Opinion

Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision

  • 91 Ohio St. 3d 308
  • 2001 Ohio 46
Court
Ohio Supreme Court
Filed
Apr 11, 2001
Status
Published
On the bench
Moyer, C.J.
Cited by
6 cases
Authority
More cited than 83.3%

The opinion

[This decision has been published in Ohio Official Reports at 91 Ohio St.3d 308.]

BOARD OF EDUCATION OF THE CINCINNATI SCHOOL DISTRICT, APPELLANT, v.

HAMILTON COUNTY BOARD OF REVISION ; MIRGE CORPORATION, APPELLEE.

[Cite as Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision,

2001-Ohio-46.]

Taxation—Real property valuation—Valuation complaint has been “prepared

and filed” by an attorney for purposes of determining whether jurisdiction

has vested in a county board of revision, as contemplated by Sharon

Village Ltd. v. Licking Cty. Bd. of Revision, when—R.C. 5715.19, as

amended by Sub.H.B. No. 694, may not be constitutionally applied to

permit the refiling of once-dismissed R.C. 5715.19 complaints challenging

valuations for tax years prior to the effective date of Sub.H.B. No. 694.

(No. 00-692—Submitted November 28, 2000—Decided April 11, 2001.)

APPEAL from the Board of Tax Appeals, Nos. 99-P-1462, 99-P-1463 and

99-P-1464.

__________________

SYLLABUS OF THE COURT

1. An attorney who signs an R.C. 5715.19 valuation complaint in his or her capacity

as an attorney-at-law and files it, or directs its filing, in accord with R.C.

Chapter 5715, has thereby “prepared and filed” that complaint for purposes of

determining whether jurisdiction has vested in a county board of revision, as

contemplated by Sharon Village Ltd. v. Licking Cty. Bd. of Revision (1997),

78 Ohio St.3d 479, 678 N.E.2d 932.

2. R.C. 5715.19, as amended by Sub.H.B. No. 694, may not be constitutionally

applied to permit the refiling of once-dismissed R.C. 5715.19 complaints

challenging valuations for tax years prior to the effective date of Sub.H.B.

SUPREME COURT OF OHIO

No. 694. Such an application violates Section 28, Article II of the Ohio

Constitution, which prohibits the enactment of retroactive legislation.

__________________

MOYER, C.J.

{¶ 1} In 1998, subsequent to our decision in Sharon Village Ltd. v. Licking

Cty. Bd. of Revision (1997), 78 Ohio St.3d 479, 678 N.E.2d 932, the General

Assembly enacted Sub.H.B. No. 694, effective March 30, 1999, 147 Ohio Laws, Part

III, 5373. The bill became law without the signature of the Governor. Id. at 5378.

The preamble to the legislation characterized its purpose to be “to amend sections

5715.131 and 5715.19 of the Revised Code to clarify who may file a complaint

[challenging real property valuation assessments] with a county board of revision.”

Id. at 5373. The amended statutes permit the filing of a complaint by a person owning

taxable property and also by certain persons who are not lawyers.2 As relevant

herein, amended R.C. 5715.19 authorizes corporate officers to file valuation

complaints on behalf of their corporation.

{¶ 2} The syllabus to Sharon Village provides, “The preparation and filing of

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

1. R.C. 5715.13, as amended by Sub.H.B. No. 694, provides:

“The county board of revision shall not decrease any valuation unless a party affected

thereby or who is authorized to file a complaint under section 5715.19 of the Revised Code makes

and files with the board a written application therefor, verified by oath, showing the facts upon

which it is claimed such decrease should be made.”

2. R.C. 5715.19(A)(1), as amended by Sub.H.B. No. 694, authorizes the following nonlawyers to

file tax reduction complaints on behalf of real property owners: “an individual who is retained by

[the owner or the owner’s spouse] and who holds a designation from a professional assessment

organization, such as the institute for professionals in taxation, the national council of property

taxation, or the international association of assessing officers, a public accountant who holds a

permit under section 4701.10 of the Revised Code, a general or residential real estate appraiser

licensed or certified under Chapter 4763. of the Revised Code, or a real estate broker licensed under

Chapter 4735. of the Revised Code, who is retained by such a person; if the person is a firm,

company, association, partnership, limited liability company, or corporation, an officer, a salaried

employee, a partner, or a member of that person; if the person is a trust, a trustee of the trust.” 147

Ohio Laws, Part III, 5373-5374.

2

January Term, 2001

law.” Sharon Village reaffirmed existing precedent that the filing of a verified

complaint pursuant to R.C. 5715.13 and 5715.19 is requisite to the vesting of

jurisdiction in a board of revision, and failure to fully and properly complete the

complaint justifies dismissal of the action. Id., 78 Ohio St.3d at 481, 678 N.E.2d at

934, citing Stanjim Co. v. Mahoning Cty. Bd. of Revision (1974), 38 Ohio St.2d 233,

67 O.O.2d 296, 313 N.E.2d 14. In Sharon Village we affirmed the dismissal, for lack

of jurisdiction, of a valuation complaint prepared and filed on behalf of a corporation

by a nonattorney, who was thereby engaging in the unauthorized practice of law.

{¶ 3} Sub.H.B. No. 694 also created an exception to the general rule set forth

in R.C. 5715.19(A)(2)3 that a real property taxpayer is, in the absence of a showing of

a change in circumstances, prohibited from filing successive valuation complaints in

the same triennium. See Elkem Metals Co., L.P. v. Washington Cty. Bd. of Revision

(1998), 81 Ohio St.3d 683, 693 N.E.2d 276. This exception provides that “[i]f a

county board of revision, the board of tax appeals, or any court dismisses a complaint

filed under [section 5715.19] or section 5715.13 of the Revised Code for the reason

that the act of filing the complaint was the unauthorized practice of law or the person

filing the complaint was engaged in the unauthorized practice of law, the party

3. R.C. 5715.19(A)(2) provides, just as it did before the enactment of Sub.H.B. No. 694, as follows:

“As used in division (A)(2) of this section, ‘interim period’ means, for each county, the tax

year to which section 5715.24 of the Revised Code applies and each subsequent tax year until the tax

year in which that section applies again.

“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, unless the person, board, or officer alleges that the

valuation or assessment should be changed due to one or more of the following circumstances that

occurred after the tax lien date for the tax year for which the prior complaint was filed and that the

circumstances were not taken into consideration with respect to the prior complaint:

“(a) The property was sold in an arm’s length transaction, as described in section 5713.03 of

the Revised Code;

“(b) The property lost value due to some casualty;

“(c) Substantial improvement was added to the property;

“(d) An increase or decrease of at least fifteen percent in the property’s occupancy has had a

substantial economic impact on the property.”

3

SUPREME COURT OF OHIO

affected by a decrease in valuation or the party’s agent, or the person owning taxable

real property in the county or in a taxing district with territory in the county, may refile

the complaint, notwithstanding division (A)(2) of this section.” R.C. 5715.19(A)(3),

147 Ohio Laws, Part III, 5374-5375.

{¶ 4} In addition, Sub.H.B. No. 694 included the following uncodified

language in Section 3 of the Act:

“The amendment by this act of sections 5715.13 and 5715.19 of the Revised

Code is remedial legislation and applies to any complaint that was timely filed under

either of these sections respecting valuations for tax year 1996 or 1997, and to

complaints filed for tax years 1998 and thereafter. Notwithstanding division (A)(2)

of section 5715.19 of the Revised Code, any person authorized by this act to file a

complaint under section 5715.13 or 5715.19 of the Revised Code that timely filed a

complaint for tax year 1996 or 1997 may file a complaint under those sections, as

amended by this act, on or before March 31, 1999, respecting valuations for tax year

1996, 1997, or 1998, and the board of revision shall proceed to hear the complaint as

otherwise provided under Chapter 5715. of the Revised Code.”4 147 Ohio Laws, Part

III, 5378.

{¶ 5} This court considered a valuation complaint filed prior to the effective

date of Sub.H.B. No. 694 by appellant herein, Mirge Corporation, d.b.a. Electrical

Mechanics (“Mirge”), in Worthington City School Dist. Bd. of Edn. v. Franklin Cty.

Bd. of Revision (1999), 85 Ohio St.3d 156, 707 N.E.2d 499.5 That complaint had been

prepared, signed and filed on behalf of the corporation by Mirge’s vice president,

4. Subsequently, Sections 149 and 150 of Am.Sub.H.B. No. 283 authorized refiling of complaints

relative to tax years 1994 and 1995 as well, and extended the deadline for refiling until March 31,

2000.

5. The opinion cited as Worthington City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision

(1999), 85 Ohio St.3d 156, 707 N.E.2d 499, in fact resolved four cases consolidated by this court,

including Mirge Corp. v. Hamilton Cty. Bd. of Revision, case No. 97-2423.

4

January Term, 2001

rather than an attorney, and challenged the assessed value of the corporation’s

property located at 2570 Gobel Court in Cincinnati for tax year 1996. In finding that

the complaint failed to vest jurisdiction in the board of revision, we reaffirmed our

prior holding that a “ ‘corporation cannot maintain litigation in propria persona, or

appear in court through an officer of the corporation or an appointed agent not

admitted to the practice of law.’ ” Id. at 160, 707 N.E.2d at 502, quoting Union

Savings Assn. v. Home Owners Aid, Inc. (1970), 23 Ohio St.2d 60, 52 O.O.2d 329,

262 N.E.2d 558, syllabus.

{¶ 6} On March 30, 1999, Mirge filed a new complaint, the subject of this

appeal, with the Hamilton County Board of Revision, as authorized by Sub.H.B. No.

694. This was, in effect, a refiling of the complaint at issue in Worthington City School

Dist. v. Franklin Cty. Bd. of Revision, supra. The complaint again contested the

assessed value of its real property at 2570 Gobel Court in Cincinnati for tax year 1996.

{¶ 7} Mirge asserted that the property’s taxable value should be reduced from

$227,920 to $47,575. It contended that the lowered valuation corresponded to the

actual sales price of the property when Mirge acquired it on August 8, 1995. The 1999

Mirge complaint, which was executed on a printed form, listed attorney Franklin A.

Klaine, Jr., as agent for Mirge. Klaine also signed the bottom of the complaint form

as “Franklin A. Klaine, Jr., Attorney for Mirge Corp.” In addition, the 1999 complaint

bore the sworn signature of Walter Higginbothan, vice president of Mirge, who signed

as “complainant or agent,” indicating his declaration under penalty of perjury that the

complaint had been examined by him and was true, correct, and complete to the best

of his knowledge and belief. A notary public, separate from attorney Klaine, notarized

Higginbothan’s declaration.

{¶ 8} Thereafter a countercomplaint was filed by the Board of Education of

the Cincinnati School District (“board of education”), appellant herein, asserting that

the auditor’s taxable value of $227,920 for the property was correct based on a fair

market value of the property of $651,200 rather than $135,900 as asserted by Mirge.

5

SUPREME COURT OF OHIO

{¶ 9} The board of revision held a hearing on July 6, 1999, at which attorney

Klaine appeared on behalf of Mirge. The board considered the hearing as involving

not only the 1999 complaint as to tax year 1996 but also subsequent tax years 1997,

the complaint for which had been dismissed, and 1998. Thus, the hearing sought to

determine the taxable values for the Mirge property for all three tax years, 1996

through 1998.

{¶ 10} At the hearing, Higginbothan testified that he had prepared the 1999

complaint relating to the 1996 tax year valuation, and Klaine represented that his

office had filed the complaint. Higginbothan further testified that on July 28, 1995,

Mirge purchased the subject property for $135,900.

{¶ 11} The board of revision granted the reduction as requested by Mirge,

effective for tax years 1996, 1997, and 1998, setting the fair market value of the parcel

at $135,900, its 1995 purchase price. The board of education appealed to the Board

of Tax Appeals. The parties stipulated that the appeals for tax years 1996, 1997, and

1998 filed by the board of education should be consolidated.

{¶ 12} The Board of Tax Appeals found no procedural obstacle to its

jurisdiction pursuant to Sharon Village and its progeny, in that attorney Klaine had

reviewed and signed the complaint, filed it, and had appeared as counsel of record in

the legal proceedings which ensued. It further found that the evidence supported the

determinations of value made by the board of revision for each of the three years in

question. It therefore ordered the Auditor of Hamilton County to value the property

at a fair market value of $135,900 ($47,560 tax value).

{¶ 13} The cause is now before this court upon an appeal as of right.

{¶ 14} This appeal presents two issues for our resolution. The first is

jurisdictional and questions whether the Board of Tax Appeals should have dismissed

the appeal, pursuant to Sharon Village and its progeny, i.e., Lakeside Ave. L.P. v.

Cuyahoga Cty. Bd. of Revision (1999), 85 Ohio St.3d 125, 707 N.E.2d 472;

Worthington City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision, 85 Ohio

6

January Term, 2001

St.3d 156, 707 N.E.2d 499; Fravel v. Stark Cty. Bd. of Revision (2000), 88 Ohio St.3d

574, 728 N.E.2d 393; C.I.A. Properties v. Cuyahoga Cty. Aud. (2000), 89 Ohio St.3d

363, 731 N.E.2d 680, because a nonattorney had prepared the complaint filed on

behalf of corporate taxpayer Mirage. We affirm the finding of the Board of Tax

Appeals that the precedent set forth in Sharon Village does not mandate dismissal of

the case now before us.

{¶ 15} The second issue is whether Sub.H.B. No. 694 is valid insofar as it

purports to permit a taxpayer to file a second complaint for tax years 1996 and 1997

when previous complaints for those tax years had been dismissed pursuant to Sharon

Village. We reverse the order of the board on this issue because application of this

portion of Sub.H.B. No. 694, authorizing the refiling of dismissed complaints

challenging valuations for tax years prior to the effective date of Sub.H.B. No. 694,

violates Section 28, Article II of the Ohio Constitution, which prohibits the enactment

of retroactive legislation.

I

Jurisdictional Issue

{¶ 16} The facts in Sharon Village are distinguishable from the facts in the

case at bar. In Sharon Village, a nonattorney both prepared and filed complaints in

the board of revision without the involvement of, or supervision by, a licensed

attorney. In addition to preparing legal documents, the nonattorney also gave

professional advice and appeared before a board of revision on behalf of corporate

clients. He acted in his capacity as president of an entity known as Ambassador

Research, Inc. We held that the nonattorney had engaged in the unauthorized practice

of law and, accordingly, that jurisdiction had never vested in the board of revision

upon the preparation and filing of a valuation complaint by him.

{¶ 17} The Board of Tax Appeals found in the instant case that “one of

Mirge’s corporate officers prepared the subject complaint. It was then submitted to

an attorney licensed to practice in Ohio, who reviewed the complaint, executed the

7

SUPREME COURT OF OHIO

complaint with his signature, and thereafter filed the complaint with the county auditor

for presentation to the Board of Revision * * *, represented Mirge before the Board

of Revision,” and appeared before the Board of Tax Appeals. These findings of fact

are directly supported by the record or are factual inferences that can be reasonably

drawn from evidence in the record.

{¶ 18} In the case at bar, the nonattorney did not prepare and file the complaint

as had the nonattorney in Sharon Village. Rather, he drafted and verified the factual

allegations it contained. He then transmitted it to attorney Klaine for review and filing.

Klaine, not Higginbothan, initiated the proceedings by filing, or directing the filing,

of a valid complaint so as to vest jurisdiction in the board of revision. Thereafter

Mirge was represented throughout these proceedings by attorney Klaine.

{¶ 19} Preparation of a complaint, unaccompanied by filing, does not fit

within the express language of the syllabus to Sharon Village, which reads, “The

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

constitute the practice of law.” Were either preparation alone or filing alone sufficient

to constitute the practice of law for purposes of determining the validity of a valuation

complaint, the syllabus would have read, “The preparation or filing of a complaint

with a board of revision on behalf of a taxpayer constitutes the practice of law.”

{¶ 20} In any event, the critical inquiry for purposes of determining the

vesting of jurisdiction in a board of revision is whether the record demonstrates the

initiation of proceedings by the filing of a jurisdictionally valid complaint, i.e., a

complaint “prepared and filed” either by the taxpayer acting in a pro se capacity or by

an attorney authorized to practice law acting in the taxpayer’s behalf. See C.I.A.

Properties, 89 Ohio St.3d at 365, 731 N.E.2d at 683.

{¶ 21} Higginbothan conceded that he had drafted and verified the real

property assessment complaint before forwarding it to legal counsel. When Klaine

signed the complaint in the form “Franklin A. Klaine, Jr., Attorney for Mirge Corp.,”

he indicated his assent to the characterization found within it that he was Mirge’s

8

January Term, 2001

representative, irrespective of the identity of the person or persons who had prepared

the document. Cf. Civ.R. 11 (“The signature of an attorney * * * constitutes a

certificate by the attorney * * * that the attorney * * * has read the document; that to

the best of the attorney’s * * * knowledge, information, and belief there is good ground

to support it; and that it is not interposed for delay”). When an attorney affixes his or

her signature to such a complaint in his or her capacity as an attorney and directs that

it be filed, that attorney thereby indicates his or her undertaking of legal representation

of the taxpayer.

{¶ 22} Accordingly, it was Klaine, rather than Higginbothan, who initiated the

board of revision proceedings by “preparing and filing” the complaint.

{¶ 23} Moreover, as observed by the Board of Tax Appeals, it is

commonplace for nonattorneys to assist in the drafting of complaints and in providing

factual information for inclusion in complaints. Ultimately, however, the attorney

ratifies and assumes responsibility for a complaint by signing and filing it, whether or

not he acted as its scrivener.

{¶ 24} We therefore hold that an attorney who signs an R.C. 5715.19

valuation complaint in his or her capacity as an attorney-at-law and files it, or directs

its filing, in accord with R.C. Chapter 5715, has thereby “prepared and filed” that

complaint for purposes of determining whether jurisdiction has vested in a county

board of revision, as contemplated by Sharon Village Ltd. v. Licking Cty. Bd. of

Revision (1997), 78 Ohio St.3d 479, 678 N.E.2d 932.

{¶ 25} The board of revision and the Board of Tax Appeals did not err in

finding that jurisdiction had vested in the board of revision as a result of the filing of

the 1999 complaint by, or at the direction of, attorney Klaine, who had signed the

complaint, even though it may have been drafted and verified before a notary public

by nonattorney Higginbothan. It is therefore unnecessary for us to consider the

constitutionality of that part of R.C. 5715.19 that purports to empower certain

9

SUPREME COURT OF OHIO

nonattorneys, including corporate officers, to file valuation complaints on behalf of

others.

II

Retroactivity Issue

{¶ 26} The board of education contends that application of Sub.H.B. No. 694

so as to allow Mirge to file a second challenge to the valuation of its property for tax

year 1996 violates Section 28, Article II of the Ohio Constitution. That constitutional

provision states that “[t]he general assembly shall have no power to pass retroactive

laws.” Mirge argues that Sub.H.B. No. 694 cured a defect in a prior statute and was,

thus, a remedial statute that could be applied retroactively.

{¶ 27} We recently interpreted Section 28, Article II of the Ohio Constitution,

stating that “[t]he retroactivity clause nullifies those new laws that ‘reach back and

create new burdens, new duties, new obligations, or new liabilities not existing at the

time [the statute becomes effective].’ ” Bielat v. Bielat (2000), 87 Ohio St.3d 350,

352-353, 721 N.E.2d 28, 32, quoting Miller v. Hixson (1901), 64 Ohio St. 39, 51, 59

N.E. 749, 752. We further distinguished between constitutional and unconstitutional

retroactivity, and set forth a two-prong test to determine unconstitutional retroactivity.

First, the court must “determine whether the General Assembly expressly intended the

statute to apply retroactively,” Bielat at 353, 721 N.E.2d at 33, citing R.C. 1.48. “If

so, the court moves on to the question of whether the statute is substantive, rendering

it unconstitutionally retroactive, as opposed to merely remedial [i.e., constitutionally

retroactive].” (Emphasis sic.) Id.

{¶ 28} Permissively retroactive, remedial laws are laws that “merely

substitute a new or more appropriate remedy for the enforcement of an existing right.”

State v. Cook (1998), 83 Ohio St.3d 404, 411, 700 N.E.2d 570, 577. “On the other

hand, a retroactive statute is substantive—and therefore unconstitutionally

retroactive—if it impairs vested rights, affects an accrued substantive right, or imposes

10

January Term, 2001

new or additional burdens, duties, obligations, or liabilities as to a past transaction.”

Bielat, supra, at 87 Ohio St.3d at 354, 721 N.E.2d at 33.

{¶ 29} The Bielat court thereby recognized that a statute that retroactively

creates a new right is unconstitutionally retroactive if, and only if, it also impairs a

vested right or creates some new obligation or burden as well:

“A claim for substantive retroactivity cannot be based solely upon evidence

that a statute retrospectively created a new right, but must also include a showing of

some impairment, burden, deprivation, or new obligation accompanying that new

right.” Bielat, paragraph two of the syllabus.

{¶ 30} The Bielat opinion cited State ex rel. Crotty v. Zangerle (1938), 133

Ohio St. 532, 11 O.O. 226, 14 N.E.2d 932, in which the court nullified a statute that

allowed for the refunding of tax penalties legally paid in prior years. Quoting

extensively from Hamilton Cty. Commrs. v. Rosche Bros. (1893), 50 Ohio St. 103, 33

N.E. 408, the Crotty court concluded that the statute created a new right by providing

a new legal avenue to recover penalties, but that it was unconstitutionally retroactive

because it imposed an obligation on the county officials to refund taxes “ ‘that did

not attach to the transaction when it occurred.’ ” Crotty, 133 Ohio St. at 536, 11 O.O.

at 228, 14 N.E.2d at 934, quoting Rosche, 50 Ohio St. at 113, 33 N.E. at 410.

{¶ 31} Here, Sub.H.B. No. 694 similarly purports to create a new right in

property owners to refile dismissed complaints under new substantive rules governing

the vesting of jurisdiction in a board of revision to reduce real property assessments

and creates a new right to file successive valuation complaints in the same triennium

under particular circumstances. While the General Assembly may have the right to

accomplish such changes, assuming they are otherwise constitutional, the General

Assembly may not do so retroactively, as such changes bring with them new burdens

and therefore are not merely remedial. The county officials who opposed reduction

in assessed valuations when the first complaints were dismissed could have concluded

that those dismissals, followed by exhaustion of judicial review, ended the valuation

11

SUPREME COURT OF OHIO

proceedings and established the value of the property for the triennium period, thereby

creating a “reasonable expectation of finality.” Cf. State ex rel. Matz v. Brown (1988),

37 Ohio St.3d 279, 281, 525 N.E.2d 805, 808. But Sub.H.B. No. 694 imposes on

those officials a burden to again defend the value determined by the auditor and,

potentially, to refund taxes if the complainant is successful. Under Bielat and Crotty,

Sub.H.B. No. 694 is unconstitutionally retroactive because it creates a new right while,

at the same time, imposing a new burden on parties who had appeared in opposition

to the merits of once-dismissed valuation complaints or countercomplaints.

{¶ 32} We therefore hold that R.C. 5715.19 as amended by Sub.H.B. No. 694

may not be constitutionally applied to permit the refiling of once-dismissed R.C.

5715.19 complaints challenging valuations for tax years prior to the effective date of

Sub.H.B. No. 694 (March 30, 1999). Such an application violates Section 28, Article

II of the Ohio Constitution, which prohibits the enactment of retroactive legislation.

{¶ 33} Accordingly, we reverse the decision of the Board of Tax Appeals and

remand the cause with instructions that the valuation of appellant’s property for tax

years 1996, 1997, and 1998 be set at $227,920, as originally assessed by the auditor.

Decision reversed

and cause remanded.

DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

COOK, J., concurs in paragraph one of the syllabus and in the judgment.

LUNDBERG STRATTON, J., concurs in part and dissents in part.

__________________

LUNDBERG STRATTON, J., concurring in part and dissenting in part.

{¶ 34} I concur with the majority’s conclusion that the attorney’s signature

on the complaint was sufficient to vest jurisdiction in a county board of revision.

However, I respectfully dissent from the determination that amended R.C. 5715.19,

as applied to a refiled complaint challenging tax valuations for years prior to the

effective date of the bill, is unconstitutional.

12

January Term, 2001

{¶ 35} Because of Sharon Village Ltd. v. Licking Cty. Bd. of Revision

(1997), 78 Ohio St.3d 479, 678 N.E.2d 932, and its progeny, many taxpayers who

filed otherwise meritorious complaints within the triennium were foreclosed from

the opportunity to challenge a tax valuation. Until Sharon Village, the accepted

practice permitted corporate officers or agents to file on behalf of their corporation

or agency. Consequently, the General Assembly enacted curative legislation that

provided for a specific exception that would apply beginning with tax year 1996

and thereafter to afford those taxpayers the opportunity to cure the defect that

resulted in dismissal of their original complaint. See Ohio Laws, Part III, 5378.

R.C. 5715.19 was intended, and does, provide a remedy for those taxpayers whose

complaint was dismissed merely because of a very specific jurisdictional defect.

Therefore, R.C. 5715.19 is curative in nature. It affects the procedure by which a

taxpayer’s rights are recognized, protected, and enforced. See Weil v. Taxicabs of

Cincinnati, Inc. (1942), 139 Ohio St. 198, 205, 22 O.O. 205, 208, 39 N.E.2d 148,

151.

{¶ 36} I do not agree with the majority that the statute creates a new right

to file successive complaints in the same triennium under certain circumstances. I

believe it is more accurate to state that the statute allows the taxpayer whose initial

complaint was defective to refile a proper and complete complaint within the

triennium and to correct a mistake so that an already existing right is not lost. This

is not substantive, but rather remedial.

{¶ 37} Nor do I believe that application of R.C. 5715.19 creates a burden

on defending parties. The majority reasons that Sub.H.B. No. 694 imposes a new

burden on parties who had opposed the initial, now-dismissed complaint on the

merits to once again defend the value determined by the auditor. If the initial

valuation complaint was dismissed at the inception for lack of jurisdiction, it is

quite likely that the parties did not reach the merits of the case. Even so, I do not

consider a “reasonable expectation of finality” of litigation to be a vested

13

SUPREME COURT OF OHIO

substantive right sufficient to strike down an otherwise valid constitutional

enactment. We should weigh that expectation against the rights of those who

followed established and accepted practices yet were stripped of the right to

challenge an auditor’s tax valuation by our interpretation in Sharon Village. They

also have an expectation to have their case considered on the merits. Therefore, I

must respectfully dissent.

__________________

Wood & Lamping, L.L.P., and David C. DiMuzio, for appellant.

Strauss & Troy and Franklin A. Klaine, Jr., for appellee Mirge, Inc.

__________________

14

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.