[Cite as Wheeler v. Testa, 2015-Ohio-188.]




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

Teddy L. Wheeler, In His Official :
Capacity as Auditor of Pike County,
                                  :
Ohio, (et al.),                   :
                                  :
       Appellant(s)-Appellants,   :   Case No. 14CA853
                                  :
       v.                         :
                                  :
Joseph W. Testa, Tax Commissioner :
of Ohio, (et al.),                :
                                  :   DECISION AND JUDGMENT ENTRY
       Appellee(s)-Appellees.     :
                                  :         RELEASED: 1/16/2015
______________________________________________________________________

                                             APPEARANCES:

Kevin L. Shoemaker, Dublin, Ohio, and William Posey, Keating, Muething & Klekamp,
PLL, Cincinnati, Ohio as Special Counsel to Robert Junk, Pike County Prosecuting
Attorney for Appellant Teddy L. Wheeler, in his capacity as Pike County Auditor.

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

Robert E. Tait, Hilary J. Houston, and Steven L. Smiseck, Vorys, Sater, Seymour, and
Pease LLP, Columbus, Ohio for Appellee Martin Marietta Energy Systems, Inc. a/k/a
Lockheed Martin Energy Systems, Inc.
______________________________________________________________________

HOOVER, P.J.

        {¶1}     Appellant Teddy L. Wheeler, in his official capacity as the Auditor of Pike

County, Ohio, 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 Pike County. Appellee
Pike App. No. 14CA853                                                                        2


Martin Marietta Energy Systems, Inc. a/k/a Lockheed Martin Energy Systems, Inc.

(“LMES”) filed a motion to dismiss the appeal on the grounds that LMES had filed an

appeal from the decision and order in the Supreme Court of Ohio before Wheeler had

filed his appeal in our court. Wheeler opposed the motion to dismiss and also filed a

motion for a stay of his appeal in our court. Because we find that the jurisdiction of the

Supreme Court of Ohio was properly invoked first, we are without jurisdiction to

consider this appeal. Appellee’s motion to dismiss is GRANTED and this appeal is

DISMISSED. All other pending motions are DENIED as MOOT.

                                             I.

       {¶2}   Wheeler, as auditor of Pike County, Ohio issued a personal property tax

assessment against LMES. The Tax Commissioner of Ohio cancelled the assessment

and Wheeler appealed to the Board of Tax Appeals. The Board of Tax Appeals

affirmed the decision of the Tax Commissioner, finding that the Tax Commissioner had

appropriately cancelled the tax assessment at issue:

       As such, we have determined that the commissioner appropriately
       cancelled the assessment in question. Accordingly, based upon our
       conclusions, we need not address any other contentions raised by the
       parties hereto. The final determination of the commissioner is hereby
       affirmed.

Wheeler v. Testa, BTA No. 2012-2043 at 4 (August 7, 2014).

       {¶3}   LMES filed a notice of appeal in the Supreme Court of Ohio and the Board

of Tax Appeals in accordance with R.C. 5717.04 the following day, August 8, 2014. In

its notice of appeal, LMES does not contest the ultimate decision affirming the Tax

Commissioner’s cancellation of the tax assessment. However, LMES identifies multiple
Pike App. No. 14CA853                                                                       3


errors in the decision, including the Board’s failure to address LMES’s claims

concerning bad faith and frivolous conduct, the Board’s failure to order the

reimbursement of LMES’s attorney fees and expenses, and its failure to make certain

findings or address certain legal arguments raised by LMES. On September 5, 2014,

Wheeler filed both a cross appeal in the Supreme Court of Ohio and a notice of appeal

in the Court of Appeals for Pike County in which he identified multiple errors in the

decision.

       {¶4}   LMES filed a motion to dismiss this appeal on the grounds that the appeal

was filed first in the Supreme Court of Ohio and that Court has exclusive jurisdiction of

the appeal.

                                             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.

       (Emphasis added.) R.C. 5717.04.
Pike App. No. 14CA853                                                                       4


       {¶6}   LMES filed its notice of appeal in the Supreme Court of Ohio on August 8,

2014. LMES’s notice complied with the provisions of R.C. 5717.04: it was timely, it was

also filed with the Board, it set forth the decision and the errors complained of, and it

included proof of the filing of the notice with the Board. LMES’s notice seeks a

modification of the decision, specifically seeking determinations of contentions that the

Board decided not to address. Because LMES first filed its timely and proper notice of

appeal in the Supreme Court of Ohio, the Supreme Court of Ohio has exclusive

jurisdiction of the appeal.

       {¶7}   Wheeler argues that LMES’s notice of appeal is improper because LMES

does not have standing to appeal the decision. Wheeler argues that the cancellation of

the assessment is a “total victory” for LMES. As a result, LMES was not aggrieved by

the decision and cannot challenge any portion of it. Because LMES did not have

standing to appeal, Wheeler argues that the Supreme Court of Ohio’s jurisdiction was

never properly invoked. He argues that his notice of appeal filed in the Court of Appeals

for Pike County was the first properly filed notice of appeal and we have exclusive

jurisdiction over the appeal.

       {¶8}   Neither the case law nor the statute supports Wheeler’s argument. The

statutory provisions of R.C. 5717.04 expressly allow a party to seek a modification of

the Board’s decision. LMES is seeking a modification of the decision, asserting that

certain contentions it raised were not properly addressed by the Board.

       {¶9}   Additionally, the Supreme Court of Ohio has ruled that for a party to have

standing to appeal an issue, that party must be aggrieved by that error. The focus is
Pike App. No. 14CA853                                                                        5


not on whether a party was aggrieved by the decision as a whole, but whether a party

was aggrieved by a particular issue or finding within the decision. Dayton-Montgomery

Cty. Port Auth. v. Montgomery Cty. Bd. of Revision, 113 Ohio St.3d 281, 2007-Ohio-

1948, 865 N.E.2d 22, ¶ 33 (“the Port Authority is arguably not a proper party to assert

that issue in its appeal, since it was benefited, not aggrieved, by that error”). Equity

Dublin Associates v. Testa, ___ Ohio St.3d ___, 2014-Ohio-5243, ___ N.E.2d___, ¶23

(December 2, 2014)(“The BTA determined that that exemption [R.C. 3354.15] did not

apply, and the BOE and the tax commissioner—who opposed exemption of the property

on any basis [R.C. 3354.15, R.C. 3358.10, or R.C. 5709.07(A)(4)]—were not aggrieved

by that finding. As a result, they have no standing to appeal it.”).

       {¶10} LMES’s situation is like that of the taxpayer in Christian Church of Ohio v.

Limbach, 53 Ohio St.3d 270, 560 N.E.2d 199 (1990). There, a taxpayer who claimed

entitlement to a tax exemption under two alternative statutes received a favorable

decision from the Board of Tax Appeals. The Board granted the exemption under one

of the statutes, R.C. 5709.07, but “it did not pass upon the issue of exemption under

R.C. 5709.12.” Id. Because the taxpayer did not appeal the Board’s failure to address its

alternative contention that it was entitled to an exemption under R.C. 5709.12, the

Supreme Court of Ohio held that it lacked jurisdiction to decide that issue. Id. at fn. 1.

Thus, a party who receives a favorable overall decision from the Board of Tax Appeals,

nevertheless has standing to appeal the Board’s decision not to address alternative

legal theories and must appeal those alleged errors. Otherwise, review of those issues

is waived.
Pike App. No. 14CA853                                                                     6


                                            III.

      {¶11} We find that LMES properly and timely first filed a notice of appeal in the

Supreme Court of Ohio, thereby invoking that Court’s exclusive jurisdiction. Wheeler’s

argument that LMES lacks standing to appeal and therefore failed to invoke the

Supreme Court of Ohio’s jurisdiction is meritless. As a result, we have no jurisdiction to

hear this matter. LMES’s motion to dismiss is hereby GRANTED. This appeal is

DISMISSED. 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 at their

last known addresses by ordinary mail.

Harsha, J. & Abele, J.: Concur.




                                                   FOR THE COURT


                                                   _____________________________
                                                   Marie Hoover
                                                   Presiding Judge
