TED BOWMAN Appellee, 693712 -vs-

} } }

CASE NO. CA-09-094311 On Appeal from Cuyahoga County } Common Pleas Court Case No. CV-09-

CUYAHOGA BOARD OF REVISION Appellant.

} } } APPELLATE BRIEF } } } } }

____________________________________________________________________________ APPELLATE BRIEF ____________________________________________________________________________

James Alexander, Jr., #0033384 Attorney-at-Law 2490 Lee Blvd., Suite 115 Cleveland Heights, Ohio 44118-1255 (216) 291-1005; (216) 382-8512-fax jamesalexanderjr@core.com Attorney-for-Appellant

TIMOTHY J. KOLLIN, Esq. Assistant County Prosecutor COURTS TOWER, JUSTICE CENTER 1200 ONTARIO STREET CLEVELAND, OH 44113 (440) 327-1542 Attorney for Appellees

ISSUES PRESENTED FOR REVIEW

I.

WHETHER THE COURTS DISMISSAL WITHOUT NOTICE VIOLATES THE CIVIL RULES AND RULES OF SUPERINTENDENCE

II.

WHETHER THE COURT MAY DISMISS A BOARD OF REVISION APPEAL WITHOUT DETERMING THE TAXABLE VALUE

TABLE OF CONTENTS AND ASSIGNMENTS OF ERROR Page TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . ASSIGNMENTS OF ERROR I. THE COURT ERRED AS A MATTER OF LAW BY ITS DISMISSAL OF APPELLANTS BOARD OF REVISION APPEAL AS A SANCTION. THE DISMISSAL CONSTITUTES AN ABUSE OF DISCRETION UNDER THE CIRCUMSTANCES OF THIS CASE
II.

3 4 5 6

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III.

THE COURT ERRED AS A MATTER OF LAW BY FAILING TO DETERMINE THE TAXABLE VALUE OF THE PROPERTY

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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . CERTIFICATE OF SERVICE . . . . . . . . . . . . 17

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TABLE OF AUTHORITIES
Cases Blakemore v. Blakemore (1983), 5 Ohio St.3d 217...................................................................................................13 James Rokakis, Treasurer vs Ted Bowman, Case No. CA-09-092950.......................................................................9 Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99..................................................................................12 Oney v. Allen, 39 Ohio St. 3d 103, 107 (1988)...........................................................................................................10 Pembaur v. Leis (1982), 1 Ohio St.3d 89....................................................................................................................12 Schreiner v. Karson (1977) 52 Ohio App.2d 219.......................................................................................................12 Statutes 5713.01 (B)................................................................................................................................................................15 ORC 5713.33.............................................................................................................................................................16 ORC 5715.05.............................................................................................................................................................10 ORC 5715.19(C)........................................................................................................................................................13 ORC 5717.05.................................................................................................................................................6, 8, 9, 14 Rules Civ.R. 41(B)(1)............................................................................................................................................................12 Ohio Civ Rule 5 (A).....................................................................................................................................................10 Superintendence Rule 40 (A).......................................................................................................................................12 Constitutional Provisions Article I, section 10 of the US Constitution.................................................................................................................15 Section 28, Article II of the Ohio Constitution............................................................................................................15

I.

STATEMENT OF THE CASE

On March 31, 2008, appellant filed a complaint with the Cuyahoga County Board of

Revision with reference to real estate known as Permanent Parcel No. 291-10-007 identified in the record as Board of Revision Case No. 200804020582. The complaint was filed on a form provided by the Board of Revision but, as shown in the record from the Board of Revision, is supplemented by a 13 page attachment including an 8 page letter captioned Statement in Support of Reduction of Real Property. The complaint with attachments fully describe the extent and scope of the taxpayers complaint. According to the narrative letter attached to the complaint, at page 7 thereof, the complainant had filed a similar complaint for the previous year and Despite my having filed protests timely on both my parcels, the Auditors addressed only the house parcel, 253-02-010. Thus, the March 31, 2008 complaint specified tax years 2006 and 2007. However, the County Board of Revisions decision, dated April 24, 2009 only addressed the tax year 2007. No explanation for ignoring tax year 2006 was provided. Appellant gives notice that his March 31, 2008 filing was also specifically challenging the C.A.U.V. recoupment amount as determined by the county auditor. (See last paragraph of page 4 and paragraphs 1 and 2 on page 5 in appellants Statement in Support of Reduction of Real Property). A hearing on the complaint was conducted by the Cuyahoga County Board of Revision on February 6, 2009. On April 24, 2009, the Board of Revision issued its order maintaining the
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market value at $78,400 while ruling already reduced per taxpayer previous arguments and evidence. The Board ignored completely, the C.A.U.V. recoupment issue. Nothing in the Boards decision indicates that it considered any of appellants arguments as set forth in the attachments to appellants complaint form. From that determination appellant appealed to the Court of Common Pleas pursuant to ORC 5717.05. The appeal was dismissed on October 28, 2009 with an order that declared: CASE DISMISSED PURSUANT TO COURT ORDER OF 9/8/2009. FINAL. COURT COST ASSESSED TO THE PLAINTIFF(S). From this order of dismissal, appellant filed on November 30, 2009, a Motion for Relief from Judgment and/or Motion for Reconsideration and also initiated this appeal to the Eighth Appellate District. Pursuant to an order of remand, the lower court issued an order on February 23, 2010 denying the post judgment motions. Appellant did not initiate a further appeal from the denial of the post trial motions. However, all of the issues presented in the post judgment motions are being presented as issues in this appeal.

II. STATEMENT OF FACTS

Prior to its transfer to appellant, the subject parcel of land had been part of two parcels, 291-10-014 and 291-10-007 comprising 8.73 acres in Olmsted Falls. The prior owners obtained a lot split that combined all of parcel 291-10-094 and portions of parcel 291-10-007, including all of the buildings and improvements that were part of the previously unsplit parcels. Following the lot split, appellant purchased the subject property which by that time consisted of a an unimproved vacant 7.44 acre parcel. The parcel purchased by appellant was not assigned a new parcel number but was instead assigned parcel number 291-10-007. Prior to appellants purchase of the property, the property had been valuated under the Current Agricultural Use Value (CAUV) program. These facts are taken from appellants 8 page narrative dated March 30, 2008
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and filed with the Board of Revision in support of his complaint and none are disputed in the record by appellee. Appellant asserts that he engaged in discussions and negotiations with the office of the county auditor over time which resulted in a reduction of the market value of the property from $178,000 to $78,400 and a corresponding reduction in the amount of real estate taxes owed. (See paragraph 6 on page 6 and top of page 7 of appellants Statement in Support of Reduction of Valuation of Real Property). Nowhere in the record is their any evidence as to how the county auditor calculated either its $178,000 valuation or its subsequent $78,400 of the subject property. Nowhere in the decision of the Board of Revision does it discuss any methodology used by the county to determine the propertys market value. The only reference in the record concerning the C.A.U.V. recoupment is a June 3, 2004 letter from John Burkhart of the Appraisal Department of the County Auditor advising that the property was being removed from CAUV. However, the June 3, 2004 communication fails to advise as to the recoupment amount and how it was calculated and there is nothing in the record to show what part of appellants alleged tax delinquency was derived from this CAUV recoupment. The June 3, 2004 letter was submitted by the appellant in support of his complaint to the Board of Revision. Appellant does provide a detailed statement of his understanding as to how the county arrived at its original valuation of $178,000 for the real property, the process by which it arrived at the $78,400 valuation and his observations regards how the CAUV recoupment should work. Appellant also gave evidence at the February 6, 2009 hearing as to why the original purchase price could not be used to determine the fair market value of the property and why the 2006 reappraisal value for that property could not be used retroactively. (See Pg. 5 of Feb. 6, 2009 transcript of hearing). None of appellants evidence is refuted in the record. The Boards decision
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simply states that the property was already reduced per taxpayer previous arguments and evidence. Thus, no consideration was given to appellants arguments for a further reduction. From the Boards decision, appellant initiated this appeal to the Court of Common Pleas pursuant to ORC 5717.05. The Court of Common Pleas dismissed appellants appeal on procedural grounds on October 28, 2008 without considering any of appellants arguments. According to the dismissal entry, the case was dismissed pursuant to court order of 9/8/2009. The September 8, 2009 order required appellant to file the hearing transcript by September 18, 2009 and to file his brief by October 8, 2009. When these acts were not done, the appeal was dismissed. However, ORC 5717.05 required the Board of Revision, not appellant, to file the hearing transcript (as well as all evidence presented to the Board). Nonetheless, appellant, at his expense, did cause a transcript of the proceedings to be made and filed with the court. However, appellant was precluded in his efforts to further complete the courts briefing schedule by the lack of either notice or access to the records of the Board of Revision. Not until after October 23,2009, did appellant locate any records from the Board of Revision in the courts file. According to the courts docket, on June 1, 2009, TED BOWMAN CASSETTE TAPE FILED. JAMES ALEXANDER 0033384. Thus, based upon the docket, NO FILINGS FROM THE BOARD OF REVISION appear of record in this case. While there is nothing in the record of proceedings to show this fact, appellant had several conversations with the courts staff in an effort to locate, review and/or copy any records being filed by the Board of Revision. It was pursuant to that investigation that appellant learned that the cassette tape attributed in the docket to appellants counsel was a cassette tape filed by the Board of Revision which appellant ultimately obtained from the court for the purpose of the transcription. On these facts, the court dismissed appellants appeal from the Board of Revision without any consideration of appellants arguments. Such a result is doubly crippling to this appellant
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because the principal argument of appellee in the pending foreclosure case, also before this court in James Rokakis, Treasurer vs Ted Bowman, Case No. CA-09-092950, is that appellant failed to take his complaints to the Board of Revision. Accordingly, there was sufficient evidence in the record before the Court of Common Pleas to remand the case to the Board of Revision on the issue of the CAUV recoupment and to determine the taxable value of the subject parcel.

ARGUMENTS
I. THE COURT ERRED AS A MATTER OF LAW BY ITS DISMISSAL OF APPELLANTS BOARD OF REVISION APPEAL AS A SANCTION.

ORC 5717.05 states, in pertinent part: Within thirty days after notice of appeal to the court has been filed with the county board of revision, the board shall certify to the court a transcript of the record of the proceedings of said board pertaining to the original complaint and all evidence offered in connection with that complaint. (emphasis added). Subsequent to the filing of the Notice of Appeal, appellant had no knowledge, actual or otherwise that such a filing had occurred. Had the Board filed such records in compliance with the statute, it was required to notify appellant of the filing of such records with the Court of Common Pleas pursuant to Ohio Civ Rule 5 (A), which requires every written notice, appearance, demand, offer of judgment, and similar paper to be served upon each of the parties. While appellants Board of Revision appeal was pending below, the court issued a September 8, 2009 order requiring appellant to file a transcript of the proceedings held before the Board of Revision and to file a brief by September 18, 2009. At the time of said order, there was no notice on the courts docket that the Board of Revision had filed the required transcript of proceedings before it as required by ORC 5715.05. Appellant relied upon and was certainly entitled to rely upon the courts docket as it related to filings and rulings of the court, in reaching such a conclusion. See Oney v. Allen, 39 Ohio St. 3d 103, 107 (1988), citing Indus. Comm. v.
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Musselli (1921), 102 Ohio St. 10. In addition, appellant and his counsel had been to the office of the court as late as September 20, 2009 seeking any such records and no court official was able to locate the court file; but did note that there was no record on the docket indicating the existence of any such record. While appellant can point to nothing in the record to support it, appellant represents herein that he learned from court personnel that the June 1, 2009 docket entry regarding the TED BOWMAN CASSETT TAPE FILED referenced a tape recording of the February 6, 2009 Board of Revision that had been filed by the Board. When the court ordered that the appellant produce the transcript of the proceedings below, that order unlawfully shifted a burden of the county to appellant. Notwithstanding the courts shift of this responsibility, appellant did arrange to retrieve the cassette recording from court personnel, caused the proceedings before the Board of Revision to be transcribed and filed of record in the court, at his expense. However, when appellants brief had not been timely filed, the court dismissed the appeal without further notice to appellant. Under these facts and circumstances, appellant contends that the court committed reversible error in dismissing his appeal from the Board of Revision April 24, 2009 decision. Appellant contends that Ohio Civil Rules govern the proceedings on appeal from the Board of Revision unless clearly inapplicable. Civil Rule 1, provides in pertinent part, as follows: RULE 1. Scope of Rules: Applicability; Construction; Exceptions (A) Applicability. These rules prescribe the procedure to be followed in all courts of this state in the exercise of civil jurisdiction at law or in equity, with the exceptions stated in subdivision (C) of this rule. There is nothing about the application of either Civil Rule 5 (A) and/or Civil Rule 41 that would by their nature be clearly inapplicable to this proceeding. Ohio Civil Rule 41 (B) provides: Ohio Civil Rule (41)(B) Involuntary dismissal: effect thereof.
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Failure to prosecute. Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim. (emphasis added)
(1)

In the instant case, appellant had no notice that his appeal would be dismissed when the brief was not timely filed, particularly given the absence of the documents, records and evidence from the February, 2009 Board of Revision hearing. On these facts, the dismissal is not only a harsh and unfair result, appellant contends it is contrary to law. In Torres vs Wood, 2009 OHIO 5566 (2009), this court reversed and remanded a case which had been dismissed with prejudice when plaintiff appeared late for the trial of his case. The court stated: The power to dismiss a case for lack of prosecution is within the sound discretion of the trial court. Pembaur v. Leis (1982), 1 Ohio St.3d 89, 1 Ohio B. 125, 437 N.E.2d 1199. Civ. R. 41(B) (1) provides: "Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim." Prior to ordering a dismissal on the merits under Civ.R. 41(B)(1), the trial court must give notice to plaintiff's counsel. Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99, 22 Ohio B. 133, 488 N.E.2d 881; Levy v. Morrissey (1986), 25 Ohio St.3d 367, 25 Ohio B. 416, 496 N.E.2d 923. (Emphasis added) And further: "The law favors deciding cases on their merits unless the conduct of a party is so negligent, irresponsible, contumacious or dilatory as to provide substantial grounds for dismissal with prejudice for a failure to prosecute or obey a court order." (citing Schreiner v. Karson (1977) 52 Ohio App.2d 219 at 222). The Rules of Superintendence For the Courts of Ohio also mandate such advance notice. Specifically, Superintendence Rule 40 (A) provides: Dismissal is not summary; notice to the parties or counsel is a
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condition precedent. The notice is not limited to plaintiffs counsel, but must go to the counsel of record for all parties. Ordinary mail notice suffices under the rule. The return of ordinary mail notice should not be permitted to frustrate the action of the court. In the instant matter, appellant had no notice that his Board of Revision appeal would be dismissed if he did not file a brief by the stated date. Accordingly, the dismissal must be reversed. II. THE DISMISSAL CONSTITUTES AN ABUSE OF DISCRETION UNDER THE CIRCUMSTANCES OF THIS CASE

The dismissal of appellants appeal is a particularly egregious result under the circumstances of this case. The court was aware or should have been aware that there was a legitimate issue with the state of the record from the Board of Revision and/or the whereabouts of that record remained in question. The court had to know that appellants failure to comply with court orders was inadvertent and nonintentional because appellant had obtained the cassette tape and arranged for its transcription under protest and court personnel were aware of appellants frustration at finding and reviewing any records which were supposed to be filed from the Board of Revision proceedings. The term abuse of discretion has been held to: connote more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.'" Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. The court below was faced with a situation wherein the appellant had failed to timely file a brief. However, the court docket gave no notice that the records, exhibits and/or evidence from the Board proceedings had ever been filed with the court and the appellant had incurred the expenses of transcribing the proceedings when it was the duty of the Board to produce such transcript. The court was aware from its own personnel that appellant had been unable to locate any filings (other than the cassette tape) from the Board even after the time for filing the brief had already expired. Thus, there was nothing
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intentionally dilatory about the conduct of appellant in pursuing his appeal. On the other hand, the record from the Board of Revision establishes on its face that appellant filed his complaint with the Board of Revision on March 31, 2008 and did not obtain a decision until more than a year later on April 24, 2008. However, ORC 5715.19(C) requires The board of revision shall hear and render its decision on a complaint within ninety days after the filing thereof with the board, except that if a complaint is filed within thirty days after receiving notice from the auditor as provided in division (B) of this section, the board shall hear and render its decision within ninety days after such filing. Thus, it is the appellee, and not appellant, who suffered the greater infraction of time deadlines. Instead of being punished for its breach of a statutory deadline, appellee, if the dismissal stands, will be rewarded for such conduct. On balance, and under the circumstances of this case, the court abused its discretion in dismissing appellants appeal from the Board of Revision where such decision is clearly arbitrary and unreasonable and provided appellant no opportunity to explain himself. III. THE COURT ERRED AS A MATTER OF LAW BY FAILING TO DETERMINE THE TAXABLE VALUE OF THE PROPERTY On May 26, 2009, appellant initiated an appeal from a April 24, 2009 decision of the Cuyahoga County Board of Revision. On October 28, 2009, the court dismissed appellants appeal pursuant to court order of 9/8/2009 but without making any determination of the taxable value of the property. ORC 5717.05 provides, in pertinent part, as follows: The court may hear the appeal on the record and the evidence thus submitted, or it may hear and consider additional evidence. It shall determine the taxable value of the property whose valuation or assessment for taxation by the county board of revision is complained of, or if the complaint and appeal is against a discriminatory valuation, shall determine a valuation that shall correct the discrimination, and the court shall determine the liability
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of the property for assessment for taxation, if that question is in issue, and shall certify its judgment to the auditor, who shall correct the tax list and duplicate as required by the judgment. (emphasis added) Thus, the courts obligation on appeal is to determine the taxable value of the subject property which it failed to do. The taxpayer had provided persuasive evidence before the Board of Revision in the form of his complaint to the Board of Revision and the attachments thereto including the 8 page letter captioned Statement in Support of Reduction of Real Property. The taxpayers communication describes in great detail the series of errors committed by the office of the county auditor over an extended period and its efforts to correct such errors. The operative argument of the taxpayer/appellant herein is found on page 7 of his statement to the Board. He pointed out that the auditor had determined that the tax valuation for the subject property should be reduced to $74,800 and described how the auditor had reached that valuation. So, what were going to do is take the new, 2006 proposed valuation and take that back all the way to when you bought the property in 2001. (first paragraph on page 7). The taxpayer, explained in the record why such 2006 reappraisal could not be used for years prior to 2006. From the second paragraph at page 7 the taxpayer/appellant explained: In years prior to 2006, the present reappraisal can not be used because it had not happened yet. You must use the prior version, from the year 2000. There is no evidence in the record of the case to address this essential point of the taxpayer and his testimony on the subject is unrefuted. However, the taxpayers statement is irrefutable. The sexannual appraisal is a creature of statute ORC 5713.01 (B) requires the auditor to appraise real estate at least once in each six year period and the taxable values required to be derived therefrom. The result of such valuations determine the real estate taxes to be paid for such time period. Thus, to allow the application of a 2006 valuation retroactively to 2001 violates the
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Ex Post Facto Clause (Article I, section 10 of the US Constitution) and the retroactivity clause of (Section 28, Article II of the Ohio Constitution). The taxpayer, using 2000 valuations, obtained a valuation of $37,400 to which the Board did not respond. (See complaint form). Had the County Auditor performed its duty pursuant to ORC 5713.33, the valuation of the subject property may have been dramatically easier for determination by all interested parties. Prior to its sale to appellant, the subject parcel was categorized as agricultural. 5713.33 compels the county auditor to maintain, for each agricultural land, among other matters, the true value and taxable value of each such parcel (5713.33 (C) and (D)) and the dollar amount which would have been assessed had the property had it not been agricultural (5713.33 (F)). Appellant likewise addressed in his complaint the recoupment charges against his property. (See page 4, last paragraph from the taxpayers Statement). Nothing in the decision of the county Board of Revision addresses the recoupment charges. The decision merely states: already reduced per taxpayer previous arguments and evidence. Thus, the record at supported a remand to the Board of Revision to address that aspect of the appellants appeal from the Board of Revision. IV. CONCLUSION

When viewed under the facts and circumstances as set forth herein, appellant contends that a sanction of dismissal was too harsh, abused the courts discretion. Moreover, the dismissal must be revered as the courts dismissal violates the statutory mandate for the court to determine the property valuation. Accordingly, the order of dismissal of the court of common pleas must be reversed. Respectfully submitted

_______________________________
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James Alexander, Jr., Esq. #0033384 2490 Lee Blvd., Suite 115 Cleveland Heights, Ohio 44118 (216) 291-1005; (216) 382-8512-fax jamesalexander_jr@sbcglobal.net Attorney for Appellant

CERTIFICATE OF SERVICE A copy of the foregoing Appellate Brief was served upon TIMOTHY J. KOLLIN, Esq., Assistant County Prosecutor, Attorney for appellee at COURTS TOWER, JUSTICE CENTER, 1200 ONTARIO STREET, CLEVELAND, OH 44113 by regular United States Mail, postage prepaid or by facsimile to 443-3798-fax on this 23rd day of April, 2010.

_____________________________ James Alexander, Jr. Attorney for Appellant

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