

lacked standing to file because it did not legally exist, the BOR had no jurisdiction

over the complaints filed. Unless the same party previously filed a complaint on

the property within a triennium, a dismissal for lack of standing of a nonexistent

complainant is a dismissal for reasons other than on the merits. See Gammarino v.

Hamilton Cty. Bd. of Revision (1994), 71 Ohio St.3d 388, 643 N.E. 2d 1143.

Consequently, in the event the proper party or the real party in interest files a

complaint on these properties within the same triennium as the complaints filed by

fictitious party Buckeye Foods, I would allow the filing of the complaints.

PFEIFER, J., concurs in the foregoing concurring opinion.

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January Term, 1997

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