Gasper Township Board of Trustees v. Preble County Budget Commission

O’Donnell, J.,

dissenting.

{¶ 17} The issue in this case involves an interpretation of R.C. 5705.37 and concerns whether a notice of appeal has been filed with the budget commission upon a timely, certified mailing to the proper address or whether filing also requires actual receipt by the budget commission. While the majority concludes that Gasper Township filed its notice of appeal in accordance with R.C. 5705.37 simply by mailing it to the Preble County Budget Commission, the plain language of this statute establishes that a notice of appeal has not been filed unless it has been received by the budget commission. Thus, I respectfully dissent.

{¶ 18} As the majority recognizes, “[t]he right to appeal an allocation of a local government fund to the Board of Tax Appeals is created by statute. * * * Therefore, if appellant has failed to comply with the appropriate statutory requirements, the board lacks subject-matter jurisdiction to hear the appeal.” *171 Painesville v. Lake Cty. Budget Comm. (1978), 56 Ohio St.2d 282, 284 , 10 O.O.3d 411 , 383 N.E.2d 896 , citing Queen City Valves, Inc. v. Peck (1954), 161 Ohio St. 579 , 584, 53 O.O. 430 , 120 N.E.2d 310 , and Am. Restaurant & Lunch Co. v. Glander (1946), 147 Ohio St. 147 , 34 O.O. 8 , 70 N.E.2d 93 .

{¶ 19} In this case, we are required to interpret R.C. 5705.37, which provides: “The taxing authority of any subdivision that is dissatisfied with any action of the county budget commission may, through its fiscal officer, appeal to the board of tax appeals within thirty days * * *. An appeal under this section shall be taken by the filing of a notice of appeal, either in person or by certified mail * * *, with the board and with the commission. If [a] notice of appeal is filed by certified mail * * *, [the] date of the United States postmark placed on the sender’s receipt by the postal service * * * shall be treated as the date of filing. Upon receipt of the notice of appeal, the commission, by certified mail, shall notify all persons who were parties to the proceeding before the commission of the filing of the notice of appeal and shall file proof of notice with the board of tax appeals.” (Emphasis added.)

{¶ 20} When construing a statute, we have emphasized that “our paramount concern is the legislative intent.” State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355 , 2004-Ohio-4960 , 815 N.E.2d 1107, ¶ 21 . And as we reiterated in State ex rel. Choices for South-Western City Schools v. Anthony, 108 Ohio St.3d 1 , 2005-Ohio-5362 , 840 N.E.2d 582, ¶ 40 , “[t]o discern this intent, we first consider the statutory language, reading words and phrases in context and construing them in accordance with rules of grammar and common usage.”

{¶ 21} Here, the plain language of R.C. 5705.37 requires a party to file a notice of appeal with the budget commission within 30 days, and it authorizes use of certified mail for that purpose. A party choosing to use certified mail may rely on the date of the postmark on the sender’s receipt as the date of filing for determining the timeliness of the filing, but that party has the further obligation to also ensure that the notice of appeal has been received in the proper office. This portion of the statute does not specify that the date on the receipt shall be treated as the date the budget commission received the filing.

{¶ 22} Rather, the statute plainly expresses the legislature’s intent that a notice of appeal is not filed until the budget commission actually receives it. R.C. 5705.37 specifies that “[u]pon receipt of the notice of appeal, the commission * * * shall notify all persons who were parties to the proceeding before the commission of the filing of the notice of appeal and shall file proof of notice with the board of tax appeals.” (Emphasis added.) The statute thus contemplates two aspects of filing a notice of appeal: the timeliness of the filing and the actual receipt of the filing by the budget commission, which triggers further duties for the commission to undertake. In this way, the General Assembly has expressed *172 its intent for the budget commission to receive the notice of appeal in a timely fashion.

{¶ 23} The majority concludes that the budget commission had a duty to notify “all persons who were parties to the proceeding before the commission of the filing of the notice of appeal,” R.C. 5705.37, because “[t]he budget commission was notified of the appeal * * * by the BTA even if it did not receive the notice of appeal that had been delivered to the Preble County Courthouse.” ¶ 15. But R.C. 5705.37 establishes that the commission’s duty to notify arises only “[u]pon receipt of the notice of appeal” (emphasis added), not, as the majority holds, “upon notification of the notice of appeal.” Thus, by substituting its word for the word chosen by the legislature, the majority violates the well-established maxim of statutory construction that “it is the duty of this court to give effect to the words used, not to delete words used or to insert words not used.” Cleveland Elec. Illum. Co. v. Cleveland (1988), 37 Ohio St.3d 50 , 524 N.E.2d 441 , paragraph three of the syllabus.

{¶ 24} Moreover, the ordinary meaning of the word “file” indicates completed delivery. Black’s Law Dictionary (8th Ed.2004) 660 defines the verb “file” as to “deliver a legal document to the court clerk or record custodian for placement into the official record.” We relied upon this definition in State ex rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76 , 2008-Ohio-333 , 881 N.E.2d 1214 , ¶ 35, in which we held that a referendum petition delivered to the private residence of a township trustee but never given to the township fiscal officer or placed in the township records had not been filed in accordance with R.C. 519.12(H). See also State ex rel. Canales-Flores v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d 129 , 2005-Ohio-5642 , 841 N.E.2d 757, ¶ 26 .

{¶ 25} Similarly, in Fulton v. State ex rel. Gen. Motors Corp. (1936), 130 Ohio St. 494 , 5 O.O. 142 , 200 N.E. 636 , we concluded that the word “filed” in G.C. 710-98a required actual delivery into the custody of the addressee. Id., paragraph one of the syllabus, cited with approval in Elkem Metals Co. v. Washington Cty. Bd. of Revision (1998), 81 Ohio St.3d 683, 687 , 693 N.E.2d 276 . As we noted in Fulton, “[t]he act of mailing was but the initial step taken in the process of transmission of the claim and did not constitute a ‘filing.’ The date of mailing is therefore immaterial. The fact which is controlling is the time of actual delivery of the claim into the official custody and control of the Superintendent of Banks, for it was then that the claim was ‘filed.’ ” 130 Ohio St. at 500 , 5 O.O. 142 , 200 N.E. 636 .

{¶ 26} It has never been the law that the act of mailing is equivalent to the act of filing. Rather, in numerous contexts, we have held that jurisdiction does not vest in a tribunal until the appropriate document has been filed. See, e.g., Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision (2001), 91 *173 Ohio St.3d 308 , 744 N.E.2d 751 (board of revision); Hartsock v. Chrysler Corp. (1989), 44 Ohio St.3d 171 , 541 N.E.2d 1037 (appeal from the Industrial Commission); Hansford v. Steinbacher (1987), 33 Ohio St.3d 72 , 514 N.E.2d 1385 (appeal from the Unemployment Compensation Board of Review).

John R. Varanese, for appellant.

Richard F. Hoffman, for appellee Preble County Budget Commission.

Chester, Willcox & Saxbe, L.L.P., John W. Bentine, Elizabeth J. Watters, and Lark T. Mallory, for appellees the villages of Eldorado, Gratis, Lewisburg, New Paris, West Alexandria, West Manchester, and Verona.

{¶ 27} Based on the foregoing, it is my view that in an appeal from an allocation of local government funds, a notice of appeal has not been filed in accordance with R.C. 5705.37 unless it has been received by the budget commission. While the statute provides that the date of the postmark on the sender’s receipt shall be treated as the date of filing, it does not relieve a party of the obligation to ensure that the budget commission actually receives the notice of appeal. The party choosing to appeal bears the burden to ensure the receipt of the filing, and those who wait until the last day foreclose opportunities to correct mistakes.

{¶ 28} In this case, although a receptionist employed by the county commissioners signed the certified-mail receipt for the notice of appeal, the budget commission never received it as required by statute. Thus, Gasper failed to file its notice of appeal in conformity with R.C. 5705.37, and the BTA properly dismissed the appeal for lack of subject matter jurisdiction. For these reasons, I respectfully dissent.

Moyer, C. J., and Cupp, J., concur in the foregoing opinion.