IN THE SUPREME COURT OF OHIO Canal Winchester MOB LLC, vs. Fairfield County Board of Revision and Fairl:ield Countv Atiditor, et al.; Appellant.. Case No, 13-1432 s. NOTICE OF FILING NOTICE OF APPEAI. WITH BOARD OF TAX APPEALS Pursuant to Ohio Revised Code 5717.04 and as demonstrated by the two time stamps on the Notice of Appeal filed in this Court as well as in the attached identical Notice filed with the Board of Tax Appeals, the Notice of Appeal in this case was also timely filed in the 13oard of 'I'ax Appeals. Michael L. Close (0008586) Eugene L. Hollins (0040355) I)ale D. Cook (0020707) ISAAC WTLES Bt;KKI-iOLI3ER & TEETOR, LLC Two Mirai-iova Place, Suite 700 Columbus, Ohio 43215 (614) 221-2121 Fax (614) 365-9516 einail: rnclose ^isaacwiles.coin a ^ D ghollinsia?isaacwiles.corn? dcool<?isaa.cwiles.coni f3 AttorrzeYs. for Appellant Canal Winc> iester.41073 LLC (aws ^:t^^ f^-. ^ ^' 1 r 4%^;s^ %.i.st r ^'^^}'" s^ai::3f,'. ^`^^,..,.at. ty{f,i;4^ 's.%,j ^'1.I r4/;^ ^ 2352390.1 c 0142100004
(:ERTIFICATF, OF SERVICE I hereby certify that a copy of the foregoing has been served by regular U.S. mail, postage prepaid, this ay of September, 2013, upori the following: Jason M. Dolin (0041 820) Fairfield County Prosectitor's Office 239 West Main Street, Suite 101 Lancaster, Ohio 431 a 0 (740) 652-7560 Attof neyfor s Diley Ridge Medical Center 6150 East Broad Street Columbus, Ohio 43213-1:574 11'.airfield County Board of Revision 210 East Main Street, Suite 201 Fairfield County Auditor 210 East Main Sti-eet, Suite 201 Joseph Testa Tax C'ommissio.ner Ohio Departmerrt of Taxation P.O. Box 530 Colun.ibus, Ohio 43216-0530 Board of Tax Appeals Rhodes Tower 30 East Broad Street, 24th Floor Columbus Ohio 43215 --- --=^^ ------- ^^ Da e D. Cook 2352390.1 : 0142100004 2
TAX APPEAL TO SUPREME COURT OF OHIO Canal Winchester MOB LLC (Complainant), us. Appellant, Fairfield County Board of Revision and Fairfield County Auditor, et al., BTA Case No. 2012-L-429 Fairfield County BOR Ref No. 10-0448 (Real Property Tax) Appeal No. s, Appellant - Canal Winchester MOB LLC 1533 Lake Shore Drive Columbus, Ohio 43204 s - Diley Ridge Medical Center 6150 East Broad Street Columbus, Ohio 43213-1574 Fairfield County Board of Revision Fairfield CoL2nty Auditor 210 East Main Street, Suite 201 Joseph Testa Tax Commissioner Ohio Department of Taxation P.O. Box 530 Columbus, Ohio 43216-0530 w ^ CII) rn F ern X..' ^^ CA ^ Board of Tax Appeals R1lodes Tower 30 East Broad Street, 24th Floor Columbus Ohio 43215 NOTICE OF APPEAL Pursuant to Ohio Revised Code 5717.04 and Ohio Supreme Court Rule of Practice 2.3(A), appellant Canal Winchester MOB LLC appeals to the Ohio Supreme Court from the 2345835.1: 0142100004
Decision and Order of August 8, 2013, a copy of which is attached, dismissing the Decrease Complaint for lack of standing. 5[IIN1MAtZY OF BOARD OF TAX APPEAI.,S DECISION: The appeal from the decision of the Board of Revision focused solely on arguments that the valuation of January 1, 2010 was excessive as the improvements to the property were not complete as of that date. In its decision, the Board of Tax Appeals, on its own, erroneously determined that Canal Winchester MOB LLC lacked standing to file a complaint in the underlying case since it was only a lessee as opposed to the titled owner of the property. As there was no standing, the Board determined that the jurisdiction of the Board of Revision was never properly invoked, and it remanded the case with an order to dismiss the underlying complaint. AsSIGNM[ENT OF ERROR No. 1: The Board erred as the complainant, Canal Winchester MOB LLC, was legally required to pay the taxes and owned the improvements on parcel number 042-03884-90 which gives it standing to file a Decrease Complaint and contest the tax valuation of that property. As it suffered legal injury, Canal Winchester MOB LLC had standing to file the complaint. As an owner of the improvements andlor a party with an ownership interest in an improvement, Canal Winchester was adversely affected by the excessive valuation of the property. See Midland Food Service LLC v. Cuyahoga County Board of Revision, Ohio Board of Tax Appeals, Case No. 01-0-151 (2002). ASSIGNMENT OF ERROR NO. 2: The Board erred by raising the standing issue sua sponte thus depriving appellants of the opportunity to be heard on that issue which is a fundamental component of due process. By raising the standing issue without notice to the parties, the Board of Tax Appeals precluded Canal Winchester MOB LLC from addressing the issue and providing further explanation or evidence. 2345835.1: 0142100004 2
ASSIGNMENT OF ERROR 1Vo. 3: Any objections to the standing of Canal Winchester MOB LLC as the complainant were waived by the failure to raise the standing issue before the Board of Revision or the Board of Tax Appeals. ASSIGNMENT of ERROR No. 4: The Board of Tax Appeals erred in dismissing the underlying complaint since the owner, Diley Ridge Medical Center was properly identified in the complaint thereby invoking the jurisdiction of the Board of Revision. As required by Ohio Revised Code 5717.04, this Notice has also been filed with the Board of Tax Appeals. Michael L, Close (0008586) Eugene L. Hollins (0040355) Dale D. Cook (0020707) ISAAC WILES BURKHOLDER & TEETOR, LLC Two Miranova Place, Suite 700 Columbus, Ohio 43215 (614) 221-2121 / Fax (614) 365-9516 email: mcloselisaacwiles.com ghollins@isaacwiles.coin dcook@isaacwiles.com A ttorneys for Appellant Canal Winchester MOB LLC 2345835.1 t 0142100004 3
CERTIFICATE C3FSERVICE Pursuant to Supreme Court Rule of Practice 14(B)(2) and Ohio Revised Code 5717.04, a copy of this Notice is being served via certified mail, postage prepaid, this 4^^day of September, 2013, upon the following: Jason M. Dolin (0041820) Fairfield County Prosecutor's Office 239 West Main Street, Suite 101 (740) 652-7560 Attorney for s Diley Ridge Medical Center 61.50 East Broad Street Columbus, Ohio 43213-1574 Fairfield County Board of Revision 210 East Main Street, Suite 201 Joseph Testa Tax Commissioner Ohio Department of Taxation. P.O. Box 530 Columbus, Ohio 43216-0530 Board of Tax Appeals Rhodes Tower 30 East Broad Street, 24th Floor Columbus Ohio 43215 Fairfield County Auditor 210 East Main Street, Suite 201 Dale D. Cook 2345835.1 : 0142100004 4
al 0`]11110 BOARD OF TAX APPEi ALS Diley Ridge Medical Center (Owner) and. ) Canal Winchester MOB LLC (Complaznant),) ) Appellants, ) ) vs. ) ) Fairfield County Board of Revision and } Fairfield County Auditor, ) ) s. ) CASE NO. 2012-L-429 (REAL PROPERTY TAX) DECISION AND ORDER APPEARANCES: For the Appellants - Isaac, Wiles, Burkholder 8c Teetor, LLC Kerry T. Boyle Two Miranova Place, Suite 700 Columbus, Ohio 43215 For the County - Gregg Marx s FaiifieId County Prosecuting Attorney Jason M. Dolin Assistant Prosecuting Attorney 239 West Main Street, Suite 101 En.tered AUG p 8 2013 Mr. Williamson, Mr. Johrendt, and Mr. Harbarger concur. Appellants appeal a decision issued by the Fairfield County Board of Revision ("BOR") which determined the value assigned to the subject property, i.e., parcel number 042-03884-90, for tax year 2010. All parties waived their right to appear at a hearing before this board and the appellant elected to submit a merit brief> Therefore, this matter is considered upon the notice of appeal, the statutory transcript ("S.T.") certified by the BOR, and the legal arguments of the appellant. L'pon a review of the record, it appears that the instant appeal is from a decision that the BOR did not have jurisdiction to make. Specifically, this board must
.,,. determine whether the underlying complaint properly invoked the jurisdiction of the county board of revision, and in tum, an appeal to this board. The record reveals that the underlying decrease complaint identified the owner of the property as Diley Ridge Medical Center and the complainant if other than owner as Canal Winchester MOB LLC. S.T., Ex. 7. On line five, which indicates the complainant's relationship to the property if not ovvner, the complainant identified itself as "Ground Lessee." Id. The complaint was then signed by "Bruce H. Burkholder, Attorney." Id. At the hearing before the BOR, IVIi < Herman Ziegler testified that he was the treasurer of Canal Winchester MOB LLC, the party that pays the taxes for the subject parcel. S.T., Ex. 4 at 113. Further, both the notice of appeal and merit brief clearly distinguish the owner of the property, Diley Ridge Medical Center, from the party responsible for the taxes, Canal Winchester MOB LLC. Brief at I. Thus, the record before this board indicates that the underlying complaint was filed by the lessee of the property, rather than the titled owner.' R.C. 5715.13 outlines who has standing to file a decrease complaint and provides that "[t]he county board of revision shall not decrease any valuation unless a party affected thereby or who is authorized to file a complaint under section 5715.19 of the Revised Code makes and files with the board a written application therefor, verified by oath, showing the facts upon which it is claimed such decrease should be made." Furthermore, with regard to who may file a complaint, R.C. 5715.19 provides that "[ajny person owning taxable real property in the county or in a taxing district with territory in the county" may file a complaint or "a person owning taxable real property in L In its brief, the appellants sate that the underlying complaint was filed both by Di 1ey Ridge Medical Center and Canal Winchester MOB LLC. Brief at 1. However, the record does not support this contention, 2
.. - ^ another county rnay file such a complaint only with regard to any such determination affecting real property in the county that is located in the same taxing district as that person's real property is located." Specific to the instant case, in City of Dayton v..montgomery Cty. Bd. of Revision (Tan, 18, 2008), BTA No. 2006-Z-181 1, unreported, this board addressed the jurisdictional validity of a complaint filed by a lessee of property, holding as follows: "The rights of a lessee within the real property valuation realm are well established, While a lessee may be the owner of an equitable interest in real property, a lessee is not the holder of legal title thereto, See Performing.t1Yts School of Metro. Toledo, Inc. v. Wilkins (2004), 104 Ohio St.3d 284, 2004-Ohio-6389. This is an important distinction because the holder of legal title of real property has standing to file a complaint under R.C. 5715.19, whereas the owner of an equitable interest in real property does not. See Victoria Plaza Ltd. Liab. Co. v. Cuyahoga Cty. Bd. of Revision (1999), 86 Ohio St.3d 181, 183 ('Thus, a person owning property has legal title to it; a person having the beneficial interest in property has possessiorz of all characteristics of ownership other than legal title. Since R.C. 5715.19 does not contain language altowing someone other than the person holding legal title to file a complaint, we conclude that the owner of an equitable interest in real property does not have standing to ffle a complaint.'); Society.National Bank v. Wood Cty. Bd. of Idevision (1998), 81 Ohio St.3d 401 (R.C. 5715.19 governs who can file a compiaint); Public Square Tower One v. Cuyahoga Cty. Bd. of Revision (1986), 34 Ohio App.3d 49, 516 N.E.2d 1280, syllabus ('As used in R,.C, 5715.19, the term 'owner' refers to the owner on the date when a valuation complaint was fled. ). See, also, Performing Arts, supra (a lessee lacks standing to file an application seeking to exempt real property and the fact that the owner joins in the application after the filing deadline has passed does not cure the jurisdictional defect); North Olmsted Bd of Edn. v. Cuyahoga Cty. Bd. of Revision (1998), 122 Ohio App.3d 654, 702 N.E.2d 518 (lessee and non-owner of property lacked standing to file a decrease complaint with the board 3
of revision); Berea City School Dist, Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision (June 29, 2007), BTA No. 200E-Z-1 19[), unreported; Color Matrix v. Cuyahoga Cty. Bd of Revision (June 29, 2007), BTA No. 2006-Z-1347, unreported." Id. at 9-10. See, also, Top Spin LLC v. Lucas Cty. Bd of Revision (Mar. 28, 2013), BTA No. 2011- Q-3 g79, unreported; Fauble v. Montgomery Cty. Bd of Revision (Sept. 25, 2012), BTA No. 201 0-Y-2612, unreported; Berea City School Dist. L4d of Edn. v. Cuyahoga Cty. Bd of Revision (Aug. 28, 2012), BTA Nos. 2011-A-3424, 3425, unreported; Leister Game &.1Vovezty Co. LLC v. Lucas Cty. Bd of Revision (June 8, 2010), BTA. Na. 2009-1liI- 2403, unreported. The case law is ctear that as a lessee, Canal Winchester MOB LLC did not have standing to file the underlying complaint. Therefore, it is the decision of the Board of Tax Appeals that the initial complaint filed with the BOR was insufficient to invoke that tribunal's jurisdiction. Accordingly, this matter is hereby remanded to the BOR with instructions to dismiss the underlying complaint which originated this action. 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. Groeber, Bo d Secretary 4