Opinion

Fravel v. Stark Cty. Bd. of Revision

  • 88 Ohio St. 3d 574
  • 2000 Ohio 430
Court
Ohio Supreme Court
Filed
May 31, 2000
Status
Published
Cited by
3 cases
Authority
More cited than 64.2%

The opinion

[This opinion has been published in Ohio Official Reports at 88 Ohio St.3d 574.]

FRAVEL, APPELLANT, v. STARK COUNTY BOARD OF REVISION ET AL.,

APPELLEES.

[Cite as Fravel v. Stark Cty. Bd. of Revision (2000), 88 Ohio St.3d 574.]

Taxation—Real property valuation—Complaint challenging property’s valuation

filed by property owner’s nephew—Non-attorney operating under a power

of attorney—Remand of case by Board of Tax Appeals directing board of

revision to dismiss the complaint affirmed.

(No. 99-1010—Submitted April 11, 2000—Decided May 31, 2000.)

APPEAL from the Board of Tax Appeals, No. 98-K-879.

__________________

{¶ 1} Frieda Fravel, appellant, owns a one-hundred-fifty-nine-acre tree

farm in Canal Fulton, Ohio. Fravel, who is ninety-four years old, is physically and

mentally infirm and cannot move about without the assistance of others. In 1993,

she signed a “Durable General Power of Attorney,” which appointed her nephew,

Carl W. Dorn, Jr., as her attorney-in-fact. She included in the powers granted to

Dorn the power “[t]o compound, compromise, settle and adjust all claims

(including tax claims) in favor of or against me, upon such terms as my attorney-

in-fact may deem proper.”

{¶ 2} In complying with these powers, Dorn reviewed Fravel’s 1997 real

property tax bill. He noticed that the bill had increased one hundred twenty-five

percent over her prior tax bill, and he decided to challenge the property’s valuation.

He completed the valuation complaint form, listing Fravel as the owner of the

property and himself as the complainant with a power of attorney. He signed the

complaint and filed it with appellee Stark County Board of Revision. Realizing the

complexity of the legal issues involved, Dorn hired an attorney to represent Fravel

before the board of revision.

SUPREME COURT OF OHIO

{¶ 3} The board of revision, after holding a hearing, issued a decision

retaining the true value placed on Fravel’s property by appellee Stark County

Auditor. Fravel then appealed this decision to the Board of Tax Appeals (“BTA”).

{¶ 4} The BTA, noting that Dorn is not an attorney, issued a show cause

order under Sharon Village Ltd. v. Licking Cty. Bd. of Revision (1997), 78 Ohio

St.3d 479, 678 N.E.2d 932. The BTA ordered Fravel to “show cause why this

Board should not remand this matter to the Stark County Board of Revision with

instructions that it dismiss the decrease complaint filed on the property owner’s

behalf.” Ultimately, the BTA remanded the case to the board of revision and

directed it to dismiss the complaint.

{¶ 5} This cause is now before the court upon an appeal as of right.

__________________

Hall Law Firm, Charles D. Hall III and Rosemarie A. Hall, for appellant.

Robert D. Horowitz, Stark County Prosecuting Attorney, and David M.

Bridenstine, Assistant Prosecuting Attorney, for appellees.

__________________

Per Curiam.

{¶ 6} We hold that the BTA correctly remanded this cause to the board of

revision for dismissal.

{¶ 7} In Sharon Village, at the syllabus, we held that “[t]he preparation and

filing of a complaint with a board of revision on behalf of a taxpayer constitute the

practice of law.” We now hold that a non-attorney operating under a power of

attorney engages in the unauthorized practice law when he prepares and files a

complaint with a board of revision on behalf of a taxpayer.

{¶ 8} Recently, in Disciplinary Counsel v. Coleman (2000), 88 Ohio St.3d

155, 724 N.E.2d 402, an unauthorized practice of law case, we ruled that obtaining

a power of attorney from a principal does not insulate a non-attorney from violating

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January Term, 2000

the unauthorized practice of law statutes when the non-attorney performs a legal

act in representing the principal.

{¶ 9} First, we observed that holders of powers of attorney “have

historically not been considered attorneys who can appear in the courts. * * * An

‘attorney-in-fact’ has been consistently distinguished from an ‘attorney at law’ or

‘public attorney’ since at least 1402 when certain attorneys in England were

examined by Justices and ‘their names be entered on the roll’ of those permitted to

practice in the courts. 1 The Oxford English Dictionary (2 Ed.1989) 772. Thus, a

person holding a power of attorney, but whose name is not entered on the roll, is an

attorney-in-fact, but not an attorney at law permitted to practice in the courts.”

{¶ 10} We next explained that we have authority under Section 2(B)(1)(g),

Article IV of the Ohio Constitution “over all matters relating to the practice of law.

* * * If accepted, respondent’s argument that a person may execute a power of

attorney and so enable the grantee to practice law in Ohio would render meaningless

the supervisory control of the practice of law given to us by the Ohio Constitution.”

{¶ 11} Third, we concluded that using a power of attorney “as a contract to

represent another in court violates the laws of Ohio.” We explained that R.C.

4705.01 “recognizes that a person has the inherent right to proceed pro se in any

court. But it also prohibits a person from representing another by commencing,

conducting, or defending any action or proceeding in which the person is not a

party. When a person not admitted to the bar attempts to represent another in court

on the basis of a power of attorney assigning pro se rights, he is in violation of this

statute. A private contract cannot be used to circumvent a statutory prohibition

based on public policy.”

{¶ 12} Under Coleman, Dorn engaged in the unauthorized practice of law,

and, under Sharon Village, the BTA correctly dismissed the complaint Dorn filed

on behalf of Fravel.

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SUPREME COURT OF OHIO

{¶ 13} Accordingly, we hold that the BTA’s decision is reasonable and

lawful, and we affirm it.

Decision affirmed.

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

PFEIFER and LUNDBERG STRATTON, JJ., dissent.

__________________

PFEIFER, J., dissenting.

{¶ 14} This case presents an example of an opinion of this court being taken

to an illogical extreme. My vote in Sharon Village Ltd. v. Licking Cty. Bd. of

Revision (1997), 78 Ohio St.3d 479, 678 N.E.2d 932, was based on the facts of that

case—a third-party agent, unrelated to the entities seeking revisions, filed

applications with the Licking County Board of Revision. I saw that decision as one

affecting freelancers soliciting and filing applications for revision without having a

real relationship with the taxpayer. I considered that practice to be potentially

harmful to taxpayers.

{¶ 15} With this case, we have finally reached the level of reductio ad

absurdum regarding Sharon Village. Here, Frieda Fravel has given Dorn the legal

power to step into her shoes. He is operating as Frieda Fravel, not merely on her

behalf. By all accounts, this is a loving relative, trusted to take control of Fravel’s

estate, doing what is clearly in the best interest of the estate. This does not come

close to involving the perceived perils involved with Sharon Village. I accordingly

dissent, and would urge this court to take this opportunity to clearly delineate what

Sharon Village truly means.

LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.

__________________

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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