COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72488 & 72489 JOHN D. GNANDT : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION CUYAHOGA COUNTY BOARD OF : REVSION, ET AL. : : DEFENDANTS-APPELLEES : : DATE OF ANNOUNCEMENT OF DECISION: MAY 14, 1998 CHARACTER OF PROCEEDING: Civil appeal from Board of Tax Appeals, Case No. 96-T-605. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: John D. Gnandt, pro se, 281 Corning Avenue, Cleveland, Ohio, 44108. For Cuyahoga County Board of Revision, et al: Stephanie Tubbs Jones, Cuyahoga County Prosecutor, Saundra Curtis- Patrick, Assistant County Prosecutor, 8th Floor, The Justice Center, 1200 Ontario Street, Clevleand, Ohio, 44113. For Cleveland Board of Education: Timothy J. Armstrong, Esq., Maura Norton, Esq., Deborah J. Papushak, Esq., Armstrong, Mitchell, Damiani & Zaccagnini, 1725 The Midland Building, 101 Prospect Avenue, West, Cleveland, Ohio, 44115-1091. SWEENEY, JAMES D., J.: Plaintiff-appellant John Gnandt appeals to this court from the decision of the Board of Tax Appeals (BTA). The BTA affirmed the -2- dismissal entered by the appellee-Cuyahoga County Board of Revision (BOR) on the appellant's complaints for the assessment of real property taxes. The appellant filed two complaints, received by the BOR on March 31, 1995, seeking a reduction of real estate taxes on properties located in Bratenahl, Ohio. Counter-complaints were received by the BOR from the appellee-Cleveland Board of Education on May 26, 1995, seeking to maintain the auditor's evaluations. The appellant sought a tax reduction on two lots with different permanent parcel numbers. Permanent parcel number 631-05-029 received BOR complaint number 7559, and BOR number 11541 on the counter-complaint. Permanent parcel number 631-05-026 received BOR complaint number 9636, and BOR number 11540 on the counter- complaint. The record before this court contains the form complaints and counter-complaints filed with the BOR. On these documents it is reflected that hearings were set on September 6, 1995, January 29, 1996, and April 15, 1996. The documents also indicate that the complaints were dismissed for want of prosecution and the counter- complaints were withdrawn contingent upon dismissal of the complaints being upheld. The minutes of the BOR, journal entry 49B, dated May 8, 1996, indicate that the hearings scheduled for both cases on January 29, 1996 and April 15, 1996 were not attended by the appellant. The BOR entered its decision as Dismissed for want of prosecution. No mention is made of the hearing set for September 6, 1995. The -3- decision letter, dated May 8, 1996 from the County Auditor to the appellant, states: This complaint was scheduled for oral hearing on Monday April 15, 1996 and complainant and/or attorney or agent was duly notified of the date and time of the oral hearing, but failed to appear or call. Therefore, the subject complaint was dismissed by the Board of Revision for want of prosecution. The file for BOR case number 7559 contains a photo copy of a certified mail receipt stamped May 22, 1996 and signed by the appellant. The record indicates that this is the receipt of the certified mailing of the decision of the BOR. The appellant filed his appeals on each case to the Board of Tax Appeals (BTA) on June 7, 1996. BOR case number 7559 was given BTA number 96-T-605. BOR case number 9636 was given BTA number 96- S-619. The sole issue in front of the BTA was whether or not the appellant had received notice of the hearings before the BOR as statutorily required. On January 21, 1997, the appellant filed a motion in BTA case 96 T-605 to remand the complaint to the BOR for hearing. In this motion the appellant asserts that he did not receive notice of the April 15, 1996 hearing before the BOR. Attached to the motion is the appellant's affidavit which states that he timely filed his complaint before the BOR; that he has a meritorious defense to support his complaint; that he did not receive notice of the date and time of the BOR hearing either by certified mail, regular mail, or otherwise; that during the first half of 1996 he inquired of the BOR as to the scheduling of a hearing; that he was informed the hearing had been had; that he was informed that the record showed -4- notice of hearing had not been served upon him; that he requested a rescheduled hearing; and that his request was denied because the Cleveland Board of Education did not wish to reschedule. BTA held its hearing on January 21, 1997. The appellant testified that he would prefer to have the case remanded to the BOR, as requested in his motion, for a hearing on the merits. Appellant informed the panel of examiners that he requested the remand because he received no notice of the hearing before the BOR. The appellant also briefly outlined the reasons he believed his complaint had merit. The examiners stated that they would take his motion and the information provided into consideration. The examiners indicated that the BTA would make its own independent investigation regarding the issue of notice, and that it would contact him if his help were required. The hearing was then closed. On March 21, 1997, the BTA entered an order stating that there is no documentation in the record before it relating to attempts made by the BOR to serve the appellant with notice of the evidentiary hearing and no indication that such service was made. Under the investigatory powers given to the BTA in R.C. 5717.01, the BTA requried the BOR to provide either: 1) the evidence that service was attempted or made, or 2) a statement that the documentation does not exist. The record indicates that on April 14, 1997, the BOR complied with the BTA's order and submitted the following documentation: 1) the notice of hearing letter dated March 1, 1996 to John Gnandt; 2) -5- notice of hearing letter dated March 1, 1996 to Armstong, Mitchell and Damiani; 3) copy of docket for April 15, 1996; and, 4) copy of certified mail book page for March 1, 1996. The notice of hearing letters to the appellant and to the attorneys for the Cleveland Board of Education indicate that the hearing was set for April 15, 1996. The page from the certified mail book is stamped March 1, 1996 and contains the appellant's name and address. Conspicuously absent from the record is any return receipt from certified mail. In its order of April 11, 1997, the BTA found: We are constrained by the record to conclude that the Board of Revision did indeed send a hearing notice to Mr. Gnandt, by certified mail, as required by R.C. 5715.19(C). Mr. Gandt was further sent an additional notice through the copy of the Board of Education's letter. Given all the foregoing, we find that the Board of Revision properly notified Mr. Gnandt of the hearing. The BTA relied on LCL Income Properties v. Rhodes (1995), 71 Ohio St.3d 652, and upheld the BOR's decision to dismiss the appellant's complaints for want of prosecution. The BTA's decision seemingly relies on the documents submitted by the BOR which were not officially filed until April 14, 1997. The appellant asserts one assignment of error: THE DECISIONS UNREASONABLY AND UNLAWFULLY UPHOLD DISMISSAL OF TAXPAYER-APPELLANT'S CASES FOR WANT OF PROSECUTION. The appellant asserts the BOR failed to notify him, in any manner whatsoever, prior to the hearing which took place on April 15, 1996. Appellant points out that certified mail notice is required under R.C. 5715.19(C) and contends that the failure to comport with the statute was a violation of his due process rights. -6- The appellees argue that it presented sufficient evidence the appellant did receive notice and that the BTA was justified in affirming the dismissal of the appellant's complaints. Thus the real issue before this court is whether or not the sending of certified mail is sufficient notice of a hearing absent the return receipt. The legislature has specifically required notice of the hearing be given to a taxpayer by certified mail. R.C. 5115.19(C) states: Each board of revision shall notify any complainant and also the property owner, if his address is known, when a complaint is filed by one other than the property owner, by certified mail, not less than ten days prior to the hearing, of the time and place the same will be heard. In Cas tellano v. Kosydar (1975), 42 Ohio St.3d 107, the Supreme Court considered a provision of the code with a similar notice requirement. R.C. 5739.13, a provision for the assessment of sales taxes, requires that: The [tax] commissioner shall give the party assessed written notice of the assessment by personal service or certified mail. The Supreme Court determined in the syllabus of Castellano that service is effective when the notice is delivered and properly receipted for by an appropriate person at the vendor or consumer's residence. See, also, Skuratowicz v. Tracy (1996), 76 Ohio St.3d 103. The appellee cites to LCL Income Properties, supra, where the Supreme Court held that the BOR may enter a dismissal for want of prosecution where a taxpayer fails to attend the scheduled hearing. However, this holding presupposes that the taxpayer received notice -7- by certified mail as required under the statute, and therefore, is not applicable here. Pursuant to the logic in Castellano, supra, it is clear that service could not be complete upon the appellant until notice was delivered and properly receipted. Even assuming, arguendo, that the BOR sent certified mail, since it failed to meet its burden of showing that notice was received by an appropriate person at the appellant's residence, notice of hearing was deficient. Finally, this court notes that statutes must be construed to have a just and reasonable result. R.C. 1.47(C). Had the legislature not desired that there be some physical evidence that notice of hearing was received by a taxpayer, certified mail would not have been required by the statute. Absent the return receipt, there would be no need for certified mail, and ordinary mail service would suffice. The appellees' position that because certified mail was sent to a proper address, the actual receipt by the taxpayer may be assumed is untenable. The decision of the BTA was neither reasonable nor lawful. R.C. 5717.04. The appellant's assignment of error is well taken. Judgment reversed and remanded for hearing on the merits before the Cuyahoga County Board of Revision. -8- This cause is reversed and remanded for hearing on the merits before the Cuyahoga County Board of Revision. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said 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. Exceptions. ANN DYKE, P.J., and TIMOTHY E. McMONAGLE, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .