Ryan, L.L.C. v. Franklin Cty. Treasurer

[Cite as Ryan, L.L.C. v. Franklin Cty. Treasurer, 2016-Ohio-3234.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Ryan, LLC, as assignee of MLQ MB :

Hotels 2011, LLC,

:

Plaintiff-Appellant,

: No. 15AP-729

v. (C.P.C. No. 14CV-6383)

:

Franklin County Treasurer et al., (ACCELERATED CALENDAR)

:

Defendants-Appellees.

:

D ECISION

Rendered on May 31, 2016

On brief: Dickie, McCamey & Chilcote, P.C., and R. Leland

Evans, for appellant. Argued: R. Leland Evans.

On brief: Ron O'Brien, Prosecuting Attorney, and William J.

Stehle, for appellees Franklin County Treasurer, Board of

Commissioners, Auditor, and Board of Revision.

On brief: Rich & Gillis Law Group, LLC, Jeffrey A. Rich, and

Mark H. Gillis, for appellee Columbus City School District

Board of Education. Argued: Kelley A. Gory.

APPEAL from the Franklin County Court of Common Pleas

HORTON, J.

{¶ 1} Plaintiff-appellant, Ryan, LLC, as assignee of MLQ MB Hotels 2011, LLC

("appellant" or "Ryan"), appeals from the decision of the Franklin County Court of

Common Pleas granting defendants-appellees', Franklin County Treasurer, Franklin

County Auditor, and Franklin County Board of Commissioners ("appellees" or "county

defendants"), motion for summary judgment. For the following reasons, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On May 11, 2012, MLQ MB Hotels 2011, LLC ("MLQ") acquired title to the

Columbus Airport Courtyard Hotel, Parcel No. 010-233777 (the "Property") through a

No. 15AP-729 2

deed in lieu of foreclosure from Moody National CY Airport S, LLC et al. ("Moody").

(Compl., ¶ 12.) At the time of the acquisition by MLQ, three property tax cases were

pending before the Franklin County Board of Revision ("BOR"). (Compl., ¶ 13.) Those

cases were identified as 07-900758 A & B ("07"); 08-900434 ("08"); and 10-007247

A & B ("10"). Id. The "o7" and "o8" cases were filed by the Columbus City Schools Board

of Education ("Columbus BOE"). The "10" case was filed by Moody.

{¶ 3} On February 7, 2014, MLQ assigned to Ryan:

[A]ny claims which MLQ may have against the Franklin

County Treasurer (the "Treasurer"), Franklin County, the

local school district, the State of Ohio, or any other

governmental entity in Franklin County or the State of Ohio,

for the increased property taxes, reflected in the Treasurer's

bill to MLQ on May 15, 2013 (the "Bill"), on the [Property] for

tax years 2007, 2008, and 2009 (the "Tax Years") arising

from the increased valuation determination (the

"Determination") re the Property for the Tax Years by the

[BOR] issued on or about September 21, 2012 (the "Tax

Claims").

(Compl., ¶ 3.)

{¶ 4} On June 18, 2014, Ryan brought this action pursuant to R.C. 2723.01 to

recover allegedly illegal taxes imposed on the Property for the years 2007, 2008 and 2009

arising from an increased valuation determination. Ryan had no involvement in these

BOR cases or in any of the facts alleged in the complaint.

{¶ 5} Allegedly, the increased taxes resulted from a BOR hearing on

June 20, 2012, in which two prior unresolved cases, i.e., the "07" and "08" cases, which

had previously been heard, were "re-heard" and for which Ryan claims that its

predecessors in interest did not receive notice, rendering the decisions nullities. Ryan

claims that the BOR allowed the Columbus BOE to present evidence relating to cases "07"

and "08," and argue for an increase in valuation for tax years 2007-09 at the hearing for

the "10" case. (Appellant's Brief, 5.) MLQ, under protest, paid the at-issue taxes and seeks

a full refund and/or a proper hearing regarding the taxes owed for the years 2007-09.

(Compl., ¶ 23.)

No. 15AP-729 3

{¶ 6} On March 24, 2015, the appellees filed a motion for summary judgment.

On June 2, 2015, the trial court issued its decision and entry granting appellees' motion

for summary judgment, stating the following:

In their motion for summary judgment, Defendants argue

that they are entitled to judgment as a matter of law on several

grounds: one, that the pertinent hearings were held after

being properly noticed; two, that in any event Plaintiff's claim

is barred by its failure to exhaust its administrative remedies

under R.C. 5717.01 and/or R.C. 5717.05 by properly appealing

the decisions of the BOR despite having received copies of the

decision letters as provided for in R.C. 5715.20(A) * * *.

In response, Plaintiff contends that at a minimum, genuine

issues of material fact exist so as to defeat Defendants' motion

for summary judgment. Specifically, Plaintiff argues there is

an issue of fact as to whether it (or its predecessor) was

properly noticed for the hearings pertaining to the 2007 and

2008 cases in that they may have been heard on June 20,

2012. The Court disagrees with Plaintiff on this point and

instead agrees with Defendants that the record in the form of

the Affidavit of LyAnne Brown and the transcripts of the

hearings conducted plainly shows that the 2007 case was

heard on April 15, 2009 and was attended by counsel for the

Parcel owner after proper notice was given. Likewise, the

record shows that the 2008 case was heard on November 15,

2011, that the hearing was attended by counsel for the

property owner, and that proper notice of the hearing was

given.

Furthermore, even if there had been some defect in notice of

the relevant hearings and/or some other dispute concerning

the BOR decisions, the Court agrees with Defendants that

Plaintiff could have (and should have) timely availed itself of

its administrative remedies pursuant to R.C. 5717.01 and/or

R.C. 5717.05. That it did not do, and the Court finds that such

failure entitles Defendants to judgment as a matter of law on

this ground alone. Thus, the Court specifically finds that there

exists no genuine issue as to any material fact and that

Defendants are entitled to judgment as a matter of law on

Plaintiff's claim.

(Decision, 3-4.)

No. 15AP-729 4

II. ASSIGNMENTS OF ERROR

{¶ 7} Ryan appeals, assigning the following errors:

[I.] The trial court erred by granting the Appellees' Motion for

Summary Judgment because a genuine issue of material fact

exists in relation to the provision of notice regarding the

hearings pertaining to the 2007 and 2008 cases that were

heard on June 20, 2012 thereby precluding judgment as a

matter of law.

[II.] The trial court erred by granting Appellees' Motion for

Summary Judgment on the basis that the Appellant failed to

exhaust administrative remedies because the lack of proper

notice deprived the Board of Revisions of subject matter

jurisdiction, rendering any decision moot.

III. STANDARD OF REVIEW

{¶ 8} Appellate review of summary judgment motions is de novo. Helton v. Scioto

Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). "When reviewing a trial

court's ruling on summary judgment, the court of appeals conducts an independent

review of the record and stands in the shoes of the trial court." Mergenthal v. Star Bank

Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997). The party against whom the motion for

summary judgment is made is entitled to have the evidence most strongly construed in

that party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio

St.3d 181, 183 (1997).

{¶ 9} A "party seeking summary judgment, on the ground that the nonmoving

party cannot prove its case, bears the initial burden of informing the trial court of the

basis for the motion, and identifying those portions of the record that demonstrate the

absence of a genuine issue of material fact on the essential element(s) of the nonmoving

party's claims." Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). In accordance with

Civ.R. 56(E), when a properly supported motion for summary judgment is made, the

nonmoving party may not rest upon the mere allegations or denials contained in the

pleadings but must come forward with specific facts demonstrating a genuine issue of fact

for trial. If the nonmoving party does not so respond, summary judgment, if appropriate,

shall be entered against him.

No. 15AP-729 5

IV. FIRST ASSIGNMENT OF ERROR–PROPER NOTICE GIVEN–NO

REHEARING

{¶ 10} Ryan alleges that material issues of fact exist as to the notice for the

June 20, 2012 hearing, wherein Ryan alleges that the 2007 and 2008 cases were

inappropriately "re-heard." Failure to properly notice a hearing renders the decision of

the BOR a nullity. Therefore, whether a rehearing on the 2007 and 2008 tax years

occurred on June 20, 2012 is a material fact that would affect the outcome of the case.

(Appellant's Brief, 8-9.)

{¶ 11} Ryan argues that the trial court did not address the appellant's contention

that the June 20, 2012 hearing was in fact a rehearing of cases "07" and "08," for which

MLQ did not receive notice, based on the fact that evidence in all three cases was

discussed at the June 20, 2012 hearing, and the appellees argued for an increase in the

valuation as related to all three cases on that same date. (Appellant's Brief, 9-10.)

{¶ 12} Appellant admits that on May 23, 2012, a notice of hearing was sent to

Moody (the old owner), with a copy to MLQ (the current owner), scheduling a hearing for

case "10" only on June 20, 2012. (Compl., ¶ 15.) The June 20, 2012 hearing, and the

September 14, 2012, BOR decision session, are central to this appeal.1 We therefore turn

to appellant's claim that the June 20, 2012 hearing constituted a rehearing of the 2007

and 2008 cases.

{¶ 13} Present at the June 20, 2012 hearing for the BOR was William Zapp,

representing the County Treasurer, Kimbol Stroud, representing the County Auditor, and

Jamie Riley, representing the County Commissioners. Attorney Todd Sleggs represented

the new owner MLQ, and Attorney Angela Petrova represented the BOE.

{¶ 14} At the beginning of the hearing, Zapp states "[w]e are here for case [10]."

(BOR Hearing Tr., 3.) After the participants note their appearance for the record, Stroud

notes that "[t]his property has been the subject of a number of -- of complaints." (BOR

Hearing Tr., 4.) Stroud went on to briefly describe the history of the "07" and "08" cases

and how they remained pending for decision before the BOR. With regard to case "07,"

Stroud correctly stated that the case "sits in front of us today at the moment as an

1The transcripts for the June 20, 2012 hearing and the September 14, 2012 decision session meeting are

contained in the same document.

No. 15AP-729 6

undecided case." Id. Stroud stated that case "08" was "heard on November 15, 2011." Id.

Stroud also discusses "consolidating" all of the cases for "decision." (BOR Hearing Tr., 5.)

{¶ 15} Sleggs appeared on behalf of MLQ at the June 20, 2012 hearing and stated:

I have entered an appearance in the '08 case that Mr. Stroud

referenced, and I anticipate that my client will have me enter

an appearance in the '07 case, and I'll -- I'll do that as soon as

I get back to the office.

(BOR Hearing Tr., 6.) Sleggs then proceeded to introduce evidence into the record,

including the 2008 complaint, the conveyance fee statement for the October 7, 2007

transfer, the 2007 complaint and legal argument regarding MLQ's position on the facts

surrounding the 2007 sale. (BOR Hearing Tr., 9-11.) It was only after counsel for MLQ

submitted all of this information and argument that counsel for the BOE submitted the

conveyance fee statement (duplicative of the one submitted by Sleggs) and the deed. (BOR

Hearing Tr., 12.) In response to the BOE's submission, Sleggs stated:

I'm going to ask the * * * Board of Revision to consider those,

* * *, the sale is the best evidence of value. * * * We're

presenting this sale evidence for the Board's consideration.

Id. Petrova then responded, "[w]e assert the sale should be increased for all of the tax

years involved." (BOR Hearing Tr., 13.)

{¶ 16} None of the parties made any objection to the consolidation of these cases

for decision purposes, including MLQ's counsel who was present at the hearing.

Furthermore, at the conclusion of the June 20, 2012 hearing, it is clear that no one

present at the hearing considered the hearing to involve any other case other than "10."

Sleggs stated:

[T]he focus of this Board is what's the property worth 1-1-10,

and so they prepared this page to give to me an indication of --

of what [MLQ] believe[s] the value to be 1-1-10.

(BOR Hearing Tr., 15.) At no time did the BOR indicate that it was rehearing either the

"07" case or the "08" case. No one made any statements conflicting with Sleggs' statement

No. 15AP-729 7

that the focus of the BOR at the June 20, 2012 hearing was the value of the property as of

January 1, 2010.

{¶ 17} The evidence shows that it was MLQ's own counsel that was allowed to

present evidence relating to the "07" and "08" cases during the hearing on the "10" case.

Contrary to appellant's argument, it was Ryan's predecessor's counsel who initiated the

introduction of additional evidence of the 2007 and 2008 cases.

{¶ 18} How the BOR rendered its decisions is also important. On

September 14, 2012, in deciding each of these cases individually, the BOR specifically

stated that the "07" case "was originally heard by the Board on April 15th, 2009." (BOR

Hearing Tr., 19.) Zapp, the treasurer's representative, recused himself from voting on the

decision in the "07" case because he was not the treasurer's representative at that hearing.

Therefore, Zapp was not present at the April 15, 2009 BOR hearing and could not vote on

the outcome of that case. Had the June 20, 2012 hearing been a rehearing of the 2007

case, then Zapp would not have needed to recuse himself. In deciding the "07" case, the

BOR made no reference to the June 20, 2012 hearing.

{¶ 19} After deciding the "07" case, the BOR moved on to the "08" case specifically

stating that "[t]he case was heard November 15th, 2011." (BOR Hearing, 19-20.)

Treasurer's representative Zapp voted on this decision because he was present at the

November 15, 2011 hearing. The BOR made no reference to the June 20, 2012 hearing in

deciding the 2008 matter.

{¶ 20} Finally, the BOR brought their "attention to Case ["10"], filed by the owner."

(BOR Hearing Tr., 20.) It was only with regard to the "10" case that the BOR discussed

any of the evidence presented at the June 20, 2012 hearing. The BOR also stated that "this

case was, in fact, heard on June 20th, 2012." (BOR Hearing Tr., 21.) Neither the "07" case

nor the "08" case was mentioned when deciding the "10" case.

{¶ 21} Having decided all three of the cases separately, the BOR sent separate

decision letters on September 21, 2012, and the property owner and counsel were served

copies. The decision letter for 2008 inadvertently references the wrong hearing date

(June 20, 2012 rather than November 15, 2011). (Compl., Ex. C.)

{¶ 22} Appellant argues that the date listed for the hearing, i.e., June 20, 2012, on

the notice of decision for the "08" case is evidence that the "08" case was heard, or

No. 15AP-729 8

reheard, on that date. (Appellant's Brief, 12.) The appellees counter that the date on the

notice of decision was a clerical error, and submitted the affidavit of the Clerk of the

Franklin County BOR, LyAnne Brown, in support of this contention. (Brown Aff., ¶ 14.)

{¶ 23} Appellant argues that in order to reach the trial court's conclusion granting

the motion for summary judgment, the trial court necessarily weighed the evidence and

determined that the information in the Brown affidavit was correct, and the notice of

decision and the hearing transcripts were incorrect. Appellant argues that the mere fact

that such a determination was made indicates there is a genuine issue of material fact in

this case. (Appellant's Brief, 12-13.)

{¶ 24} However, it is not true that the evidence is conflicting on this point. Other

than the date on the notice of decision letter, all of the other evidence in the record

supports Brown's affidavits statement that the date was a clerical error. For example, the

transcript for the hearing for the "08" case indicates that it was held November 15, 2011.

(Defendant's Mot. for Summ. Jgmt., Ex. K.) In addition, Stroud states several times that

the "08" case "was heard November 15, 2011." (BOR Hearing Tr., 4; 19-20.)

{¶ 25} The "10" case hearing worksheet also does not support Ryan's position that

a rehearing on the "07" and "08" cases took place at the June 20, 2012 hearing. The

hearing worksheet indicates "Consol 07-900758 and 08-900434 with 10-7247" with a line

drawn to "Decision of the Board of Revision." (Defendant's Mot. for Summ. Jgmt., Ex. B.)

In other words, the worksheet indicates the three cases were consolidated for decision

purposes. This coincides with Stroud discussing "consolidating" all of the cases for

"decision." (BOR Hearing Tr., 5.) In this regard, the affidavit of Brown is supported by all

of the other evidence in the record.

{¶ 26} The property owner had counsel present at all three hearings. At the

June 20, 2012 hearing, the BOR did not ask for evidence for tax years 2007 through 2009.

The property owner's counsel did not object to lack of notice or to any improper rehearing

or introduction of evidence. In fact, the property owner's attorney did not make one

objection at the June 20, 2012 hearing.

{¶ 27} No genuine issue of material fact exists. The evidence clearly indicates that

the June 20, 2012 hearing was for BOR case "10" only. The appellant had its opportunity

to specifically address the "07" and "08" tax years on earlier dates (April 15, 2009 and

No. 15AP-729 9

November 15, 2011). Even if one were to consider the June 20, 2012 hearing a rehearing,

no prejudice to appellant can be shown as its counsel was present at the hearing and did

not object. Generally, a party waives the right to appeal an issue that could have been but

was not raised in earlier proceedings. Columbus City Schools Bd. of Edn. v. Franklin Cty.

Bd. of Revision, 144 Ohio St. 3d 549, 2015-Ohio-4837, ¶ 14, and MacConnell v. Ohio DOC,

10th Dist. No. 04AP-433, 2005-Ohio-1960, ¶ 21.

{¶ 28} After a thorough review of the record, we find that the notice to the

June 20, 2012 hearing involving the "10" case was proper and the BOR had jurisdiction.

We also agree with the trial court that no rehearing of the "07" and "08" cases occurred.

Even if such rehearing occurred, Ryan's predecessor MLQ was represented by counsel at

the hearing and did not object, thereby waiving any objection. As such, Ryan's first

assignment of error is overruled.

V. SECOND ASSIGNMENT OF ERROR–FAILURE TO EXHAUST

ADMINISTRATIVE REMEDIES

{¶ 29} Ryan's second assignment of error alleges that the court erred in holding

that Ryan failed to exhaust administrative remedies because the BOR lacked jurisdiction

due to lack of proper notice. In light of our holding above that notice was proper, we

disagree with appellant.

{¶ 30} The doctrine of exhaustion of administrative remedies requires that relief

must be sought by exhausting an administrative remedy provided by statute before the

courts will act. Basic Distrib. Corp. v. Ohio Dept. of Taxation, 94 Ohio St.3d 287, 2002-

Ohio-794. The purpose of the doctrine is to permit an administrative agency to apply its

special expertise and develop a factual record without premature judicial intervention.

Nemazee v. Mt. Sinai Med. Ctr., 56 Ohio St.3d 109 (1990).

{¶ 31} Ohio statutes provide an avenue of appeal from BOR decisions.

R.C. 5717.01 provides that:

An appeal from a decision of a county board of revision may

be taken to the board of tax appeals within thirty days after

notice of the decision of the county board of revision is mailed

as provided in division (A) of section 5715.20 of the Revised

Code.

No. 15AP-729 10

R.C. 5717.05 provides that:

As an alternative to the appeal provided for in section 5717.01

of the Revised Code, an appeal from the decision of a county

board of revision may be taken directly to the court of

common pleas of the county by the person in whose name the

property is listed or sought to be listed for taxation. The

appeal shall be taken by the filing of a notice of appeal with

the court and with the board within thirty days after notice of

the decision of the board is mailed as provided in section

5715.20 of the Revised Code.

{¶ 32} Despite having received decision letters pursuant to R.C. 5715.20(A),

appellant did not file an appeal pursuant to either R.C. 5717.01 or 5717.05. Instead,

appellant commenced this lawsuit almost two years after having received the decision

letters. MLQ failed to timely file an appeal of the BOR's decision. This fact is fatal to

appellant's appeal as the common pleas court correctly stated. (Decision, 4.) As such,

appellant's second assignment of error is overruled.

VI. DISPOSITION

{¶ 33} Based on our de novo review of the facts and the relevant law, we agree with

the trial court. Appellant did not meet its burden to come forward with specific facts

demonstrating that there is a genuine issue of material fact for trial. Having overruled

Ryan's assignments of error, we affirm the judgment of the Franklin County Court of

Common Pleas.

Judgment affirmed.

SADLER, J., concurs.

LUPER SCHUSTER, J., concurs in judgment only.

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