The opinion
[Cite as MB West Chester, L.L.C. v. Butler Cty. Bd. of Revision, 126 Ohio St.3d 430, 2010-
Ohio-3781.]
MB WEST CHESTER, L.L.C., APPELLEE, v. BUTLER COUNTY BOARD OF
REVISION ET AL., APPELLEES; LAKOTA LOCAL SCHOOL DISTRICT
BOARD OF EDUCATION, APPELLANT.
[Cite as MB West Chester, L.L.C. v. Butler Cty. Bd. of Revision,
126 Ohio St.3d 430, 2010-Ohio-3781.]
Taxation — Board of Tax Appeals — Necessary party — Failure to serve notice
of appeal on a party — Jurisdiction to hear motion to vacate.
(No. 2009-1900 — Submitted May 26, 2010 — Decided August 19, 2010.)
APPEAL from the Board of Tax Appeals, No. 2009-M-238.
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LUNDBERG STRATTON, J.
{¶ 1} This is an appeal from an order of the Board of Tax Appeals
(“BTA”) in a real property valuation case. The order denied a motion by the
Lakota Local School District Board of Education that sought to vacate the
decision the BTA had previously issued in the case. For the reasons that follow,
we reverse the BTA’s order and remand for further proceedings.
Facts
{¶ 2} The procedural history of this case is crucial to resolving the
jurisdictional issues presented.
{¶ 3} The school board filed a valuation complaint seeking an increase in
the value of three parcels owned by MB West Chester, L.L.C., for tax year 2007.
The school board asserted that the parcels had a value equal to the sale price
reflected on a conveyance-fee statement filed by MB West Chester, the new
owner, on October 31, 2007.
{¶ 4} On January 29, 2009, the Butler County Board of Revision
(“BOR”) issued three “Notices of Result,” one pertaining to each parcel. The
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allocated values add up to the sale price, $64,800,000, which is a 73 percent
increase over the original aggregate valuation of the parcels.
{¶ 5} On February 13, 2009, MB West Chester filed a notice of appeal
from the BOR decisions to the BTA. In its filing, MB West Chester did not use
the standard form that is prescribed by the Tax Commissioner for appealing a
board of revision decision. Instead, MB West Chester composed its own notice of
appeal. The notice of appeal names only the BOR as appellee and fails to identify
the party – the school board – that had filed the valuation complaint. The
certificate of service attached to the notice of appeal reflects service solely on the
BOR through two certified mailings – one to the BOR directly, the other to the
prosecuting attorney as counsel for the BOR. Absent is any indication of service
on the school board. Moreover, the BOR failed to provide the school board with
a copy of the notice of appeal as required by R.C. 5717.01. We draw this
conclusion for the reasons set forth later in this opinion.
{¶ 6} Substantively, the notice of appeal raised objections focusing on
the allocation of the sale price among the parcels. The three parcels, according to
the notice of appeal, all relate to a single tract of land and constitute an
administrative means of effectuating an enterprise-zone agreement and certain
tax-increment-financing resolutions. The notice asked that 75 percent of the value
of improvements on these parcels be allocated to the parcel that was fully tax
exempt under the enterprise-zone agreement.
{¶ 7} On June 12, 2009, MB West Chester and the BOR stipulated to
new values for the parcels, and the BTA issued its decision on June 23, 2009,
adopting those values. The values as found by the BTA totaled $51,628,210,
reflecting a reduction of $13,171,790 in the value assigned to one of the three
parcels that, according to MB West Chester’s notice of appeal to the BTA, was
subject to payments in lieu of taxes under a tax-increment-financing resolution.
Because the BOR and MB West Chester stipulated to a value and the school
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board was never even notified of the appeal to the BTA, no party filed an appeal
from the BTA decision.
{¶ 8} On August 7, 2009, the BOR mailed notices of the BTA’s decision
to adopt the stipulated values for the parcels. Those mailings were the first notice
to the school board that MB West Chester had appealed the BOR’s determination
of value. However, by the time the school board received the notice, more than
30 days had passed since the BTA had journalized its June 23, 2009 decision.
{¶ 9} On September 4, 2009, the school board filed a motion before the
BTA seeking to vacate the BTA’s order approving the stipulation of value. The
motion states that “[i]t is undisputed that the Board of Education was never
notified of the notice of appeal [to the BTA] by the Butler County Board of
Revision.” The motion also states that the receipt of the BOR’s new statement of
values during the week of August 17, 2009, was the first notice to the school
board that the BTA appeal had been filed. Arguing that it had a statutory right to
be named an appellee on appeal and to be notified by the BOR of the appeal, the
school board asked that it be made a party to the BTA appeal and that the June 23,
2009 decision be vacated.
{¶ 10} In its memorandum opposing the motion, MB West Chester did
not take issue with the assertion that the school board had not been notified of the
appeal. Instead, MB West Chester contended that the school board was not an
automatic or necessary party to its appeal from the BOR decisions – even though
the school board was the complainant before the BOR. Additionally, MB West
Chester argued that because the 30-day period for appealing the June 23, 2009
BTA decision had expired, the BTA had no jurisdiction to entertain the school
board’s motion to vacate.
{¶ 11} On September 22, 2009, the BTA issued an order denying the
school board’s motion on the grounds that it lacked jurisdiction to vacate the
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earlier decision because the appeal period had expired. The school board has
appealed to the court, and we now reverse.
Analysis
The BTA’s September 22 order was final and appealable
{¶ 12} We first address a threshold jurisdictional issue. Although none of
the parties raised this issue, we have an independent duty to ensure that we have
jurisdiction over this appeal. Instead of appealing the June 23 decision of the
BTA that assigned value to the three parcels at issue, the school board has
appealed the September 22 order denying its motion to vacate. R.C. 5717.04
provides for judicial review of BTA decisions “determining appeals from
decisions of county boards of revision.” We must decide whether the school
board had the right to appeal the September 22 decision, which denied its motion
to vacate, given that the time for appealing the BTA’s June 22 decision had
expired.
{¶ 13} In Southside Community Dev. Corp. v. Levin, 116 Ohio St.3d 1209,
2007-Ohio-6665, 878 N.E.2d 1048, ¶ 5, the court clarified that R.C. 2505.02’s
definition of a final order applies to BTA appeals. Accordingly, the question
presented is whether the order from which the school board appeals is one that
“affects a substantial right made in a special proceeding.” Id.; R.C.
2505.02(B)(2).
{¶ 14} The order in this case is appealable for the two reasons set forth in
Southside. First, a “substantial right” is a “right that * * * a statute * * * entitles a
person to enforce or protect.” R.C. 2505.02(A)(1). In the present case, the
statutes confer on the school board the right to seek an increase in value of
property within the county and to defend an increase on appeal. The BTA’s
denial of the school board’s motion to vacate affected a substantial right of the
school board because it prevented the school board from defending the increase in
valuation of the property on appeal. Second, the order affects a substantial right
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because it “qualifies as an order that ‘if not immediately appealable, would
foreclose appropriate relief in the future.’ ” Southside, ¶ 7, quoting Bell v. Mt.
Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 63, 616 N.E.2d 181. That maxim
plainly applies to the BTA’s denial of the school board’s motion, because the
denial deprived the school board of a legal remedy for obtaining a change in the
valuation of the property.
{¶ 15} Because the September 22 order denying the school board’s
motion to vacate affects a substantial right in a special proceeding, it is a final,
appealable order.
The BTA had jurisdiction to consider and grant
the school board’s motion to vacate
{¶ 16} Having determined that the order by which the BTA denied the
school board’s motion to vacate constituted a final, appealable order, we now turn
to the jurisdictional ground on which the BTA denied the school board’s motion.
The BTA noted that the school board had filed its motion more than 30 days after
the BTA certified the June 23 decision. See R.C. 5717.04, fifth paragraph (“Such
appeals shall be taken within thirty days after the date of the entry of the decision
of the board [of tax appeals] on the journal of its proceedings”). The BTA found
that it has authority to reconsider a decision only “until a timely appeal is taken or
the time period for instituting such appeal has passed.” MB West Chester, L.L.C.
v. Butler Cty. Bd. of Revision (Sept. 22, 2009), BTA No. 2009-M-238, at 2, citing
State ex rel. Borsuk v. Cleveland (1972), 28 Ohio St.2d 224, 57 O.O.2d 464, 277
N.E.2d 419, paragraph one of the syllabus. The BTA also cited Lutz v. Evatt
(1945), 144 Ohio St. 635, 636, 30 O.O. 223, 60 N.E.2d 473, for the proposition
that “once the thirty-day period for filing a notice of appeal had expired, the
Board of Tax Appeals was without authority to vacate an earlier decision and to
refile another decision so that an appeal might be filed.” MB West Chester at 2.
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On that basis, the BTA found that it lacked jurisdiction to consider the motion to
vacate and therefore denied it.
{¶ 17} We disagree with the BTA’s application of Lutz. An
administrative tribunal generally loses jurisdiction to vacate or modify a decision
when the period for appealing the decision expires and no appeal has been
instituted. But we note that the BTA’s analysis overlooked one crucial aspect of
Lutz.
{¶ 18} In Lutz, the BTA confronted a motion that presented a twofold
request: the taxpayer wanted the BTA to vacate the entry of its decision and then
“re-file the same and notify him [thereof] by registered mail so that he might have
the opportunity of appealing the same to the Supreme Court of Ohio.” (Brackets
sic.) Lutz, 144 Ohio St. at 635, 30 O.O. 223, 60 N.E.2d 473. In affirming the
BTA’s denial of the motion, the court relied on two circumstances. First, the
court found that the copy of the board’s entry had been “sent to the appellant’s
then attorney of record by registered mail” on the day following entry of the
BTA’s decision and thereby concluded that notice of the BTA decision had been
provided in accordance with the statute. Id. at 636. Second, “no appeal having
been taken from the board’s entry or decision * * * within thirty days from its
filing * * *, the board was without power or authority * * * to vacate such
decision and refile it in order to confer the right of appeal contrary to statute.” Id.
Accord Natl. Tube Co. v. Ayres (1949), 152 Ohio St. 255, 40 O.O. 312, 89 N.E.2d
129, paragraph one of the syllabus (“The Board of Tax Appeals has control over
its decisions until the actual institution of an appeal or the expiration of the time
for an appeal”); Meadows Dev., L.L.C. v. Champaign Cty. Bd. of Revision, 124
Ohio St.3d 349, 2010-Ohio-249, 922 N.E.2d 209, ¶ 25 (same is true of boards of
revision).
{¶ 19} Conspicuous by its absence from the BTA’s order in this case is
any reference to the failure to notify the school board of the BTA’s June 23
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decision. Yet on June 23, 2009, R.C. 5717.03(B) specifically required the BTA to
certify its decision by certified mail to “all persons who were parties to the appeal
before the board.”1 150 Ohio Laws, Part II, 1895-1896. Although the school
board had not appeared and participated in the BTA proceedings, the BTA’s own
rule conditioned the requirement of a formal appearance on the school board’s
receipt of notice of the appeal from the BOR – an event that in this case never
occurred. Ohio Adm.Code 5717-1-03(B) (“Any party before the board of
revision, who desires to participate in an appeal before the board of tax appeals as
an appellee, shall enter an appearance with the board of tax appeals within thirty
days of the mailing of notice of such appeal by the board of revision” [emphasis
added]). Generally, the BTA is entitled to rely on a certification from the board
of revision that all parties have been notified of the appeal. But when it is later
shown that the board of revision did not in fact notify the party, the lack of notice
from the BTA of its decision compounds the deprivation of the party’s hearing
rights. Under these circumstances, the party’s failure to appear at the BTA did
not waive its rights as a statutory party, and the school board thereby retained its
right to receive notice of the BTA’s decision pursuant to R.C. 5717.03(B).
{¶ 20} MB West Chester advances an additional argument that the school
board does not constitute a necessary and indispensable party to the BTA appeal.
In this regard, MB West Chester does not deny that the auditor had a duty to
notify the school board; instead, MB West Chester maintains that the BOR
adequately represented the interests of governmental entities in the case, including
the school board itself.
{¶ 21} We disagree. The school board expended its own resources in
bringing the valuation complaint, and the General Assembly specifically required
that it be notified of an appeal. While the caselaw supports the proposition that
1. By statutory amendment effective October 2009, the BTA is no longer required to “certify”
using certified mail. 2009 Sub.H.B. No. 1.
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the owner possesses a more fundamental constitutional right of due process in
regard to property valuation, the school board plainly possesses a statutory right
to be heard in the context of valuation appeals. Nor do any of the cases on which
MB West Chester relies preclude a school board from defending an appeal at the
BTA when the school board was the complainant and the taxpayer is appealing
from an increase ordered by the board of revision.
{¶ 22} Having determined that the BTA was obliged by statute to certify
its decision to the school board, we turn to whether that in fact occurred.
Although the record does not directly establish the fact, three reasons lead us to
conclude that the BTA did not certify its June 23 decision to the school board.
{¶ 23} First, the school board has repeatedly asserted that the first notice it
received that MB West Chester had appealed to the BTA was the August 2009
order of the BOR effectuating the BTA decision, and MB West Chester has never
contested that assertion. Second, at oral argument, MB West Chester’s counsel
repeatedly admitted that the school board had not been notified of the BTA
decision. Third, the BOR failed to notify the school board of the filing of the
appeal at the outset, and that omission set in motion a chain of events that led to
the BTA’s failure to certify its decision to the school board. Because the BOR
failed to notify the school board, the BTA was induced into believing that the
school board had waived its right to participate and to receive notification of the
BTA’s decision.
{¶ 24} The failure to give the school board notice — both the BOR’s
failure to notify the school board of the appeal and the BTA’s failure to notify the
school board of its decision — materially distinguishes the present case from
Lutz. Because the school board did not receive notice of the filing of the appeal
or of the BTA decision, the running of the appeal period does not operate to
extinguish the school board’s right to participate, nor does the BTA lose
jurisdiction to vindicate that right. That is so because, under Lutz and similar
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cases addressing the authority of administrative agencies, the jurisdictional
significance of the expiration of the appeal period is that the parties to the appeal
have been notified of the agency’s decision and have waived any claim of error by
not appealing or otherwise objecting. However, when a statutory party has been
unlawfully deprived of notice of both the BTA proceedings and the BTA
decision, that party has not waived its right to participate, and the BTA has not
lost jurisdiction to vindicate it.
{¶ 25} Our decision in Cincinnati School Dist. Bd. of Edn. v. Hamilton
Cty. Bd. of Revision (1999), 87 Ohio St.3d 363, 721 N.E.2d 40, does not dictate a
contrary result. It is true that in Cincinnati School Dist., we held that a board of
revision did not have jurisdiction to vacate an earlier void decision under
circumstances similar to those of the present case. But we cannot apply the
doctrine of that case here because of our intervening decision in Cleveland Elec.
Illum. Co. v. Lake Cty. Bd. of Revision, 96 Ohio St.3d 165, 2002-Ohio-4033, 772
N.E.2d 1160. Cleveland Elec. Illum. Co. modified the outcome of the situation
presented in Cincinnati School Dist. Because the board of revision in Cincinnati
School Dist. failed to certify its decision to the owner, the period for appealing
from that decision would never have begun to run under Cleveland Elec. Illum.
Co. As a result, the jurisdictional bar we recognized in Cincinnati School Dist.
would not arise again because, under Cleveland Elec. Illum. Co., the appeal
period would never have begun to run.
The BTA’s June 23 decision should be vacated because the school
board was never notified of MB West Chester’s appeal
{¶ 26} R.C. 5717.01 explicitly states that when an appeal is filed from a
board of revision decision to the BTA, the board of revision “shall by certified
mail notify all persons thereof who were parties to the proceeding before such
county board of revision, and shall file proof of such notice with the board of tax
appeals.” The school board premised its motion below on the assertion that the
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required notice had not been given and argued that as a result, the BTA’s June 23
decision was a nullity. We agree.
{¶ 27} In Knickerbocker Properties, Inc. XLII v. Delaware Cty. Bd. of
Revision, 119 Ohio St.3d 233, 2008-Ohio-3192, 893 N.E.2d 457, the board of
revision sent notification to the owner that the school board had filed a complaint,
and later mailed notice of a hearing in the case. Both times the board of revision
used an incorrect address that was not the current address of the owner that had
been given to the auditor. The owner did not appear at the hearing, and the board
of revision ordered an increase in value.
{¶ 28} When the board of revision finally certified its decision to the
correct address, the owner appealed to the BTA. The BTA rejected the owner’s
jurisdictional arguments and affirmed the board of revision’s adoption of an
arm’s-length sale price as the value of the property.
{¶ 29} On appeal, this court reversed and remanded. Of particular
importance for the present case is our holding that the failure to give proper notice
of the hearing to the owner “rendered the BOR’s decision a nullity.” Id. at ¶ 22.
In so holding, we relied on our discussion in Cincinnati School Dist. Bd. of Edn.,
87 Ohio St.3d at 366-367, 721 N.E.2d 40. We remanded for the giving of proper
notice and a new hearing. Knickerbocker Properties at ¶ 24. Accord Gasper
Twp. Bd. of Trustees v. Preble Cty. Budget Comm., 119 Ohio St.3d 166, 2008-
Ohio-3322, 893 N.E.2d 136, ¶ 15 (vacating BTA decision and remanding so that
proper notice could be given and a new evidentiary hearing held).2 Of similar
import are cases that address the lack of service in civil cases: a “trial court is
without jurisdiction to render judgment or to make findings against a person who
2. MB West Chester’s attempted reliance on Gasper Twp. is unavailing, because that case
supports the school board’s contention that the lack of statutorily required notice to the parties
deprives the tribunal of jurisdiction to hold a hearing. Contrary to MB West Chester’s suggestion,
our resolution of the other main issue in that case – whether the mailing of the notice of appeal by
the township properly initiated the appeal – has no bearing on the issues in this case.
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was not served summons, did not appear, and was not a party in the court
proceedings.” State ex rel. Ballard v. O’Donnell (1990), 50 Ohio St.3d 182, 553
N.E.2d 650, paragraph one of the syllabus.
{¶ 30} The present case does differ from Knickerbocker in one respect. In
Knickerbocker, the record before us showed what actions the board of revision
had taken, and that record permitted us to determine the owner’s proper address.
By contrast, the present case lacks a full record of the BTA and BOR proceedings.
Missing, among other things, is the form DTE 3 prescribed by the Tax
Commissioner for boards of revision to submit to the BTA when they transmit the
administrative transcript. On that form, the auditor, as secretary of the board of
revision, certifies that the board of revision has received a copy of the notice of
appeal and that “all parties have been notified by certified mail.” That statement
typically assures the BTA that the board of revision has satisfied the notification
requirement of R.C. 5717.01.
{¶ 31} The absence of that form is significant, because ordinarily the
certification on Form DTE 3 would raise a presumption that the parties had been
properly notified of the appeal. Under those circumstances, a movant in the
school board’s position would have to shoulder the burden of proving that the
auditor had misrepresented the notification.
{¶ 32} That issue does not arise under the present circumstances for three
reasons. First, MB West Chester itself failed to name the school board when it
filed its notice of appeal, an omission that clearly contravenes Ohio Adm.Code
5717-1-04(B) and (E). Those provisions require (i) the naming of appellees on a
notice of appeal to the BTA and (ii) the use of the form prescribed by the Tax
Commissioner for appealing a board of revision’s decision — a form that itself
calls for naming appellees as well as for naming the party that filed the valuation
complaint. Had MB West Chester complied with the administrative rule, the
school board’s role would have been immediately evident. And while pursuant to
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Knickerbocker, 119 Ohio St.3d 233, 2008-Ohio-3192, 893 N.E.2d 457, ¶ 10, 14,
the formal insufficiency of MB West Chester’s notice of appeal did not by itself
deprive the BTA of jurisdiction, the notice’s failure to identify the school board
set in motion the eventual failure of the BOR and the BTA to notify the school
board.
{¶ 33} Second, in opposing the school board’s motion at the BTA, MB
West Chester never asserted that the BOR had notified the school board, nor did
MB West Chester insist that the school board prove the failure to give notice.
Indeed, in responding to the school board’s motion at the BTA, MB West Chester
fully accepted as the premise for its arguments that the BOR did in fact fail to
give notice. Instead of demanding that the school board prove lack of notice, MB
West Chester argued that the BOR’s “failure to notify the other parties before it
does not invalidate the notice of appeal or deprive the Board of Tax Appeals of
jurisdiction.”
{¶ 34} Third, the BOR itself was a party at the BTA and stipulated to a
value with MB West Chester, but it did not respond to the school board’s motion,
which asserted that the BOR had defaulted in its statutory duty to notify the
school board. The BOR’s failure to answer the motion and assert compliance
with R.C. 5717.01 supports the conclusion that the notification never occurred.
{¶ 35} For all these reasons, and given the absence of the Form DTE 3
from the record before us, we find that the BOR failed to give the school board
notice of MB West Chester’s appeal.
{¶ 36} Additionally, MB West Chester argues that the school board is not
truly a necessary and indispensable party at the BTA. As a result, the failure to
notify the school board about the appeal is allegedly innocuous. We previously
discussed this issue and concluded that the school board was an appellee at the
BTA by operation of law. We reject MB West Chester’s argument for the same
reasons in this context.
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{¶ 37} We hold that the BTA lacked jurisdiction to issue its June 23
decision, because the school board had not been notified of the pending appeal as
required by R.C. 5717.01.
Conclusion
{¶ 38} For the foregoing reasons, we reverse the order of the BTA
denying the school board’s motion to intervene and to vacate, and we remand
with the instruction that the motion be granted and that further proceedings be
held as appropriate.
Decision reversed
and cause remanded.
BROWN, C.J., and PFEIFER, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
__________________
Taft, Stettinius & Hollister, L.L.P., Lawrence D. Walker, and J. Donald
Mottley, for appellee MB West Chester, L.L.C.
Ennis, Roberts & Fischer Co., L.P.A., and Gary T. Stedronsky, for
appellant.
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