Sharon Village Ltd. v. Licking Cty. Bd. of Revision

[This opinion has been published in Ohio Official Reports at 78 Ohio St.3d 479.]

SHARON VILLAGE LIMITED, APPELLANT, v. LICKING COUNTY BOARD OF

REVISION ET AL., APPELLEES.

DERBY DOWNS LIMITED, APPELLANT, v. LICKING COUNTY BOARD OF

REVISION ET AL., APPELLEES.

CHERRY LEE LIMITED ET AL. APPELLANTS, v. LICKING COUNTY BOARD OF

REVISION ET AL., APPELLEES.

[Cite as Sharon Village Ltd. v. Licking Cty. Bd. of Revision, 1997-Ohio-197.]

Unauthorized practice of law—Preparation and filing of a complaint with a board

of revision constitute the practice of law.

The preparation and filing of a complaint with a board of revision on behalf of a

taxpayer constitute the practice of law.

(Nos. 95-2591, 95-2594 and 95-2596—Submitted February 19, 1997—Decided

May 21, 1997.)

APPEALS from the Board of Tax Appeals, Nos. 94-M-1214, 94-M-1215, 94-M-

1325 and 94-M-1326.

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{¶ 1} Appellants, Sharon Village Limited, Derby Downs Limited, Cherry

Lee Limited and Realty Development Corp. No. 3, are owned by Earl Shurtz.

Shurtz contacted Doug Parobek, president of Ambassador Research, Inc., to

determine whether the real estate property taxes could be reduced for tax year 1993.

Consequently, Parobek prepared and filed complaints with the Licking County

Board of Revision (“BOR”) seeking reductions for each property. The BOR,

essentially, issued decisions of no change on appeal to the Board of Tax Appeals

(“BTA”), pursuant to motions to dismiss filed by the school board, the BTA ruled

that the BOR had lacked jurisdiction to hear the complaints because Parobek, a

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nonattorney, had initiated the proceedings. The BTA dismissed the appeals. The

cases have been consolidated for appeal.

{¶ 2} The cause is now before this court upon appeals as a matter of right.

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Todd W. Sleggs, for appellants.

Robert L. Becker, Licking County Prosecuting Attorney, and Pauline E.

O’Neill, Assistant Prosecuting Attorney, for appellees Licking County Board of

Revision and Auditor.

Teaford, Rich, Coffman & Wheeler and Karol Cassell Fox, for appellee

Newark City School District Board of Education.

Blaugrund, Gabel, Herbert & Mesirow, Steven A. Martin and Christopher

B. McNeil, urging reversal for amicus curiae, Ohio Society of Certified Public

Accountants.

Cassity Law Offices and Robin J. Levine, urging reversal for amici curiae,

Institute of Property Taxation and National Council of Property Tax Consultants.

Jones, Day, Reavis & Pogue and David A. Kutik; Robert J. Fay; Buckley,

King & Bluso and John A. Hallbauer, urging affirmance for amicus curiae,

Cleveland Bar Association.

Ronald J. O’Brien, Franklin County Prosecuting Attorney, and James R.

Gorry, Assistant Prosecuting Attorney, urging affirmance for amici curiae,

Franklin County Auditor and Ohio County Auditors’ Association.

Eugene P. Whetzel, urging affirmance for amicus curiae, Ohio State Bar

Association.

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FRANCIS E. SWEENEY, SR., J.

{¶ 3} In this case we are not asked to decide whether a taxpayer may prepare

and file a complaint with the BOR. Clearly, such action is permissible. See R.C.

5715.13. Instead, the sole issue presented to us is whether appellants’ agent, a

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January Term, 1997

nonlawyer, engaged in the unauthorized practice of law when he prepared and filed

the complaints with the BOR. For the following reasons, we answer this question

in the affirmative. Accordingly, we affirm the BTA.

{¶ 4} R.C. 4705.01 governs the practice of law in Ohio. It states:

“No person shall be permitted to practice as an attorney and counselor at

law, or to commence, conduct, or defend any action or proceeding in which he is

not a party concerned, either by using or subscribing his own name, or the name of

another person, unless he has been admitted to the bar by order of the supreme court

in compliance with its prescribed and published rules. ***”

{¶ 5} According to Section 5, Article IV of the Ohio Constitution, the

regulation of the practice of law is vested exclusively in the Ohio Supreme Court.

Pursuant to this grant of authority, we have set forth a broad definition of the

“practice of law”:

“The practice of law is not limited to the conduct of cases in court. It

embraces the preparation of pleadings and other papers incident to actions and

special proceedings and the management of such actions and proceedings on behalf

of clients before judges and courts, and in addition conveyancing, the preparation

of legal instruments of all kinds, and in general all advice to clients and all action

taken for them in matters connected with the law.” Land Title Abstract & Trust Co.

v. Dworken (1934), 129 Ohio St. 23, 1 O.O. 313, 193 N.E.2d 650, paragraph one

of the syllabus. Recently, we reaffirmed this holding in Cincinnati Bar Assn. v.

Estep (1995), 74 Ohio St.3d 172, 657 N.E.2d 499.

{¶ 6} In exploring the contours of our definition, the court in Special Master

Commrs. v. McCahan (C.P.1960), 83 Ohio Law Abs. 1, 14 O.O.2d 221, 167 N.E.2d

541, observed:

“It is clear that a licensed attorney in the practice of law generally engages

in three principal types of professional activity. These types are legal advice and

instructions to clients to inform them of their rights and obligations; preparation for

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clients of documents and papers requiring knowledge of legal principles which is

not possessed by an ordinary laymen; and appearance for clients before public

tribunals, which possess the power and authority to determine rights of life, liberty

and property according to law, in order to assist in the proper interpretation and

enforcement of law.” Id. at 11, 14 O.O.2d at 229, 167 N.E.2d at 550.

{¶ 7} To determine whether appellants’ agent engaged in the unauthorized

practice of law, we need to consider the procedure at the board of revision and

understand the purpose and impact of a complaint filed there. We turn now to this

task.

{¶ 8} A board of revision is a quasi-judicial body. Swetland v. Evatt (1941),

139 Ohio St. 6, 37 N.E.2d 601, paragraph nine of the syllabus. To invoke its

jurisdiction, it is necessary to file a verified complaint pursuant to R.C. 5715.13 and

R.C. 5715.19. As these requirements are jurisdictional, the failure to fully and

properly complete the complaint will result in dismissal of the action. Stanjim Co.

v. Mahoning Cty. Bd. of Revision (1974), 38 Ohio St.2d 233, 67 O.O.2d 296, 313

N.E.2d 14.

{¶ 9} Further, R.C. 5715.19(A)(2) prohibits the filing of more than one

board of revision complaint within any triennial period unless the specific

exceptions apply. Therefore, if a complaint is improperly completed and dismissed,

the property owner has lost the right to challenge the value of that property for up

to three years, absent a specific change in circumstances. If an attorney improperly

completed and filed a complaint, the client would have the ability to assert a

malpractice claim. However, we are troubled by the very real possibility that a

property owner would be left with no recourse if a nonattorney negligently prepared

and filed the complaint. Even if the nonattorney agent carried malpractice

coverage, the insurance carrier would most likely deny the claim upon finding that

it involved the practice of law.

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{¶ 10} Moreover, the complaint is filed for the purpose of initiating an

adversarial proceeding just as any other complaint does. A board of revision is

required by R.C. 5715.19 to give proper notice to property owners and boards of

education when a complaint is filed by other parties. Under R.C. 5715.11, the board

of revision hears and investigates all complaints. A board of revision is also

required to give adequate notice of hearing dates and times so that all parties may

participate.

{¶ 11} The board of revision, composed of the county auditor, the county

treasurer, and the president of the board of county commissioners, is a deciding

tribunal. R.R.Z. Assoc. v. Cuyahoga Cty. Bd. of Revision (1988), 38 Ohio St.3d

198, 200, 527 N.E.2d 874, 876. At a board of revision hearing, the parties may be

given an opportunity to present evidence in the form of documents and testimony,

question and cross-examine witnesses, and make legal arguments in support of their

positions. A property owner failing to provide known and available evidence is

barred by R.C. 5715.19(G) from later presenting that evidence on appeal absent a

showing of good cause or an order by the BTA or common pleas court, pursuant to

R.C. 5717.01 or 5717.05. Persons testifying before the board of revision must do

so under oath, as in any court of law. R.C. 5715.10. If unusual legal issues are

raised, the board may request briefs or memoranda on those issues.

{¶ 12} Pursuant to R.C. 5715.08, 5717.01 and 5717.05, the board of

revision is required to make and keep a record on each complaint and to certify a

transcript of the record of the proceedings and all evidence offered in connection

with any complaint appealed to either the BTA or the common pleas court.

{¶ 13} In addition, the initiating of a board of revision action places the

property owner at risk. For example, if an owner or nonattorney files for a decrease

and a board of education files a countercomplaint requesting an increase, the

property owner risks paying more in taxes. This is yet another reason why these

matters should be left to an attorney to handle.

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{¶ 14} In view of the above, we find this case easily fits within the broad

definition embraced in Dworken and explored in Special Master Commrs. Parobek

prepared legal documents, gave professional advice to his clients, and in one

instance, even appeared before the BOR on their behalf. Contrary to appellants’

contention, this case is unlike Gustafson v. V.C. Taylor & Sons, Inc. (1941), 138

Ohio St. 392, 20 O.O. 484, 35 N.E.2d 435, where this court permitted real estate

brokers to complete preprinted real estate contracts by supplying simple, factual

materials such as the date, price, name of the purchaser, location of the property,

date of giving possession, and duration of the offer. The court concluded that these

actions require ordinary intelligence and not the skill of a lawyer.

{¶ 15} We find that there are crucial differences between Gustafson and this

case. First, the forms that were filled out in Gustafson were not legally binding

until they were signed by the actual parties to the contract. Further, the real estate

forms did not begin a quasi-judicial proceeding that would establish a record and

place the owners at risk of having their taxes increased. Finally, the real estate

forms did not contain statutorily defined jurisdictional requirements that, if not

properly met, barred the rights of the owners to contest their valuations.

{¶ 16} Nor is Jemo Assoc., Inc. v. Lindley (1980), 64 Ohio St.2d 365, 18

O.O.3d 518, 415 N.E.2d 292, controlling. The question before the court in that case

involved a corporation’s notice of appeal to the BTA pursuant to R.C. 5717.02.

The court specifically stated that whether the agent who had signed the notice had

engaged in the unauthorized practice of law was irrelevant to the issue before the

court. Id. at 367, 18 O.O.3d at 519, 415 N.E.2d at 294, fn. 4.

{¶ 17} We also reject appellants’ assertion that R.C. 5715.13 provides the

legislative authority for their position. R.C. 5715.13 states that a board of revision

may make no decrease in “any valuation complained of unless the party affected

thereby or his agent makes and files with the board a written application therefor,

verified by oath, showing the facts upon which it is claimed such decrease should

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be made.” (Emphasis added.) We interpret the term “agent” as used in R.C.

5715.13 to include the affected party’s attorney and, in the case of a corporation, a

regularly connected agent who is an attorney authorized by the corporation and

possessing sufficient knowledge to verify the facts averred in the complaint.

{¶ 18} Therefore, we hold that the preparation and filing of a complaint with

a board of revision on behalf of a taxpayer constitute the practice of law. As the

tax agent involved in these cases was not an attorney, his actions constitute the

unauthorized practice of law. Accordingly, we affirm the BTA.

Decisions affirmed.

MOYER, C.J., DOUGLAS, RESNICK, PFEIFER and LUNDBERG STRATTON, JJ.,

concur.

COOK, J., concurs in the syllabus and judgment only.

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