Opinion
No. 81-904
Decided May 26, 1982.
Taxation — Real property — Complaint as to assessed value — Appeal from decision of board of revision — Status of nonappealing complainants.
APPEAL from the Board of Tax Appeals.
On January 19, 1977, appellant, Cleveland Board of Education (hereinafter "school board"), and appellee Dinner Bell Meats, Inc. (hereinafter "Dinner Bell"), filed separate complaints with appellee Cuyahoga County Board of Revision (hereinafter "board of revision"). Although the complaints were filed separately and assigned different numbers, both related to the assessed value of certain real property owned by Dinner Bell and located in Cleveland, Ohio. Dinner Bell's complaint sought a reduction in the property's assessed value for tax year 1976; whereas, the school board's complaint sought an increase. On January 17, 1978, the school board filed a similar complaint with respect to tax year 1977.
Dinner Bell's complaint was No. 4559 (1976) and the school board's complaints were Nos. 12431 (1976) and 993 (1977).
Following a hearing, the board of revision declined to make any change in the subject property's assessed value for either tax year 1976 or 1977. By letters dated June 19, 1979, the board of revision notified both the school board and Dinner Bell of its decisions. Included in each letter was the following paragraph:
Separate letters were sent for each complaint.
"Complainants are hereby advised that an appeal of this decision may be made directly to the Court of Common Pleas pursuant to Section 5717.05 R.C. or to the Ohio Board of Tax Appeals under the provisions of Section 5717.01 R.C., within 30 days after date of mailing of this letter."
Dinner Bell filed a timely notice of appeal with the Board of Tax Appeals. The school board, however, did not appeal the decision of the board of revision.
Nevertheless, the school board, by a letter, dated July 24, 1979, to the Board of Tax Appeals, asserted that it was an "appellee in this matter." Thereupon, Dinner Bell, by motion, requested that the Board of Tax Appeals "order that * * * [the school board] does not have standing to appear * * * [as an appellee]." The Board of Tax Appeals granted the motion, finding "that the Cleveland Board of Education does not have standing to appear and be heard before the Board of Tax Appeals in opposition to the within appeal."
The letter was received by the Board of Tax Appeals on July 27, 1979, and, in part, states as follows: "Please be advised that the Cleveland Board of Education filed a complaint for tax year 1976 with the Cuyahoga County Board of Revision in regard to the property which is the subject of this appeal. The Board of Education is therefore an appellee in this matter.
"We request on behalf of the Board of Education, that all notices or other correspondence be directed to the undersigned, as attorney for the Board of Education."
The cause is presently before this court upon an appeal as of right.
Hadley, Matia, Mills MacLean Co., L.P.A., Mr. Albert P. Hadley, Mr. Babcock MacLean and Mr. Martin R. Hoke, for appellee Dinner Bell Meats, Inc., et al.
Messrs. Kelly, McCann Livingstone, Mr. Michael L. Gordon, Mr. Timothy J. Armstrong and Mr. William Mitchell, Jr., for appellant.
The issue presented herein is whether the school board is entitled to appear before the Board of Tax Appeals in opposition to Dinner Bell's appeal, notwithstanding the fact that it did not appeal from the adverse decision of the board of revision.
Since the date of the decision of the Board of Tax Appeals herein, the General Assembly has amended R.C. 5715.19(B) to provide that "[u]pon the filing of the complaint under this division, the board of education or the property owner shall be made a party to the action." (Am. Sub. S.B. No. 6, effective August 27, 1981.) It is clear, therefore, that after the effective date of the amendment, the entity which elects not to file an appeal from the board of revision will, nevertheless, be an appellee before the Board of Tax Appeals.
We have held that "[t]here is no right of appeal from decision of a statutory board or a judgment of a legally constituted court except as provided by statute." Lindblom v. Bd. of Tax Appeals (1949), 151 Ohio St. 250, paragraph two of the syllabus. Similarly, "[t]his court has consistently held that strict compliance with the statutory requirements with respect to appeal provided for in Chapter 5717, Revised Code, is required." Lawson Milk Co. v. Bowers (1961), 171 Ohio St. 418, 419. It is equally apparent that, as in appeals from decisions of the Board of Tax Appeals, there is no statutory provision for a notice of cross-appeal from a decision of the board of revision. See, e.g., Goldman v. Harrison (1951), 156 Ohio St. 403, 404.
In Bd. of Edn. v. Bd. of Revision (1973), 34 Ohio St.2d 231, 233, we held that "R.C. 5717.01 is the sole statute conferring jurisdiction upon the Board of Tax Appeals to hear and determine appeals from decisions rendered by a board of revision." In part, such section, at the time the instant action arose, provided that "[a]n appeal from a decision of a county board of revision may be taken to the board of tax appeals * * * by the county auditor, the tax commissioner, or any person or public official authorized by section 5715.19 of the Revised Code to file complaints against valuations or assessments with the auditor." Clearly, the school board, as a complainant before the board of revision, could lawfully have filed an appeal in the Board of Tax Appeals. May Dept. Stores v. Bd. of Revision (1977), 49 Ohio St.2d 183; and Bd. of Edn. v. Bd. of Revision, supra. The question raised by this appeal is what, if any, consequences flow from the school board's failure to file a notice of appeal?
The Board of Tax Appeals correctly stated that "[o]ne who files a complaint with a Board of Revision is not automatically a party in an appeal before the Board of Tax Appeals." Moreover, as indicated by the Board of Tax Appeals, "[t]he Board of Education knows how to protect its interests as they relate to real property assessments."
The school board argues that, under the rationale employed by the Board of Tax Appeals, the instant proceedings would become ex parte. This argument ignores both the presence of the board of revision and county auditor, see American Steel Wire Co. v. Bd. of Revision (1942), 139 Ohio St. 388, and the fact that the prosecuting attorney is required to advise and represent these entities. R.C. 5715.44. Implicit in the school board's argument is the contention that the prosecuting attorney will not adequately perform his duties with respect to the instant cause. We reject this implied contention as both unfounded and unsupportable.
Moreover, it is clear that the General Assembly is cognizant of the distinction between an appellee and an appellant. For example, R.C. 5717.05 provides that, as an alternative to an appeal to the Board of Tax Appeals, an appeal may be taken to the Court of Common Pleas. If appeal is taken to the Court of Common Pleas, R.C. 5717.05 specifically provides that all parties before the board of revision, other than the appellant, "shall be made appellees." By failing to include a similar provision in R.C. 5717.01 it is clear that the intent of the General Assembly was not to afford similar status to nonappealing complainants in the Board of Tax Appeals.
For the foregoing reasons, the decision of the Board of Tax Appeals is hereby affirmed.
Decision affirmed.
W. BROWN, Acting C.J., REILLY, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.
REILLY, J., of the Tenth Appellate District, sitting for CELEBREZZE, C.J.