State ex rel. Ames v. Portage Cty. Bd. of Revision (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Ames v. Portage Cty. Bd. of Revision, Slip Opinion No. 2021-Ohio-4486.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2021-OHIO-4486

THE STATE EX REL. AMES, APPELLANT, v. PORTAGE COUNTY BOARD OF

REVISION, APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Ames v. Portage Cty. Bd. of Revision, Slip Opinion

No. 2021-Ohio-4486.]

Mandamus—Standing—Relator lacks standing to bring mandamus action against

a board of revision when he fails to allege that his property was the subject

of an improper hearing by the board or that he has been personally harmed

by the board’s practices—Court of appeals’ dismissal of complaint

affirmed.

(No. 2021-0647—Submitted October 5, 2021—Decided December 23, 2021.)

APPEAL from the Court of Appeals for Portage County, No. 2021-P-0027,

2021-Ohio-1698.

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SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Appellant, Brian M. Ames, appeals the judgment of the Eleventh

District Court of Appeals dismissing his complaint for a writ of mandamus against

appellee, Portage County Board of Revision, for lack of standing. We affirm.

I. Background

{¶ 2} Each Ohio county has a board of revision that is authorized to hear and

decide complaints regarding the valuation of real property for taxation purposes.

R.C. 5715.01(B). The board consists of the county treasurer, the county auditor, and

one member of the county board of commissioners who is selected by the

commissioners. R.C. 5715.02. The board is also authorized to create hearing boards,

when necessary, to hear valuation complaints expeditiously. Id. Each board member

“may appoint one qualified employee from the official’s office to serve in the

official’s place and stead on each such board.” Id.

{¶ 3} On January 11, 2021, the Portage County Board of Revision held its

mandatory organizational meeting. The treasurer, the auditor, and the commissioner

assigned to the board were in attendance. They “discuss[ed] the selection of alternate

delegates to serve on the board during scheduled appeal hearings.” Proposed

alternates for each of the board members were identified. However, the board did

not create any hearing boards.

{¶ 4} Ames resides in Portage County where he owns parcel No. 28-100-

00-00-011-000. On March 17, 2021, Ames filed a complaint for a writ of mandamus

in the Eleventh District Court of Appeals. He alleged that the Revised Code requires

the creation of hearing boards for which alternates may then be identified but that the

board members may not lawfully appoint alternates to the board itself. He asked the

court to issue a writ of mandamus compelling the board to create hearing boards and

to record the name of the board member or board member’s appointee assigned to

each board and to “[r]evoke any and all designations of alternates” made by the

board.

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January Term, 2021

{¶ 5} The board filed a motion to dismiss the complaint for failure to state a

claim upon which relief may be granted and on the ground that Ames lacks standing.

Ames responded with a cross-motion for summary judgment.

{¶ 6} On May 17, 2021, the court of appeals granted the motion to dismiss

and denied the motion for summary judgment. 2021-Ohio-1698, ¶ 14. The court of

appeals held that Ames lacks standing, id. at ¶ 8, and that the “public right” exception

to standing does not apply, id. at ¶ 13.

{¶ 7} Ames appealed to this court as of right.

II. Legal analysis

{¶ 8} We review a dismissal under Civ.R. 12(B)(6) de novo. State ex rel.

McKinney v. Schmenk, 152 Ohio St.3d 70, 2017-Ohio-9183, 92 N.E.3d 871, ¶ 8.

Whether a party has standing to bring an action is a question of law that we also

review de novo. State ex rel. Teamsters Local Union No. 436 v. Cuyahoga Cty. Bd.

of Commrs., 132 Ohio St.3d 47, 2012-Ohio-1861, 969 N.E.2d 224, ¶ 10.

{¶ 9} Standing determines “whether a litigant is entitled to have a court

determine the merits of the issues presented.” Ohio Contrs. Assn. v. Bicking, 71

Ohio St.3d 318, 320, 643 N.E.2d 1088 (1994). A party must establish standing to

sue before a court will consider the merits of the party’s claim. Ohio Pyro, Inc. v.

Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550,

¶ 27.

{¶ 10} A party lacks standing unless he has, in an individual or

representative capacity, “some real interest in the subject matter of the action.”

State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio St.2d 176,

298 N.E.2d 515 (1973), syllabus. To have standing in a mandamus case, a relator

must be “ ‘beneficially interested’ ” in the case. State ex rel. Hills & Dales v. Plain

Local School Dist. Bd. of Edn., 158 Ohio St.3d 303, 2019-Ohio-5160, 141 N.E.3d

189, ¶ 9, quoting State ex rel. Spencer v. E. Liverpool Planning Comm., 80 Ohio

St.3d 297, 299, 685 N.E.2d 1251 (1997); R.C. 2731.02. “[T]he applicable test is

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SUPREME COURT OF OHIO

whether [a] relator[] would be directly benefited or injured by a judgment in the

case.” State ex rel. Sinay v. Sodders, 80 Ohio St.3d 224, 226, 685 N.E.2d 754

(1997). A mandamus action brought by a party that lacks standing will be

dismissed. See generally Hills & Dales.

{¶ 11} Ames does not allege that his property was the subject of an

improper hearing by the board. Nor does he claim that the board’s practices have

harmed him in any way. Instead, he presents the following propositions of law.

A. The first proposition of law

{¶ 12} The complaint alleged that “[a]s the owner of parcel 28-100-00-00-

011-000, Mr. Ames enjoys standing to bring this action.” In his first proposition of

law, Ames contends that the court of appeals was required to accept this assertion

as true and therefore could not dismiss his complaint under Civ.R. 12(B)(6).

{¶ 13} When standing is challenged in a motion to dismiss, the court must

presume that all the factual allegations in the complaint are true. Cincinnati v.

Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 41.

But “legal conclusions, even when cast as factual assertions, are not presumed true

for purposes of a motion to dismiss.” State ex rel. Martre v. Reed, 161 Ohio St.3d

281, 2020-Ohio-4777, 162 N.E.3d 773, ¶ 12 (holding that the court was not required

to accept as true the relator’s assertion that he lacked an adequate remedy in the

ordinary course of the law). Applying these rules to the present case, the court of

appeals was required to accept as true the allegation that Ames owns the parcel that

he identified in his complaint, but it was not required to accept the legal conclusion

that this property ownership confers standing on Ames to bring the mandamus

action. We reject Ames’s first proposition of law.

B. The second proposition of law

{¶ 14} In addition to the averment of standing quoted above, the complaint

also alleged that “Mr. Ames is prejudiced by the illegal organization of the board

as the [sic] fair hearing of complaints against valuation or assessment.” In his

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January Term, 2021

second proposition of law, Ames asserts: “The taxable value of all real property in

the same taxing district and class is a critical factor in the determination of the

effective tax rate for parcel 28-100-00-00-011-000 owned by Mr. Ames. R.C.

319.301(B)(3). Therefore, Mr. Ames has a beneficial interest in the lawful

operation of the [board] and in the decisions of the [board] rendered on complaints

filed under R.C. 5715.19.”

{¶ 15} Ames’s theory is that a misevaluation of one property affects the tax

assessment of his own property, and therefore he has standing. But even assuming

that to be true, Ames alleged only that he has an interest in the outcome of tax-rate

assessment appeals. Whether he has standing to challenge the procedures by which

the board conducts those hearings is a different question. In other words, Ames has

not alleged that he is personally harmed by the board’s practice of appointing

alternates without first creating separate hearing boards.

{¶ 16} Ames also asserts that R.C. 5715.19(A)(1) confers standing on him

to bring this action. That section authorizes the filing of complaints with the county

auditor to challenge any of the determinations that the board is statutorily

authorized to make and does not limit the persons who may file such complaints.

But R.C. 5715.19(A)(1) is inapplicable, because this is not a complaint challenging

a valuation determination, recoupment charge, or any other substantive decision by

the board, and it was not filed with the county auditor. This is a mandamus action

seeking to compel the board to change how it conducts business in all cases.

Therefore, R.C. 5715.19(A)(1) does not confer standing on Ames to bring this

action.

{¶ 17} Finally, Ames argues that the court of appeals “erred in finding * * *

the potential harm in this case to be not severe enough to merit the issuance of the

requested writ.” Ames maintains that the court of appeals should have found

standing based on the theory that he had asserted a “public right.” The court of

appeals did not need to make any determination with respect to an alternative theory

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of standing, however, because Ames did not assert the issue in the court of appeals.

And because he failed to raise the issue, he waived it. See ProgressOhio.org at ¶ 16

(holding that the appellant waived a claim of taxpayer standing by failing to raise

it in the court of appeals).

{¶ 18} Ames’s second proposition of law has no merit.

C. The third and fourth propositions of law

{¶ 19} The remaining propositions of law do not present substantive

challenges to the court of appeals’ decision on standing. In his third proposition of

law, Ames argues that the board’s practice of designating alternates prior to the

creation of hearing boards violates the law because it allows the alternates to

perform all duties of the board and not just hear complaints as to the valuation of

real property. And in his fourth proposition of law he contends that, because the

board is violating the law and the facts are not in dispute, the court of appeals should

have granted his motion for summary judgment. Because we hold that Ames lacks

standing to bring this mandamus action, it is unnecessary for this court to address

these arguments.

III. Conclusion

{¶ 20} For these reasons, we hold that the court of appeals properly

dismissed Ames’s complaint for lack of standing.

Judgment affirmed.

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,

and BRUNNER, JJ., concur.

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Brian M. Ames, pro se.

Victor V. Vigluicci, Portage County Prosecuting Attorney, and Christopher

J. Meduri, Assistant Prosecuting Attorney, for appellee.

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