ORIRINAL IN THE SUPREME COURT OF OHIO OAK HILLS LOCAL SCHOOL DISTRICT,: BOARD OF EDUCATION Appellant, Case No. 12-0383 On Appeal from the Ohio Board of Tax Appeals vs. HAMILTON COUNTY BOARD OF REVISION, et. al. Board of Tax Appeals Case No. 2011-A-3219 Appellees. MERIT BRIEF OF APPELLANT OAK HILLS LOCAL SCHOOL DISTRICT, BOARD OF EDUCATION David C. DiMuzio (0034428) David C. DiMuzio, Inc. 810 Sycamore Street, Sixth Floor. Cincinnati, Ohio 45202 (513) 338-1990 Fax No. (513) 263-9010 ATTORNEY FOR APPELLANT OAK HILLS LOCAL SCHOOL DISTRICT, BOARD OF EDUCATION Thomas Scheve Assistant Prosecuting Attorney Hamilton County Prosecutor's Office 230 East Ninth Street, Suite 400 Cincinnati, Ohio 45202 ATTORNEY FOR APPELLEES HAMILTON COUNTY BOARD OF REVISION and AUDITOR Paul T. Saba Finney,Stagnaro, Saba & Patterson Co., 2623 Erie Ave Cincinnati, OH 45208 ATTORNEY FOR APPELLEE WESTERN HILLS COUNTRY CLUB JUN 14 Z012 CLERK OF COURT SUPREME COURT OF QHI 10 JUN 14?u12 CLERK OF COURT SUPREME COURT OF OHIO
TABLE OF CONTENTS Paee TABLE OF AUTHORITIES..........ii STATEMENT OF THE FACTS...1 ARGUMENT.........................................................................................3 Proposition of Law No. 1: The BTA Erred When It Held that R.C. 5717.01 Necessitates Physical Receipt of an Appeal Before It May Be Deemed Filed...3 Proposition of Law No. 2: Strict application of R.C. 5717.05 improperly strips the BOE of its right to review of a board of revision's valuation when a property owner is allowed to file a defective appeal and then the appeal is dismissed...4 CONCLUSION......................................................................................6 CERTIFICATE OF SERVICE...............7 APPENDIX Appendix Pages Notice of Appeal of Appellant Oak Hills Local School District, Board of Education (March 5, 2012)...1 Decision and Order of the Ohio Board of Tax Appeals (February 7, 2012)..........................................................................4 Magistrate's Decision in the Hamilton County Court of Common Pleas (January 27, 2012)...10 STATUTES R.C. 5717.01...14 R.C. 5717.05...15
TABLE OF AUTHORITIES Case Law Page Tower City Properties v. Cuyahoga Cty. Bd. of Revision (1990), 49 Ohio St.3d 67......4, 5 Statutes: Revised Code 5717.01...3, 6 Revised Code 5717.05.........4,5 Civil Rules: Civ. R. 41(A)(1)(a)...4 ii
STATEMENT OF FACTS The subject property is a privately owned, 18-hole golf course and country club located at 5780 Cleves Warsaw Pike, Cincinnati, Ohio 45233. Complainant property owner, Westem Hills Country Club (hereinafter "Western Hills"), filed an Original Complaint for tax year 2010 with the Hamilton County Board of Revision ("BOR"), seeking to decrease the valuation of the property from $6,898,730 to $4,500,000, which Western Hills later amended to $4,000,000 based on an appraisal by Tom Willingham, MAI. Appellee Oak Hills Local School District, Board of Education (hereinafter "BOE" or "school district") filed a counter-complaint with the BOR, asking that the current value be maintained at $6,898,730. On October 10, 2011, the BOR reduced the value of the subject property to $4,500,000, the amount initially requested by Western Hills on its Original Complaint. (Supp. 7-12.) On October 14, 2011 at 9:45 A.M., the BOE filed a Notice of Appeal from a Decision of a County Board of Revision to the Board of Tax Appeals by certified mail. A paralegal from the BOE's law firm signed an affidavit attesting that she filed the appeal on or before 9:45 A.M that morning. (Supp. 20.) The paralegal's affidavit also contained an ATM receipt showing a time of 9:49 A.M., which she received after filing the appeal. The Notices of Appeal were sent by certified mail to both the BOR and the BTA at the same time--9:45 A.M. (Supp. 20-23.) That same day, Paul Saba, counsel for Western Hills, filed an appeal with the Hamilton County Court of Common Pleas (hereinafter "Common Pleas Court"), Case
No. A1108186. (Supp. 32.) The filing stamp on Western Hills' appeal shows the time as 11:01 A.M. and the "Classification Form" has a time of "11:05," which was filed at the same time. (Supp. 32-34.) On December 9, 2011, the BOE filed a Motion to Dismiss Appeal in the Common Pleas Court arguing that pursuant to R.C. 5717.05 the court lacked jurisdiction to hear the appeal since the BOE filed its appeal with the BTA first. (Supp. 16) The affidavit of Mr. DiMuzio's paralegal was attached to the Motion to Dismiss. (Id.) [Later, on January 4, 2012, a copy of the certified mail receipt showing the October 14"' mailing was submitted to the Common Pleas Court.] After reviewing all the evidence and arguments, the Common Pleas Court dismissed Western Hills' appeal on the grounds that the BTA appeal was filed before the Common Pleas appeal was filed. (Appx. 10.) Western Hills did not appeal this decision. Approximately a week after the BOE filed its Motion to Disniiss with the Common Pleas Court, Westem Hills filed a Motion to Dismiss the BOE's appeal at the BTA for lack of jurisdiction on the basis that the Common Pleas Court first had physical custody of the appeal and thus jurisdiction. (Supp.1) The school district opposed Westem Hills' Motion to Dismiss, arguing that it filed first chronologically because its appeal was sent by certified mail before the Common Pleas Court filing. (Supp. 13.) None of the parties at the BTA disputed that the BOE's mail filing was sent on October 14, 2011. On Feb. 7, 2012, the BTA issued a decision granting Western Hills' Motion to Dismiss. (Appx. 4.) The BTA held that the "deposit of an appeal into the mail system is not equivalent to receipt of an appeal by the BTA." (Id.) According to the BTA, the Board has no jurisdiction over an appeal until it is physically received at the Board's 2
offices. (Id.) If the BTA decision is upheld, the school district has no effective appeal, since both the Common Pleas and the BTA appeals have been dismissed. ARGUMENT Proposition of Law No. 1: The BTA Erred When It Held that R.C. 5717.01 Necessitates Physical Receipt of an Appeal Before It May Be Deemed Filed. Revised Code 5717.01 authorizes a board of education and a property owner to appeal the board of revision's determination to the BTA It provides in relevant part as follows: Such appeal shall be taken by the filing of a notice of appeal, in person, or by certified mail, express mail, or authorized delivery service, with the board of tax appeals and with the county board of revision. If 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 offiling. R.C. 5717.01 (emphasis added.) In this case, it is undisputed that the BOE filed its Notice of Appeal by certified mail service on October 14, 2011. (Since the October 14th mailing was not in dispute, it appears that the certified mail receipt was not officially submitted into the BTA record.) This evidence was further corroborated by the affidavit of Mr. DiMuzio's paralegal, who swore that she filed the appeal by certified mail service at approximately 9:45 AM that morning. The Common Pleas Court reviewed the evidence and decided that the BTA appeal was filed first. (Appx. 10) Pursuant to the statute, the October 14, 2011 postmark is the date of filing. The BTA, however, ignored the plain language of the statute and imposed a new conditionthat the Board's jurisdiction over an appeal does not begin until it is received at the 3
that the Board's jurisdiction over an appeal does not begin until it is received at the Board's offices. This holding is contrary to the legislature's clear intention that the date of the postmark is the date of filing, and the decision should be reversed. The BTA should have held a hearing to determine which party filed "first" since both parties filed on the same day.t Because the evidence clearly shows that the school district filed its appeal on October 14, 2011 at 9:45 AM, the decision of the BTA should be reversed and remanded for a hearing to determine which party filed first chronologically. Proposition of Law No. 2: Strict application of R.C. 5717.05 improperly strips the BOE of its right to review of a board of revision's valuation when a property owner is allowed to file a defective appeal and then the appeal is dismissed. This Court has previously considered a case where the literal application of R.C. 5717.05's provisions would foreclose a school district's rights and leaves the school district without a forum to contest a tax value determination. In Tower City Properties v. Cuyahoga Cty. Bd. of Revision (1990), 49 Ohio St.3d 67, the Court noted that the funding for educating our society depends on tax revenues, which are directly related to the value of property in the school district. Consequently, a board of education has an interest in the correct value of the property and a right to appeal the board of revision's determination to the BTA. Id. at 70. If the Court affirms the BTA's dismissal of the school district's appeal, then the school district is left without a forum to pursue its right to appeal a BOR determination. In the Tower City Properties case, a property owner voluntarily dismissed its appeal of a BOR decision to a common pleas court pursuant to Civ. R. 41(A)(1)(a). If the t The Common Pleas Court considered all the evidence and testimony and deteimined that the school district filed first when it sent its appeal by certified mail service on the morning of Oct. 14, 2011. 4
Court had literally enforced the statutory provisions of R.C. 5717.05, as the property owner wanted, the school district would have been precluded from seeking review of the BOR decision once the property owner dismissed its common pleas case. A unilateral decision by a property owner would have prevented the school district from having any appeal rights. Ultimately, the Court held that this was an "impermissible result" because it rendered ineffective the BOE's right to review of a BOR determination. (Id.) In this case, the Common Pleas Court dismissed Western Hills' appeal on the basis that there was no jurisdiction since the school district filed its appeal first with the BTA. Western Hills did not appeal that decision.z If the school district's appeal to the BTA is also dismissed for lack ofjurisdiction, there is no forum for the school district to pursue its right of appeal. The school district would be left without recourse. The Tower City Properties court held that such a result is impermissible and this Court should also hold that such a result is contrary to public policy and the clear intention of the legislature which gave the school districts right to review of a BOR determination. To hold otherwise could lead to parties filing sham appeals for the sole purpose of thwarting a school district's right to seek the correct value of property in its district and to appeal a BOR decision. The Oak Hills Local School District, Board of Education, is clearly an aggrieved party that should be allowed to appeal a decision which adversely affected its pecuniary interests. The BOR's valuation of the subject property reduced the fair market value Z There is a legitimate question in this case as to whether the property owner is actually an "aggrieved party." Western Hills sought a reduction to $4.5 million on its Original Complaint. Later, at the hearing before the BOIi, it amended its request to a value of $4 million based on the appraisal by Tom Willingham. The BOR ultimately determined the value to be $4.5 million, as initially requested by the property owner. Despite receiving the reduction originally sought, the property owner filed an appeal in Common Pleas Court. When the Common Pleas appeal was dismissed for lack ofjurisdiction, the owner did not appeal. In effect, it accepted the original value it sought of $4.5 million. 5
pursuant to R.C. 5717.01 and it should get its "day in court" before the BTA. It should not be foreclosed from its appeal rights because the owner unilaterally decided to file its own appeal. CONCLUSION The clear language of R.C. 5717.01 states that a board of education may file an appeal with the Board of Tax Appeals by certified mail, and the date of the United States postmark on the sender's receipt shall be treated as the date of filing. The school district filed its Notice of Appeal by certified mail service on October 14, 2011. The BTA erred when it held that the BOE's filing did not occur until the BTA physically received the Notice of Appeal, several days after Western Hills had filed an appeal in Common Pleas Court. Therefore, the decision of the BTA should be reversed and remanded for a hearing to determine which party filed first chronologically. (In the alternative, the Court could hold that the Common Pleas Court dismissal resolved all factual issues concerning which party filed first, and merely reinstate the BTA appeal.) The legislature gave the school districts a right to review the valuation of property in the district and the right to appeal a decision of a board of revision. If the Court affirms the BTA's dismissal of the school district's appeal, the school district is left without a forum to pursue its right to appeal. This result is contrary to public policy and the legislature's clear intent. The Oak Hills Local School District, Board of Education, respectfully requests that the Court reverse the decision of the BTA and remand the case for a hearing to determine who filed first. 6
The Oak Hills Local School District, Board of Education, respectfully requests that the Court reverse the decision of the BTA and remand the case for a hearing to determine who filed first. Respectfully submitted, David C. DiMuzio (0034428) DAVID C. DIMUZIO, INC. 810 Sycamore Street Sixth Floor Cincinnati, OH 45202 (513) 338-1990 Fax No. (513) 263-9010 legaltrial@yahoo.com ATTORNEY FOR APPELLANT OAK HILLS LOCAL SCHOOL DISTRICT, BOARD OF EDUCATION CERTIFICATE OF SERVICE I certify that a copy of this Merit Brief of Appellant Oak Hills Local School District, Board of Education was sent by ordinary U.S. Mail this 13`h day of June 2012 to: Thomas Scheve Paul T. Saba Assistant Prosecuting Attorney Finney, Stagnaro, Saba & Patterson Co., Hamilton County Prosecutor's Office 2623 Erie Avenue 230 East Ninth Street, Suite 400 Cincinna #',10hio 45208 Cincinnati, Ohio 45202 David C. DiMuzio 7
IN THE SUPREME COURT OF OHIO OAK HILLS LOCAL SCHOOL DISTRICT, j Case No.: BOARD OF EDUCATION - 0383 -vs- APPELLANT APPEAL FROM THE OHIO BOARD OF TAX APPEALS HAMILTON COUNTY BOARD OF REVISION, HAMILTON COUNTY AUDITOR, TAX COMMISSIONER OF OHIO AND WESTERN HILLS COUNTRY CLUB. BOARD OF TAX APPEALS CASE No. 2011-A-3219 APPELLEES, NOTICE OF APPEAL OF APPELLANT OAK HILLS LOCAL SCHOOL DISTRICT, BOARD OF EDUCATION David C. DiMuzio (0034428) David C. DiMuzio, Inc. 810 Sycamore Street Sixth Floor Cincinnati, Ohio 45202 (513) 338-1990 Fax No. (513) 263-9010 ATTORNEY FOR APPELLANT OAK HILLS LOCAL SCHOOL DISTRICT, BOARD OF EDUCATION Thomas Scheve Assistant Prosecuting Attorney Hamilton County Prosecutor's Office 230 East Ninth Street, Suite 400 Cincinnati, Ohio 45202 ATTORNEY FOR APPELLEE HAMILTON COUNTY BOARD OF REVISION and AUDITOR Paul T. Saba Finney,Stagnaro, Saba & Patterson Co., 2623 Erie Ave Cincinnati, OH 45208 ATTORNEY FOR APPELLEE WESTERN HILLS COUNTRY CLUB L^ ^r t:^ p ^^,^ }^v i^^'11i ^^} 6."1.. ^.^ CLERF, OF CUWI SUPREME COUW OFOHIC I
NOTICE OF APPEAL OF APPELLANT OAK HILLS LOCAL SCHOOL DISTRICT BOARD OF EDUCATION Appellant hereby gives notice of appeal as of right, pursuant to O.R.C. 5717.04, to the Supreme Court of Ohio from a Decision and Order (hereinafter "Decision") of the Ohio Board of Tax Appeals (hereinafter "BTA") journalized in Case No. 2011-A-3219 on February 7, 2012. A true and accurate copy of the Decision being appealed is attached hereto and incorporated by reference. The errors in the Decision of which Appellant complains are set forth as follows: 1) It was an error and an abuse of discretion for the Board of Tax Appeals to dismiss the appeal of Appellant based on lack ofjurisdiction. 2) It was an error and an abuse of discretion for the Board of Tax Appeals to conclude that Appellee Western Hills Country Club had perfected an appeal to the Hamilton County Court of Common Pleas prior to the filing of Appellant's appeal with the Board of Tax Appeals. 3) It was an error and an abuse of discretion for the Board of Tax Appeals to render ineffective the Board of Education's right to review of a board of revision's valuation due to a unilateral action by the property owner. 4) Appellee Country Club's appeal was void ab initio since Appellee was not an aggrieved party, and therefore lacked standing to appeal to the Common Pleas Court. 2
David C. DiMuzio (0034428) David C. DiMuzio, Inc. 810 Sycamore Street Sixth Floor Cincinnati, Ohio 45202 (513) 338-1990 Fax No. (513) 263-9010 ATTORNEY FOR APPELLANT OAK HILLS LOCAL SCHOOL DISTRICT, BOARD OF EDUCATION CERTIFICATE of SERVICE I hereby certify that a copy of the foregoing Notice of Appeal of Appellant Oak Hills Local School District, Board of Education has been served by Certified Mail this -L day of March 2012 upon the following counsel of record, and on Joseph Testa, Tax Commissioner: Thomas Scheve Assistant Prosecuting Attorney Hamilton County Prosecutor's Office 230 East Ninth Street, Suite 400 Cincinnati, Ohio 45202 Paul T. Saba Finney,Stagnaro,Saba & Patterson Co., 2623 Erie Ave. Cincinnati, OH 45208 Joseph Testa Tax Commissioner of Ohio 30 East Broad Street Columbus, Ohio 43215 David C. DiMuzio 3
OHIO BOARD OF TAX APPEALS Oak Hills Local School District, Board of Education, Appellant, vs. CASE NO. 2011-A-3219 (REAL PROPERTY TAX) DECISION AND ORDER Hamilton County Board of Revision, Hamilton County Auditor, and Western Hills Country Club, Appellees. APPEARANCES: For the Appellant - David C. DiMuzio, Inc. David C. DiMuzio 810 Sycamore Street, 6`h Floor Cincinnati, Ohio 45202 For the County - Joseph T. Deters Appellees Hamilton County Prosecuting Attorney Thomas J. Scheve Assistant Prosecuting Attorney 230 East Ninth Street, #4000 Cincinnati, Ohio 45202-2174 For the Appellee - Finney, Stagnaro, Saba & Patterson Property Owner Co., LPA Paul T. Saba 2623 Erie Avenue Cincinnati, Ohio 45208 Entered F E B 7 2012 Ms. Margulies, Mr. Johrendt, and Mr. Williamson concur. This cause and matter came on to be considered by the Board of Tax Appeals upon a motion to dismiss filed by the appellee property owner. Specifically, said motion provides in pertinent part, as follows:
"Now comes the Appellee, Western Hills Country Club *** and hereby moves the Board to dismiss this case for lack of jurisdiction. Prior to the Appellant mailing its notice of appeal to the Board of Tax Appeals, Western Hills perfected its appeal with both the Court of Common Pleas * * * and the Board of Revisions [sic] *** pursuant to R.C. 5717.05 by hand delivering a copy to the CCP and the BOR. *** Appellant's notice of appeal was apparently mailed to the BOR and the BTA on October 14, 2011, and on that the [sic] same day Western Hills perfected its appeal by hand delivering its appeal to both the BOR and Court of Common Pleas. As such, Western Hills' appeal to Common Pleas Court was perfected on October 14, 2011 before the Appellant's notice of appeal was `deemed' to be filed. "The Appellant is incapable of denying that Western Hills complied with all of the statutory requirements of RC 5717.05. It is axiomatic that Western Hills hand delivered notice of appeal was filed and thus perfected before the Appellant's notice of appeal was sent by mail. As the Board held in both Copley [-Fairlawn City School Board of Education v. Summit Cty. Bd. of Revision (Apr. 20, 2001), BTA Nos. 2000-L-1803, 1809, unreported] and Coldstream [Bd, of Edn. of the Forest Hills Local School Dist. v. Hamilton Cty. Bd. ofrevision (Mar. 7, 2011), BTA No. 2010- A-2754, unreported] when determining which tribunal had exclusive jurisdiction over a notice of appeal physically filed with the CCP and deemed to be filed at the BTA on the same date, the tribunal that had physical custody over the filing in question has exclusive jurisdiction. Therefore, pursuant to R.C. 5715.05, the Hamilton Court of Common Pleas has exclusive jurisdiction over this appeal, and thus the Board lacks jurisdiction and must dismiss this case." Motion at 1-3, footnote omitted. Both the county auditor and the appellant board of education responded to the instant motion, essentially arguing the same position that the board of education "filed" its appeal first in time. In its memorandum in opposition to the motion to 2 5^
dismiss, the appellant board of education contends that "[a]ppellant's appeal was `filed' before Appellee's notice of appeal was filed in Hamilton County." Memorandum at 1. Attached to its memorandum in opposition, the board of education included a copy of a motion to dismiss it had previously filed in connection with the common pleas filing. Therein, the board of education described the instant facts, as follows: "In the instant matter, the facts are clear that the School Board's BTA appeal was filed first, before the common pleas appeal was filed by the Appellant. An affidavit is attached from the paralegal for Appellee's law firm, showing that the BTA appeal was filed at 9:45 am on October 14, 2011, with an ATM receipt made on the walk back to the office at 9:49 am. Both the BTA and the BOR filings were made at 9:45 am. "We know that the common pleas filings were made later. The filing stamp on the Notice of Appeal shows the time as ' 11:01', and the `Classification Form' has a time of '11:05', which was filed at the same time. Motion to Dismiss attachment at 2. Attached to the motion to dismiss, the board of education included the affidavit of a paralegal for the counsel's law firm who indicated that "[o]n October 14, 2011 I filed the attached Notice of Appeal for both the BTA and BOR by certified mail at approximately 9:45 am. Walking back from the downtown Post Office, I stopped at an ATM to make a withdrawal. I have attached a copy of the ATM receipt, showing a 9:49 am withdrawal time on October 14, 2011." Motion to Dismiss affidavit attachment at 1. A copy of an ATM receipt is included, which indicates a date of "10/14/11" and a time of "09:49"; no name associated with the withdrawal or time designation of "a.m." or "p.m." is listed. 3 ^
R.C. 5717.05 provides in relevant part as follows: "When the appeal has been perfected by the filing of notice of appeal as required by this section, and an appeal from the same decision of the county board of revision is filed under section 5717.01 of the Revised Code with the board of tax appeals, the forum in which the first notice of appeal is filed shall have exclusive jurisdiction over the appeal." "This board has decided several matters where competing notices of appeal have been filed with both this board and the common pleas court, pursuant to R.C. 5717.05. Copley-Fairlawn City Schools Bd. of Edn. v. Summit Cty. Bd. of Revision (Apr. 20, 2001), B.T.A. Case Nos. 00-L-1803 and 00-L-1809, unreported (relying on Elkem Metals Co., L.P. v. Washington Cty. Bd. of Revision (1988), 81 Ohio St.3d 683); Cuyahoga Falls Bd of Edn. v. Summit Cty. Bd. of Revision (Mar. 9, 2001), B.T.A. No. 00-M-2019, unreported; City of North Olmsted v. Cuyahoga Cty. Bd. of Revision (Mar. 2, 1990), B.T.A. No. 89-B-408, unreported; Cleveland Bd. of Edn. v. Cuyahoga Cty. Bd. ofrevision (Oct. 13, 1989), B.T.A. No. 89-C-205, unreported. *** Such decisions were premised upon an assumption that both notices of appeal satisfied all jurisdictional requirements and were appropriately filed. The only issue before the board was a question of timing: who filed first?" Strongsville Bd. of Edn. and City of Strongsville v. Cuyahoga Cty. Bd. ofrevision (Mar. 15, 2002), BTA Nos. 2001-R-820, 821, unreported. Based upon the foregoing caselaw, this board finds that the Hamilton County Common Pleas Court was the forum in which the first notice of appeal from the Hamilton County Board of Revision's decision was filed. We find there is no 4
probative evidence in the record upon which this board can rely to conclude that the BOE filed its notice of appeal first. As the Supreme Court held in Elkem Metals Co., L.P. v. Washington Cty. Bd. ofrevision (1998), 81 Ohio St.3d 683, 687, relying upon a "quotation *** from United States v. Lombardo (1916), 241 U.S. 73, 76, *** "`[a] paper is filed when it is delivered to the proper official and by him received and filed."' Deposit of an appeal into the mail system is not equivalent to receipt of an appeal by the Board of Tax Appeals. By sending an appeal via certified mail, there is no guarantee of its receipt by the board; therefore, this board's jurisdiction over an appeal does not begin until it is received at the board offices. Further, even if this board could consider the time at which an appeal was mailed, under the current statutory framework, if certified mail was used, only the date, and not the time, of mailing, is relevant. See R.C. 5717.01, "the date of the United States postmark *** shall be treated as the date of filing." Additionally, the very nature of a postmark does not indicate the time at which an item of mail is deposited into the mail. Finally, even if we were to find it relevant, we do not find the board of education's evidence of the time of mailing its notice of appeal to be probative or credible. Specifically, the BOE submitted a copy of an affidavit of the individual who mailed the appeal that had been previously submitted in pleadings to the common pleas court. This board has routinely disregarded such affidavits, which speak directly to the factual assertions made in appellant's response, as unsworn statements, submitted outside the record. Our reasoning was expressed some time ago in Raskin v. Limbach (Feb. 2, 1988), BTA No. 1986-F-28, unreported: 5 ^
"We generally regard affidavits of the type herein submitted, as simply voluntary, ex parte declarations, primarily self-serving in nature, and while submitted under oath, made without notice to the adverse party, and, since the affiant never appears, there is no opportunity for cross-examination. Naturally, these characteristics substantially reduce the weight accorded thereto, rendering such material of little probative value." Id. at 11. In addition, the bank machine receipt does not indicate whether the transaction in question was made in the morning or evening or whose receipt it is. Thus, the Hamilton County Conunon Pleas Court has exclusive jurisdiction over the appeal from the BOR as it is the "first forum in which the *** notice[s] of appeal *** [was] physically filed." Copley-Fairlawn, supra, at 4. It is the order of the Board of Tax Appeals that the above-styled matter be dismissed. 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. Sally F. Van Meter, Board Secretary 6 1
IN THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO WESTERN HILLS COUNTRY CLUB Case No.: Al 108186 APPELLANT, _vs_ (Magistrate Bachman) HAMILTON COUNTY BOARD OF Magistrate's Decision REVISI N9 et ah APPELLEES i D96201839 RENDERED THIS )l,?/ OF JANUARY, 2012 After a hearing, and after review of all evidence and arguments, the Court hereby grants Appellee's Motion to Dismiss Appeal, on the grounds that the BTA appeal was filed before the Common Pleas appeal was filed. Therefore, this Court lacks jurisdiction to consider the appeal. IT IS SO ORDERED Magistrate Bachman
IN THE COURT OF COMMON PLEAS GENERAL DIVISION HAMILTON COUNTY, OHI WESTERN HILLS COUNTRY CLUB Appellant Case IiTo, AII S186 HAMILTON COUNTY BOARD OF REVISION, et ae Appellee Pursuant to Civil Rule 53 (E) (1): "The Magistrate shall prepare, sign and file a magistrate's decision of the referred matter with the clerk, who shall serve copies on all parties and their attorneys." COPIES OF THIS DECISION TO BE DELIVERED BY ORDINARY MAIL TO THE FOLLOWING (PLEASE P18Ii 'T) APPELLEESa David C. DiMuzio Name Plaintiff I or Attorney 810 Sycamore Street 6"' Floor Address Cincinnati, Ohio 45202 City, State Zip Code 0034429 (PRINT) Attorney Code APPELLANT Paul Saba Name Defendant 1 or Attorney 2623 Erie Avenue Address Cincinnati Ohio 45202 City, State Zip Code (PRINT) Attorney Code Attorney Signature Thomas J. Scheve Name Plaintiff 2 or Attorney 230 East Ninth Street Address Cincinnati Ohio 45202 City, State Zip Code Attorney Signature Name Defendant 2 or Attorney Address City, State Zip Code (PRINT) Attorney Code (PRINT) Attorney Code Attorney Signature Attorney Signature lt
NOTICE Objections to Magistrate's Decision must be filed within seventeen days of the filing date of the Magistrate's decision. A party shall not assign as error on appeal the court's adoption of any legal finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ. R. (53 (D) (3) b). Copies sent by Clerk to: Thomas Scheve Assistant Prosecuting Attorney Hamilton County Prosecutor's Office 230 East Ninth Street, Suite 400 Cincinnati, Ohio 45202 Paul T. Saba Finney, Stagnaro, Saba & Patterson CO., LPA 2623 Erie Ave. Cincinnati, OH 45208 David C. DiMuzio (0034428) David C. DiMuzio, Inc. 810 Sycamore Street 6th Floor Cincinnati, Ohio 45202 (513) 338-1990 Fax No. (513) 263-9010 ATTORNEY FOR APPELLEE Oak Hills Local School Distr 2
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing decision have been sent by ordinary mail to all parties or their attorney as provided above.
Lawriter - ORC - 5717.01 Appeal from county board of revision to board of tax appeals... Yage 1 oi 1 5717.01 Appeal from county board of revision to board of tax appeals - procedure - hearing. 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. Such an appeal may be taken by the county auditor, the tax commissioner, or any board, legislative authority, public official, or taxpayer authorized by section 5715.19 of the Revised Code to file complaints against valuations or assessments with the auditor. Such appeal shall be taken by the filing of a notice of appeal, in person or by certified mail, express mail, or authorized delivery service, with the board of tax appeals and with the county board of revision. If notice of appeal is filed by certified mail, express mail, or authorized delivery service as provided in section 5703.056 of the Revised Code, the date of the United States postmark placed on the sender's receipt by the postal service or the date of receipt recorded by the authorized delivery service shall be treated as the date of filing. Upon receipt of such notice of appeal such county board of revision shall by certified mail notify all persons thereof who were parties to the proceeding before such county board of revision, and shall file proof of such notice with the board of tax appeals. The county board of revision shall thereupon certify to the board of tax appeals a transcript of the record of the proceedings of the county board of revision pertaining to the original complaint, and all evidence offered in connection therewith. Such appeal may be heard by the board of tax appeals at its offices in Columbus or in the county where the property is listed for taxation, or the board of tax appeals may cause its examiners to conduct such hearing and to report to it their findings for affirmation or rejection. The board of tax appeals may order the appeal to be heard on the record and the evidence certified to it by the county board of revision, or it may order the hearing of additional evidence, and it may make such investigation concerning the appeal as it deems proper. Effective Date: 03-14-2003 if http://codes.ohio.gov/orc/5717.01 6/5/2012
Lawriter - ORC - 5717.05 Appeal from decision of county board of revision to court ol co... Page 1 oi I 5717.05 Appeal from decision of county board of revision to court of common pleas - notice - transcript - judgment. 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. The county auditor and all parties to the proceeding before the board, other than the appellant filing the appeal in the court, shall be made appellees, and notice of the appeal shall be served upon them by certified mail unless waived. The prosecuting attorney shall represent the auditor in the appeal. When the appeal has been perfected by the filing of notice of appeal as required by this section, and an appeal from the same decision of the county board of revision is filed under section 5717.01 of the Revised Code with the board of tax appeals, the forum in which the first notice of appeal is filed shall have exclusive jurisdiction over the appeal. Within thirty days after notice of appeal to the court has been filed with the county board of revision, the board shall certify to the court a transcript of the record of the proceedings of said board pertaining to the original complaint and all evidence offered in connection with that complaint. The court may hear the appeal on the record and the evidence thus submitted, or it may hear and consider additional evidence. It shall determine the taxable value of the property whose valuation or assessment for taxation by the county board of revision is complained of, or if the complaint and appeal is against a discriminatory valuation, shall determine a valuation that shall correct the discrimination, and the court shall determine the liability of the property for assessment for taxation, if that question is in issue, and shall certify its judgment to the auditor, who shall correct the tax list and duplicate as required by the judgment. In correcting a discriminatory valuation, the court shall increase or decrease the value of the property whose valuation or assessment by the county board of revision is complained of by a per cent or amount that will cause the property to be listed and valued for taxation by an equal and uniform rule. Any party to the appeal may appeal from the judgment of the court on the questions of law as in other cases. Effective Date: 03-17-1989 /fhttp://codes.ohio.gov/orc/5717.05 6/5/2012