BOARD OF EDUCATION OF THE CINCINNATI SCHOOL DISTRICT, APPELLANT, v. HAMILTON COUNTY BOARD OF REVISION; MIRGE CORPORATION, APPELLEE.
No. 00-692
Supreme Court of Ohio
April 11, 2001
91 Ohio St.3d 308 | 2001-Ohio-46
MOYER, C.J.
Tаxation—Real property valuation—Valuation complaint has been “prepared and filed” by an attorney for purposes of determining whether jurisdiction has vested in a county board of revision, as contemplated by Sharon Village Ltd. v. Licking Cty. Bd. of Revision, when—R.C. 5715.19, as amended by Sub.H.B. No. 694, may not be constitutionally applied to permit the refiling of once-dismissed R.C. 5715.19 complaints challenging valuations for tax years prior to the effective date of Sub.H.B. No. 694. Submitted November 28, 2000. APPEAL from the Boаrd of Tax Appeals, Nos. 99-P-1462, 99-P-1463 and 99-P-1464.
- An attorney who signs an
R.C. 5715.19 valuation complaint in his or her capacity as an attorney-at-law and files it, or directs its filing, in accord withR.C. Chapter 5715 , has thereby “prepared and filed” that complaint for purposes of determining whether jurisdiction has vested in a county board of revision, as contemplated by Sharon Village Ltd. v. Licking Cty. Bd. of Revision (1997), 78 Ohio St.3d 479, 678 N.E.2d 932. R.C. 5715.19 , as amended by Sub.H.B. No. 694, may not be constitutionally applied to permit the refiling of once-dismissedR.C. 5715.19 complaints challenging valuations for tax years prior to the effectivе date of Sub.H.B.No. 694. Such an application violates Section 28, Article II of the Ohio Constitution , which prohibits the enactment of retroactive legislation.
MOYER, C.J.
{¶ 1} In 1998, subsequent to our decision in Sharon Village Ltd. v. Licking Cty. Bd. of Revision (1997), 78 Ohio St.3d 479, 678 N.E.2d 932, the General Assembly enacted Sub.H.B. No. 694, effective March 30, 1999, 147 Ohio Laws, Part III, 5373. The bill became law without the signature of the Governor. Id. at 5378. The preamble to the legislation characterized its purpose to be “to amend sections
{¶ 2} The syllabus to Sharon Village provides, “The preparation and filing of a complaint with a board of revision on behalf of a taxpayer constitute the practice of
{¶ 3} Sub.H.B. No. 694 also created an exception to the general rule set forth in
{¶ 4} In addition, Sub.H.B. No. 694 included the following uncodified language in Section 3 of the Act:
“The amendment by this act of sections
5715.13 and5715.19 of the Revised Code is remedial legislation and applies to any complaint that was timely filed under either of these sections respecting valuations for tax year 1996 or 1997, and to complaints filed for tax years 1998 and thereafter. Notwithstanding division (A)(2) ofsection 5715.19 of the Revised Code , any person authorized by this act to file a complaint undersection 5715.13 or5715.19 of the Revised Code that timely filed a complaint for tax year 1996 or 1997 may file a complaint under those sections, as amended by this act, on or before March 31, 1999, respecting valuations for tax year 1996, 1997, or 1998, and the board of revision shall proceed to hear the complaint as otherwise provided underChapter 5715. of the Revised Code .”4 147 Ohio Laws, Part III, 5378.
{¶ 5} This court considered a valuation complaint filed prior to the effective date of Sub.H.B. No. 694 by appellant herein, Mirge Corporation, d.b.a. Electrical Mechanics (“Mirge“), in Worthington City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision (1999), 85 Ohio St.3d 156, 707 N.E.2d 499.5 That complaint had been prepared, signed and filed on behalf of the corporation by Mirge‘s vice president,
{¶ 6} On March 30, 1999, Mirge filed a new complaint, the subject of this appeal, with the Hamilton County Board of Revision, as authorized by Sub.H.B. No. 694. This was, in effect, a refiling of the complaint at issue in Worthington City School Dist. v. Franklin Cty. Bd. of Revision, supra. The complaint again contested the assessed value of its real property at 2570 Gobel Court in Cincinnati for tax year 1996.
{¶ 7} Mirge asserted that the property‘s taxable value should be reduced from $227,920 to $47,575. It contended that the lowered valuation corresponded to the actual sales price of the property when Mirge acquired it on August 8, 1995. The 1999 Mirge complaint, which was executed on a printed form, listed attorney Franklin A. Klaine, Jr., as agent for Mirge. Klaine also signed the bottоm of the complaint form as “Franklin A. Klaine, Jr., Attorney for Mirge Corp.” In addition, the 1999 complaint bore the sworn signature of Walter Higginbothan, vice president of Mirge, who signed as “complainant or agent,” indicating his declaration under penalty of perjury that the complaint had been examined by him and was true, correct, and complete to the best of his knowledge and belief. A notary public, separate from attorney Klaine, notarized Higginbothan‘s declaration.
{¶ 8} Thereafter a countercomplaint was filed by the Board of Education of the Cincinnati School District (“board of education“), appellant herein, asserting that the auditor‘s taxable value of $227,920 for the property was correct based on a fair market value of the property of $651,200 rather than $135,900 as asserted by Mirge.
{¶ 10} At the hearing, Higginbothan testified that he had prepared the 1999 complaint relating to the 1996 tax year valuation, and Klaine represented that his office had filed the complaint. Higginbothan further testified that on July 28, 1995, Mirge purchased the subject property for $135,900.
{¶ 11} The board of revisiоn granted the reduction as requested by Mirge, effective for tax years 1996, 1997, and 1998, setting the fair market value of the parcel at $135,900, its 1995 purchase price. The board of education appealed to the Board of Tax Appeals. The parties stipulated that the appeals for tax years 1996, 1997, and 1998 filed by the board of education should be consolidated.
{¶ 12} The Board of Tax Appeals found no procedural obstacle to its jurisdiction pursuant to Sharon Village and its progeny, in that attorney Klaine had reviewed and signed the complaint, filed it, and had appeared as counsel of record in the legal proceedings which ensued. It further found that the evidence supported the determinations of value made by the board of revision for each of the three years in question. It therefore ordered the Auditor of Hamilton County to value the property at a fair market value of $135,900 ($47,560 tax value).
{¶ 13} The cause is now before this court upon an aрpeal as of right.
{¶ 14} This appeal presents two issues for our resolution. The first is jurisdictional and questions whether the Board of Tax Appeals should have dismissed the appeal, pursuant to Sharon Village and its progeny, i.e., Lakeside Ave. L.P. v. Cuyahoga Cty. Bd. of Revision (1999), 85 Ohio St.3d 125, 707 N.E.2d 472; Worthington City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision, 85 Ohio
{¶ 15} The second issue is whether Sub.H.B. No. 694 is valid insofаr as it purports to permit a taxpayer to file a second complaint for tax years 1996 and 1997 when previous complaints for those tax years had been dismissed pursuant to Sharon Village. We reverse the order of the board on this issue because application of this portion of Sub.H.B. No. 694, authorizing the refiling of dismissed complaints challenging valuations for tax years prior to the effective date of Sub.H.B. No. 694, violates
I
Jurisdictional Issue
{¶ 16} The facts in Sharon Village are distinguishable from the facts in the case at bar. In Sharon Village, a nonattorney both prepared and filed complaints in the board of revision without the involvement of, or suрervision by, a licensed attorney. In addition to preparing legal documents, the nonattorney also gave professional advice and appeared before a board of revision on behalf of corporate clients. He acted in his capacity as president of an entity known as Ambassador Research, Inc. We held that the nonattorney had engaged in the unauthorized practice of law and, accordingly, that jurisdiction had never vested in the boаrd of revision upon the preparation and filing of a valuation complaint by him.
{¶ 17} The Board of Tax Appeals found in the instant case that “one of Mirge‘s corporate officers prepared the subject complaint. It was then submitted to an attorney licensed to practice in Ohio, who reviewed the complaint, executed the
{¶ 18} In the case at bar, the nonattorney did not prepare and file the complaint as had the nonattorney in Sharon Village. Rather, he drafted and verified the factual allegations it contained. He thеn transmitted it to attorney Klaine for review and filing. Klaine, not Higginbothan, initiated the proceedings by filing, or directing the filing, of a valid complaint so as to vest jurisdiction in the board of revision. Thereafter Mirge was represented throughout these proceedings by attorney Klaine.
{¶ 19} Preparation of a complaint, unaccompanied by filing, does not fit within the express language of the syllabus to Sharon Village, which reads, “The preparation and filing of a complaint with a board of revision on behalf of a taxpayer constitute the practice of law.” Were either preparation alone or filing alone sufficient to constitute the practice of law for purposes of determining the validity of a valuation complaint, the syllabus would have read, “The preparation or filing of a complaint with a board of revision on behalf of a taxpayer constitutes the practice of law.”
{¶ 20} In any event, the critical inquiry for purposes of determining the vesting оf jurisdiction in a board of revision is whether the record demonstrates the initiation of proceedings by the filing of a jurisdictionally valid complaint, i.e., a complaint “prepared and filed” either by the taxpayer acting in a pro se capacity or by an attorney authorized to practice law acting in the taxpayer‘s behalf. See C.I.A. Properties, 89 Ohio St.3d at 365, 731 N.E.2d at 683.
{¶ 21} Higginbothan conceded that he had drafted and verified the real property assessment complaint before forwarding it to legal counsel. When Klaine signed the complaint in the form “Franklin A. Klaine, Jr., Attorney for Mirge Corp.,” he indicated his assent to the characterization found within it that he was Mirge‘s
{¶ 22} Accordingly, it was Klaine, rather than Higginbothan, who initiated the board of revision proceedings by “preparing and filing” the complaint.
{¶ 23} Moreover, as observed by the Board of Tax Appeals, it is cоmmonplace for nonattorneys to assist in the drafting of complaints and in providing factual information for inclusion in complaints. Ultimately, however, the attorney ratifies and assumes responsibility for a complaint by signing and filing it, whether or not he acted as its scrivener.
{¶ 24} We therefore hold that an attorney who signs an
{¶ 25} The board of revision and the Board of Tax Appeals did not err in finding that jurisdiction had vested in the board of revision as a result of the filing of the 1999 complaint by, or at the direction of, attorney Klaine, who had signed the complaint, even though it may have been drafted and verified before a notary public by nonattorney Higginbothan. It is therefore unnecessary for us to consider the constitutionality of that part of
II
Retroactivity Issue
{¶ 26} The board of education contends that application of Sub.H.B. No. 694 so as to allow Mirge to file a second challenge to the valuation of its property for tax year 1996 violates
{¶ 27} We recently interpreted
{¶ 28} Permissively retroactive, remedial laws are laws that “merely substitute a new or more appropriate remedy for the enforcement of an existing right.” State v. Cook (1998), 83 Ohio St.3d 404, 411, 700 N.E.2d 570, 577. “On the other hand, a retroactive statute is substantive—and therefore unconstitutionally retroactive—if it impairs vested rights, affects an accrued substantive right, or imposes
{¶ 29} The Bielat court thereby recognized that a statute that retroactively creates a new right is unconstitutionally retroactive if, and only if, it also impairs a vested right or creates some new obligation or burden as well:
“A claim for substantive retroactivity cannot be based solely upon evidence that a statute retrospectively created a new right, but must also include a showing of some impairment, burden, deprivation, or new obligation accompanying that new right.” Bielat, paragraph two of the syllabus.
{¶ 30} The Bielat opinion cited State ex rel. Crotty v. Zangerle (1938), 133 Ohio St. 532, 11 O.O. 226, 14 N.E.2d 932, in which the court nullified a statute that allowed for the refunding of tax penalties legally paid in prior years. Quoting extensively from Hamilton Cty. Commrs. v. Rosche Bros. (1893), 50 Ohio St. 103, 33 N.E. 408, the Crotty court concluded that the statute created a new right by providing a new legal avenue to recover penalties, but that it was unconstitutionally retroactive because it imposed an obligation on the county officials to refund taxes ” ‘that did not attach to the transaction when it occurred.’ ” Crotty, 133 Ohio St. at 536, 11 O.O. at 228, 14 N.E.2d at 934, quoting Rosche, 50 Ohio St. at 113, 33 N.E. at 410.
{¶ 31} Here, Sub.H.B. No. 694 similarly purports to create a new right in рroperty owners to refile dismissed complaints under new substantive rules governing the vesting of jurisdiction in a board of revision to reduce real property assessments and creates a new right to file successive valuation complaints in the same triennium under particular circumstances. While the General Assembly may have the right to accomplish such changes, assuming they are otherwise constitutional, the General Assembly may not do so retroactively, as such changes bring with them new burdens and therefore are not merely remedial. The county officials who opposed reduction in assessed valuations when the first complaints were dismissed could have concluded that those dismissals, followed by exhaustion of judicial review, ended the valuation
{¶ 32} We therefore hold that
{¶ 33} Accordingly, we reverse the decision of the Board of Tax Appeals and remand the cause with instructions that the valuation of appellant‘s property for tax years 1996, 1997, and 1998 be set at $227,920, as originally assessed by the auditor.
Decision reversed and cause remanded.
DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
COOK, J., concurs in paragraph one of the syllabus and in the judgment.
LUNDBERG STRATTON, J., concurs in part and dissents in part.
LUNDBERG STRATTON, J., concurring in part and dissenting in part.
{¶ 34} I сoncur with the majority‘s conclusion that the attorney‘s signature on the complaint was sufficient to vest jurisdiction in a county board of revision. However, I respectfully dissent from the determination that amended
{¶ 36} I do not agree with the majority that the statute creates a new right to file successive complaints in the same triennium under cеrtain circumstances. I believe it is more accurate to state that the statute allows the taxpayer whose initial complaint was defective to refile a proper and complete complaint within the triennium and to correct a mistake so that an already existing right is not lost. This is not substantive, but rather remedial.
{¶ 37} Nor do I believe that application of
Wood & Lamping, L.L.P., and David C. DiMuzio, for appellant.
Strauss & Troy and Franklin A. Klaine, Jr., for appellee Mirge, Inc.