^ N,% ^AR CLERK OF COURT RENBECOURT flfc ... <^ IN TI-IE SUPREME COURT STATE OF OHIO APPEAL FROM THE BOARD OF TAX APPEALS

Transcription

1 IN TI-IE SUPREME COURT STATE OF OHIO APPEAL FROM THE BOARD OF TAX APPEALS ^ N,% SI-IOPS OF FAIRLAWN DELAWARE, LLC ANI) SIIOPS OF FAIRLAWN RETAIL LIMITED PAR"FNE;RSHIP AND SHOPS OF FAIRLAWN DELAWARE MEMBER, LLC, ( et al.). SUPREME COURTCASE NtTMBI R Appellant, V. SUMMIT COUNTY BOARD OF REVISION, StrMMIT COUN'I'Y FISCAL OFFICER, AND TAX COMMISSIONER OF THE ST'ATE OF OHIO, BOARD OF TAX APPEALS CASE NO & and Appellees, <^ COPLEY-FAIRL:AViN' CITY SCHOOL DISTRICT BOARI) OF EDUCATION,., `..,.. Appellee. NOTICE OF APPEAL Milton C. Rankins(U051933) COt1NSEI, OF RECORI) Assistant Prosecuting Attorney 53 University Ave., 7th Floor Akron, OH P: (330) F: (330) ATTORNEY FOR APPELLEES SUMMIT COUNTY BOARD OF REVISION ANI) FISCAL Todd W. Sleggs ( ) COUNSEL OF RE'sCORD SLEGGS, DANZINGER & GILL, CO., LPA 820 W. Superior Avenue, Seventh Floor Cleveland, OH ' P: (216) F: (216) ATTORNEY FOR APPELLANT SHOPS OF FAIRLAWN DELAWARE, LLC AND SIIOPS OF FAIRLAWN RETAIL LIMITED PARTNERSHIP AND SHOPS OF Ii'AIRLAWN DELAWARE MEMBER, LLC, (et al.) ^AR CLERK OF COURT RENBECOURT flfc

2 Mike DeWine Ohio Attonley General State Office Tower, 17th Floor 30 East Broad Street Columbus, OH P: (614) F: (614) A'I'TORNEY FOR APPELLEE TAX COMMISSIONER OF 'THL STATE OF OHIO Karrie M. Ka1ail ( ) COUNSEL OI' RECORD BRITTON, SMITI-1, PETERS & KALAIL 3 Summit Park Drive, Suite 400 Cleveland, OH P: (216) F: (216) ATTORNEY FOR APPELLEE COPLEY-FAIRLAWN CITY SCHOOL DISTRICT BOARD OF EDiJCATION

3 IN THE SUPREME COURT STA.TE OF OI-IIO APPEAt, FROM THE BOARD OF TAX APPEALS SHOPS OF FAIRLAWN DELAWARE, LLC AND SI-IC)PS OF FAIRLAWN RE"I'AII, LIMITED PARTNF_,RSHIP AND SHOPS OF FAIRLAWN DI;LAWARE' MEMBER, LLC, ( et al.), SUPREME COURT CASE NTUMBER: Appellant, V. SUMMIT COUNTY BOARD OF REVISION, SUMMIT COUNTY FISCAL OFFICER, AND TAX COMMISSTONER OF THE STATE OF OHIO, and Appellees, COPLEY-FAIRLAVCTN CITY SCHOOL DISTRICT BOARD OF EDUCATION, BOARD OF TAX APPEALS CASE NO & NOTICE OF APPEAL TO THE SUPREME COURT OF OHIO I'URS'UANT `I'O SECTION REVISI?D CODE Appellee. The Appellant, Shops of Fairlawn Delaware, LLC and Shops of Fairlawn Retail Limited Partnership and Shops of Fairlawn Delaware Member, LLC, (et al.), by and through counsel, hereby gives notice of its appeal to the Supreme Cciirt of The State of Ohio, from a Decision and Order of the Ohio Board of ri'ax Appeals, rendered on the 21 st day of February, 2014, a copy of which is attached hereto as "Exhibit A" and which is incorporated herein as though fully rewritten in this Notice of Appeal.

4 by reference. The Errors complained of are attached hereto as "Exhibit B" which is incorporated herein Respectfully submitted, SLEGGS, DANZINGER & GILL, CO., LPA ^..^.._ Todd W. Sleggs ( ) COLINSI?,I, OF RECORD 820 W. Superior Avenue - Seventh Floor Cleveland, OH P: (216) F: (216) ATTORNEYS FOR APPELLANT SHOPS OF FAIRLAWN DELAWARE, LLC AND SHOPS OF FAIRLAWN RE'I'AIL LIMITED PARTNERSHIP AND SHOPS OF FAIRLAWN DELAWARE MEMBER, LLC, (et. ai.)

5 OHIO BOARD OF TAX APPEALS SHOPS OF FAIRLAWN DELAWARE, LLC AND SHOPS OF FAIRLAWN RETAIL LIMITED PARTNERSHIP AND SHOPS OF FAIRLAWN DELAWARE MEMBER, LLC, (et. al), Appellant(s), vs. SUMMIT COUNTY BOARD OF REVISION (et. al.), ) ) ) ) ) CASF_, NO(S) AND (REAL PROPERTY VALUATION) ORDER (Dismissing Due to Failure to Prosecute) Appellee(s). F-EB APPFARANCES; For the Appellant(s) - TODD W. SLEGGS SLEGGS, DANZINGER & GILL CO., LPA 820 WEST SUPERIOR AVENUE, SEVENTH FLOOR CLEVELAND, OH For the Countv - SHERRI L. BEVAN WALSH SUMMIT COUNTY, PROSECUTING ATTORNEY MILTON C. RANKINS ASSISTANT PROSECUTING ATTORNEY 53 UNIVERSITY AVENUE, 7TH FLOOR AKRON, OH Entered ^^^ 2 ^ 20N For the Appellee(s) - KARRIE M. KALAIL BRITTON, SMITH, PETERS & KALAIL CO., LPA 3 SUMMIT` PARK DRIVE, SUITE 400 CLEVELAND, OH IVIr. Williamson, Mr. Johrendt, and Mr. Harbarger concur. Although having been duly notified of the hearing scheduled to proceed in this matter on 10/21/2013, the appellant(s) failed to appear at hearing and also failed to provide the required advancid=written notice of intent to waive hearing. See Ohio Adm. Code (F); scheduling notice. Accordingly, acting pursuant to Ohio Adm. Code , the present tnatter is hereby dismissed due to a failure to prosecute with the requisite diligence. Cf. LCL Incarne Properties v. Rhodes (1995), 71 Ohio St. 3d 652. I hereby certify the forgoing to be a true and coinplete copy of the action this day taken by the Board of Tax Appeals of the State of Ohio and entered upon its joumal this day, with respect to t ione atte ^ a _ ^ A.J. Groeber, ecretary 0 0! ^ 0 0 L EXH^^IT ^

6 OHIO BOARD OF TAX APPEALS Shops of Fairlawn Delaware, LLC and ) CASE NOS & 20' Shops of Fairlawn Retail Limited ) Partnership and Shops of Fairlawn ) Delaware Member, LLC Appellants, (REAL PROPERTY TAX) vs. Sutrtmit County Board of Revision and the Summit County Fiscal Officer, Appellees ORDER (Denying Motion for Reconsideration) JAN 0 3?pt 14 APPEARANCES: For the Appellant - Sleggs, Danzinger & Gill, Co., LPA Property Owners Todd Sleggs 820 West Superior Avenue, Seventh Floor Cleveland, Ohio For the County - Sherrie Bevan Walsh Appellees Summit County Prosecuting Attorney Milton C. Rankins Assistant Prosecuting Atto ney 175 South Main Street, Room 208 Akron, Ohio ti f For the Appellee - Britton, Smith, Peters & Kalail Co., LPA Board of Edn. Karrie M. Kalail 3 Summit Park Drive, Suite 400 Cleveland, Ohio Entered ^^^ ^ ^ 2013 Mr. VJilliarnson, Mr..Tohrendt and Mr. Harbarger concur. These matters are now considered upon appellants' motion for reconsideration, which requests this board to reconsider its denial of appellants' request to continue an October 21, 2013 merit hearing, approximately thiz-ty minutes prior to the scheduled commencement of such hearing, and the appellee Copley-Fairlawn City School District Board of Education's ("BOE") response, which requests this board to deny the _ ^,,,.,, ^^ 3 ^

7 appellants' motion for reconsideration. Counsel for the BOE and its expert witness appeared at the October 21, 2013 hearing and presented additional testimony and evidence, however, neither the appellants, nor their counsel appeared, nor waived appearance before this board. On September 9, 2013 this board sent notice to all parties to this appeal advising of a rescheduled merit hearing, set for October 21, 2013 at 9:00 a.m. No party to this appeal disputes that such notice was received. Thereafter, on October 21, 2013 at approximately 8:29 a.m. this board docketed a fax cover page and letter, dated October 20, 2013, from appellant's counsel requesting a continuance of the October 21, 2013 hearing, which hearing was set to commence at 9:00 a.m. In the letter, appellant's counsel represents that his appraiser had not been notified of the hearing date,1 and that "[he] has not been able to determine why Mr. Racek was not notified of the hearing but as counsel for the Appellants [he] take[s] full responsibility for the error." Appellants' Motion. Appellants' motion cites to two cases in support of their request for reconsideration, however, both cases are easily, and clearly, distinguishable from the present appeals. Specifically, in Coats v. Limbach ( 1989), 47 Ohio St.3d 114, the court found that the BTA had abused its discretion in denying a continuance, in part, because "the transcript demonstrates that Henderson was ill and that his absence was understandable," however, in the present appeal, no such circumstance has been alleged. Furtherrn.ore, the facts in &rongsville.sd: of Edn, v. Cuyahoga Cty. Bd. of Revision, (1990), 53 Ohio St.3d 254, indicate that counsel for the BOE received a rescheduling notice in March, and such notice indicated that a hearing was rescheduled for May and would not be continued. Subsequent thereto, counsel for the BOE learned that its appraiser would not be available on such date. Upon learning that the appraiser was not available on the hearing date, counsel for the BOE attempted to engage in settlement discussions and when such discussions were not successful, attempted to obtain a substitute expert witness, however, such endeavor was unsuccessful, and counsel for the! We note, counsel suggests in his motion that he "had cleared the [alternative] dates ofnovember 12, 2013, November 13, 2013, and November 14, 2013 ***", however, the record demonstrates that no alternative dates were provided to this board prior to the commenceinent of the October 21, 2013 hearing. 2

8 BOE then filed a motion in April requesting a continuance of the May hearing. The motion was denied, however, appellant's counsel appeared at the hearing before this board, cross examined the opposing expert witness and again, motioned this board for a continuance, which was also denied. In Strongsville, the court found the BTA had abused its discretion because "counsel for Strongsville proceeded with diligence." In the case at bar, there is no support that appellants' counsel "proceeded with diligence" in these appeals, in fact, appellants' counsel did not appear, nor waive appearance at the hearing before this board, iior has appellants' counsel alleged that he put forth efforts to settle these appeals or to secure an alternate appraiser. In response to appellants' motion, counsel for the BOE objects to a second merit hearing and asserts that such a merit hearing would unfairly result in additional legal and expert witness fees/costs being incurred by the BOE. Further, the BOE objects because "[a]llowing Appellant's [sic] expert to testify after Appellee's expert witness necessarily reverses the burden of proof causing undue prejudice to the Appellee ***." Appellee's Motion. We also note, a second hearing would result in additional costs being incurred by the county appellees as well. Finally, in Matthews v. Matthews (1981), 5 Ohio App.3d 140, the court indicated that the test to be applied when considering a request for reconsideration is whether it calls to the attention of the tribunal an obvious error in the decision or raises an issue for consideration that was either not considered or was not fully considered. Upon consideration of the appellants' motion, we find no basis to reconsider the original denial of appellants' continuance request, nor do we find any legal argument properly before this board not already addressed. Accordingly, appellants' failure to prepare and produce its expert witness for hearing is not sufficient good cause for this board to grant a continuance thirty minutes prior to the commencement of a properly noticed hearing and therefore, the Board of Tax Appeals finds the appellants' motion for reconsideration is not well taken and it is hereby denied. 3

9 I hereby certify the foregoing to be a true and complete copy of the action taken by the Board of Tax Appeals of the State of Ohio and entered upon its journal this day, with respect to the captioned matter. A.J., r, R'e y 4

10 EXIIiBIT "B" ASSIGNMEN'I' OF ERRORS ASSIGNMENT OF ERROR NO. I 1:he Board of Tax Appeals order dismissing the appeal for failure to prosecute is tuireasonable and unlawftil. ASSIGNMENT OF ERROR NO. 2 The Board of Tax Appeals order violates the Board's duty to determine value in an appeal under R.C and and is unreasonable and unlawful. ASSIGNMENT OF ERROR NO. 3 The Board of Tax Appeals order is unreasonable and unlawful, the Board cannot dismiss an appeal for failure to prosecute when the reason for Appellant's non-appearance was the Board's refusal to grant a postponement of a hearing. The Board was fully aware of the Appellant's reason for not appearing (unavailability of its only witness). its order dismissing the appeal is unreasonable and unlawful. ASSIGNMENT OF ERROR NO. 4 The Board of Tax Appeals order is an abuse ofdiscretion, the Appellant had not requested any prior postponements and indicated in its postponement request and Motion for Reconsideration alternative times when its witness would be available to testify. ASSIC"i-NMENT OF ERROR NO. 5 The Board of Tax Appeals order is contrary to Coats et al. v. Limbach, 7ax Comnafp., 47 Ohio St.3d 114 (1989), 548 N.E. 2d 917, and Strongsville Bcl of Fdn., et crl. vs. Cuyahoga C'ty: Bd. of Revision, et al. and Rivers ide Racquet Club. Ltd., 53 Ohio St.3d 254 (1990), 559 N.E.2d 1351, and is unreasonable and unlawful. ASSIGNMENT OF F>IZROR NO. 6 The Board of 1'ax Appeals order, based upon Ohio Administrative Code Section (F) and , is unreasonable and unlawful. These Ohio Administrative Code Sections conflict with the Board's statutory mandate under R.C and R.C and are unreasonable and unlawful as written and as applied to the facts in this appeal.

11 ASSIGNMENT OF ERROR NO. 7 The Board of Tax Appeals order, which denied Appellant's Motion for Reconsideration, is unreasonable and unlawful, counsel for the Appellant did not learn about the unavailability of its witness until 10:30 a.m. on Sunday morning, the hearing was scheduled for the next day at 9:00 a.m. The Board's suggestion that an alternate appraiser could be secured in that time frame is unreasonable and unlawful. ASSIGNMENT OF ERROR NO. 8 The Board of Tax Appeals failure to rule on Appellant's proffer of its appraisal is unreasonable and unlawful. ASSIGNMENT OF ERROR NO. 9 The Board of 'Tax Appeals order requiring the Appellant to waive a hearing when the Board had not yet ruled on its request to reschedule the hearing is unreasonable and unlawful. ASSIGNMENT OF ERROR NO. 10 The Board of Tax Appeals order requiring that Appellant waive a hearing when the Board had not yet ruled on its Motion for Reconsideration is unreasonable and unlawful. ASSIGNMENT OF ERROR NO. 11 The Board of Tax Appeals order is contrary to the statutory requirements contained in R.C and , ASSIGNMENT OF ERROR NO. 12 The Board of Tax Appeals order citing LCL Income Properties v. Rhode.s (1995), 71 Ohio St. 3d 652, is unreasonable and unlawful. The Appellant timely disclosed its appraiser as a uzitrtesson September 5, 2013 and provided his appraisal report on the same date to the Board and all counsel.

12 CERTIFICATE OI' SERVICE This is to certiiy that a copy of the foregoing NOTICE OF APPEAL was mailed via certified t7nited States mail, postage prepaid, to Milton C. Rankins, Esq., Assistant Prosecuting Attorney, 53 University Avenue, 7th Floor, Akron, OH 44308, Attorney for Appellees, Summit Cotmty Board of Revision and Fiscal Officer; KarrieM. Kalail, Esq., Britton, Smith, Peters & Kalail Co., LPA, 3 Summit Park Drive, Suite 400, Cleveland, OH 44131, Atlorney for Appellee Copley-Fairlawn City School District Board of Education; and Mike DeWine, Ohio Attornev General, State Office Tower, 17th Floor, 30 East Broad Street, Coliunbus, OH , ^ Attorney for Appellee Ta-x Commissioner of the State of Ohio on this _^ day of March, ^._... _^...,.w.^..^.. ^-^---`^_ - Todd W. Sleggs S:\W PDocs\S CT\213 S APPdoc