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.
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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.
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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.
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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.”
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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.
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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.
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{¶ 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
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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
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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
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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
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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
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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.
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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
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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.
__________________
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