[Cite as Rambacher v. Testa, 2016-Ohio-2897.]




                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                    LAWRENCE COUNTY

Frances L. Rambacher, (et al.),   :
                                  :
       Appellant(s),              :   Case No. 16CA7
                                  :
       v.                         :
                                  :
Joseph W. Testa, Tax Commissioner :
of Ohio, (et al.),                :
                                  :   DECISION AND JUDGMENT ENTRY
       Appellee(s).               :
                                  :         RELEASED: 5/5/2016
______________________________________________________________________

                                           APPEARANCES:

Frances L. Rambacher, Ironton, Ohio pro se Appellant.

Michael DeWine, Attorney General of Ohio, Melissa W. Baldwin, Assistant Attorney
General, Columbus, Ohio, for Appellee Joseph W. Testa, Tax Commissioner of Ohio.

______________________________________________________________________

HARSHA, A.J.

        {¶1}    Appellant Frances L. Rambacher filed an appeal in this Court from a

decision and order of the Ohio Board of Tax Appeals pursuant to R.C. 5717.04, which

gives concurrent appellate jurisdiction to the Supreme Court of Ohio and the Court of

Appeals for Lawrence County. Appellee Joseph W. Testa, Tax Commissioner of Ohio

filed a motion to dismiss the appeal on the grounds that Rambacher’s failure to comply

with several of the filing and service requirements of R.C. 5717.04 deprives this Court of

jurisdiction to hear the appeal. Rambacher filed a motion for summary judgment and

reply to Appellee’s motion to dismiss. Although Rambacher’s response primarily
Lawrence App. No. 16CA7                                                                 2


addresses the merits of her underlying appeal, she responds, in part, to the Tax

Commissioner’s argument that she failed to comply with certain notice and service

requirements of R.C. 5717.04. Rambacher also filed a supplement to her response in

which she acknowledges she failed to serve the tax commissioner by certified mail and

seeks a waiver of this service requirement. The Tax Commissioner filed a response to

Rambacher’s supplemental filing.

      {¶2}   We find that Rambacher did not comply with the certified-mail service

requirement of R.C. 5717.04 and dismiss the appeal for lack jurisdiction. We grant

Appellee’s motion to dismiss and DISMISS this appeal. All other pending motions are

DENIED as MOOT.

                                           I.

      {¶3}   The Tax Commissioner issued a tax assessment in April, 2015 for

$222.05 against Rambacher. Several months later the Tax Commissioner issued a final

determination, which vacated the assessment and cancelled it in full. Rambacher filed a

notice of appeal to the Ohio Board of Tax Appeals. The Tax Commissioner filed a

motion to dismiss the appeal on the ground that the assessment had been cancelled

and the case presented no justiciable controversy. The BTA agreed, granted the

motion, and dismissed Rambacher’s appeal. Rambacher v. Testa, BTA No. 2015-789

(Mar. 3, 2016).

      {¶4}   Rambacher filed a timely notice of appeal from the BTA’s decision and

order with this Court. The Tax Commissioner filed a motion to dismiss on several

grounds under R.C. 5717.04. The Tax Commissioner argues that Rambacher failed to
Lawrence App. No. 16CA7                                                                       3


give this Court proper “proof of filing” of her notice of appeal with the BTA and that this

failure is a jurisdictional flaw that precludes our review of the appeal. The Tax

Commissioner also argues that Rambacher failed to serve the notice of the appeal on

the Tax Commissioner by certified mail, which also is a jurisdictional requirement that

requires dismissal. Finally, the Tax Commissioner argues that Rambacher’s claimed

errors have no merit.

                                             II.

       {¶5}   The relevant provisions of R.C. 5717.04 state:

       The proceeding to obtain a reversal, vacation, or modification of a decision
       of the board of tax appeals shall be by appeal to the supreme court or the
       court of appeals for the county in which the property taxed is situate or in
       which the taxpayer resides. *      *    *

       Such appeals shall be taken within thirty days after the date of the entry of
       the decision of the board on the journal of its proceedings, as provided by
       such section, by the filing by appellant of a notice of appeal with the
       court to which the appeal is taken and the board. If a timely notice of
       appeal is filed by a party, any other party may file a notice of appeal within
       ten days of the date on which the first notice of appeal was filed or within
       the time otherwise prescribed in this section, whichever is later. A notice of
       appeal shall set forth the decision of the board appealed from and the
       errors therein complained of. Proof of the filing of such notice with the
       board shall be filed with the court to which the appeal is being taken.
       The court in which notice of appeal is first filed shall have exclusive
       jurisdiction of the appeal.

       In all such appeals the commissioner or all persons to whom the decision
       of the board appealed from is required by such section to be sent, other
       than the appellant, shall be made appellees. Unless waived, notice of
       the appeal shall be served upon all appellees by certified mail.
       (Emphasis added.)

R.C. 5717.04.

       {¶6}   Rambacher timely filed her notice of appeal in this Court on March 23,
Lawrence App. No. 16CA7                                                                      4


2016. According to the certificate of service attached to her notice of appeal,

Rambacher also served a copy of the notice of appeal on the BTA on March 23, 2016.

Without citing supporting case law or statutes, the Tax Commissioner argues that

Rambacher’s “certificate of service” giving notice that the appeal was filed with the BTA

is not the same as the statutorily required “proof of filing.” In response, Rambacher

states that the clerk for the BTA acknowledged her timely filing of the notice of appeal

and Rambacher attaches a copy of the notice of appeal she filed with the BTA, which is

file-stamped as received by the BTA on March 25, 2016, within the 30-day time

requirement.

       {¶7}    The Supreme Court of Ohio addressed this issue in Satullo v. Wilkins, 111

Ohio St.3d 399, 2006-Ohio-5856, 856 N.E.2d 954. In Satullo, the Tax Commissioner

argued that appellants’ “proof of filing” attached to the notice of appeal – which was also

referred as the “certificate of service” by the Court – was defective because it did not

show that the notice of appeal filed in the court was also filed with the BTA. The Court

characterized appellants’ failure as a “procedural wrinkle” and held that while the

appellants should have indicated in their notice of appeal that they had also timely filed

it with the BTA, they later did provide proof of the timely filing and thus, the Court was

satisfied that the notice of appeal was timely filed with the BTA. Id. at ¶ 18-20.

       {¶8}    Here, the facts are distinguishable from Satullo in Rambacher’s favor:

Rambacher did, in fact, include in her certificate a service a statement that she mailed

the notice of appeal to the BTA for filing. And, like the appellants in Satullo, she has

subsequently provided proof that the notice of appeal was timely filed in the BTA.
Lawrence App. No. 16CA7                                                                    5


Rambacher’s attachment to her reply to the motion to dismiss shows that the BTA

timely received and file-stamped the notice of appeal on March 25, 2016. After the case

was assigned a case number, she refiled the notice of appeal with case number in the

BTA on March 28, 2016. Like the proof appellants eventually provided the Court in

Satullo, Rambacher’s subsequent filing provides us with adequate proof that she timely

filed her notice of appeal in the BTA.

       {¶9}   However, the Tax Commissioner’s second argument has merit. An

appellant must serve the notice of appeal on the Tax Commissioner by certified mail

unless waived. R.C. 5717.04. Neither party claims that the Tax Commissioner waived

certified-mail service and this is no evidence of any written waiver in the record.

Rambacher’s certificate of service shows service was made by ordinary mail. In her

supplemental response, Rambacher acknowledges her failure to serve the Tax

Commissioner by certified mail, but asks us to waive this requirement because “the

Court Clerk did not know or convey the rules” to her and because the U.S. Mail service

was timely made. The Supreme Court of Ohio has repeatedly held that the failure to

serve the Tax Commissioner by certified mail within the 30-day period is a jurisdictional

defect. Berea City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 111 Ohio

St.3d 1219, 2006-Ohio-5601, 857 N.E.2d 145, ¶ 2 (“certified-mail service required by

R.C. 5717.04 must be initiated within the thirty-day period prescribed by R.C. 5717.04

for the filing of an appeal”); Olympic Steel, Inc. v. Cuyahoga Cty. Bd. of Revision, 110

Ohio St.3d 1242, 2006-Ohio-4091, 852 N.E.2d 178, ¶ 2 (“appellant’s failure in this case

to comply with its statutory obligation to serve the notice of appeal on the Tax
Lawrence App. No. 16CA7                                                                       6


Commissioner in the prescribed manner deprives this court of jurisdiction to consider

the appeal”).

       {¶10} Again we find guidance in Satullo, supra. In Satullo, the appellants did, in

fact, serve the Tax Commissioner by both ordinary and certified mail but they identified

only ordinary mail service in their certificate of service. The Court held, “The fact that the

original certificate of service filed with this court listed ‘ordinary U.S. mail’ as the method

of service on the Tax Commissioner, when in fact the notice of appeal had been sent by

both ordinary and certified mail within the 30-day appeal period, is not a jurisdictional

defect under the statute.” Id. at ¶ 20. Here, unlike the appellants in Satullo, Rambacher

does not assert that she properly served the Tax Commissioner by certified mail, nor

does she attach any evidence in her reply that would show that she made certified mail

service on the Tax Commissioner. As a result, we find that Rambacher has failed to

serve the Tax Commissioner with the notice of appeal by certified mail. Her non-

compliance with R.C. 5717.04 in this respect is a jurisdictional flaw that we cannot

waive as the decision to waive service by certified mail rests with the Tax

Commissioner, not this court.

       {¶11} Because we dismiss the appeal for lack of jurisdiction, we need not

address the Tax Commissioner’s argument that Rambacher’s appeal lacks merit.

App.R. 12(A)(1)(c).

                                              III.

       {¶12} We find that Rambacher timely filed a notice of appeal in both this Court

and the Board of Tax Appeals. However, she failed to comply with the provision in R.C.
Lawrence App. No. 16CA7                                                                  7


5717.04 that requires her to serve the notice of appeal on the Tax Commissioner by

certified mail. As a result, we have no jurisdiction to hear this matter. We GRANT the

Tax Commissioner’s motion and DISMISS this appeal. All other pending motions are

hereby DENIED as MOOT. IT IS SO ORDERED. The clerk shall serve a copy of this

entry on all counsel of record and all unrepresented parties at their last known

addresses by ordinary mail.

Abele, J. & McFarland, J.: Concur.




                                                FOR THE COURT


                                                _____________________________
                                                William H. Harsha
                                                Administrative Judge
