[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Upper Arlington v. McClain, Slip Opinion No. 2019-Ohio-1726.]




                                          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. 2019-OHIO-1726
     THE CITY OF UPPER ARLINGTON ET AL., APPELLEES, v. MCCLAIN,1 TAX
       COMMR., APPELLEE; TREE OF LIFE CHRISTIAN MINISTRIES, L.L.C.,
                                        APPELLANT.
    [Until this opinion appears in the Ohio Official Reports advance sheets, it
          may be cited as Upper Arlington v. McClain, Slip Opinion No.
                                    2019-Ohio-1726.]
Taxation—Motion to dismiss—R.C. 5717.04 does not set forth a timeline for the
certified-mail service of a notice of appeal—Motion to dismiss denied.
      (No. 2018-1830—Submitted February 19, 2019—Decided May 9, 2019.)
    APPEAL from the Board of Tax Appeals, Nos. 2017-281, 2017-342, 2017-343,
                          2017-345, 2017-350, and 2017-356.
                                 ____________________




1
 Under S.Ct.Prac.R. 4.06(B), Jeff McClain, the current Ohio Tax Commissioner, is automatically
substituted for Joseph Testa, the former commissioner, as a party to this action.
                             SUPREME COURT OF OHIO




        Per Curiam.
        {¶ 1} Appellant, Tree of Life Christian Ministries, L.L.C. (“Tree of Life”),
filed this appeal of right from the decision of the Board of Tax Appeals (“BTA”)
that denied its claim for property-tax exemption for several parcels of land owned
by Tree of Life. Appellees city of Upper Arlington and the Upper Arlington City
School District Board of Education (collectively, “Upper Arlington”) have moved
to dismiss for lack of jurisdiction on the grounds that Tree of Life failed to timely
perfect its appeal by initiating service of the notice of appeal within the required
period. For the reasons explained below, the court denies the motion to dismiss.
        {¶ 2} As support for its motion to dismiss, Upper Arlington points to the
requirement in R.C. 5717.04 that the “notice of the appeal shall be served upon all
appellees by certified mail” and to case law from this court that addresses the failure
of that service. In Olympic Steel, Inc. v. Cuyahoga Cty. Bd. of Revision, 110 Ohio
St.3d 1242, 2006-Ohio-4091, 852 N.E.2d 178, ¶ 2, we held that a failure to join the
tax commissioner and serve the notice of appeal on that official, as required by R.C.
5717.04, requires dismissal of the appeal because the service requirement is
jurisdictional. Not long after we issued the decision in Olympic Steel, we held in
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, that “the 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.” Because Tree of Life did not initiate
service by certified mail within the 30-day period for filing its notice of appeal,
Upper Arlington argues that the court must dismiss the appeal for lack of
jurisdiction.
        {¶ 3} We reject Upper Arlington’s argument. Olympic Steel and Berea
were both real-property-valuation cases, and in that type of case, the tax
commissioner is not a party before the boards of revision but, by statute, must be
sent a copy of the BTA’s decision and be joined as an appellee and served with a




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                                January Term, 2019




copy of the notice of appeal from the BTA to the court. See R.C. 5717.03 and
5717.04. In both Olympic Steel and Berea, the tax commissioner had not previously
been a party to the case and the appellant had failed to initiate service of the appeal
on the tax commissioner within the time required for filing the notice of appeal.
The present appeal, however, is in a tax-exemption case, and the tax commissioner
was already a party in the proceedings below.
       {¶ 4} This court has never applied Berea in a tax-exemption case. We have
applied the Berea rule only in real-property-valuation cases in which an appellant
has failed to join and serve the tax commissioner. See Columbus City Schools Bd.
of Edn. v. Franklin Cty. Bd. of Revision, 143 Ohio St.3d 188, 2015-Ohio-150, 36
N.E.3d 115; Mentor Exempted Village School Dist. Bd. of Edn. v. Lake Cty. Bd. of
Revision, 111 Ohio St.3d 1218, 2006-Ohio-5613, 857 N.E.2d 145.
       {¶ 5} Moreover, the General Assembly recently amended R.C. 5717.04 to
include the following sentence: “If the commissioner is not a party to the appeal or
application before the board, the supreme court or court of appeals, as applicable,
shall not dismiss an appeal of the board’s decision because of the failure to make
the commissioner an appellee or to serve the notice of appeal to the commissioner
as otherwise required under this section.” 2016 Am.Sub.H.B. No. 384 (effective
Apr. 5, 2017). This sentence speaks directly to the situation addressed by the Berea
rule and renders it no longer good law.
       {¶ 6} For these reasons, Upper Arlington’s reliance on Berea is misplaced.
Other than Berea, Upper Arlington has presented no basis for dismissal. Looking
solely at the statute, R.C. 5717.04 does not state a timeline for the certified-mail
service of the notice of appeal on the appellees. And it is not disputed that the
notice of appeal was served on Upper Arlington by certified mail. Accordingly, we
deny the motion to dismiss.
                                                                      Motion denied.




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                            SUPREME COURT OF OHIO




       O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
       KENNEDY, J., concurs in judgment only.
                              _________________
       Stebelton Snider, L.P.A., and Charles M. Elsea, for appellant.
       Jeanine Hummer, Upper Arlington Law Director, and Jesse Armstrong,
Assistant Law Director, for appellee city of Upper Arlington.
       Rich & Gillis Law Group, L.L.C., Mark H. Gillis, Karol C. Fox, Kelley A.
Gorry, and Richelle L. Thoburn, for appellee Upper Arlington City School District
Board of Education.
                              _________________




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