The opinion
[Cite as State ex rel. Cleveland v. Bd. of Tax Appeals, 2014-Ohio-3736.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. City of Cleveland[,] :
Cleveland Board of Review
and Nassim M. Lynch, : No. 13AP-308
Relators, : (REGULAR CALENDAR)
v. :
State of Ohio Board of Tax Appeals, :
Respondent. :
D EC I S I O N
Rendered on August 28, 2014
Barbara A. Langhenry, City of Cleveland, Director of Law,
and Linda L. Bickerstaff, for relators.
Michael DeWine, Attorney General, William J. Cole and
Brandon C. Duck, for respondent.
Baker & Hostetler LLP, Christopher J. Swift, Elizabeth A.
McNellie and Elizabeth Braverman, for the intervenors
William E. MacDonald, III and Susan W. MacDonald.
IN PROCEDENDO OR MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
KLATT, J.
{¶ 1} Relators, City of Cleveland, Board of Review for the City of Cleveland, and
Nassim M. Lynch, commenced this original action in procedendo or mandamus seeking
an ordering compelling respondent, State of Ohio Board of Tax Appeals ("BTA"), to
No. 13AP-308 2
proceed to a hearing in an appeal styled as William E. MacDonald, III et al. v. Cleveland
Income Tax Board of Review et al., BTA No. 2009-K-1130 ("Cleveland appeal").
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate, who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate found that the
BTA did not abuse its discretion in staying the Cleveland case pending appellate review of
MacDonald v. City of Shaker Heights, BTA No. 2008-K-1883 ("Shaker appeal"). The
magistrate noted that the BTA has the inherent power to manage its own docket. Because
it was reasonable to conclude that the BTA and the parties in the Cleveland appeal would
benefit from this court's resolution of the Shaker appeal, both of which involve essentially
the same legal issues, and the same taxpayer and tax year, the magistrate has
recommended that we deny relator's request for a writ of procedendo or mandamus.
{¶ 3} Relators have filed objections to the magistrate's decision. In their first and
third objections, relators argue that the BTA abused its discretion in staying the Cleveland
appeal because writs have been consistently granted when inferior tribunals have
erroneously stayed a case simply because another case is pending. However, we find the
cases relators rely upon in support of their objection to be factually distinguishable. We
agree with the magistrate that the parties in the Cleveland appeal and the BTA will benefit
from appellate review of the Shaker appeal. The legal issues presented in the Cleveland
appeal are essentially identical to those raised in the Shaker appeal. Moreover, both cases
involve the same taxpayer, compensation, and tax year. Therefore, we agree with the
magistrate that the BTA did not abuse its discretion by issuing a stay of the Cleveland case
pending appellate review of the Shaker case. Accordingly, we overrule relators' first and
third objections.
{¶ 4} In their second objection, relators argue that the magistrate erred at
paragraph 18 of his findings of fact by not stating that "Shaker law did not define the term
'pension.' " We disagree. The magistrate is not required to expressly reference or discuss
every point that relators think help their argument. We overrule relators' second
objection.
{¶ 5} In their fourth objection, relators contend that the magistrate erred in
concluding that the Cleveland appeal was stayed based on "case-management" concerns.
No. 13AP-308 3
Again, we disagree. The BTA stayed the Cleveland case so that it could receive guidance
from appellate review of another case involving the same taxpayer, the same
compensation year, and essentially the same statutory language. This is a case
management reason. According, we overrule relator's fourth objection.
{¶ 6} In their fifth objection, relators criticize the magistrate's characterization of
the legal issues as involving "complex tax issues"–arguing that this characterization
somehow indicates that the magistrate inappropriately weighed the underlying facts.
Contrary to relators' contention, the magistrate did not weigh any facts. The magistrate
simply looked at the nature of the legal issues presented in the Cleveland and Shaker
appeals to determine whether the BTA abused its discretion in staying one case pending
appellate review of the other. As previously stated, the BTA's stay is reasonable, and we
overrule relators' fifth objection.
{¶ 7} In their sixth objection, relators argue that the magistrate erred in making
"factual observations" about how long the Shaker appeal was pending before the BTA in
comparison to the Cleveland appeal. We fail to discern any error by the magistrate in this
regard. The magistrate accurately set forth the filing dates in the two cases. To the extent
that relators objected to the stay of the Cleveland appeal due to the length of time the case
has been pending before the BTA, that pendency period was considered by the magistrate
in assessing whether or not the BTA abused its discretion. Therefore, we overrule
relators' sixth objection.
{¶ 8} In their seventh, eighth, and ninth objections, relators contend the
magistrate erred in its factual findings in paragraphs sixteen, seventeen, and twenty-two
because it did not expressly include references to particular facts or certain aspects of
relators' arguments (i.e., not stating the attorney examiner's reason for denying
respondent's first stay request in paragraph seventeen; failing to fully describe relators'
position in opposing the first request for stay in paragraph sixteen; and failing to describe
relators' position in opposing the second request for stay in paragraph twenty-two).
Again, we can discern no error. The magistrate was not required to expressly state
irrelevant facts. Nor was he required to articulate all of the arguments relators made
before the BTA. Therefore, we overrule relators' seventh, eighth, and ninth objections.
No. 13AP-308 4
{¶ 9} Lastly, relators contend in their tenth objection that the magistrate erred in
paragraph nine of his factual findings that the MacDonalds appealed to the Cleveland
board in 2009 rather than 2008. We agree that the year cited in the magistrate's decision
in paragraph nine is incorrect, and that the appeal was filed in 2008. However, we note
that the correction has no bearing on the merits of this case. Nevertheless, we sustain
relators' tenth objection to correct this error.
{¶ 10} Following an independent review of this matter, we find that the magistrate
has properly determined the facts (with the noted year correction in paragraph nine) and
applied the appropriate law. Therefore, with the noted correction, we adopt the
magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with magistrate's decision, we deny relators' request for
a writ of procedendo or mandamus.
Objections granted in part;
writ of procedendo or mandamus denied.
TYACK and O'GRADY, JJ., concur.
No. 13AP-308 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. City of Cleveland[,] :
Cleveland Board of Review
and Nassim M. Lynch, : No. 13AP-308
Relators, : (REGULAR CALENDAR)
v. :
State of Ohio Board of Tax Appeals, :
Respondent. :
MAGISTRATE'S DECISION
Rendered on January 29, 2014
Barbara A. Langhenry, City of Cleveland, Director of Law,
and Linda L. Bickerstaff, for relators.
Michael DeWine, Attorney General, William J. Cole and
Brandon C. Duck, for respondent.
Baker & Hostetler LLP, Christopher J. Swift, Elizabeth A.
McNellie and Elizabeth Braverman, for the intervenors
William E. MacDonald, III and Susan W. MacDonald.
IN PROCEDENDO OR MANDAMUS
{¶ 11} In this original action, relators City of Cleveland, Board of Review of the City
of Cleveland, and Nassim M. Lynch, request a writ of procedendo or mandamus ordering
respondent, State of Ohio Board of Tax Appeals ("BTA"), to proceed to a hearing in an
No. 13AP-308 6
appeal styled as William E. MacDonald, III et al. v. Cleveland Income Tax Board of
Review, et al., BTA No. 2009-K-1130.
Findings of Fact:
{¶ 12} 1. Relator, city of Cleveland, is a political subdivision of the state of Ohio.
{¶ 13} 2. Relator, Board of Review of the city of Cleveland ("Cleveland Board of
Review") is a board created by the city of Cleveland pursuant to its codified ordinances to
hear appeals of taxpayers aggrieved by decisions of the tax administrator of the city of
Cleveland.
{¶ 14} 3. Relator, Nassim M. Lynch, is the tax administrator of the city of
Cleveland.
{¶ 15} 4. The BTA is a quasi-judicial board created pursuant to R.C. 5703.02 to
hear tax appeals from final determinations of the state tax commissioner, county boards
of revision, county budget commissions, and municipal boards of appeal.
{¶ 16} 5. William E. MacDonald, III and Susan W. MacDonald ("the
MacDonalds") moved to intervene in this action. Following the magistrate's granting of
the motion to intervene, relators moved to set aside the magistrate's order. Subsequently,
this court denied the motion to set aside.
{¶ 17} 6. William E. MacDonald, III ("MacDonald") was the vice chairman of
National City Corporation ("National City") when he retired on December 31, 2006. He
resided in the city of Shaker Heights, but was employed in the city of Cleveland.
{¶ 18} 7. Among other benefits, National City provided MacDonald a
Supplemental Executive Retirement Plan ("SERP"). On MacDonald's W-2 for 2006,
National City reported the SERP benefit but did not withhold taxes.
{¶ 19} 8. Both Shaker Heights and Cleveland sought to tax the present value of
future monthly payments under the SERP for tax year 2006. That is, both municipalities
sought to tax the same benefit for the same year. MacDonald received no payments in
2006 under the SERP. Monthly payments began in 2007.
{¶ 20} 9. On September 19, 2008, tax administrator Lynch issued a final
administrative ruling denying the MacDonalds' request for a refund and assessing
additional tax due for tax year 2006 for income attributable to the SERP. Consequently,
in 2009, the MacDonalds appealed Lynch's ruling to the Cleveland Board of Review.
No. 13AP-308 7
{¶ 21} 10. On May 8, 2009, the Cleveland Board of Review issued its amended
decision that affirmed the tax administrator's ruling.
{¶ 22} 11. On July 1, 2009, the MacDonalds appealed the amended decision of the
Cleveland Board of Review to the BTA. That appeal is styled William E. MacDonald, III et
al. v. City of Cleveland Income Tax Board Review, et al. BTA No. 2009-K-1130.
{¶ 23} 12. Earlier, the MacDonalds faced a ruling from the taxing authority of the
city of Shaker Heights similar to the ruling of the tax administrator of the city of
Cleveland. That is, Shaker Heights ruled that the SERP is taxable. Consequently, the
MacDonalds appealed the ruling to the Shaker Heights Income Tax Board of Review. In
August 2008, the Shaker Heights Income Tax Board of Review upheld the position of
Shaker Heights finding that the SERP was taxable.
{¶ 24} 13. In 2008, the MacDonalds appealed the Shaker Heights decision to the
BTA. That appeal to the BTA is styled MacDonald v. City of Shaker Heights, BTA No.
2008-K-1883.
{¶ 25} 14. BTA heard the Shaker Heights appeal on September 7, 2010. The
matter was fully briefed as of December 15, 2010.
{¶ 26} 15. On December 14, 2011, in the Cleveland appeal, the MacDonalds moved
the BTA for a stay of proceedings or, in the alternative, for a continuance of a hearing
scheduled for January 25, 2012. In their memorandum in support, the MacDonalds
asserted:
This same taxpayer, the same taxable year, the same
National City Bank SERP and even the same W-2 that
reported the benefit at issue are involved in another case
pending before this Board: William E. MacDonald III and
Susan W. MacDonald v. City of Shaker Heights Income Tax
Board of Review, et al, BTA No. 2008-K-1883. That case was
heard on September 7, 2010 and has been fully briefed as of
December 15, 2010. A hearing in the present appeal is
unnecessary because that hearing would duplicate the earlier
hearing.
The facts are the same in the two cases. The two cases reflect
identity of the taxpayer, taxable year, the SERP benefit
(pursuant to the same plan documents) and the same
reportable event on the Form W-2, i.e. Mr. MacDonald's
retirement from National City Corporation. The reason that
two Ohio municipalities would seek tax on a single
No. 13AP-308 8
reportable event is that Shaker Heights was Mr.
MacDonald's city of residence and Cleveland was Mr.
MacDonald's city of employment. Under the municipal
income tax system in Ohio, both the city of residency and the
city of employment assert tax on the same transactions with
a credit or partial credit being available against the city of
residency for the tax paid in the city of employment.
The facts necessary for determination of the present appeal
are in the Record in Case No. 2008-K-1883. Not only did the
Shaker Heights municipal board of appeal (MBOA) conduct
a hearing in the earlier case but this Board conducted a full
hearing, took testimony, reviewed evidence and has available
to it the necessary background to proceed to a determination
on the same legal issues that resolve both appeals.
{¶ 27} 16. On December 27, 2011, the city of Cleveland opposed the MacDonalds'
December 14, 2011 motion and submitted a memorandum in support. Regarding the
requested stay, the city of Cleveland explained how "[d]espite the similarities between this
case and the Shaker case, the factual situations are not the same." Regarding the
requested continuance, the memorandum stated: "[T]he city of Cleveland objects to this
matter being continued because it has been pending in the Board of Tax Appeals since
July 2009, more than two years."
{¶ 28} 17. On December 27, 2011, a BTA attorney examiner issued an order
denying the requested stay but granting the requested continuance.
{¶ 29} 18. On December 28, 2012, the BTA issued its decision in the Shaker
Heights appeal. The BTA held that the National City SERP was a pension for purposes of
the Shaker Heights codified ordinance and, as such, is exempt from the Shaker Heights
municipal income tax.
{¶ 30} 19. In January 2013, the city of Shaker Heights appealed the decision of the
BTA to this court. The appeal is assigned case No. 13AP-71.
{¶ 31} 20. In February 2013, the BTA issued a notice of the rescheduled hearing in
the Cleveland appeal. The notice scheduled a merit hearing for May 6, 2013.
{¶ 32} 21. On March 12, 2013, the MacDonalds moved the BTA for a stay of
proceedings in the Cleveland appeal "pending the final resolution of the appeal" to this
court in the Shaker Heights case.
No. 13AP-308 9
{¶ 33} 22. On March 19, 2013, the city of Cleveland filed its brief in opposition to
the motion for a stay.
{¶ 34} 23. On March 25, 2013, the MacDonalds filed a reply memorandum. The
memorandum states:
Appellants William and Susan MacDonald (the
"MacDonalds") request that the Board weigh the benefits
and burdens of requiring the presentation for a second time
of the facts that are identical to both cases. The MacDonalds
presented four witnesses, including three expert witnesses,
in the Shaker Heights appeal. Proceeding with the Cleveland
appeal would require an unnecessary expenditure of
resources by the Board and would create a financial burden
for the MacDonalds to prepare for and conduct a hearing in
this second appeal. In contrast, Cleveland has identified no
prejudice or harm that would arise for the City from delaying
the hearing at this time.
The MacDonalds acknowledge that the Board previously
denied a motion to stay while granting a continuance. Under
the Board's present practices for continuances, a new
hearing would be scheduled before the decision could be
rendered in the Shaker Heights appeal. The Board denied
the earlier request for a stay before the Shaker Heights
hearing had been held, before the Board rendered its
decision in the Shaker Heights, before an appeal from the
Board's decision was filed with the court of appeals, and
before Cleveland filed its Amicus Brief in the court of
appeals. These different circumstances greatly increase the
need for, and appropriateness of, the requested stay.
An irony arises from the request by Cleveland for a hearing
when the Shaker Heights appeal presents the issue as to
whether this Board even has the authority to convene a
hearing. Assignment of Error No. 2 in the Shaker Heights
appeal at the court of appeals reads as follows:
The Board of Tax Appeals erred in allowing the introduction
of new evidence and new witnesses, and conducting a de
novo review of the decision of the Shaker Heights Municipal
Income [T]ax Board of Review, when the appellees,
[MacDonalds] were afforded every opportunity to introduce
witnesses and testimony before the Shaker Heights
Municipal Board of Review.
No. 13AP-308 10
The MacDonalds will contest this Assignment of Error No. 2.
Contrary to Shaker Heights, the Board had explicit authority
under R.C. 5717.011 to convene the hearing and did not
commit error in proceeding under the statute. Nevertheless,
the assertion of such lack of authority is one more basis to
defer the hearing until such argument is finally determined
or withdrawn.
The MacDonald[s] made a full presentation to the Board,
including detailed testimony. The MacDonalds should not be
compelled to bear the expense of a second hearing under
these circumstances and in the absence of any articulation by
Cleveland of a need to address the Cleveland appeal before
completion of the Shaker Heights appeal. For all these
reasons, this Board should stay the proceeding and place the
current appeal on inactive status until such time as the
Shaker Heights case is finally decided.
(Emphasis sic.)
{¶ 35} 24. On March 27, 2013, the city of Cleveland moved for leave to file a
response to the MacDonalds' March 25, 2013 reply memorandum. In its response, the
city of Cleveland argues:
First, Appellants argue that "[n]one of th[e] legal issues
[identified by Cleveland] justifies the conduct of a hearing to
present facts for the second time[.]" They note that they
"presented four witnesses, including three experts witnesses,
in the Shaker Heights appeal [and that] [p]roceeding with
the Cleveland appeal would require an unnecessary
expenditure of resources by the Board and … in this second
appeal." However, the Board's jurisdiction to hear the appeal
arises specifically under R.C. 718.11, which recognizes "that
the taxpayer or the tax administrator may appeal the board's
decision as provided in section 5717.011 of the Revised
Code." R.C. 5717.011(C) provides in relevant part: "The board
may order the appeal to be heard upon the record and the
evidence certified to it by the administrator, but upon the
application of any interested party the board shall order the
hearing of additional evidence …." The record being referred
to in R.C. 5717.011 is clearly the record from the municipal
board of appeal being appealed from—in this case
Cleveland's board. Shaker's appeal is not part of the record of
this appeal. Appellant's whole argument about having to
present witnesses for a "second time" is wholly without
merit.
No. 13AP-308 11
Second, Appellants clearly seem to be saying that how
Cleveland law defines deferred compensation and pensions
in its income tax ordinance and rules and regulations is
irrelevant. In that regard, it would be specifically noted that
R.C. 5717.011(D) provides: "If an issue being appealed under
this section is addressed in a municipal corporation's
ordinance or regulation, the tax administrator, upon the
request of the board of tax appeals, shall provide a copy of
the ordinance or regulation to the board of tax appeals." That
a tax issue can be governed by municipal law seems clear.
This is true despite Appellants' contentions otherwise.
Third, while Appellants stressed throughout their initial
motion that the Shaker case would be "dispositive" of this
appeal, they clearly retreat in their reply conceding that this
would result only in a "delay in conducting the hearing or
filing briefs until the Shaker Heights appeal has been
completed." Appellants apparently now recognize that res
judicata and collateral estoppel have no applicability to this
appeal where Appellees were not parties to the Shaker
appeal. No matter what occurs in the Shaker appeal before
the Tenth District, Appellees clearly have a right to a hearing.
This fact cannot be disputed. Where is the judicial economy
in simply delaying this matter further?
Fourth, is there any merit to Appellants' claim that there are
"different circumstances [that] greatly increase the need for,
and appropriateness of, the requested stay[]"? Previously, in
their first motion to stay, Appellants argued that "the Board
should stay this matter pending a final resolution of BTA
Case No. 2008-8-1883." Now, Appellants argue that the
Board should stay this matter pending a final resolution of
the appeal of that case before the Tenth District Court of
Appeals. What happens if the Shaker case is appealed to the
Ohio Supreme Court? Both Taxpayers and Shaker might very
well file a discretionary appeal to the Ohio Supreme Court
should they lose. Further, Shaker might have an appeal of
right if the Franklin County Court of Appeals finds against it
but then certifies a conflict with the Twelfth District's case,
Wardrop v. City of Middletown Income Tax Review Board,
2008 WL 4541996, 2008-Ohio-5298. If the Board accepts
Appellants premise that a stay is appropriate now, then such
a stay will clearly be even more appropriate in the event of an
appeal (or attempted appeal) to the Ohio Supreme Court.
Appellants' stay argument is clearly based on a flawed
premise.
No. 13AP-308 12
Fifth, while Appellants state that they "made a full
presentation to the Board, including detailed testimony [in
the Shaker Appeal][,]" they apparently think that the
Appellees do not have that same right in this case. Appellees,
however, clearly do. The fact that Appellants are involved in
two similar appeals does not change that fact.
The Board denied the Appellants earlier motion to stay this
matter finding "there is some dispute as to the applicability
of any decision made in th[e] [Shaker] matter to the present
set of facts." Nothing has changed in that regard. For this
reason, the Appellants' motion to stay must be denied.
(Footnotes omitted.)
{¶ 36} 25. On March 27, 2013, a BTA attorney examiner entered an order granting
the MacDonalds' March 12, 2013 motion for a stay. The order explains:
Appellants move this board to stay further proceedings in
this matter pending final resolution of MacDonald v. City of
Shaker Hts. (Dec. 28, 2012), BTA No. 2008-K-1883,
unreported, appeal pending Franklin App. No. 13AP71,
asserting that the resolution of that appeal will likely be
dispositive of several, if not all, of the factual/legal issues
presented in the present appeal. Noting that a similar
request had been previously denied, the appellees oppose the
motion, disputing appellants' characterization of the
similarities of the two appeals and insisting that they are
entitled to be heard regarding the differences presented. At
the time the previous request to stay proceedings had been
requested and resolved, a decision had not yet been issued by
in MacDonald. Upon consideration of the parties' arguments
and this board's decision, an appeal of which is currently
pending before the Tenth District Court of Appeals, it is
deemed to be in the best interests of the parties and this
board to stay further proceedings in this appeal, including
the May 6, 2013 hearing, until a final decision is issued in
MacDonald. It shall remain the responsibility of the parties'
counsel to advise this board immediately of any intervening
matters which would warrant lifting the stay of proceedings
in this appeal.
{¶ 37} 26. On April 3, 2013, the city of Cleveland moved the BTA for
reconsideration of the March 27, 2013 order. The city of Cleveland argued:
In the interim order, this Board held that since it has issued
a decision in the Shaker case "which is currently pending
No. 13AP-308 13
before the Tenth District Court of Appeals, it is deemed to be
in the best interests of the parties and this board to stay
further proceedings in [the Cleveland case], including the
May 6, 2013 hearing, until a final decision is issued in the
[Shaker case]."
Cleveland asks this Board to reconsider its decision based on
the fact that (i) Cleveland may not be able to call its intended
witnesses at a later date and (ii) the decision will
unnecessarily result in Cleveland paying more accrued
interest than it otherwise would if it is unsuccessful on the
merits.
On September 1, 2009 and November 30, 2009 this Board
issued subpoenas duces tecum at Cleveland's request to
National City Corporation and Hewitt Associates for certain
documents related to the issues in this case. Since such time,
both National City and Hewitt Associates have merged into
other companies. Cleveland intends to call witnesses to
testify concerning said documents and further delaying this
case may result in Cleveland's inability to do so.
Cleveland is also prejudiced by the fact that it would be
required to pay additional interest on Taxpayer's refund
request should it not prevail. This case has already been
delayed more than 15 months at Taxpayers' request. Why
should Cleveland be potentially liable for additional interest
when it is more than ready to proceed to hearing?
{¶ 38} 27. On April 10, 2013, the BTA, two members concurring, entered an order
denying the April 3, 2013 motion for reconsideration. The BTA order explains:
The appellees seek reconsideration of this board's attorney
examiner's order staying further proceedings in this matter
due to the pendency of an appeal before the Tenth District
Court of Appeals involving the same appellants and the
issues substantially similar to those presented herein. See
MacDonald v. City of Shaker Hts. (Dec. 28, 2012), BTA No.
2008-K-1883, unreported, appeal pending Franklin App. No.
13AP71. In Matthews v. Matthews (1981), 5 Ohio App.3d
140, the court set forth the test to be applied when
considering a motion for reconsideration, indicating that
such motion must call to the attention of the tribunal an
obvious error in the decision or raise an issue for
consideration that was either not considered or was not fully
considered. We find neither present in this instance. Nor do
we find it improper to allow the parties, as well as this board,
No. 13AP-308 14
to benefit from appellate consideration of the issues
presented in this appeal. * * * Accordingly, the appellees'
motion is denied.
{¶ 39} 28. On April 11, 2013, relators filed this original action.
Conclusions of Law:
{¶ 40} It is the magistrate's decision that this court deny the relators' requests for a
writ of procedendo or, in the alternative, a writ of mandamus.
{¶ 41} Procedendo is a high prerogative writ of an extraordinary nature which will
not be granted unless there is a clear legal right to such relief. State ex rel. Smith v.
Friedman, 22 Ohio St.2d 25 (1970), paragraph two of the syllabus.
{¶ 42} To be entitled to a writ of procedendo, the relator must establish a clear
legal right to require the court to proceed, a clear legal duty on the part of the court to
proceed, and a lack of an adequate remedy in the ordinary course of the law. State ex rel.
Sawicki v. Lucas Cty. Court of Common Pleas, 126 Ohio St.3d 198, 2010-Ohio-3299, ¶ 11,
citing State ex rel. Weiss v. Hoover, 84 Ohio St.3d 530, 531-32 (1999).
{¶ 43} A court has inherent power to stay a case before it where it is reasonable to
do so. State ex rel. Zellner v. Bd. of Edn. of City of Cincinnati, 34 Ohio St.2d 199 (1973);
Smith at 26.
{¶ 44} A motion for a stay of proceedings is addressed to the sound discretion of
the court. Zellner at 200. Thus, a determination of whether to issue a stay of proceedings
generally rests within the court's discretion and will not be disturbed absent the showing
of an abuse of discretion. State ex rel. Verhovec v. Mascio, 81 Ohio St.3d 334, 336 (1998).
{¶ 45} A writ of procedendo will issue requiring a judge to proceed to final
judgment if the judgment erroneously stayed a proceeding because of another pending
case. Verhovec at 335-36; State ex rel. Cleveland v. Corrigan, 8th Dist. No. 93940, 2009-
Ohio-6655; State ex rel. Kralik v. Zwelling, 101 Ohio St.3d 134, 2004-Ohio-301.
{¶ 46} In a class action suit under Civ.R. 23, this court states "[t]he basis for an
abuse-of-discretion standard is the trial court's special expertise and familiarity with case-
management problems and its inherent power to manage its own docket." Assn. for
Hosps. and Health Sys. v. Dept. of Human Serv., 10th Dist. No. 04AP-762, 2006-Ohio-
67, ¶ 16. Citing that case, the MacDonalds posit that a tribunal such as the BTA has the
No. 13AP-308 15
inherent power to manage its own docket and address case management issues.
Apparently, intervenors would argue that BTA case management authority includes the
power to stay a pending case while another similar case is adjudicated by the BTA and an
appeal is taken to this court. As BTA indicated in its April 10, 2013 order staying the
Cleveland case, "nor do we find it improper to allow the parties, as well as this board, to
benefit from appellate consideration of the issues presented in this appeal."
{¶ 47} Some factual observations are in order. In the Shaker Heights case, BTA
rendered its final decision on December 28, 2012 in the appeal that was filed in 2008.
Thus, the Shaker Heights case was pending before the BTA for a period of over four years.
An appeal to this court was filed in January 2013.
{¶ 48} On the other hand, the Cleveland case was appealed to the BTA on July 1,
2009 where it remains pending and subject to a stay order.
{¶ 49} Thus, at the time of the Shaker Heights appeal to this court in January 2013,
the Cleveland case had been pending at the BTA for a period of some three and one half
years.
{¶ 50} It appears to this magistrate that it cannot be denied that, in all likelihood,
BTA and the parties will benefit from this court's consideration of the issues presented to
this court.
{¶ 51} The real question before the BTA was whether the delay in the Cleveland
case is justified by waiting for the appellate process to conclude in the Shaker Heights
case. Apparently, BTA felt that even the parties to the Cleveland case would benefit from
the stay that would allow BTA to apply the rulings of this court to the Cleveland case. This
is a question that, in the magistrate's view, is addressed to the sound discretion of the
BTA. To hold otherwise would require this magistrate to second-guess the BTA in the
management of its own docket.
{¶ 52} Given the complexity of the tax issues before the BTA in both cases, and that
both cases involve the same taxpayer, the same compensation for the same year and, at
least arguably, very similar legal issues, this magistrate cannot find an abuse of discretion
on the part of the BTA in issuing a stay of the Cleveland appeal pending appellate review
of the Shaker Heights appeal.
No. 13AP-308 16
{¶ 53} Accordingly, it is the magistrate's decision that this court deny the relators'
requests for a writ of procedendo or mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).