COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72127 OHIO LEITINA COMPANY : JOURNAL ENTRY : AND Plaintiff-appellant : OPINION : -vs- : : J. TIMOTHY MCCORMACK : : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CV-314804 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: OWEN C. NEFF, ESQ. GREGORY ROWINSKI, ESQ. SNYDER, NEFF & CHAMBERLIN ASST. COUNTY PROSECUTOR 1648 Hanna Building 8TH Floor, Justice Center 1422 Euclid Avenue 1200 Ontario Street Cleveland, Ohio 44115-2001 Cleveland, Ohio 44113 -2- DYKE, P.J.: Plaintiff Ohio Leitina Co. (hereafter referred to as Leitina ) appeals from the judgment of the trial court which dismissed its appeal from the decision of the Cuyahoga County Board of Revision which denied Leitina's complaint for a reduction in land value. For the reasons set forth below, we affirm. On March 28, 1995, Leitina filed a complaint on the assessment of real property, seeking the reduction of taxable value of three parcels of property located on Triskett Road in Cleveland. Leitina asserted that the contiguous parcels, with permanent parcel numbers 025-24-001, 025-24-002, and 025-24-003, had been used for a gasoline station and were now vacant, unusable, and severely chemically contaminated. Leitina further asserted that the parcels had no commercial value or value for any reasonable purpose. The board held a hearing on the matter on May 13, 1996. Thereafter, on August 9, 1996, it upheld the existing taxable valuations for the parcels and denied the request for a tax reduction. This decision was delivered by certified mail to Leitina on August 10, 1996. On September 6, 1996, Leitina filed a notice of appeal to the court of common pleas. On November 20, 1996, the Cuyahoga County Board of Revision, and the Cuyahoga County Auditor filed a motion to dismiss Leitina's appeal for lack of jurisdiction. The county asserted that Leitina did not timely file its notice of appeal with the board of revision since the board did not receive it until September 13, 1996. In opposition, Leitina indicated that it filed (left) a copy of the notice of -3- appeal with the board of revision on September 6, 1996 and also left a copy of the notice of appeal with the attendant, outside the office of the Auditor on the same date. In a reply brief, the county maintained that statute provides only for service by certified mail, and that an appeal cannot be perfected by leaving copies at the Administration Building. On February 4, 1997, the trial court granted the county's motion. Leitina now appeals and assigns a single error for our review. Leitina's assignment of error states: THE COURT COMMITTED ERROR PREJUDICIAL TO THE APPELLANT BY DISMISSING THE APPEAL TO IT FOR FAILURE TO FIND THAT THE NOTICE OF APPEAL HAD BEEN PROPERLY AND TIMELY FILED. Within this assignment of error, Leitina asserts that it is aware that filing of its notice of appeal is not complete simply by mailing the document and that it delivered copies of its notice of appeal to the board of revision, in room 232 of the Administration Building and to the auditor, in room 301, on September 6, 1996, or within the statutory time limit for perfecting an appeal. Leitina also contends that because the county has not refuted its averments that the notice of appeal was timely filed, timeliness should be deemed to be admitted by the county. R.C. 5717.05 provides for appeals from the decision of a county board of revision to the court of common pleas and provides in pertinent part as follows: As an alternative to the appeal provided for in section 5717.01 of the Revised Code, an appeal from the decision of a county board of revision may be taken directly to the court of common pleas of the county by the person in -4- whose name the property is listed or sought to be listed for taxation. The appeal shall be taken by the filing of a notice of appeal with the court and with the board within thirty days after notice of the decision of the board is mailed as provided in section 5715.20 of the Revised Code. The county auditor and all parties to the proceeding before the board, other than the appellant filing the appeal in the court, shall be made appellees, and notice of the appeal shall be served upon them by certified mail unless waived. The prosecuting attorney shall represent the auditor in the appeal. With regard to Leitina's claim that the state has admitted that the appeal was timely filed with the board, we note that in Huber Heights Circuit Courts, Ltd. v. Carne (1996), 74 Ohio St.3d 306, the Supreme Court held that the requirements of this statute are jurisdictional, not merely procedural. Accord Goforth v. McCormack(January 27, 1994), Cuyahoga App. No. 63781, unreported. That is, since the statute authorizing the appeal sets forth conditions and procedures by which the appeal may be perfected, adherence to those conditions is essential. Huber Heights Circuit Courts, Ltd., v. Carne, supra, at 308. Thus, it is essential that the record demonstrate compliance with the jurisdictional require- ments of the statute. Accord Osborne v. Lake County Board of Revision (January 31, 1992), Lake App. No. 91-L-076, unreported. As to Leitina's additional claim that filing was complete upon leaving the notice of appeal at the offices of the board of revi- sion and the county auditor, we note that in Great Northern Partnership v. Cuyahoga County Board of Revision (July 19, 1990), Cuyahoga App. No. 57277, unreported, this court held that the filing requirement of R.C. 5717.05 contemplates both delivery and receipt within the statutory time limit. We stated: -5- We note initially that the "filing" of a document is distinct from the 'service' of a document in that "'filing is not complete until the document is delivered and received,'" Fulton v. State, ex rel. General Motors Corp. (1936), 130 Ohio St. 494, 498 (citation omitted), and service can occur when the document is mailed to the proper party, at a proper location. Cf. Civ.R. 5(B). Similarly, the filing and service requirements of R.C. 5717.05 are not interrelated, but rather, mandate different actions, performed with respect to different entities. Accordingly, we hold that the requirement of R.C. 5717.05 that notice of appeal be filed with the Board within thirty days is not met by simply serving or mailing the notice within the thirty-day appeal period. Cf. Bohacek v. Ohio Bur. of Emp. Services (1983), 9 Ohio App.3d 59, 62 (requirement of R.C. 4141.28 (O) that notice of appeal to the court of common pleas be filed with the Unemployment Compensation Board of Review, within thirty days after the Board's decision is mailed, is satisfied where the Board receives notice during the thirty-day period); Townsend v. Bd. of Bldg. Appeals (1976), 49 Ohio App.2d 402, 402 (in appeals from board of Building Appeals to court of common pleas, pursuant to R.C. 119.12, act of depositing notice of appeal in the mail does not satisfy requirement that notice be filed with the Board). Accord Great Northern Properties Co. v. McCormack (March 10, 1994), Cuyahoga App. Nos. 64868, 64893, 64912, 65346, 65504, 66586, unreported, wherein we likewise stated: This court of appeals has previously rejected this argument and held the jurisdictional "filing" requirement of R.C. 5717.05 requires actual physical receipt by the Board rather than the mere mailing of the notice to the Board within the thirty day period. Great Northern Partnership v. Cuyahoga County Board of Revision (July 19, 1990), Cuyahoga App. No. 57277, unreported at 3. The Great Northern Partnership Court cited the leading Ohio Supreme Court case construing the term "filed" when used by the General Assembly in statutes governing the filing of documents with public agencies. The Fulton court recognized the term "filed" had a well accepted legal meaning and, after reciting several dictionary defini- tions of the term, concluded 'filing is not complete until the document is delivered and received.' Id. at 498 (citations omitted). -6- See, also, Fulton v. State ex rel. General Motors Corp. (1936), 130 Ohio St. 494, 497-498 wherein the Supreme Court stated: Webster's New International Dictionary defines the word "file" thus: "To deliver (a paper or instrument) to the proper officer so that it is received by him to be kept on file, or among the records of his office." Funk & Wagnall's New Standard Dictionary thus: "to present in the regular way, as to a judicial or legis- lative body, so that it shall go upon the records or into the order of business; *** to deposit in a court or public office, and pay the fees prescribed therefor, as a paper or document." Bouvier's Law Dictionary thus: "In the sense of a statute requiring the filing of a paper or document, it is filed when delivered to and received by the proper officer to be kept on file. The word carried with it the idea of permanent preservation of the thing so delivered and received; that it may become a part of the public record." United States v. Lombardo, 241 U.S., 73, 76, 60 L.Ed., 897, 36 S. Ct., 508, thus: "A paper is filed when it is delivered to the proper official and by him received and filed." City Street Improvement Co. v. Babcock, 6 Cal. Unrep., 910, 913, 68 P., 548, thus: "In modern days it is usually held that a paper is filed on the part of the party who is required to file it when he has presented it at the proper office and left it with the person in charge thereof." 25 Corpus Juris, 1124, 1125, Section 4, thus: "The word 'filed' has a well defined meaning, signifying delivered to the proper officer and by him received to be kept on file; delivered into the actual custody of the officer designated by the statute, to be kept by him as a per- manent record of his office." And on page 1127: "Filing is not complete until the document is delivered and received." In this instance, Leitina averred in opposition to the motion to dismiss that on September 6, 1996, it filed (left) a copy of the notice of appeal with the Board of Revision in Room Number 232, and left a copy of the notice of appeal at the desk, with -7- the attendant, outside the office of the Auditor located in Room 301. Leitina did not demonstrate that it filed the documents at this time or that it obtained file stamped copies from the board of revision on this date. Thus, pursuant to the case law from this jurisdiction,we are compelled to determine that Leitina delivered its appeal but did not timely "file" it. In accordance with the foregoing, we conclude that the record fails to demonstrate that the appeal was perfected in accordance with the requirements of R.C. 5717.05 and the trial court was therefore without jurisdiction to hear the appeal. Accord LCL Income Properties v. Rhodes (1995), 71 Ohio St.3d 652, 653, ( There are many situations in which dismissal is the proper solution. One example is a failure to comply with a procedural requirement, such as the timely filing of a notice of appeal. ) Affirmed. -8- It is ordered that appellee recover of appellant his 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. SPELLACY, J., CONCURS. KARPINSKI, J., DISSENTS. (SEE ATTACHED DISSENTING OPINION ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See 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 announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72127 OHIO LEITINA COMPANY : : : Plaintiff-Appellant : : DISSENTING v. : : OPINION J. TIMOTHY McCORMACK : : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: KARPINSKI, J., DISSENTING: I respectfully dissent. I would reverse the summary dismissal of this administrative appeal and remand the matter to the common pleas court for further proceedings. The party filing a motion to dismiss an administrative appeal on timeliness grounds has the burden of demonstrating the notice of appeal was not timely filed. Roseman v. Reminderville (1984), 14 Ohio App.3d 124, 126. The Board of Revision and County Auditor (collectively, the County ) failed to satisfy their burden in this case. The deadline for appeal in the case at bar was September 9, 1996. The record shows the taxpayer filed a notice of appeal in the common pleas court, and paid a $100 filing fee, three days earlier on September 6, 1996. Counsel for the taxpayer certified that he sent the notice of appeal by certified mail to the County -10- on the same day. The certified mail was in fact delivered to the County; the return receipt postcard was signed, but the blank box for the delivery date above the signature line was inexplicably not completed. The County's motion to dismiss argued that the notice of appeal was not timely filed. However, the County's motion did not present any evidence describing when the notice was actually delivered to it. Rather, the County asserted that it stamped the notice of appeal received Sep 13 1996." This date was seven days after the notice was mailed. The Ohio Supreme Court has recognized a presumption of timely delivery under certain circumstances when a properly addressed notice of appeal is sent by certified mail to a destination within the same city before expiration of the appeal deadline. Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202, 205; citing Young v. Bd. Of Review (1967), 9 Ohio App.2d 25. Although the notice in the case at bar was mailed three days before the deadline, rather than the five- and six-day periods in Dudukovich and Young, the County in this case inexplicably failed to complete the date of delivery on the certified mail return receipt postcard to document when the delivery in fact occurred. The Great Northern cases cited by the majority are both distinguishable because the notice of appeal in each case was not sent by certified mail until the final -11- day of the deadline and, therefore, could not have been delivered until after the expiration of the deadline.1 The County, as the party that bears the burden of proving untimeliness and the only party that could document the time of delivery, should suffer the consequences from its failure to date the receipt. Certified mail to a downtown address could be delivered in the same city within three days. Absent extraordinary circumstances, delivery of such mail probably would not take the seven days that elapsed in this case. The County did not present any evidence that it customarily stamps notices received immediately without delay when delivered by certified mail or did so in this particular case. Taxpayers should not be deprived of appeals by what could be a bureaucratic delay between delivery by the post office and the time a notice of appeal is ultimately stamped received. Nor do the Great Northern cases authorize this possibility. On the contrary, the Dudukovich Court expressly held that the presumption of timely delivery controls absent affirmative evidence of late delivery. Summary dismissal of this appeal was erroneous because the County did not satisfy its burden of proof. For these 1 Great Northern Properties Co. v. McCormack (Mar. 10, 1994), Cuyahoga App. Nos. 64868, 64893, 64912, 65346, 65504 and 66586, unreported and Great Northern Partnership v. Cuyahoga County Bd. Of Revision (July 19, 1990), Cuyahoga App. No. 57277, unreported. In the two published cases cited in the block quote from the first Great Northern case, the notice appears to have been mailed on the final day of the deadline in Townsend v. Bd. Of Bldg. Appeals (1976), 49 Ohio App.2d 402, and only one day before the deadline in Bohacek v. Ohio Bur. Of Emp. Services (1983), 9 Ohio App.3d 59. -12- .