2200 Carnegie, L.L.C. v. Cuyahoga County Board of Revision
961 N.E.2d 726
Ohio Ct. App.
2011
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*1 question, “governmental the act function at the time of governmental immunity negligence for both statutory protection functions retain the blanket ¶ fails as a argument Hubbard’s Id. at 32. and intentional torts.” in a function proprietary was not employee engaged law matter of Thus, the board applicable. are exceptions and none of the other R.C. claim. judgment on this summary is entitled is sustained. assignment the sole of error Accordingly, reversed, and the matter is remanded with instructions judgment The is summary favor of the board judgment

for the trial court to enter defamation claim.

Judgment reversed and cause remanded. J., Stewart, P.J., Gallagher, concur. CARNEGIE, L.L.C., Appellant,

v. al., Appellees. et CUYAHOGACOUNTY BOARD OF REVISION Carnegie, Cuyahoga Cty. v. [Cite as 2200 L.L.C. Revision, App.3d 2011-Ohio-5397.] Ohio, Appeals

Court of District, Eighth Cuyahoga County.

No. 96646. 20, 2011.

Decided Oct. *2 Zuckerman, Co., L.P.A., Zuckerman, Larry Daiker & Lear W. and S. Michael Lear, for appellant. Mason, County

William D. and Cuyahoga Prosecuting Attorney, Saundra J. Curtis-Patrick, Assistant and H. Prosecuting Attorney; Company, James Hewitt L.P.A., III, H. appellees. James Hewitt for Presiding Judge. Blackmon,

Patricia Ann Appellant, Carnegie, 2200 L.L.C. trial (“Carnegie”) appeals the court’s {¶ 1} affirming Municipal the Cleveland District School Board of Education’s (“BOE’s”) valuation of the combined taxable values of Parcel Nos. 103-16-029 and 103-16-030. Carnegie assigns following errors for our review:

I. The trial by court abused its discretion affirming appellee Board of Education’s valuation of subject the taxable value of the owned by appellant as the without appellee jurisdiction Board was over to hear appellant 27, and rule on the March Complaint, as the notice of the complaints thirty days after the last such complaints may “[w]ithin be filed” as by mandated complied ORC was not with.

II. The trial court abused its discretion affirming appellee Board Revision’s valuation of the subject taxable value of the owned as appellant appellee Board failed to trial a certify complete court transcript and, of the record of proceedings said Board failed to accordingly, comply with 5717.05. ORC law, Having reviewed the pertinent record and we reverse the trial

{¶ 2} court’s decision. The follow. apposite facts 2006, In tax year the Cuyahoga County Carnegie’s Auditor’s office valued

{¶ 3} 103-16-030, property, identified as Permanent Parcel Numbers 103-16-029 and $422,200. 27, 2007, at On March the BOE filed a complaint with the Board of (“BOR”), $520,000 16, Revision a seeking new value based on an October sale of the property. to dismiss the 2007, a with the BOR 30, filed motion Carnegie August On jurisdiction because acquired had not BOE grounds date, held a the BOR On that same notify Carnegie. properly

its failure to On October the increase. request granted BOE’s hearing relative to the valuation. of the new Carnegie the BOR notified 8, 2007, the BOR’s decision appealed Carnegie November On not been that it had Carnegie argued County Common Pleas Court. Cuyahoga proceed notified; therefore, was without the BOR duly 8, 2008, September agreed. The trial court On notice of the BOE’s instructions to send the matter to the BOR with remanded after was obtained. and then complaint Carnegie proceed that the BOE 25, 2008, notice to the BOR sent September On April valuation of the On seeking new had filed *3 6, subsequently, August complaint on the BOE’s the BOR held the new valuation of the granting issued a decision 31, 2009, the BOR’s second decision Carnegie appealed August On {¶ 7} 9, 2011, March the County Pleas Court. On Cuyahoga Common now increased valuation. granting the affirmed BOR’s appeals.

Lack of Notice error, dispositive appeal, which we find of the instant assigned In the first 8}{¶ to and rule on the that the was without hear Carnegie argues BOR Cuyahoga County provide Auditor failed complaint BOE’s prescribed by within the time the statute. period 5715.19(A), manner in which the value the statute that sets forth the R.C.

{¶ 9} may challenged, provides following: of be property real (1) (A)(2) section, any of the Subject complaint against to division of this county be filed with the year for the current tax shall following determinations tax or the day ensuing year of March of the thirty-first auditor on or before public utility for the first half of real and closing date of of the collection year, tax whichever is later. property taxes for the current a complaint notification duties when R.C. details the auditor’s {¶ 10} (A)(1): is filed under subsection complaints date such subsection thirty days [under after the last

Within (A)(1)] in which the filed, notice of each the auditor shall may be valuation, undervaluation, overvaluation, discriminatory illegal of stated amount thousand five hun- valuation, is at least seventeen or incorrect determination subject is the property owner whose dollars to each dred if complaint, was not filed the owner or the spouse, owner’s and to each board of education whose school district be affected Pursuant to this language, the auditor is statutorily obligated notify the property owner and the board of education of the of a tax-assessment 5719.19(A)(1). complaint under R.C. Aud., Roberts v. Clinton Cty. 12th Dist. CA2007-03-012, CA2007-03-013, Nos. CA2007-03-014, CA2007-03-015, CA2007- 03-016, CA2007-03-017, CA2007-03-018, CA2007-03-019, 2008-Ohio-535, 2008 WL 351679. case, In the instant it undisputed is that the

{¶ BOE’s first complaint, 12} filed 27, 2007, March was filed within the statutory period as outlined above. It is also undisputed that Cuyahoga County Auditor failed to notify Carnegie as outlined the statute. BOR was without to consider the complaint. Pursuant 5715.19(A), to R.C. a valuation challenge year to tax 2006 must

be filed by March 2007. 5715.19(A), Under R.C. the trial court’s only recourse was to dismiss the matter. Consequently, the remand to order the BOR serve the owner does not jurisdictional cure the defect. See Destro v. Cuyahoga Cty. (2006), Bd. Revision BTA No. 2006-V-669. See also Bill v. (Nov. Cty. Ottawa 5, 2004), Bd. Revision 2004-A-920; BTA No. v. Holderby Franklin Cty. 14, 2004), Bd. (May Revision BTA 2003-A-1011; No. Workman v. Licking Cty. Bd. 1993), Revision (Aug. 1992-M-1040; BTA No. Big Walnut, Inc. (Oct. v. Franklin Cty. 1984), Revision BTA No. 1982-A- 1082. We are aware that Knickerbocker Properties, Inc. XLII v. Delaware

Cty. Revision, Bd. 119 2008-Ohio-3192, Ohio St.3d 893 N.E.2d the of Supreme Ohio Court held that the BOE’s failure to use the proper address of the property owner on the valuation-complaint form did not deprive the BOR of jurisdiction. case, In the instant Knickerbocker, unlike in where notice was sent address, to the wrong there was no at attempt notifying property the owners that a valuation complaint had addition, been filed. In in Knickerbocker, the notice was forwarded to the proper party in time for them to request and be granted a continuance of the evaluation hearing. the instant case is factually distinguishable from Knickerbocker. BOE, The appellee, the makes a compelling argument

{¶ that 15} when it filed its complaint BOR, with the it had strictly with complied the mandate of R.C. Thus, 5715.19. the property notice, owner did receive although not within the 30- day period. The BOE that argues jurisdiction bar, this is not a but a notice requirement cured, that However, be and it was. language the of R.C. 5715.19mandates notice to the property owner.

717 affirming the us, erred in the trial court the record before Considering 16} {¶ first we the Accordingly, sustain new tax valuation the BOR’s error. assigned second Carnegie’s error renders assigned of the Our first resolution 17}

{¶ 12(A)(1)(C). App.R. error moot. assigned

Judgment reversed. Boyle, J., concurs. J., dissents.

Stewart,

Melody Judge, dissenting. J. Stewart, I majority in this case. I the reached the dissent from 18}

{¶ uphold court’s decision to and affirm the trial assigned would overrule both errors increased valuation. the 27 complaint dismissal of the March Carnegie sought When 2200 19}

{¶ notice, that did agreed Carnegie it 2200 had not received basis Instead, it notice, to dismiss the receive but refused proper not to send notice of the board to the BOR “with instructions remanded case 5715.19(B).” 2200 pursuant owner to R.C. education remand, the BOR issued notice Carnegie did not this decision. On appeal matter, purchase price at the Carnegie heard the and valued complaint, the October 2006 sale. authority now that the court had no to remand Carnegie argues failed that the had to the BOR once it made the initial determination auditor

case 5715.19(B). But statutory under R.C. required notice it not this it was made. did decision when again, appeal XLII Revi Properties, Cty. In Inc. v. Delaware Knickerbocker {¶21} 2008-Ohio-3192, sion, Court Supreme 893 N.E.2d St.3d a property notice to provide proper that failure of a BOR clearly established facts in this jurisdictional not in defect. Similar owner is and of itself At on a sale. case, value was increased based recent Knickerbocker’s time, of the com however, provided proper with no was Knickerbocker a local board of edu complainant, or the valuation plaint that the board cation, an address address put incorrect *5 —an of the valuation on sought in turn reversal used. Knickerbocker revision jurisdiction over the that of review had no the board grounds by jurisdiction failed to invoke properly of education had complainant board rejected Court Supreme The using wrong address argument jurisdiction properly board review was not invoked because of the defective address. bar, In therefore, the case at the BOE had no defects in its complaint; properly was invoked. The auditor’s office to simply provide failed Carnegie.

notice to 2200 Furthermore, the circumstances in leading reversal Knickerbocker are not in this case. present Knickerbocker the valuation appealed increase to (“BTA”), the board of tax appeals arguing that it had not been provided with proper notice of the BOR and was thus in participate unable to hearing. Knickerbocker asked the BTA to remand the case to the BOR. The BTA adopted instead the valuation. Noting that the responsibility providing for review, proper rests with the board of Supreme Court held that “even though the BOE’s complaint matter, invoked the BOR’s general as a the BOR’s use of the wrong address when it attempted notice of the hearing resulted in both failure to afford process rights due in holding the hearing and a lack of authority to order the value increase based on that hearing. We therefore reverse and remand so that BOR properly notify added.) Knickerbocker and hold a new hearing on the complaint.” (Emphasis Knickerbocker Properties, 2008-Ohio-3192, St.3d 893 N.E.2d ¶ 2. The remedy set forth the court exactly Knickerbocker is what happened the case at bar. The trial court reversed the initial valuation and ordered the BOR to provide proper notice to 2200 Carnegie and hold a new hearing to rule on the Any due-process case. concerns or issues of authority were thus remedied the April hearing. 2200 Carnegie’s first assignment error should be overruled. 2200 Carnegie argues also that the court should have dismissed the

proceedings following remand because the school district failed certify complete transcript of the record to the court in the appeal second to the court. 2200 Carnegie cites no authority proposition for the that the board’s an incomplete transcript deprives jurisdiction. the court of I would therefore find that this argument also lacks merit.

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