COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71416 MIDDLETON & ASSOCIATES : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION MARK R. WEISS : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JUNE 19, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-311950. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Gregory R. Glick, Esq. 23200 Chagrin Boulevard Building 4, 6th Floor Beachwood, OH 44122 Roy J. Schecter, Esq. 1510 Hanna Building Playhouse Square Cleveland, OH 44115-2001 For Defendant-Appellee: Frank E. Piscitelli, Jr., Esq. Security Federal Plaza 500 E. Royalton Road Suite 180 Broadview Heights, OH 44147 DAVID T. MATIA, P.J.: -2- Middleton & Associates, plaintiff-appellant, appeals the decision of the Cuyahoga County Court of Common Pleas granting Mark Weiss', defendant-appellee's, motion to dismiss. Appellant raises three errors for review. This court, finding no error, affirms the decision of the trial court. I. STATEMENT OF FACTS Middleton & Associates ( Middleton ), plaintiff-appellant, prepares and presents complaints seeking reductions in property taxes for their clients. On or about February 28, 1992, appellant entered into a contingent fee agreement with Mark Weiss, defendant- appellee, to pursue a reduction in the value of appellee's building located in Rocky River, Ohio. The contract provided that Mr. Weiss would pay appellant a fee of fifty percent (50%) of the amount of any tax savings resulting from the presentation of such claims and/or appeals for the reduction of the real property assessment to the years 1991 and 1992. That same day the parties also entered into a Appointment of Exclusive Agent contract which holds that appellant would act as the exclusive agent for the preparation, presentation and/or negotiation of the claim and/or appeals for the reduction of the real property assessment. This contract further states: In the event Middleton and Associates determines that an appeal to the Court of Common Pleas, or State of Ohio Board of tax Appeals has merit, it is understood that Middleton and Associates is hereby authorized to retain the services of an attorney at law to present such claim or claims in behalf of the undersigned, provided that Middleton and Associates are solely responsible for payment of any resulting attorney fees. -3- * * * The term of this exclusive agency shall extend for that period of time required by Middleton and Associates to complete the presentation of claims and appeals referred to above. The initial assessed value of the property at issue for the tax year 1991 was $1,831,057. On July 2, 1993, Middleton presented the matter to the Cuyahoga County Board of Revision asserting that the assessed value of the subject property should be reduced to $1,003,000. The Board denied said request on July 8, 1993. Appellant argues that it then selected and retained the services of attorney, Jon Burney, to file an appeal in the Cuyahoga County Court of Common Pleas. However, appellee argues that appellant refused to pursue the appeals, and he personally retained Mr. Burney. On October 23, 1993, Mr. Burney filed the appeal with the Court of Common Pleas pursuant to R.C. 5717.05 and subsequently negotiated a reduction in appellee's property tax. On December 28, 1994, a Stipulated Judgment was executed between counsel for the respective parties which resulted in a reduction of the assessed value of the subject property in the amount of $731,057 for the tax year 1991. Appellee subsequently received tax refunds in the amount of $45,532.17 for 1991, 1992 and 1993. Mr. Burney billed appellee directly and was paid directly by appellee for services rendered. Appellant then issued an invoice to Mr. Weiss, appellee, in the amount of fifty percent (50%) of the savings which amounted to $22,766.08. Mr. Weiss refused to pay appellant claiming that their -4- agreement ended when Middleton refused to pursue the appeal. On July 17, 1996, appellant filed a complaint in the Cuyahoga County Court of Common Pleas for breach of contract. On August 7, 1996, appellee filed a motion to dismiss on the grounds that the services contracted for with appellant in representing others before the Board of Revision constituted an unauthorized practice of law thereby invalidating said contract. On September 13, 1996, the trial court granted appellee's motion to dismiss. Middleton, appellant, timely files this appeal. II. FIRST, SECOND AND THIRD ASSIGNMENTS OF ERROR As Middleton & Associates', appellant's, first, second and third assignments of error contain similar issues of law and fact, we will consider them concurrently: I. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO DISMISS ON THE GROUNDS THAT THE CONTRACT HE SIGNED IS NOT ENFORCEABLE BECAUSE IT PROVIDED FOR THE APPEARANCE OF MIDDLETON AND ASSOCIATES BEFORE THE BOARD OF REVISION WHICH CONSTITUTES THE UNAUTHORIZED PRACTICE OF LAW ON THE PART OF APPELLANT. II. THE TRIAL COURT ERRED IN NOT FOLLOWING THE DECISION OF THE BOARD OF COMMISSIONERS ON THE UNAUTHORIZED PRACTICE OF LAW OF THE SUPREME COURT OF OHIO WHICH HAD ALREADY DETERMINED THAT THE ACTIVITIES OF NON-ATTORNEY APPELLANT MIDDLETON AND ASSOCIATES IN REPRESENTING OTHERS BEFORE THE COUNTY BOARD OF REVISION DID NOT CONSTITUTE THE UNAUTHORIZED PRACTICE OF LAW. III. THE TRIAL COURT WHICH IS LOCATED IN THE EIGHTH APPELLATE DISTRICT ERRED IN RELYING ON THE DECISION OF THE TENTH APPELLATE DISTRICT IN THE WRONGLY DECIDED CASE OF KRIER V. FRANKLIN COUNTY BD. OF REVISION. -5- A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO DISMISS. Middleton & Associates ( Middleton ), plaintiff-appellant, argues the trial court erred in granting Mark Weiss', defendant- appellee's, motion to dismiss. Specifically, appellant argues the trial court erred in holding the representation of appellee by appellant before the Cuyahoga County Board of Revision constitutes the unauthorized practice of law and that the contract provided for such service is unenforceable. Plaintiff-appellant's first, second and third assignments of error are not well taken. B. STANDARD OF REVIEW: MOTION TO DISMISS. A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex re. Hanson v. Guernsey Ct. Bd. Of Commrs. (1992), 65 Ohio St.3d 545. It is well settled that when a party files a motion to dismiss for failure to state a claim, all factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party. Byrd v. Faber (1991), 57 Ohio St.3d 56, 60, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. . C. THE TRIAL COURT DID NOT ERR IN GRANTING APPELLEE'S MOTION TO DISMISS. We begin noting that the practice of law in Ohio is governed by R.C. 4705.01 that states in pertinent part: No person shall be permitted to practice as an attorney and counselor at law, or to commence, conduct, or defend any action or proceeding in which he is not a party concerned, either by using or -6- subscribing his own name, or in the name of another person, unless he has been admitted to the bar by order of the supreme court in compliance with its prescribed and published rules. It is well established that the judiciary branch is vested with the exclusive authority to determine what constitutes the unauthorized practice of law. Royal Indemn. Co. v. J.C. Penny Co, (1986), 27 Ohio St.3d 31; State ex rel. Green v. Brown (1962), 173 Ohio St. 114. With this authority is the concomitant responsibility to protect the public by preventing the unauthorized practice of law, while at the same time not exercising this authority so rigidly that the public good suffers. Henize v. Giles (1986), 22 Ohio St.3d 213, 217. The Ohio Supreme Court has set forth the following definition of the practice of law : The practice of law is not limited to the conduct of cases in court. It embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and in addition conveyancing, the preparationof legal instruments of all kind, and in general all advice to clients and all action taken for them in matters connected with the law. Land Title Abstract & Trust Co. V. Dworken (1934), 129 Ohio St. 23, paragraph one of syllabus. See, also, Cincinnati Bar Assn. V. Estep (1995), 74 Ohio St.3d 172. Initially we note that there is no dispute that representation before the Board of Tax Appeals and/or the common pleas court does involve the practice of law. This sole issue presented in this case is whether the representation before the Board of Revisions by an -7- non-attorney based upon a contingency fee agreement constitutes an unauthorized practice of law. The parties in this case cite two recent decisions which reachedconflicting conclusions. Appellant relies upon Cleveland Bar Assn. V. Middleton (1994), 66 Ohio Misc.2d 9, 14, where the State Board of Commissioners of the Unauthorized Practice of Law held the following: It is noteworthy that it is the practice of this state to allow non-attorneys to represent fee holders before boards of revision. This practice is sensible. The issue before the board of revision-- the fair market value of real estate--is not one which requires legal skills to resolve. In fact, that issue is often the subject of expert testimony by law appraisers. Moreover, board of revision proceedings are not governed by the Rules of Evidence and typically the board members are not attorneys. Further, the relator has not alleged or offered any evidence that there is harm to the public by allowing non-attorneys to represent fee holders before the board of revision. For these reasons, ***, we conclude that the activities of the respondents before boards of revision do not constitute the unauthorized practice of law. In contrast, appellee cites to Krier v, Franklin Cty. Bd. Of Revisi on (1994), 100 Ohio App.3d 344, 351, where the Franklin County Court of Appeals held: *** [I]t is the unauthorized practice of law for an agent having no other connection to landowner than representation seeking tax deduction engages in unauthorized practice of law by soliciting and filing application for decrease in property tax valuation with court board of revision. ***. This conclusion does expressly define as the unauthorized practice of law the activities of tax valuation entrepreneurs actively engaged in solicitation of fee arrangements with property owners in state. Recently however, the Ohio State Supreme Court has addressed this issue in Sharon Village Ltd. v. Licking Cty. Bd. Of Revision -8- (1997),78 Ohio St.3d 479. After considering the procedure at the board of revision and the purpose and impact of the complaint filed, the court concluded the preparation and filing of a complain t with a board of revision on behalf of a taxpayer constitute the practice of law. Id. at syllabus. Accordingly, the trial court did not err in granting appellee's motion to dismiss. Appellant's first, second and third assignments of error are not well taken. Judgment affirmed. -9- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas 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. DYKE, J. and NAHRA, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .