Musarra v. Cuyahoga Cty. Aud.
2012 Ohio 3967
Ohio Ct. App.2012Background
- Musarra filed a real-property valuation complaint on March 15, 2011 against parcels 732-04-006, 732-04-014, 732-04-015.
- Board of Revision denied relief on November 7, 2011.
- Musarra filed a notice of appeal with the Common Pleas Court on December 6, 2011.
- She provided a copy to the Board of Revision and received a time stamp, but did not serve the Board or the Fiscal Officer by certified mail.
- On March 2, 2012 the Fiscal Officer moved to dismiss for failure to comply with R.C. 5717.05, which requires certified-mail service to all parties; the trial court granted the motion on April 9, 2012.
- The court affirmed dismissal and Musarra timely appeals to the Eighth District, which also affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Musarra failed to comply with R.C. 5717.05 required service. | Musarra argues actual notice suffices; Board and Fiscal Officer had notice. | Statutory service by certified mail is mandatory and jurisdictional. | Failure to serve by certified mail deprived jurisdiction. |
| Whether the Fiscal Officer waived filing requirements by accepting a copy of the notice. | Board’s acceptance of the notice indicates waiver. | Waiver cannot substitute for statutory service requirements; agencies are distinct. | Waiver did not occur; requirement remains unsatisfied. |
Key Cases Cited
- Olympic Steel, Inc. v. Cuyahoga Cty. Bd. of Revision, 110 Ohio St.3d 1242 (2006-Ohio-4091) (mandatory, jurisdictional joinder and service under 5717.05)
- Austin Co. v. Cuyahoga Bd. of Revision, 46 Ohio St.3d 192 (1989) (strictly construed appeal notice requirements)
- Clippard Instrument Lab., Inc. v. Lindley, 50 Ohio St.2d 121 (1977) (copy of notice of appeal requirement)
- Salem Med. Arts & Development v. Columbiana Cty., 80 Ohio St.3d 621 (1998-Ohio-657) (delivery of notice to an improper recipient does not satisfy 5717.01)
- 4747 Mann, LLC v. Cuyahoga Cty. Bd. of Elections, 2011-Ohio-2593 (2011-Ohio-2593) (jurisdictional joinder and service requirements are strict)
- Huber Hts. Circuit Courts Lts. v. Carne, 74 Ohio St.3d 306 (1996-Ohio-157) (R.C. 5717.05 mandatory and jurisdictional)