[Cite as Yoder Properties, Ltd. v. Perry Local School Dist. Bd. of Edn., 2013-Ohio-1230.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
YODER PROPERTIES, LTD., ET AL. : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiffs-Appellants : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
PERRY LOCAL SCHOOL DISTRICT :
BOARD OF EDUCATION, ET AL. : Case No. 2012CA00148
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Board of Tax
Appeals, Case Nos. 2011-K-2771
and 2011-K-2773
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: March 28, 2013
APPEARANCES:
For Plaintiff-Appellants For Defendants-Appellees
ROBERT E. SOLES, JR. ROBERT M. MORROW
KARA DODSON 1650 Lake Shore Drive
FAITH DYLEWSKI Suite 285
Washington Square Office Park Columbus, OH 43204-4894
6545 Market Avenue North
North Canton, OH 44721 JOHN D. FERRERO
Prosecuting Attorney
By: DAVID M. BRIDENSTINE
110 Central Plaza South
Suite 510
Canton, OH 44702
Stark County, Case No. 2012CA00148 2
Farmer, J.
{¶1} On March 29, 2011, appellants, Yoder Properties, Ltd. and WJJS
Properties, LLC, each filed complaints with the Stark County Board of Revision,
contesting the valuation of real property for several parcel numbers. Appellants'
identified agent was Ron Groom.
{¶2} On May 16, 2011, appellee, the Perry Local School District Board of
Education, filed a counter-complaint in each case, supporting the auditor's valuations
and questioning Mr. Groom's representative status.
{¶3} The cases were consolidated and a hearing was held on August 2, 2011.
By decision dated September 7, 2011, the Board of Revision accepted appellants'
valuations on the parcels and reduced the values accordingly.
{¶4} On September 21, 2011, appellee filed appeals with the Board of Tax
Appeals which were subsequently consolidated. On May 3, 2012, appellee filed a
motion to remand the matter, claiming the complaints were insufficient to invoke the
Board of Revision's jurisdiction because Mr. Groom was not an attorney and was
working on the behalf of others. Appellants filed a response on May 18, 2012. By
decision and order dated July 11, 2012, the Board of Tax Appeals agreed with appellee
and remanded the matter to the Board of Revision with instructions to dismiss the
complaints.
{¶5} Appellants filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶6} "IT WAS UNLAWFUL AND UNREASONABLE FOR THE BOARD OF TAX
APPEALS TO FAIL TO CONSIDER APPELLANTS' RESPONSE TO THE MOTION TO
Stark County, Case No. 2012CA00148 3
REMAND WHICH WAS TIMELY FILED ON MAY 18, 2012, WITHIN THE 14 DAYS OF
SERVICE AS SET FORTH IN OAC 5717-1-12, WHEN SERVICE WAS EFFECTIVE ON
MAY 4, 2012, PURSUANT TO OAC 5717-1-5."
II
{¶7} "IT WAS UNLAWFUL AND UNREASONABLE FOR THE BOARD OF TAX
APPEALS TO DISREGARD THE EXPRESS STATUTORY GRANT OF AUTHORITY
CONTAINED WITHIN ORC 5717.19, WHICH EXPLICITLY PROVIDES THAT IF A
COMPLAINANT IS A COMPANY, CORPORATION OR LIMITED LIABILITY
COMPANY, A SALARIED EMPLOYEE MAY PROPERLY FILE A COMPLAINT ON
BEHALF OF SAID ENTITY."
I
{¶8} Appellants claim the trial court erred in failing to consider their May 18,
2012 response. We agree.
{¶9} By decision and order filed July 11, 2012, the Board of Tax Appeals
stated, "[n]o response to the motion has been filed within the period allowed by this
board's rules. See Ohio Adm. Code 5717-1-12(B). Also included within the record of
these appeals are the transcripts certified by the BOR pursuant to R.C. 5717.01."
{¶10} Ohio Adm.Code 5717-1-12 states the following:
Unless made at a hearing or otherwise ordered, any request to the
board shall be by written motion and shall be accompanied by a brief
stating with particularity the grounds for the motion and citations of any
authorities relied upon. Except for good cause shown, motions shall be
filed within a reasonable period of time following filing of the notice of
Stark County, Case No. 2012CA00148 4
appeal so as to permit the board to consider and respond thereto in the
orderly course of the board's business.
Any party may file a brief contra within fourteen days after service
of the motion, or such other period as the board or the attorney examiner
requires.
{¶11} Appellant filed its motion for remand on May 3, 2012. The certificate of
service stated the motion was mailed by ordinary mail on May 1, 2012.
{¶12} Civ.R. 6(D) provides the following:
Whenever a party has the right or is required to do some act or take
some proceedings within a prescribed period after the service of a notice
or other document upon that party and the notice or paper is served upon
that party by mail or commercial carrier service under Civ.R. 5(B)(2)(c) or
(d), three days shall be added to the prescribed period.
{¶13} Appellants' response was filed on May 18, 2012. By using the three days
permitted for ordinary mail service, the response was timely filed. We conclude the
Board of Tax Appeals erred is not considering appellants' response.
{¶14} Assignment of Error I is granted. The July 11, 2012 decision and order
are reversed and the matter is remanded to the Board of Tax Appeals to consider
appellants' response in its determination. We do so because appellants' response is
not included in the record of the Board of Tax Appeals, and the hearing before the
Board of Revision was not transcribed pursuant to App.R. 9.
Stark County, Case No. 2012CA00148 5
{¶15} Assignment of Error II is moot.
By Farmer, J.
Gwin, P.J. and
Hoffman, J. concur.
_s/ Sheila G. Farmer_______________
s/ W. Scott Gwin__________________
s/ William B. Hoffman_______________
JUDGES
SGF/sg 311
[Cite as Yoder Properties, Ltd. v. Perry Local School Dist. Bd. of Edn., 2013-Ohio-1230.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
YODER PROPERTIES, LTD., ET AL. :
:
Plaintiffs-Appellants :
:
-vs- : JUDGMENT ENTRY
:
PERRY LOCAL SCHOOL DISTRICT :
BOARD OF EDUCATION, ET AL. :
:
Defendants-Appellees : CASE NO. 2012CA00148
For the reasons stated in our accompanying Memorandum-Opinion, the decision
and order of the Board of Tax Appeals is reversed, and the matter is remanded to said
board for further proceedings consistent with this opinion. Costs to appellee Perry Local
School District Board of Education.
_s/ Sheila G. Farmer_______________
s/ W. Scott Gwin__________________
s/ William B. Hoffman_______________
JUDGES