Opinion
No. 74780.
Date of Announcement of Decision October 7, 1999.
CHARACTER OF PROCEEDING: Civil Appeal from the Common Pleas Court Case No. CV-343288.
JUDGMENT: REVERSED AND REMANDED.
APPEARANCES:
RICHARD EISENBERG (#0024121), For Plaintiffs-Appellees.
WILLIAM D. MASON, CUYAHOGA COUNTY PROSECUTOR, BY: DEBRA LINN TALLEY (#0062475), ASSISTANT COUNTY PROSECUTOR, For Defendants-Appellants.
SAM CANITIA (Z00013856), For S. Euclid/Lyndhurst Bd. of Education:
JOURNAL ENTRY AND OPINION
Defendant-appellant the Cuyahoga County Board of Revision ("BOR") appeals from the trial court's order that plaintiffs-appellants Frank, Jean, and Patricia Matteos' complaint on the assessment of real property be reinstated and heard after being dismissed by the BOR.
The BOR assigns the following errors for review:
I. THE TRIAL COURT ERRED IN FINDING THAT THE HOLDING OF A CASE IN THE SUPREME COURT OF OHIO WAS NOT INTENDED TO HAVE RETROSPECTIVE EFFECT.
II. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO EVIDENCE PATRICIA MATTEO WAS NOT A PROPER AGENT.
Finding the appeal to have merit, the judgment of the trial court is reversed and the case remanded for dismissal.
I.
On March 27, 1995, a complaint on the assessment of real property was filed with the BOR for the tax year 1994. Jean and Frank Matteo are owners of the real property at issue located in South Euclid. Patricia Matteo is shown as the complainant. She signed the complaint with her title of office noted as "daughter." An attorney's name is listed as the complainant's attorney or agent.
At the jurisdictional hearing, the BOR dismissed the complaint for lack of jurisdiction after finding Patricia Matteo's signature to be unauthorized. The BOR relied on Sharon Village Ltd. v. Licking Cty. Ed. of Revision (1997), 78 Ohio St.3d 479, as authority. In Sharon Village, the Supreme Court of Ohio held that the preparation and filing of a complaint with a board of revision by a non-attorney agent to be the unauthorized practice of law, resulting in the dismissal of the complaint due to lack of jurisdiction. The BOR found that Patricia Matteo had prepared, signed, and filed the complaint.
On November 6, 1997, the Matteos filed an appeal of the BOR's decision in the court of common pleas. On appeal, the Matteos argued that Sharon Village was distinguishable because their complaint was prepared by an attorney and only signed by their agent-daughter. The Matteos also maintained that Sharon Village should not be applied retrospectively. The BOR contended that Patricia Matteo was not the party affected or an agent in the case. The BOR argued that R.C. 5715.13 and R.C. 5715.19 had not been complied with, meaning the BOR never had the jurisdiction to consider the complaint.
The court of common pleas reversed the decision of the BOR and remanded the matter for a hearing on the complaint. The court of common pleas stated that there was no reason to believe that the Supreme Court of Ohio intended Sharon Village to have retrospective effect. The court further found that there was no evidence that Patricia Matteo was not a proper agent.
II.
The BOR's first assignment of error argues that the court of common pleas erred in finding that Sharon Village did not apply retrospectively. This issue has been determined in Lakeside Ave. L.P. v. Cuyahoga Cty. Bd. of Revision (1999), 85 Ohio St.3d 125, in which the court held that Sharon Village was applicable to all complaints filed prior to and after the date of its announcement.
The BOR's first assignment of error is well-taken.
III.
In its second assignment of error, the BOR contends the court of common pleas abused its discretion in finding Patricia Matteo to be a proper agent. The BOR first argues that Patricia Matteo engaged in the unauthorized practice of law by signing the complaint and being designated the complainant. The BOR asserts that by designating herself as the complainant, Patricia Matteo had the authority to manage the matter and, further, she commenced an action in which she was not a concerned party.
An appellate court may not reverse the decision of the court of common pleas reviewing an order of an administrative agency absent an abuse of discretion. Without an abuse of discretion, a court of appeals must affirm the judgment of the trial court. Palm Beach Mall, Inc. v. Cuyahoga Cty. Bd. of Revision (1994), 96 Ohio App.3d 549.
In Worthington City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision (1999), 85 Ohio St.3d 156, the court considered four cases in which complaints had been filed before boards of revision. In one of the cases, an attorney prepared and filed, or caused to be filed, the complaint before the board of revision on the behalf of property owned by Ohio Bell. Ameritech Corporation was identified as the owner of the property. Ameritech is a registered trade name of Ameritech Corporation and Ohio Bell. Ameritech Corporation's property tax manager reviewed and signed the complaint. The court held that the preparation and filing of the complaint by an attorney satisfied the requirements of Sharon Village. The court found that the property tax manager did not engage in the practice of law by reviewing and signing the complaint. Therefore, the board of revision had jurisdiction to consider the complaint.
The instant case is analogous to Worthington. The complaint shows that an attorney represented Patricia Matteo. The Matteos contended below that the attorney prepared the complaint and, apparently, filed the complaint with the BOR. The mere act of signing the complaint does not mean that Patricia Matteo engaged in the unauthorized practice of law.
The BOR also submits that Patricia Matteo was not a proper agent pursuant to R.C. 5715.13. According to the BOR, only the owner or the owner's attorney may file a complaint with a board of revision. The BOR reads Sharon Village as restricting the interpretation of "agent" found in R.C. 5715.13 to attorneys.
R.C. 5715.13 governs applications for the decrease in the valuations of real property. It provides:
The county board of revision shall not decrease any valuation complained of unless the party affected thereby or his agent makes and files with the board a written application therefor, verified by oath, showing the facts upon which it is claimed such decrease should be made.
R.C. 5715.13 must be fully complied with before a county board of revision is empowered to act on the merits of a complaint. Stanjim Co. v. Mahoning Cty. Bd. of Revision (1974), 38 Ohio St.2d 233, 235. Once the county board of revision has determined that the complaint meets the statutory jurisdictional requirements, then the merits of a complaint may be considered. Elkem Metals Co., Ltd. Partnership v. Washington Cty. Bd. of Revision (1998), 81 Ohio St.3d 683, 686. The failure to meet the statutory jurisdictional requirements results in the complaint's dismissal. Id.
This case turns on whether or not Patricia Matteo was the agent for her parents, the owners of the real property. A board of revision only may decrease the valuation complained of if the complaint is filed by the party affected or his agent. Buckeye Foods v. Cuyahoga Cty. Bd. of Revision (1997), 78 Ohio St.3d 459. Although Sharon Village interpreted "agent" to include the affected party's attorney, the Supreme Court of Ohio did not limit agents under R.C. 5715.13 to attorneys. In Gammarino v. Hamilton Cty. Bd. of Revision (1997), 80 Ohio St.3d 32, the court considered whether an unrelated lay person could file and prosecute a complaint before a board of revision. Gammarino stated he was the real estate broker agent for the owner and filed the complaint at the owner's request. He was not the manager of the property and admitted to having a previous principal/agent relationship with the owner. The court noted Gammarino did not have any written authorization to file the complaint. The court held Gammarino was not an agent within the meaning of R.C. 5715.13 for the purpose of filing a complaint.
The concurring opinion in Lakeside Aven. L.P., supra, states that the holding of Sharon Village should be limited to third-party agents who have no connection with the landowner other than representation seeking a tax reduction. Although this position has not been accepted by a majority of the Supreme Court of Ohio, no case has forbidden persons having a connection to the owners from acting as agents pursuant to R.C. 5715.13. Gammarino, supra, mentioned that the owner's representative listed as the agent was an unrelated lay person. A close family member obviously has a connection to the owners of the real property and should be permitted to act as an agent under R.C. 5715.13, as long as an attorney prepares and files the complaint before the board of revision.
While a person closely related to the owner may act as the agent, there still must be some proof of an agency relationship before a board of revision has jurisdiction to consider the merits of the complaint. That evidence requires more than a notation on the complaint reflecting the relationship. There is nothing in the file showing that Patricia Matteo was authorized to act as the agent for her parents. Compliance with R.C. 5715.13 requires some documentation or evidence being submitted with the complaint proving that an agency relationship exists when a non-attorney is acting as the agent. Otherwise the statutory jurisdictional requirements have not been met and the board of revision cannot act on the complaint.
The court of common pleas abused its discretion by finding Patricia Matteo was her parents' agent based upon a lack of evidence to the contrary. It was the Matteos burden to prove their daughter was acting as their agent. Because the Matteos offered no evidence regarding the existence of an agency relationship, the BOR correctly dismissed the complaint.
The BOR's second assignment of error has merit.
Judgment reversed and remanded.
The judgment of the trial court is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion.
It is, therefore, considered that said appellant recover of said appellee his costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
ANN DYKE, P.J. CONCURS; JAMES D. SWEENEY, J. DISSENTS. (See Dissenting Opinion Attached)
_________________________ LEO M. SPELLACY JUDGE
I must respectfully dissent from the majority's ultimate conclusion as to the second assignment of error only.
As the majority points out, R.C. 5715.13 requires the complaint to meet the statutory jurisdictional requirements before any consideration may be given to the merits. Stanjim Co. v. Bd. of Revision (1974), 38 Ohio St.2d 233. Equally, the failure to meet the statutory requirements results in the dismissal of the complaint. Elkem Metals. Co., L.P. v. Washington Cty. Bd. of Revision (1998), 81 Ohio St.3d 683. The view of the majority that as the owner's daughter, the appellant may be considered a proper person to be an agent, is a logical conclusion based upon sound reasoning given the Supreme Court's decisions in Buckeye Foods v. Cuyahoga Cty. Bd. of Revision (1997), 78 Ohio St.3d 459 and Lakeside Ave. L.P. v. Cuyahoga Cty. Bd. of Revision (1999), 85 Ohio St.3d 125.
In several cases the Supreme Court has considered the issue of standing to file a case in front of a board of revision. It is noteworthy that in Gammerino v. Hamilton Cty. Bd. of Revision (1994), 71 Ohio St.3d 388, the issue of the standing of the complainant was raised by a motion to dismiss. A motion to dismiss was also filed in Buckeye Foods, supra. In Buckeye, the court cited to United States v. Storer Broadcasting Co. (1956), 351 U.S. 192 for the proposition that standing, inasmuch as it is jurisdictional in nature, may be raised at any time during the pendency of the proceedings. The court did not limit this determination to decisions made by a board of revision in the absence of evidence or motions. The Buckeye Foods Court also cite to Queen City Valves, Inc. v. Peck (1954), 161 Ohio St. 579 which held that the "court has no disposition to be hypertechnical and to deny the right of appeal on captious grounds but it cannot ignore statutory language which demands that certain conditions be met to confer jurisdiction upon an appellate tribunal."
In Elkem Metals, supra, the Supreme Court stated that a board of review has been given jurisdiction to hear and rule on complaints submitted to it:
. . . as a part of its jurisdiction to hear and rule on complaints, a board of revision must undertake a two-step analysis. First, the board of revision must examine the complaint to determine whether it meets the jurisdictional requirements set forth by the statutes. Second, if the complaint meets the jurisdictional requirements, then the board of revision is empowered to proceed to consider the evidence and determine the true value of the property.
Lastly, an abuse of discretion connotes more than an error of law or judgment. It implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Rock v. Cabral (1993), 67 Ohio St.3d 108; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217.
In the case sub judice, given the case law to date, I find myself in agreement with the majority that standing must be determined by the board of revision prior to proceeding to the merits of the complaint. However, the board of revision did not reach the determination as to whether or not Ms. Matteo was a proper agent as the property owners' daughter. Rather, the board determined only that the complaint must be filed by an attorney and no one else. Since the board erred in its application of the law, the board should be permitted to reevaluate the status of Ms. Matteo now that this court has provided guidance regarding the language of R.C. 5715.13.
I would further add that it is hypertechnical to determine the issue on the face of the complaint alone. Since there is no law, statutory or otherwise, requiring that evidence of agency status must be provided at the time of filing the complaint, I do not believe that the court of common pleas abused its discretion. The trial court's decision that agency status may be proven at some point after filing is a reasonable one.