MUSIAL OFFICES, LTD. v. COUNTY OF CUYAHOGA, ET AL.
No. 99781
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
February 20, 2014
[Cite as Musial Offices, Ltd. v. Cuyahoga Cty., 2014-Ohio-602.]
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-746704
JUDGMENT: REVERSED AND REMANDED
BEFORE: E.T. Gallagher, J., Keough, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: February 20, 2014
ATTORNEYS FOR PLAINTIFF-APPELLANT and CROSS-APPELLEE
Patrick J. Perotti
James S. Timmerberg
Dworken & Bernstein Co., L.P.A.
60 South Park Place
Painesville, Ohio 44077
Thomas D. Robenalt
Mellino Robenalt, L.L.C.
19704 Center Ridge Road
Rocky River, Ohio 44114
ATTORNEYS FOR DEFENDANTS-APPELLEES and CROSS-APPELLANTS
Timothy J. McGinty
Cuyahoga County
BY: Brian R. Gutkoski
David G. Lambert
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Plaintiff-appellant, Musial Offices, Ltd. (“Musial“), appeals the denial of its motion for class certification in its case against defendants-appellees, Cuyahoga County (“Cuyahoga County” or “the county“), to recoup overpaid property taxes. In a cross-appeal, Cuyahoga County challenges the trial court‘s determination that Musial established certain requirements for class certification. The county also asserts the trial court lacked jurisdiction to hear Musial‘s claims. We find the trial court had jurisdiction and reverse the trial court‘s judgment denying class certification.
{¶2} Musial is the owner of real property located at 2885 Center Ridge Road, Westlake, Ohio. In 2005, the county auditor assigned a tax valuation of $679,500 to Musial‘s property for the 2006, 2007, and 2008 tax years. In 2009, Musial filed a decreаse complaint with the Cuyahoga County Board of Revision (“Board of Revision” or “Board“) for the 2008 tax year. The Westlake Board of Education filed a counterclaim seeking to retain the auditor‘s valuation. The Board of Revision did not hold a hearing on Musial‘s complaint until November 25, 2009.
{¶3} On December 14, 2009, Musial received a property tax bill for the first half of 2009.1 The tax bill reflected a tax valuation of $679,500 and indicated that payment was due on January 20, 2010. On January 13, 2010, Musial received a letter of correction
from Frank Russo (“Russo“),2 who served as both the county auditor and secretary of the Board of Revision, stating that the valuation of Musial‘s Westlake property for the tax year 2008 had been reduced from $679,500 to $499,000. The letter further stated: “If no action is taken, the Board‘s decision will be reflected in your next tax bill.”
{¶4} Musial paid the December 2009 tax bill for the first half of 2009 without protest. In an affidavit, Mark Musial, Musial‘s principal, explained that because the correction letter indicated the correction would be reflected in Musial‘s next tax bill, he did not think any further action was necessary. However, in June 2010, Musial received a property tax bill for the second half of 2009 that reflected a tax valuation of $679,500 instead of the Board of Revision‘s reduced valuation. In response to the tax bill, Mark Musial sent a letter to Russo and the Board of Revision demanding correction of the 2009 valuation. Musial received no response. Mark Musial sent a second letter again demanding correction of the 2009 property valuation on August 31, 2010.
{¶5} Marty Murphy (“Murphy“), the acting administrator of the Board of Revision, called Mark Musial and informed him that “hundreds” of taxpayer were similarly overcharged and that the Board was considering
to the 2009 tax year. These statements were consistent with reports Mark Musial had read in the Plain Dealer of numerous property owners who were overcharged in their 2009 property tax bills.
{¶6} The corrections Musial sought were never made. Thus, Musial filed a complaint in the Cuyahoga County Common Pleas Court on January 24, 2011, alleging that the county erroneously applied 2007 property valuеs to assess the class members’ 2009 property taxes instead of the 2008 value ordered by the Board of Revision. Musial subsequently amended the complaint and asserted claims for disgorgement, unjust enrichment, violation of due process and equal protection, injunctive relief, and mandamus. The county filed a
{¶7} It is undisputed that the county overcharged numerous property owners in real estate tax bills for the 2009 tax year. On June 28, 2012, Musial filed a motion for class certification asking the court to certify the following class:
Cuyahoga County property owners who filed a complaint against valuation for tax year 2008 that resulted in the Board of Revision reducing the value of the property, whose 2009 property value was taxed using a higher value.
Following a hearing, the trial court denied the motion for сlass certification. Musial now appeals, arguing the court should have granted class certification. In its cross-appeal, the county asserts four assignments of error challenging the trial court‘s jurisdiction and its determination that Musial established certain factors required by
certification. We discuss the county‘s fourth assignment of error first because without jurisdiction, the remaining assigned errors would be moot.
Jurisdiction
{¶8} In its fourth cross-assignment of error, the county argues the trial court lаcked jurisdiction to hear Musial‘s complaints because Musial‘s recourse was through a statutorily prescribed administrative procedure, and there is no legal authority that confers original jurisdiction to the common pleas court for tax valuation complaints. The county contends Musial illegally attempted to circumvent a statutory scheme that requires it to exhaust its administrative remedies before invoking the court‘s jurisdiction.
{¶9} Although the trial court denied the county‘s motion for summary judgment, which is an interlocutory order, we are compelled to address the question of subject matter jurisdiction, which may be raised at anytime. State ex rel. Wilson-Simmons v. Lake Cty. Sheriff‘s Dept., 82 Ohio St.3d 37, 693 N.E.2d 789 (1998). Indeed, an appellate court may sua sponte consider subject matter jurisdiction even if it was not raised below. State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 544, 684 N.E.2d 72 (1997). Whether the trial court had jurisdiction is a question of law we review de novo. Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 4-5.
{¶10} Failure to exhaust administrative remedies is not a jurisdictional
Chagrin Falls, 77 Ohio St.3d 456, 462, 674 N.E.2d 1388 (1997).3 As the United States Supreme Court has stated,
[e]xhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.
Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). The purpose of the doctrine “is to permit an administrative agency to apply its special expertise * * * and in developing a factual record without premature judicial intervention.” S. Ohio Coal Co. v. Donovan, 774 F.2d 693, 702 (6th Cir.1985). The judicial deference afforded administrative agencies is to “prepare the way, if the litigation should take its ultimate course, for a more informed and precise determination by the Court.” Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 306, 93 S.Ct. 573, 34 L. Ed.2d 525 (1973). See also Nemazee v. Mt. Sinai Med. Ctr., 56 Ohio St.3d 109, 111, 564 N.E.2d 477 (1990), quoting Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457 45 L.Ed.2d 522 (1975).
{¶11} The county argues Musial failed to comply with the procedures outlined in
common pleas court to hear valuation disputes involving property valuations for tax purposes unless the matter is before the court on appeal.
{¶12} However, this case does not involve a valuation dispute. Musial, on behalf of the putative class, is not challenging the Bоard of Revision‘s valuation of its property. Musial seeks correction of a clerical error in the auditor‘s office that reinstated 2007 valuations for the 2009 tax year instead of applying the valuations determined by the Board of Revision. Rather than seek a new valuation for its property, Musial seeks a mandamus order compelling the county fiscal officer to correct the errors and issue refunds.
{¶13} The county asserts that Musial‘s claims nonetheless chаllenge the valuation of its property because the 2009 tax year was a triennial update year. Pursuant to
{¶15} Furthermore, the valuation determined by the Board of Revision automatically carries over “for any ensuing year” until the complaint is finally determined. Id. This rule holds true even when the ensuing year is the first year of a triennial period, unless the taxрayer files a fresh complaint. See Cincinnati School Dist. Bd. of Edn. at 640-643. Indeed,
it would be ludicrous for a property owner to win a reduction in valuation for a given tax year only to face the old higher value in the ensuing tax year simply because the Board had not issued a determination in a timely manner. The General Assembly clearly intended for there to be stability in property values where none of the exceptions in
R.C. 5715.19(A)(2) apply.
Concord Columbus, L.P. v. Testa, 122 Ohio App.3d 205, 701 N.E.2d 449 (10th Dist.1997) (Close, J., dissenting).
{¶16} Since the Board of Revision‘s valuation of Musial‘s property for the 2008 tax year was determined in 2010, that valuation automatically carried over to 2010. Musial is not challenging the Board‘s valuation of its property but rather is seeking to enforce the Board of Revision‘s valuation. Indeed, one of Musial‘s claims was brought pursuant to
{¶17} The county‘s fourth assignment of error is overruled.
Class Certification
{¶18} In Musial‘s sole assignment of error, it argues the trial court erred in denying its motion for class certification. In the county‘s first three assigned errors, it argues the trial court erred in finding that Musial satisfied certain elements necessary for class certification, including typicality, adequacy, and commonality. We discuss these assigned errors together because they are interrelated.
{¶19} To be eligible for class certification pursuant to
adequately protect the interests of the class (“adequacy“), and (7) one of the three requirements of
{¶20} The Ohio Supreme Court has held that “[a] trial judge has broad discretion in determining whether a class action may be maintained and that determination will not be disturbed absent а showing of an abuse of discretion.” Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200, 509 N.E.2d 1249 (1987), syllabus. We apply the abuse of discretion standard in reviewing class action determinations to give deference to “the trial court‘s special expertise and familiarity with case-management problems and its inherent power to manage its own docket.” Id. at 201.
{¶21} Nevertheless, “the trial court‘s discretion in deciding whether to certify a class action is not unlimited, and indeed is bounded by and must be exercised within the framework of
{¶22} As previously stated, Musial seeks to certify a class defined as “all Cuyahoga County property owners who filed a complaint against valuation for the tax year 2008 that resulted in the Board of Revision reducing the taxable value of the
property, whose 2009 propеrty value was taxed using a higher value.” The trial court found, and it is not disputed, that the class definition is “definite enough so that it is administratively feasible for the court to determine whether a particular individual is a member.” Stammco, 125 Ohio St.3d 91, 926 N.E.2d 292, at ¶ 7. It is also undisputed that joinder of all members, who are in the thousands, is impractical. And since Musial‘s complaint seeks an order directing the fiscal officer to correct its failure to apply the Board‘s valuation to its property for the 2009 tax year, it is a mеmber of the class. Thus, the first three prerequisites enumerated in
Typicality
{¶23} In its first assignment of error, the county argues the trial court erred in finding that Musial‘s claims are typical of all the members of the class.
{¶24} “The requirement for typicality is met where there is no express conflict between the class representatives and the class.” Hamilton, 82 Ohio St.3d 67, 70, 694 N.E.2d 442, at ¶ 77. In evaluating typicality, the court must determine “whether the named plaintiffs’ claims are typical, in common-sense terms, of the class, thus suggesting that the incentives of the plaintiffs are aligned with those of the class.” Neal v. Casey, 43 F.3d 48, 55 (3d Cir.1994).4 “Factual differences will not render a claim atypical if the claim
claims of the class members, and if it is based on the same legal theory.” Id., quoting Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 923 (3d Cir.1992).
{¶25} Here, Musial‘s claims are typical of all putative class members because their claims arise from the same course of conduct and are basеd on the same legal theories. The members of the class are property owners who received a ruling from the Board of Revision lowering their property tax valuations but who were subsequently overcharged because the new values were not reflected in their 2009 tax bills. The members’ interests in recovering the amounts they overpaid under these circumstances are completely aligned and there is no inherent conflict of interest. Therefore, the trial court properly found the typicality requirement was met.
Adequacy
{¶26} In its second assignment of error, the county argues the trial court erred in finding that Musial satisfied the adequacy requirement of
{¶27} Adequacy refers to the class representative‘s ability to protect all the members‘s interests in the action. In making this determination, courts must consider two questions: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members, and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.1992); New Albany Park Condo. Assn. v. Lifestyle Communities, Ltd., 195 Ohio App.3d 459, 2011-Ohio-2806, 960 N.E.2d 1992, ¶ 53 (10th Dist.).
{¶28} A class representative is adequate, provided that his interest is not antagonistic to that of the prospective class members. New Albany Park Condo. Assn. at ¶ 54.
The representatives’ counsel is adequate if the lawyers are “qualified, experienced and generally able to conduct the proposed litigation.” Helman v. EPL Prolong, Inc., 7th Dist. Columbiana No. 2001-CO-43, 2002-Ohio-5249, ¶ 49.
{¶29} As previously stated, Musial‘s interests are completely aligned with thе interests of all members of the class and there is no evidence to suggest that Musial‘s interests are antagonistic to those of the other class members. Furthermore, Musial‘s counsel has demonstrated not only that they are competent to handle class actions, but also that they have been and will continue to zealously prosecute the action on behalf of all members of the class. Therefore, we agree with the trial court‘s conclusion that Musial and its counsel will adequately protect all class members’ interests in the action.
Commonality
{¶30} In the county‘s third assignment of error, the county argues the trial court erred in finding that Musial satisfied the commonality requirement of
{¶31} Pursuant to
374 (2011). Thus,
{¶32} The question whether common questions predominate over individual questions is a separate inquiry, distinct from the requirements found in
{¶33} There are several common legal issues affecting the county‘s liability vis-a-vis the class members. We have already determined that class members’ decrease complaints that were not heard and decided within the 90-day period required by
common pleas court because they were not challenging the valuations. They were merely seeking to enforce the Board‘s valuation and recover overpayment of taxes.
{¶34} We have not specifically addressed the question whether
{¶35} In its journal entry denying class certification, the trial court indicated that fact-specific inquiries are necessary to determine liability and damages and that class certification is therefore “unsuitable.” However, the answers to the common legal issues, such as whether plaintiffs were required to pay their 2009 taxes under protest to preserve their rights to recover overcharges, will determine liability for all members.
{¶36} Furthermore, the class members are not disputing the facts individual to each member, such as when the taxpayer was notified of a reduction, when each complaint against valuation was filed, or whether the Board‘s reduced valuation was properly reflected in the subsequent tax
no need for mini trials to establish them. In this case, common legal issues that relate to the county‘s liability to the class members predominate, even though some individualized inquiry is required to determine damages. Therefore, Musial satisfied the commonality and predominance requirements of both
Statute of Limitations
{¶37} In its first three assignments of error, the county argues class certification should havе been denied because Musial‘s claims are barred by the one-year statute of limitations set forth in
{¶38}
Courts of common pleas may enjoin the illegal levy or collection of taxes and assessments and entertain actions to recover them when collected, without regard to the amount thereof, but no recovery shall be had unless the action is brought within one year after the taxes or assessments are collected.
{¶39} The county argues that Musial failed to bring this action within one year of paying the second half of its 2009 taxes. The county asserts that Musial paid the second half of its 2009 taxes on January 19, 2010, and Musial commenced this action on January 24, 2011. However, Musial‘s January 19, 2010 payment was for the first half of 2009. Musial made the payment because Russo‘s correction letter, dated six days earlier, advised Musial that the Board‘s decision would be reflected in its next tax bill. It was not until July 2010 that Musial received the tax bill for the second hаlf of 2009, which did not reflect the Board‘s decision. Musial filed its complaint on January 24, 2011, less than seven months after it paid its second half of the 2009 tax bill. Therefore, Musial‘s claims for recovery of overpaid taxes are not barred by the statute of limitations.
{¶40} Therefore, the county‘s first three assignments of error are overruled. Musial‘s sole assignment of error is sustained. We remand the case to the trial court with instructions to certify the class and proceed on the merits оf the class action.
It is ordered that plaintiff-appellant recover from defendants-appellees costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MARY EILEEN KILBANE, J., CONCUR