COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59946 HAP ENTERPRISES : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION CUYAHOGA COUNTY BOARD OF : REVISION, et al : : Defendant-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 26, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 179,370 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: FRED J. SIEGEL TODD W. SLEGGS KAREN H. BAUERNSCHMIDT Attorneys at Law 906 Citizens Building Cleveland, Ohio 44114 For defendant-appellee FRED J. LIVINGSTONE Mayfield Heights Board ROBERT J. HILL of Education: SYLVESTER SUMMERS, JR. Attorneys at Law 300 Nat'l City/East 6th Bldg. Cleveland, Ohio 44114-2264 (Cont.) - 0 - (Cont.) For defendant-appellees STEPHANIE TUBBS-JONES Cuyahoga County Board Cuyahoga County Prosecutor of Revision and WILLIAM J. DAY, Assistant Cuyahoga County Auditor: Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 FRANCIS E. SWEENEY, P.J.: Plaintiff-appellant, HAP Enterprises, timely appeals the court of common pleas' dismissal of the appellant's administra- tive appeal on the ground that the board of tax appeals had exclusive jurisdiction of the tax appeal pursuant to R.C. 5717.0- 5. The subject of this appeal is whether R.C. 5717.05, as amend- ed effective March 17, 1989, is unconstitutional and whether the trial court's reliance thereon in dismissing the appeal was unreasonable or unlawful. For the reasons set forth below, we affirm the judgment of the trial court. The pertinent facts of this case are as follows: The real property tax appeal originated with the filing of a decrease complaint by the appellant, HAP Enterprises, with the Cuyahoga County Board of Revision, pursuant to R.C. 5715.19(A). Appellee Mayfield Heights Board of Education (hereinafter "Board of Education") filed a cross-complaint on the subject property - 2 - pursuant to R.C. 5715.19(B). The board of revision heard the complaints and issued decisions on each complaint. The Board of Education appealed the board of revision deci- sions to the Ohio Board of Tax Appeals pursuant to R.C. 5717.01. The appellant subsequently appealed the decisions to the Cuyahoga County Court of Common Pleas pursuant to R.C. 5717.05. The Board of Education filed a motion to dismiss appellant's appeal with the court of common pleas on the ground that the appeal filed first takes precedence, citing R.C. 5717.05. The appellant filed a brief opposing the motions to dismiss, raising constitutional challenges to R.C. 5717.05. The court of common pleas granted the motion to dismiss appellant's appeal. Appellant raises eleven assignments of error for our review. Since these assignments of error all relate to the constitution- 1 ality of R.C. 5717.05, they will be addressed together. Appellant raises several constitutional challenges to R.C. 5717.05, as amended effective March 17, 1989. These arguments are without merit. Initially, appellant contends that R.C. 5717.05 deprives a property owner who contests a board of revision's decision his due process of law under the Ohio and United States Constitu- tions. Specifically, appellant argues that the statute precludes a property owner from obtaining review of constitutional issues 1 See Appendix for list of assignments of error. - 3 - in tax cases when an appeal is first filed with the board of tax appeals. R.C. 5717.05, as amended effective March 17, 1989, provides as follows: When the appeal has been perfected by the filing of notice of appeal as required by this section, and an appeal from the same decision of the county board of revision is filed under section 5717.01 of the Revised Code with the board of tax appeals, the forum in which the first notice of appeal is filed shall have exclusive jurisdiction over the appeal. (Emphasis added). Thus, the forum in which the notice of appeal is first filed acquires exclusive jurisdiction over the appeal. Due process mandates that prior to an administrative action which results in a deprivation of the individual's liberty or property, the governmental agency must afford that individual reasonable notice and opportunity to be heard. State, ex rel. Great Lakes College v. Medical Bd. (1972), 29 Ohio St. 2d 198. The board of tax appeals is an administrative agency and is without jurisdiction to determine the constitutional validity of a statute. Cleveland Gear Co. v. Limbach (1988), 35 Ohio St. 3d 229, paragraph one of the syllabus. However, the question of whether a tax statute is unconstitutional when applied to a par- ticular set of facts must be raised in the notice of appeal to the board of tax appeals, and the board of tax appeals must re- ceive evidence concerning this question if presented, even though the board of tax appeals may not declare the statute unconstitu- - 4 - tional. 75 Public Square v. Bd. of Revision (Nov. 14, 1991), Cuyahoga App. No. 59325-34, 59341, 60627-30, 60659, 61052, 61136, 61306, 61434 and 61515, unreported (citing Cleveland Gear Co. v. Limbach, supra, at paragraph three of the syllabus). Furthermore, the question of whether a tax statute is unconstitu- tional on its face may be raised initially in the supreme court or the courts of appeals, although not previously raised before the board of tax appeals. Id. Based upon the above, we have held that appellants are not denied the right to assert constitutional claims since they may be raised before the board of tax appeals, the supreme court or the courts of appeals following the conclusion of the board of tax appeals proceedings. Id. Accordingly, in the present case, we also conclude that appellant is not deprived of an opportunity to be heard as appellant may raise constitutional arguments in the proceedings before the board of tax appeals. Appellant also contends that it is entitled to review in the court of common pleas based on the principle that the court of common pleas possesses superior rights to jurisdiction as a "cou- rt of general jurisdiction." However, Article IV, Section 4(B) of the Ohio Constitution provides that the role of the courts of common pleas in an administrative appeal pursuant to R.C. 5717.05 is not one of a "court of general jurisdiction" but rather is limited to the authority provided by statute. Thus, we have held that the general jurisdictional provisions of the court of common - 5 - pleas are inapplicable to the review of proceedings of an admin- istrative agency. Id., at 8. Accordingly, this argument is without merit. Appellant next contends that R.C. 5717.05 violates the Due Process Clauses of the Ohio and United States Constitutions by creating an impermissible "race to the courthouse." Appellant cites no authority to support his position, and we could find no precedent for this argument. As we have previously stated, even if appellant were not the first to perfect its notice of appeal, it is still entitled to raise its constitutional claims in the proceedings before the board of tax appeals. Thus, this argument is without merit. Finally, appellant contends the trial court's decision gran- ting the Board of Education's motion to dismiss was unreason- able, unlawful and constituted an abuse of discretion. Specifi- cally, appellant contends the trial court erred in finding that the court of common pleas is precluded from hearing appellant's subsequently-filed appeal and that exclusive jurisdiction over the subject matter of this appeal lies with the board of tax appeals. However, as we have previously noted, R.C. 5717.05 confers "exclusive jurisdiction" upon the forum in which the first notice of appeal is filed. Thus, the trial court properly found that it lacked jurisdiction. Accordingly, the trial court did not abuse - 6 - its discretion in granting the Board of Education's motion to dismiss. In conclusion, the judgment of the court of common pleas dismissing the appellant's administrative appeal is affirmed. Assignments of Error I through XI are overruled. Judgment affirmed. Judgment affirmed. It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas 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. PATTON, J. HARPER, J. CONCUR PRESIDING JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. - 8 - APPENDIX ASSIGNMENT OF ERROR I THE DECISION OF THE COURT OF COMMON PLEAS DISMISSING THE APPELLANT'S APPEAL IS UNREASONABLE AND UNLAWFUL AND CONTRARY TO THE LAWS OF OHIO. ASSIGNMENT OF ERROR II THE DECISION OF THE COURT OF COMMON PLEAS IS UNREASONABLE AND UNLAWFUL FOR THE REASON THAT IT UNLAWFULLY SHORTENS THE TIME PERIOD FOR FILING AN APPEAL UNDER SECTION 5717.05 OF THE OHIO REVISED CODE. ASSIGNMENT OF ERROR III SECTION 5717.05 OHIO REVISED CODE IS UNCONSTITUTIONAL FOR THE REASON THAT IT DOES NOT ALLOW AN APPELLANT A REASONABLE TIME TO FILE AN APPEAL TO THE COURT OF COMMON PLEAS. ASSIGNMENT OF ERROR IV THE DECISION OF THE COURT OF COMMON PLEAS IS UNREASONABLE AND UNLAWFUL FOR THE REASON THAT THE APPELLANT TIMELY FILED ITS NOTICE OF APPEAL IN FULL COMPLIANCE WITH SECTION 5717.05 OF THE OHIO REVISED CODE. ASSIGNMENT OF ERROR V THE DECISION OF THE COURT OF COMMON PLEAS IS UNREASONABLE AND UNLAWFUL FOR THE REASON THAT THE COURT ERRED IN DETERMINING THAT IT LACKED JURISDICTION IN THIS APPEAL. ASSIGNMENT OF ERROR VI THE DECISION OF THE COURT OF COMMON PLEAS VIOLATES ARTICLE XII, SECTION 2 OHIO CONSTITUTION THAT PROPERTY SHOULD BE TAXED BY "UNIFORM RULE." ASSIGNMENT OF ERROR VII THE DECISION OF THE COURT OF COMMON PLEAS VIOLATES THE RIGHT OF "EQUAL PROTECTION" UNDER ARTICLE I, SECTION 2 AND ARTICLE II, SECTION 2 OHIO CONSTITUTION AND AMENDMENT XIV, SECTION 1 UNITED STATES CONSTITUTION. - 9 - ASSIGNMENT OF ERROR VIII THE DECISION OF THE COURT OF COMMON PLEAS RESULTS IN AN UNLAWFUL TAKING OF PROPERTY IN VIOLATION OF THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR IX THE LEGISLATIVE CHANGES TO SECTION 5717.05 OHIO REVISED CODE REGARDING THE RACE TO THE COURTHOUSE FOR AN APPEAL VIOLATES THE OHIO CONSTITUTION AND THE UNITED STATES CONSTITUTION. ASSIGNMENT OF ERROR X THE COURT OF COMMON PLEAS DISMISSAL OF THE APPELLANT'S AP- PEAL VIOLATES THE RIGHT OF DUE PROCESS UNDER THE OHIO CONSTITU- TION AND UNITED STATES CONSTITUTION. ASSIGNMENT OF ERROR XI THE COURT OF COMMON PLEAS ERRED IN RELYING ON COLUMBUS APAR- TMENTS ASSOC. V. BD. OF REVISION (1981), 67 OHIO ST. 2D 85 AND CLEVELAND GEAR CO. V. LIMBACH (1985), 35 OHIO ST. 3D 229 IN DIS- MISSING THE APPELLANT'S APPEAL TO THE COURT OF COMMON PLEAS. .