Gammarino v. Hamilton Cty. Bd. of RevisionGammarino v. Hamilton Cty. Bd. of Revision
Al Gammarino, pro se, appellant.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Thomas J. Scheve, Assistant Prosecuting Attorney, for appellees.
Per Curiam.
{¶ 1} On January 31, 1997, a real property valuation сomplaint was filed with the Hamilton County Board of Revision (“BOR“), seeking a reduction in the valuation of real property located at 4110 Bell Street in Cincinnati. The complaint listed the owner as “Al Gammarino, TR” and was signed by “Al Gammarino, TR” (“Gаmmarino“). The property was deeded to Al Gammarino, Trustee, by the Hamilton County Sheriff in August 1996. The owners prior to the tax lien foreclosure sale were Philip and Margaret Blevins.
{¶ 2} On or about April 4, 1997 the BOR sent Al Gammarino and Philip and Margaret Blevins notices of a hearing to be held on April 17, 1997. The notices stated that the hearing would be restricted to the issue of standing only. The certified mail receipt for the Blevinses’ notice was signed for by Margaret Blevins. The certified mail receipt addressed to Al Gammarino shows no signature, and the envelope is marked “unclaimed” with a handwritten notation stating “Vac. Hold, Left Notice 4-5-97.”
{¶ 3} At the hearing on April 17, 1997, neither Gammarino nor the Blevinses were in attendаnce. The BOR was informed by the auditor‘s office that
{¶ 4} Gammarino appealed the BOR‘s dismissal to the Board of Tax Appeals (“BTA“). The notice of appeal to the BTA was filed in the name of “Al Gammarino, Trustee.” The BTA issued an order to Gammarino to show cаuse within twenty-one days why the BOR‘s order should not be affirmed.
{¶ 5} In his response and affidavit to the show cause order, which he filed twelve days after the deadline set by the BTA, Gammarino stated that when he left on vacation on or about April 3, 1997, he requested the post office to hold his mail. He further stated that when he returned from vacation and retrieved his mail, it contained a notice that a certified letter from the BOR was being held. When he tried to pick up the сertified letter, on or about April 21, 1997, he was informed that it had been returned to the BOR. He says that he immediately contacted the BOR and was informed that he had missed the April 17, 1997 hearing. When he asked that the hearing be rescheduled, his requеst was denied.
{¶ 6} The BTA affirmed the BOR‘s dismissal. The BTA‘s decision was not based upon a failure to prosecute, either at the BOR or BTA, but, instead, the BTA determined that the original complaint filed by Gammarino was insufficient to confer jurisdiction upоn the BOR. The BTA stated that there was nothing in the record to establish that Gammarino was “an attorney licensed to act in a representative capacity on behalf of a trust.”
{¶ 7} Gammarino filed a motion for reconsiderаtion with the BTA and attached another affidavit in which he explained that there was no trust. In addition, Gammarino stated in his affidavit that he had not recorded the deed he had received from the sheriff for the Blevinses’ property, and that he was the owner and not a trustee for any trust. The BTA denied Gammarino‘s motion for reconsideration.
{¶ 8} This cause is now before this court upon an appeal as of right.
{¶ 9} Gammarino raises two contentions in this appeal. His first contention is that “Al Gammarino, Trustee” is entitled to represent himself before the Board of Tax Appeals. His second contention is that the BTA speculated that there is a trust, and since there is no trust he should be able to appear before the BOR and the BTA representing himself. We agree.
{¶ 10} In its October 24, 1997 show cause order, the BTA ordered Gammarino to file a response as to why the decision of the BOR should not be affirmed upon the authоrity of LCL Income Properties v. Rhodes (1995), 71 Ohio St.3d 652, 646 N.E.2d 1108 (affirming the board of revision‘s dismissal of a valuation complaint for failure to prosecute); Dorcas W. Burns Trust v. Ashtabula Cty. Bd. of Revision (Sept. 12, 1997), BTA No. 97-K-710, unreported (remand with instructions to dismiss valuation complaint filed by nonattorney trustee on behalf of trust); and Al Gammarino, Trustee, v. Hamilton Cty. Bd. of Revision (Oct. 17, 1997), BTA No. 96-B-1796, unreported (dismissal of valuation complaint fоr failure to prosecute with statement that filing on behalf of trust by nonattorney trustee would warrant dismissal).
{¶ 11} These cases raised two issues: first, the failure to prosecute and, second, the unauthorized practice of law by a trustee filing a real estate valuation complaint on behalf of the trust. In his belated response to the BTA‘s show cause order, Gammarino responded only concerning the issue of failure to prosecute.
{¶ 12} In its decision, the BTA, however, found that it did not need to address the failure to prosecute issue; instead, it addressed only whether
{¶ 13} Gammarino argues that there is no trust and therefore he owns the real estate personally. In support of his argument, Gammarino cites
” ‘Trustees,’ ‘as trustee,’ or ‘agent,’ or words of similar import, following the name of the grantee in any deed of conveyance or mortgаge of land executed and recorded, without other language showing a trust or expressly limiting the grantee‘s or mortgagee‘s powers, or for whose benefit the same is made, or other recorded instrument showing such trust and its terms, do not give notice to or put upon inquiry any person dealing with said land that a trust or agency exists, or that there are beneficiaries of said conveyance or mortgage other than the grantee and those persons disclosed by the record, or that there are any limitations on the power of the grantee to convey or mortgage said land, or to assign or release any mortgage held by such grantee. As to all subsequent bona fide purchasers, mortgagees, lessees, and assignees for value, a conveyance, mortgage, assignment, or release of mortgage by such grantee, whether or not his name is followed by ‘trustee,’ ‘as trustee,’ ‘agent,’ or words of similar import, conveys a title or lien free from the claims of any undisclosed beneficiaries, and free from any obligation on the part of any purchaser, mortgagee, lessee, or assignee to see to the application of any purchase money.”
{¶ 14} We have previously stated that
{¶ 15} One of the conditions set forth in
{¶ 16} In Hodgson v. Dorsey (1941), 230 Iowa 730, 298 N.W. 895, the Iowa Supreme Court was presented with the issue of whether a deed given to a grantee as “trustee,” without any terms of trust or name of any bеneficiary, was sufficient to create a trust. The Iowa Supreme Court considered whether the designation “trustee” is merely descriptio personae or whether it indicated an intention to create a trust. Relying on cases from other states, the Iowa court held that the word “trustee” without more did not create a trust, and that the grantee received the property unencumbered by any trust relationship. See Annotation (1942), 137 A.L.R. 460.
{¶ 17} Consequently, the designation “Trustee” after Al Gammarino‘s nаme in the sheriff‘s deed did not create a trust or make Al Gammarino a trustee of a trust. There being no trust, the use of the term “Trustee” after Al Gammarino‘s
{¶ 18} The situation here is not the same as in Mahoning Bar Assn. v. Alexander (1997), 79 Ohio St.3d 1220, 681 N.E.2d 934, because Al Gammarino is not a trustee: he owns the property. Therefore he can file a complaint on his own behalf. Sharon Village Ltd. v. Licking Cty. Bd. of Revision (1997), 78 Ohio St.3d 479, 480, 678 N.E.2d 932, 934.
{¶ 19} For all the foregoing reasons the decision of the BTA was unreasonable and unlawful, and it is reversed and the cause remanded.
Decision reversed and cause remanded.
DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
MOYER, C.J., and COOK, J., dissent.
{¶ 20} I differ with the decision of the majority because it reverses the BTA on a substantive argument, one that is irrelevant to this case in light of the procedural default by this taxpayer.
{¶ 21} Gammarino lost at the BTA by defaulting on the issue of his standing to file a valuation complaint. It appeared as though Gammarino was acting in a representative capacity, and that the complaint hе filed was jurisdictionally insufficient because Gammarino is not licensed to practice law in Ohio. The BOR and later the BTA both asked Gammarino to verify whether he in fact had standing to file the complaint given this court‘s recent decision, Gammarino v. Hamilton Cty. Bd. of Revision (1997), 80 Ohio St.3d 32, 684 N.E.2d 309, involving this same appellant. Rather than responding to the BTA‘s show-cause order that he is the true property owner and that
{¶ 22} The determinative question before this court, then, is whether the BTA abused its discretion in refusing to accept Gammarino‘s tardy clarification of his relationship to this property. Based on the state of the record at the time the BTA rendered its decision, Gammarino‘s motion for reconsideration neither raised an obvious error nor presented an issue improperly ignored by the BTA. Seе, e.g., State ex rel. Huebner v. W. Jefferson Village Council (1996), 75 Ohio St.3d 381, 383, 662 N.E.2d 339, 341; Garfield Hts. City School Dist. v. State Bd. of Edn. (1992), 85 Ohio App.3d 117, 123, 619 N.E.2d 429, 433. Rather, Gammarino produced evidence that could have, and should have, been presented in response to the BTA‘s show-cause order. Under the circumstances, the BTA‘s reconsideration decision was neithеr unreasonable nor unlawful.
{¶ 23} Furthermore, even if timely raised, Gammarino‘s substantive argument lacks any merit. I agree with the BTA that
{¶ 24} Based on the foregoing, the BTA‘s decision should be affirmed.
MOYER, C.J., concurs in the foregoing dissenting opinion.