[Cite as Northpoint Properties, Inc. v. Cuyahoga Cty. Fiscal Officer, 2013-Ohio-3156.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99515




               NORTHPOINT PROPERTIES, INC., ETC.
                                                            PLAINTIFF-APPELLANT

                                                      vs.


                         CUYAHOGA COUNTY FISCAL
                           OFFICER, ETC., ET AL.
                                                            DEFENDANTS-APPELLEES




                                             JUDGMENT:
                                              AFFIRMED


                                  Administrative Appeal from the
                              Cuyahoga County Court of Common Pleas
                               Case Nos. CV-776153 and CV-776155


        BEFORE: Jones, P.J., S. Gallagher, J., and McCormack, J.

        RELEASED AND JOURNALIZED: July 18, 2013
ATTORNEY FOR APPELLANT

Gretchen A. Holderman
Lillie & Holderman
75 Public Square
Suite 1313
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

For Cuyahoga County Fiscal Officer, Etc, et al.

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mark R. Greenfield
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

For Cleveland Metropolitan School District
Board of Education

Jennifer A. Antoon
Robert A. Brindza
Daniel M. McIntyre
David A. Rose
David H. Seed
Brindza, McIntyre & Seed L.L.P.
1111 Superior Avenue
Suite 1025
Cleveland, Ohio 44114
LARRY A. JONES, SR., P.J.:

      {¶1} In this appeal, assigned to the accelerated calendar pursuant to App.R. 11.1

and Loc.App.R. 11.1, plaintiff-appellant, Northpoint Properties, Inc. appeals the trial

court’s dismissal of its administrative appeal. We affirm.

      {¶2} The purpose of an accelerated appeal is to permit this court to render a brief

and conclusory opinion.     Berea City School Dist. Bd. of Edn. v. Cuyahoga Cty Bd. of

Revision, 8th Dist. No. 98286, 2012-Ohio-4605, ¶ 2, appeal not accepted, 135 Ohio St.3d

1414, 2013-Ohio-1622, 986 N.E.2d 30, citing Crawford v. Eastland Shopping Mall Assn.,

11 Ohio App.3d 158, 463 N.E.2d 655 (1st Dist.1983); App.R. 11(E).

                             I. Procedural History and Facts

      {¶3} On January 19, 2012, defendant-appellee Cuyahoga County Board of Revision

(“Board of Revision” or “BOR”) dismissed Northpoint’s complaint for the Board’s 2010

tax year valuation on its property located at 75 Public Square in downtown Cleveland.

      {¶4} Northpoint appealed the Board of Revision’s decision to the court of common

pleas, Cuyahoga C.P. No. CV-776155; the court consolidated the case with Northpoint’s

appeal relative to the 2009 valuation of the same property, Cuyahoga C.P. No.

CV-776153. Northpoint then filed a motion asking the trial court to stay the proceedings

in CV-776153 and to remand CV-776155 to the Board of Revisions arguing that the BOR

had improperly dismissed its complaint without allowing Northpoint to fully present its

evidence.   The defendant-appellee, Cleveland Metropolitan School District Board of

Education (“school board”), opposed the motion to stay and for remand, arguing that the

Board of Revision had properly dismissed Northpoint’s complaint.
      {¶5} On July 27, 2012, the trial court granted Northpoint’s motion and issued an

order remanding CV-776155 to the Board of Revision

      for a full hearing pursuant to [R.C.] 5715.11 due to improper dismissal. * *
      * Plaintiff shall notify court once Case No. CV-12-776155 has been heard
      by the board of revision. Plaintiff shall then motion the court to reinstate
      Case No. CV-12-776153.

      {¶6} The Board of Revision held a hearing in November 2012 and issued a decision

on November 28, 2012, finding no change in the value of the property. The school board

filed a notice of appeal with the State of Ohio Board of Tax Appeals (“BTA”) on

November 29, 2012, based on the Board of Revision’s valuation of the property.

      {¶7} On December 17, 2012, Northpoint notified the trial court of the Board of

Revision’s decision and moved the court to “reinstate” its appeal in CV-776155. On the

same day, Northpoint filed an “Amended Notice of Appeal” in that case to include the

Board of Revision’s November 28, 2012 decision.

      {¶8} On December 20, 2012, Northpoint filed a motion to dismiss the school

board’s appeal in the Board of Tax Appeals.    On December 26, the school board filed a

motion to dismiss Northpoint’s Amended Notice of Appeal in the trial court.

      {¶9} In January 2013, the trial court granted the school district’s motion and
dismissed CV-776155, finding, in part:

      The appeal filed with this court by Northpoint on 02/16/12 was based on an
      improper dismissal by the BOR, a procedural error. The appeal filed by the
      school board on 11/29/12, after the BOR rendered its decision, was based on
      the merits of the case, i.e., the value of Northpoint’s property. The court
      finds that the School Board’s appeal does not arise “from the same decision
      of the county board of revision” as Appellant’s original appeal to this court
      because the School Board’s appeal deals with the valuation of the
      Appellant’s property (merits of the case); whereas Appellant’s appeal to this
      Court dealt with an improper dismissal in which the BOR never reached the
      merits of the case.

      Thus, with respect to the BOR’s decision rendered on 11/28/12, jurisdiction
      is proper where the notice of appeal was first filed. The school board filed
      its notice of appeal with the Ohio Board of Tax Appeals on 11/29/12.
      Appellant filed its notice of appeal (styled as an amended notice of appeal)
      with this court on 12/17/12.

      Therefore, pursuant to R.C. 5717.05, the appropriate forum for the appeal in
       CV-12-776155 is the Ohio Board of Tax Appeals. Thus, the school
      board’s motion to dismiss is granted.

      {¶10} Northpoint filed a timely notice of appeal with this court, raising the

following assignment of error for our review:

      The Cuyahoga County Court of Common Pleas committed reversible error

      when it improperly dismissed an administrative appeal in violation of Ohio

      Rules of Civil Procedure and the doctrine of jurisdictional priority where the

      case was remanded to the Cuyahoga County Board of Revision for purposes

      of a hearing and, after such hearing, the Cleveland [Metropolitan] School

      District Board of Education filed a notice of appeal to the State of Ohio

      Board of Tax Appeals nothwithstanding the conditions of the remand.



                                  II.   Law and Analysis

      {¶11} In its assignment of error, Northpoint argues that the trial court erred in

granting the school board’s motion to dismiss because the trial court, not the BTA, had

jurisdiction over the case.   According to Northpoint, the case remained pending in the

trial court when the court remanded it to the Board of Revision for a hearing.   The school
board argues that the trial court correctly granted its motion to dismiss because it did not

have jurisdiction over the administrative appeal since the school board had already filed an

appeal with the BTA.

       {¶12} This court may not reverse the decision of the common pleas court in an

administrative appeal absent an abuse of discretion.

       The independent judgment of the trial court should not be disturbed absent a
       showing of abuse of discretion. Specifically, an appeals court should not
       question the trial court’s judgment, unless such determination is
       unreasonable, arbitrary, or unconscionable.

Black v. Bd. of Revision, 16 Ohio St.3d 11, 14, 475 N.E.2d 1264 (1985).

       {¶13} R.C. 5717.01 provides:     “[a]n appeal from a decision of a county board of

revision may be taken to the board of tax appeals within thirty days after notice of the

decision of the county board of revision is mailed.”

       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
       whose name the property is listed or sought to be listed for taxation.

R.C. 5717.05.

       {¶14} In this case, the trial court agreed with Northpoint that the Board of Revision

had improperly dismissed its complaint for valuation and sent the case back to the BOR

for a full hearing. The hearing was held on November 13, 2012, and the BOR issued its

decision on November 28, 2012. In the letter to Northpoint giving its decision, the BOR

stated it considered “evidence and testimony presented at [the] oral hearing.”    The letter

also included an appeal provision:

       In order to assure your right to pursue this complaint further, you may appeal
       this decision directly to the Court of Common Pleas of Cuyahoga County
       pursuant to Section 5717.05, or the Ohio Board of Tax Appeals under the
       provisions of Section 5717.01 of the Ohio Revised Code within 30 days
       from the date of mailing of this letter.
       {¶15} On November 29, 2012, the school board filed a notice of appeal of the

Board of Revision’s decision with the Board of Tax Appeals. On December 17, 2012,

Northpoint filed two documents with the trial court. Northpoint filed a single motion

titled “Notification of Board of Revision Decision in Case Number CV 12-776155” and

“Motion to Reinstate Case number CV 12-776153” under CV-776153 and CV-776155 and

an “Amended Notice of Appeal” under CV-776155.

       {¶16} Pursuant to R.C. 5717.05,

       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.

       {¶17} Northpoint argues that the trial court maintained jurisdiction over its appeal

because CV-776155 was remanded to the Board of Revision to hold a hearing and make

findings of fact on the issue of the property’s value. Because of this, Northpoint argues,

its original appeal was “first in time” and remained pending until the BOR rendered its

final decision.   We disagree.

       {¶18} The trial court remanded CV-776155 to the Board of Revision, finding that

the BOR had improperly dismissed Northpoint’s complaint. In its order for remand, the

court specifically stated that it should be notified when the BOR rendered a decision in
CV-776155 and that Northpoint could move the court to reinstate the other case,

CV-776153. At no point did the court indicate it would, or could, retain jurisdiction over

the appeal in CV-776155.

        {¶19} Once the BOR advised Northpoint of its appellate rights in the November 28,

2012 letter, it was Northpoint’s burden to file a new notice of appeal that followed all

statutory guidelines.1

        {¶20} Because the school board filed a notice of appeal with the Board of Tax

Appeals first, the school board’s appeal has jurisdictional priority pursuant to R.C.

5717.05.2 See 75 Public Square v. Cuyahoga Cty. Bd. of Revision, 76 Ohio App.3d 340,

601 N.E.2d 628 (8th Dist.1991) (holding the trial court lacked jurisdiction because R.C.

5717.05 confers “exclusive jurisdiction” upon the forum in which the first notice of appeal

is filed and the notices of appeal were first filed in the BTA).

        {¶21} Thus, pursuant to R.C. 5717.05, the trial court correctly concluded it lacked

jurisdiction. Accordingly, we find that it was not unreasonable, unlawful, or an abuse of

discretion to grant the school board’s motion to dismiss the school board and Northpoint’s


          The record does not indicate whether Northpoint filed a notice of appeal with the BTA.
        1


See Berea City School Dist. Bd. of Edn., 8th Dist. No. 98286, 2012-Ohio-4605, ¶15, citing Trebmal
Constr. v. Cuyahoga Cty. Bd. of Revision, 94 Ohio App.3d 246, 253, 640 N.E.2d 601 (8th Dist.1994)
(“To preserve the litigation of taxable values, it was necessary for both [parties] to file their own
appeals with the BTA, where its jurisdiction became exclusive”).

           Northpoint claims that the Board of Tax Appeals dismissed the school board’s appeal
        2


because the common pleas court had jurisdiction over the appeal; however, there is no evidence of
this assertion in the trial court record and any other evidence of this claim is not properly before this
court.
contentions to the contrary lack merit.

       {¶22} The assignment of error is overruled.

       {¶23} Judgment affirmed.

       It is ordered that appellees recover of appellant 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 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.




LARRY A. JONES, SR., PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR
