[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Rural Health Collaborative of S. Ohio, Inc. v. Testa, Slip Opinion No. 2016-Ohio-508.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-508
  RURAL HEALTH COLLABORATIVE OF SOUTHERN OHIO, INC., APPELLEE, v.
                         TESTA, TAX COMMR., APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as Rural Health Collaborative of S. Ohio, Inc. v. Testa,
                         Slip Opinion No. 2016-Ohio-508.]
Taxation—Charitable-use exemption of real property from taxation—Board of Tax
        Appeals’ finding that property owner qualified as charitable institution was
        reasonable and lawful—Board’s grant of exemption under R.C.
        5709.121(A) was premature in absence of full analysis of claim under R.C.
        5709.121(A)(1)—Grant of exemption vacated and cause remanded for
        further proceedings.
 (No. 2014-0963—Submitted November 17, 2015—Decided February 16, 2016.)
              APPEAL from the Board of Tax Appeals, No. 2012-3421.
                               ____________________
                             SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 1} This is an appeal by the tax commissioner from a decision of the
Board of Tax Appeals (“BTA”), which granted a charitable-use exemption to a
facility in Adams County that provides dialysis services. The property is owned by
appellee, Rural Health Collaborative of Southern Ohio, Inc. (“Rural Health”), and
operated under lease by Dialysis Clinic, Inc.         Rural Health applied for the
exemption, which the tax commissioner denied, relying primarily on this court’s
holding in Dialysis Clinic, Inc. v. Levin, 127 Ohio St.3d 215, 2010-Ohio-5071, 938
N.E.2d 329. The BTA reversed, concluding that the property qualified under R.C.
5709.121(A)(2) because Rural Health itself qualified as a charitable institution.
       {¶ 2} On appeal, the tax commissioner argues both that Rural Health does
not qualify as a charitable institution and that the Dialysis Clinic decision precludes
exemption under the standards set forth in R.C. 5709.121. We conclude that the
BTA’s finding that Rural Health is a charitable institution is both reasonable and
lawful, and we therefore affirm the finding. But we hold that the BTA’s grant of
exemption under R.C. 5709.121 was premature, because the BTA did not fully
analyze the claim under R.C. 5709.121(A)(1). We therefore vacate the BTA’s grant
of exemption, and we remand for further proceedings consistent with this opinion.
                              FACTUAL BACKGROUND
                                The property at issue
       {¶ 3} The property at issue is two acres, improved with a one-story brick
building, located in the Ohio Valley Local School District in Seaman in Adams
County. The land was donated, and the building was constructed with funds that
Rural Health received through a federal grant.
          The owner: Rural Health Collaborative of Southern Ohio, Inc.
       {¶ 4} At the time it was formed in 2001, Rural Health had four directors.
The members were three nonprofit county hospitals for Adams, Brown, and
Highland counties—Brown later withdrew when it became a for-profit hospital—




                                          2
                                January Term, 2016




plus a nonprofit organization that provides physicians to underserved areas
throughout Ohio.      Rural Health’s purposes focus on promoting health-care
initiatives in southern Ohio. Rural Health has no staff; its directors and the staff of
the members carry out Rural Health’s activities.
       {¶ 5} Rural Health’s directors discuss medical needs in the region from the
perspective of the member institutions and apply for grants to supply services
without charge. Grant-funded programs that Rural Health has conducted include a
tobacco-cessation program, a women-and-children-uninsured program focusing on
pregnancy care, a diabetic-education program, and a managed-care grant used to
assess the impact of managed care on providers. Blood drives are another activity
organized by Rural Health. As of the time of the BTA hearing, none of the grant-
supported programs was still being implemented.
       {¶ 6} One need identified early by the board of directors was for more
convenient dialysis services than the member institutions were able to provide. In
particular, reducing travel times was important because patients feel increasingly
ill on their way to dialysis treatments, which they must undergo every two to three
days. Also, the treatments, which last three to four hours, leave patients feeling
exhausted.
       {¶ 7} To address this need, Rural Health resolved to establish a dialysis
clinic; it received the donation of land, obtained a grant to construct the building,
and identified Dialysis Clinic, Inc. (“DCI”), as the provider of dialysis services to
operate the clinic.
                                The lease agreement
       {¶ 8} Rural Health and DCI entered into a contract entitled “commercial
lease agreement” on August 30, 2005. The agreement assigned maintenance and
repair duties to Rural Health as landlord, required that utility payments be made by
DCI as tenant, and created a mutual liability-insurance obligation. The original
lease term ran for five years beginning July 1, 2005; an addendum provided for a




                                          3
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new five-year term running from 2010 to 2015. The rent was initially set for three
years at $53,556 annually, payable in monthly installments. In the fourth year, the
annual rent increased to $71,412, with subsequent increases at three-year intervals
based on the Consumer Price Index. In 2012, however, the parties adjusted the
lease to postpone rent escalations after DCI incurred operating losses at the site.
    The evidence regarding the charitable nature of DCI and the property use
       {¶ 9} According to DCI’s indigency policy, the dialysis treatments it
provides are “not a charity or gift to patients. DCI retains all rights to refuse to
admit and treat a patient who has no ability to pay.” But the testimony presented
at the BTA hearing establishes a larger context for understanding this provision.
       {¶ 10} DCI’s general counsel testified that for Medicare patients, federal
regulations generally required DCI to demand and seek to collect the 20 percent
portion that is the patient’s responsibility.       He added that federal statutes
specifically prohibit DCI from waiving the co-insurance.
       {¶ 11} In light of the strict Medicare regulations, DCI’s indigency policy
was designed to avoid putting the patient through the collection process. The
administrator of the Seaman clinic testified that Medicare would “allow us to write
those [unpaid amounts] off” under one of two circumstances: if the clinic “[went]
through a reasonable collection process,” or if, alternatively, the clinic made “a fair
determination” that the patient was unable to pay.
       {¶ 12} When asked about the anticharity language of the indigency policy,
DCI’s general counsel explained that the point of the language was to convey that
DCI could not provide Medicare patients with charity “in th[e] traditional sense”—
i.e., it could not simply accept Medicare payment and waive copays. Reserving the
right to refuse treatment is “part of [DCI’s] financial stewardship,” in that DCI must
“make it clear that we may have to have some analysis for each patient.” The policy
thereby serves in part as a means by which the facility is able to procure the patient’s
cooperation in certifying his or her need.




                                           4
                                January Term, 2016




       {¶ 13} DCI’s general counsel also testified that the indigency policy
reached beyond the Medicare patients because “there’s so many concepts in
Medicare that talk about nondiscrimination between payor sources * * * [that] we
decided that it was only fair” to apply the policy “to any patient that has a patient
responsibility balance and that might need assistance.” DCI encourages uninsured
patients to apply for Medicaid; they typically qualify, at least for certain periods of
time. When asked whether “DCI limit[s] services to patients for which [it is] fully
compensated for those services,” the general counsel answered: “No.”
       {¶ 14} Similarly, when asked whether he was aware of any instance where
a patient had been refused service for the inability to pay for treatment, DCI’s clinic
administrator, answered: “No.” He later reiterated: “At neither clinic, neither at
Seaman nor Portsmouth, we’ve never turned a patient away due to inability to pay.”
The administrator elaborated that that was part of DCI’s mission and corporate
culture: “I’ve worked in health care for over 25 years and I’ve worked with
hospitals and other health care organizations, * * * and I’ve never seen a company
that walks the talk as far as providing services for all patients as DCI has.”
       {¶ 15} Testimony and documentation show that in each fiscal year from
2006 until the BTA hearing, operations at the Seaman clinic experienced a loss
because expenses exceeded the revenues generated by the dialysis treatments.
                              PROCEDURAL HISTORY
       {¶ 16} Rural Health filed its exemption application on October 13, 2006,
and the tax commissioner issued a final determination on June 20, 2012. Relying
on Dialysis Clinic, Inc. v. Levin, 127 Ohio St.3d 215, 2010-Ohio-5071, 938 N.E.2d
329, the commissioner denied the exemption based on the reservation of the right
to refuse treatment for inability to pay set forth in DCI’s indigency policy. Rural
Health appealed to the BTA, which held a hearing on February 4 and March 6,
2014, at which Rural Health presented the testimony of six witnesses and numerous
exhibits.




                                          5
                             SUPREME COURT OF OHIO




       {¶ 17} The BTA issued its decision on May 8, 2014. It conducted its
analysis under R.C. 5709.121(A)(2), which deems property to be used exclusively
for charitable purposes if it is owned by a charitable institution and made available
under the institution’s direction and control in furtherance of or incidental to the
institution’s charitable purposes, and not with a view to profit. After discussing the
Dialysis Clinic case, the BTA found that in contrast to the earlier case, “the focus
in this matter is whether [Rural Health] is a charitable institution, not DCI.” BTA
No. 2012-3421, 2014 WL 2809179, *3 (May 8, 2014). The BTA therefore found
that Rural Health qualified as a charitable institution. Id.
       {¶ 18} The BTA then turned to the question whether the subject property is
“made available under the direction or control of such institution * * * for use in
furtherance of or incidental to its charitable * * * purposes and not with a view to
profit.” R.C. 5709.121(A)(2). From Cincinnati Community Kollel v. Testa, 135
Ohio St.3d 219, 2013-Ohio-396, 985 N.E.2d 1236, the BTA extracted the principle
that “ ‘the focus of the inquiry should be on the relationship between the actual use
of the property and the purpose of the institution.’ ” 2014 WL 2809179 at *3,
quoting Cincinnati Community Kollel at ¶ 28 (concerning question “whether an
educational institution uses its property in furtherance of or incidental to its
educational purposes” within the meaning of R.C. 5709.121(A)(2)). Applying that
principle to this case, the BTA concluded that the Seaman clinic was operated in
furtherance of charitable purposes. No separate analysis was performed as to
whether Rural Health exercised direction or control over the use of the property.
Finally, the BTA determined that the property was not used with a view to profit
and therefore granted the exemption pursuant to 5709.121(A)(2). Id. at *4-5.
               THE TAX COMMISSIONER’S PROPOSITIONS OF LAW
       {¶ 19} In his appeal from the BTA’s decision, the tax commissioner
presents the following three propositions of law:




                                          6
                                January Term, 2016




       1. Under Dialysis Clinic v. Levin, real property is not entitled to
           charitable exemption where it is used by a non-charitable
           institution such as Dialysis Clinic, Inc. to provide non-charitable
           dialysis care pursuant to an indigence policy that discriminates
           against those who cannot pay.
       2. A property owner is not a charitable institution and exemption
           is defeated under R.C. 5709.121 where the owner’s only
           longstanding activity is leasing property to a health care provider
           and the owner does not itself provide health care services.
       3. To qualify leased property for charitable exemption pursuant to
           R.C. 5709.121, the property must be leased to and from a
           “charitable institution” in accordance with division (A)(1) of
           R.C. 5709.121, not the mutually exclusive division (A)(2).
           Further, leased property qualifies for charitable exemption only
           if it satisfies a strict standard for “exclusive charitable use.”


                                      ANALYSIS
       {¶ 20} R.C. 5709.12(B) states that “[r]eal * * * property * * * belonging to
institutions that is used exclusively for charitable purposes shall be exempt from
taxation.” Traditionally, qualifying for the charitable-use exemption required the
property owner to be using the property for the designated purposes—i.e., no matter
how charitable the use otherwise appeared to be, a lease would destroy the
possibility of obtaining the exemption, because the user of the property under the
lease would not be the owner. See First Baptist Church of Milford, Inc. v. Wilkins,
110 Ohio St.3d 496, 2006-Ohio-4966, 854 N.E.2d 494, ¶ 12, citing Lincoln Mem.
Hosp., Inc. v. Warren, 13 Ohio St.2d 109, 110, 235 N.E.2d 129 (1968).
       {¶ 21} Against that background, the General Assembly enacted R.C.
5709.121 in 1969. Am.Sub.H.B. No. 817, 133 Ohio Laws, Part III, 2646-2647. In




                                           7
                                SUPREME COURT OF OHIO




his concurring opinion in White Cross Hosp. Assn. v. Bd. of Tax Appeals, 38 Ohio
St.2d 199, 203, 311 N.E.2d 862 (1974), Justice Stern pronounced his oft-cited view
that “the overall purpose of R.C. 5709.121 is to declare that the ownership and use
of property need not coincide for that property to be tax exempt.” That this appeal
involves leased property is not in dispute; accordingly, the path to a charitable-use
exemption (if there is one) lies through R.C. 5709.121. It is also a point of
distinction from Dialysis Clinic, 127 Ohio St.3d 215, 2010-Ohio-5071, 938 N.E.2d
329, on which the tax commissioner relies: there was no lease in Dialysis Clinic.
See id. at ¶ 4.
        {¶ 22} R.C. 5709.121 allows for two possible avenues to a charitable-use
exemption in this case:


                  (A)   Real property * * * belonging to a charitable * * *
        institution * * * shall be considered as used exclusively for
        charitable * * * purposes by such institution * * * if it meets one of
        the following requirements:
                  (1)   It is used by such institution * * * or by one or more
        other such institutions * * * under a lease, sublease, or other
        contractual arrangement:
                  (a)     ***
                  (b)     For * * * charitable * * * purposes.
                  (2)     It is made available under the direction or control of
        such institution * * * for use in furtherance of or incidental to its
        charitable * * * purposes and not with the view to profit.




                                           8
                                January Term, 2016




The BTA did not abuse its discretion in determining that Rural Health qualifies as
                               a charitable institution
       {¶ 23} In support of his second proposition of law, the tax commissioner
challenges the BTA’s finding that Rural Health qualifies as a charitable institution.
The determination whether a property owner qualifies as a charitable institution
under R.C. 5709.121 requires examination of the “core activity” of the institution
and determining whether that activity qualifies as charitable for property-tax
purposes. Dialysis Clinic, 127 Ohio St.3d 215, 2010-Ohio-5071, 938 N.E.2d 329,
at ¶ 28-30 (rejecting the contention that the tax-exempt status of the applicant under
Section 501(c)(3) of the Internal Revenue Code automatically established its
character as a charitable institution for property-tax purposes); see also OCLC
Online Computer Library Ctr., Inc. v. Kinney, 11 Ohio St.3d 198, 201, 464 N.E.2d
572 (1984).
       {¶ 24} Also pertinent in this context is the standard of review that we apply
to the determinations of the BTA. Although we have not explicitly so stated, we
have in past decisions treated whether an applicant qualifies as a charitable
institution as primarily an issue of fact, the determination of which lies within the
province of the taxing authorities and thus merits our deference. See Dialysis Clinic
at ¶ 31-35 (affirming BTA’s determination of charitable status based on its being
“reasonable and lawful”); Northeast Ohio Psych. Inst. v. Levin, 121 Ohio St.3d 292,
2009-Ohio-583, 903 N.E.2d 1188, ¶ 20 (same); OCLC (same). We approach the
BTA’s determination at issue here in the same spirit of deference. See EOP-BP
Tower, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 106 Ohio St.3d 1, 2005-Ohio-
3096, 829 N.E.2d 686, ¶ 9, 14 (BTA’s weighing of evidence and determination of
credibility of witnesses reviewed under abuse-of-discretion standard).
       {¶ 25} Here the record shows that Rural Health is an organization serving
as an instrumentality of three nonprofit institutions in the region. The BTA noted
the circumstances of Rural Health’s formation and its work in obtaining grants for




                                          9
                              SUPREME COURT OF OHIO




tobacco-cessation funding, pregnancy care and education, diabetes prevention and
education, and managed-care planning, along with community-care initiatives such
as blood drives. BTA No. 2012-3421, 2014 WL 2809179, at *3. The BTA viewed
the construction and leasing of the dialysis clinic within the context of that larger
body of activities, and we conclude that its determination in this regard is both
reasonable and lawful.
        {¶ 26} Seeking reversal of the BTA’s finding, the tax commissioner asserts
as controlling our decision in Northeast Ohio, in which we affirmed the BTA’s
denial of exemption based on its determination that Northeast Ohio Psychiatric
Institute, the lessor of a building to a charitable provider of psychiatric services,
could not qualify as a charitable institution. In that case, the record demonstrated
that Northeast Ohio was landlord to both for-profit and charitable lessees and
provided staffing services to the lessees as well. Northeast Ohio Psychiatric
Institute v. Wilkins, BTA No. 2005-M-1683, 2007 WL 4463267, *4 (Dec. 14,
2007). Based on the entire record before it, the BTA found that although Northeast
Ohio was a nonprofit corporation, its “activities are more akin to commercial,
income-producing activities.”      Id.     On appeal, we rejected Northeast Ohio’s
argument that it qualified as a charitable institution as to its lease with the provider.
We insisted that the standard for Northeast Ohio’s qualification for the exemption
was “based on the range of its own activities” rather than those of a single one of
its lessees for whose premises it sought a split-listed exemption. (Emphasis sic.)
Northeast Ohio, 121 Ohio St.3d 292, 2009-Ohio-583, 903 N.E.2d 1188, at ¶ 14,
citing OCLC, 11 Ohio St.3d at 201, 464 N.E.2d 572.
        {¶ 27} As is evident from the foregoing discussion, Northeast Ohio does
not militate against Rural Health’s qualifying as a charitable institution in this case.
The facts of Northeast Ohio differ from those here. In this case, the BTA did
consider the “range of [Rural Health’s] own activities” and concluded that the entity
did qualify as a charitable institution.




                                            10
                                January Term, 2016




       {¶ 28} The tax commissioner attacks on several other factual grounds the
BTA’s finding that Rural Health is a charitable institution within the meaning of
R.C. 5709.121. But the commissioner fails to show that the BTA abused its fact-
finding discretion. Specifically:
          Whereas the BTA looked at a range of activities facilitated by Rural
           Health that were “made available to the community at large without
           charge,” BTA No. 2012-3421, 2014 WL 2809179, at *3, the
           commissioner asserts that leasing to DCI is Rural Health’s “core
           activity.” We see no reason to disturb the BTA’s determination of Rural
           Health’s core activities.
          The commissioner emphasizes that the DCI lease is a market-rate lease.
           But unlike the property owner in Northeast Ohio, which engaged in
           leasing and staffing services that generated revenue, see id. at ¶ 15,
           Rural Health was found to engage in a range of charitable activities.
           The fact that the DCI lease generates revenue for Rural Health does not
           by itself destroy Rural Heath’s status as a charitable institution. See Girl
           Scouts-Great Trail Council v. Levin, 113 Ohio St.3d 24, 2007-Ohio-
           972, 862 N.E.2d 493, ¶ 17; Community Health Professionals, Inc. v.
           Levin, 113 Ohio St.3d 432, 2007-Ohio-2336, 866 N.E.2d 478, ¶ 23.
          The commissioner points out that Rural Health has no employees of its
           own and that it uses the employees of its member institutions. We are
           not persuaded, however, that as a matter of law this factor undermines
           the finding that Rural Health qualifies as a charitable institution.
          The commissioner notes that various activities coordinated by Rural
           Health at meetings or in communications are actually conducted by the
           member hospitals. But determining whether the coordination itself




                                         11
                             SUPREME COURT OF OHIO




           constitutes an activity is a factual determination within the province of
           the BTA.
  Rural Health does not exercise “direction and control” within the meaning of
                                R.C. 5709.121(A)(2)
       {¶ 29} In support of his third proposition of law, the tax commissioner
argues that R.C. 5709.121(A)(1) applies to the exclusion of R.C. 5709.121(A)(2).
The commissioner offers two forms of this argument. First, the commissioner
contends that only division (A)(1) applies in this case because it expressly refers to
those situations in which there is an actual lease.          In the alternative, the
commissioner contends that the existence of DCI’s lease and other circumstances
preclude the finding that Rural Health exercises “direction and control” over the
use of the property, which is an element that division (A)(2) explicitly requires.
       {¶ 30} Our review of the case law leads us to reject the first form of the tax
commissioner’s argument. As Rural Health points out, we have acknowledged that
lease-like contractual arrangements can constitute one way that property is “made
available” under division (A)(2). See Case W. Res. Univ. v. Wilkins, 105 Ohio St.3d
276, 2005-Ohio-1649, 825 N.E.2d 146, ¶ 30 (memorandum of understanding
between university and fraternity by which the latter had “exclusive use” of a house
to supply residence to fraternity members satisfied the “made available” element of
division (A)(2)); Community Health Professionals at ¶ 19-20 (tax commissioner
conceded that property leased by one affiliated nonprofit to the other affiliates was
made available “under direction or control” of the lessor). While he points to
reasons why these cases do not definitively establish the point, the tax
commissioner cannot avoid his longstanding acceptance of leasing situations as
satisfying the “made available” standard. See also Humane Soc. Found. of Hancock
Cty. v. Tracy, BTA No. 98-J-884, 1999 Ohio Tax LEXIS 1552, 4 (Oct. 15, 1999)
(charitable entity leasing kennel to other charitable entity concededly satisfied the
“made available under direction and control” requirement of division (A)(2)).




                                         12
                                January Term, 2016




       {¶ 31} On the other hand, our review of the record and the BTA decision
persuade us that the alternative form of the argument raised in support of the tax
commissioner’s third proposition of law is correct.         Ordinarily, by granting
exclusive possessory rights to the lessee, a lease will defeat a claim that the
lessor/owner is exercising “direction and control” over activities on the premises,
an explicit condition for R.C. 5709.121(A)(2) to apply. On this record, there is no
indication that Rural Health exercises any authority over the provision of dialysis
services; DCI is in that business and conducts that operation on the premises.
       {¶ 32} In purporting to apply R.C. 5709.121(A)(2), the BTA skipped over
the “direction and control” requirement completely, plunging ahead to consider
whether the provision of dialysis was “in furtherance of or incidental to” Rural
Health’s purposes. Given the absence of any evidence that could support a finding
of direction and control by Rural Health, the BTA erred in granting the exemption
under the authority of R.C. 5709.121(A)(2).
  On remand, the BTA should complete the analysis under R.C. 5709.121(A)(1)
       {¶ 33} Reversing the grant of exemption based on R.C. 5709.121(A)(2)
does not mean, however, that we must conclude that the exemption claim should
be denied. That ruling would be premature because the BTA did not fully consider
the claim under R.C. 5709.121(A)(1).
       {¶ 34} Under division (A)(1), there are two remaining and closely related
elements to be considered on remand: whether DCI as lessee can qualify as a
charitable institution, since both parties to a lease must so qualify under division
(A)(1), and whether DCI’s provision of services on site qualifies as charitable. On
remand, the BTA should consider both of these elements using the standard for
exemption set forth in Vick v. Cleveland Mem. Med. Found., 2 Ohio St.2d 30, 206
N.E.2d 2 (1965), paragraph two of the syllabus—i.e., whether DCI is “providing
services to those in need, without regard to race, creed, color or ability to pay.”




                                          13
                              SUPREME COURT OF OHIO




        {¶ 35} To be sure, the tax commissioner contends in support of his first
proposition of law that our decision in Dialysis Clinic, 127 Ohio St.3d 215, 2010-
Ohio-5071, 938 N.E.2d 329, bars a finding in Rural Health’s favor. We now turn
to that contention.
         Our decision in Dialysis Clinic is not controlling precedent here
       {¶ 36} The tax commissioner contends that Rural Health cannot prevail
when R.C. 5709.121(A)(1) is applied in this case, because this court previously
determined in Dialysis Clinic that DCI does not qualify as a charitable institution.
The commissioner notes that in Dialysis Clinic, this court quoted and relied in part
on the language of the same indigency policy in its decision affirming the BTA’s
denial of the exemption. Id. at ¶ 34-35. Under the tax commissioner’s theory,
Dialysis Clinic is controlling precedent, particularly on the question whether DCI
qualifies as a charitable institution. We conclude that the commissioner’s claim of
controlling precedent is mistaken.
       {¶ 37} As an initial point, the tax commissioner explicitly disclaims
reliance on collateral estoppel. It follows that whatever the merits of a claim of
collateral estoppel here, that claim has been waived.
       {¶ 38} Instead, the tax commissioner appears to invoke the doctrine of stare
decisis, according to which courts follow “controlling precedent, thus creating
stability and predictability in our legal system.” Westfield Ins. Co. v. Galatis, 100
Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 1. But stare decisis typically
applies to principles of law, not findings of fact. State v. Bethel, 10th Dist. Franklin
No. 07AP-810, 2008-Ohio-2697, ¶ 26 (“Stare decisis has two aspects: (1) that in
the absence of overriding considerations courts will adhere to its [sic] own
previously announced principles of law; and (2) that courts are bound by and must
follow decisions of a reviewing court that has decided the same issue”); Terrell v.
Williams, 10th Dist. Franklin No. 79AP-16, 1979 WL 209087, *2 (May 24, 1979)




                                          14
                                 January Term, 2016




(stare decisis is “based upon following controlling legal principals [sic] from former
judgments,” and is “not applicable where the prior case decided factual matters”).
          {¶ 39} In Dialysis Clinic, the BTA had determined as a matter of fact that
DCI did not constitute a charitable institution, and this court affirmed because that
finding was reasonable, lawful, and supported by evidence. Id. at ¶ 30 (“we must
determine whether the BTA acted reasonably and lawfully when it found the DCI
did not qualify as a charitable institution”), ¶ 34 (“We are not persuaded * * * that
[other evidence indicating charitable purpose] required the BTA to find that DCI
satisfied the nondiscrimination requirement, given that DCI’s own policy statement
explicitly reserved the right to refuse to treat indigent patients”).
          {¶ 40} Because this court’s ruling in Dialysis Clinic merely affirmed the
BTA’s finding of fact, the BTA was free to evaluate the evidence in the present
case and make a fresh determination whether DCI could qualify as a charitable
institution for purposes of 5709.121(A)(1). Stare decisis did not bind the BTA to
the conclusion that it had drawn in the earlier case, in which it was presented with
a different record developed by a different exemption applicant.
                                    CONCLUSION
          {¶ 41} For the foregoing reasons, we affirm the BTA’s finding that Rural
Health qualified as a charitable institution under R.C. 5709.121(A), but we reverse
the BTA’s finding that the property qualified for a charitable-use exemption under
R.C. 5709.121(A)(2). Additionally, we vacate the BTA’s decision and remand for
consideration whether the property qualifies under the remaining criteria of R.C.
5709.121(A)(1).
                                                                Judgment accordingly.
          O’CONNOR, C.J., and PFEIFER, LANZINGER, FRENCH, and O’NEILL, JJ.,
concur.
          O’DONNELL and KENNEDY, JJ., dissent.
                                _________________




                                           15
                            SUPREME COURT OF OHIO




       O’DONNELL, J., dissenting.
       {¶ 42} Respectfully, I dissent.
       {¶ 43} In my view, our decision in Dialysis Clinic, Inc. v. Levin, 127 Ohio
St.3d 215, 2010-Ohio-5071, 938 N.E.2d 329, is a controlling precedent as argued
by the tax commissioner, and on that basis I would reverse the decision of the BTA.
       KENNEDY, J., concurs in the foregoing opinion.
                              _________________
       Bricker & Eckler, L.L.P., and Mark A. Engel, for appellee.
       Michael DeWine, Attorney General, and David D. Ebersole and Barton A.
Hubbard, Assistant Attorneys General, for appellant.
                              _________________




                                         16
