[Cite as M&F Lexington, L.L.C. v. Franklin Cty. Bd. of Revision, 2019-Ohio-2022.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


M&F Lexington, LLC,                                 :

                Plaintiff-Appellant,                :                    No. 18AP-939
                                                                      (BTA No. 2018-1311)
v.                                                  :
                                                              (ACCELERATED CALENDAR)
Franklin County Board of                            :
Revision et al.,
                                                    :
                Defendants-Appellees.
                                                    :




                                         D E C I S I O N

                                      Rendered on May 23, 2019


                On brief: Paul Jones Law, LLC, and Paul M. Jones, for
                appellant. Argued: Paul M. Jones.

                On brief: Ron O'Brien, Prosecuting Attorney, and William J.
                Stehle, for appellees Franklin County Board of Revision and
                Franklin County Auditor.

                On brief: Rich & Gillis Law Group, and Mark H. Gillis, for
                appellee Board of Education of the Hilliard City School
                District. Argued: Mark H. Gillis.

                           APPEAL from the Ohio Board of Tax Appeals

BROWN, J.
        {¶ 1} M&F Lexington, LLC, plaintiff-appellant, appeals the decision and order of
the Ohio Board of Tax Appeals ("BTA"), in which the BTA granted the motion to dismiss
filed by the Franklin County Auditor and Franklin County Board of Revision ("BOR"),
defendants-appellees.
No. 18AP-939                                                                              2

       {¶ 2} For purposes of this appeal, the underlying factual details of the case are not
relevant. On August 13, 2018, the BOR mailed a decision to the parties. R.C. 5717.01
provides an appeal may be taken from a BOR decision by filing a notice of appeal with the
BTA and the BOR within 30 days after the mailing of the BOR decision, and explains
when a notice of appeal will be deemed filed depending on the method of delivery. Thus,
appellant had until Wednesday, September 12, 2018 to file its notices of appeal.
       {¶ 3} On September 12, 2018, appellant filed an appeal with the BTA through its
electronic filing system. On the same day, a paralegal employed by appellant's counsel,
Mandy Jonte, "mailed" a copy of the notice of appeal to the BOR. Although the record is
not clear, it appears Jonte meant she "mailed" the notice via First Class United States
Postal Service ("U.S.P.S.") mail. On Monday, September 17, 2018, the BOR received the
copy of the appeal.
       {¶ 4} On September 27, 2018, appellees filed a motion to dismiss with the BTA,
claiming appellant did not timely file its appeal with the BOR. On November 7, 2018, the
BTA granted appellees' motion to dismiss, finding appellant failed to demonstrate it filed
its appeal with the BOR in a timely manner. Appellant appeals the BTA's decision,
asserting the following assignments of error:
              [I.] The BTA erred in dismissing the Appeal because,
              together, the County Appellees' Affidavit of Haley Callahan
              and the Appellant's Affidavit of Mandy Jonte prove that the
              Appeal was filed with the BOR on September 12, 2018.

              [II.] The County Appellees' Motion to Dismiss was devoid of
              legal authority supporting its position and the legal authority
              relied upon the BTA in its Decision is distinguishable from
              this case.

       {¶ 5} We will address appellant's first and second assignments of error together,
as they are related. An appellate court may reverse a BTA decision only "when it
affirmatively appears from the record that such decision is unreasonable or unlawful."
Witt Co. v. Hamilton Cty. Bd. of Revision, 61 Ohio St.3d 155, 157 (1991). Thus, legal
conclusions are reviewed de novo. Terraza 8, L.L.C. v. Franklin Cty. Bd. of Revision, 150
Ohio St.3d 527, 2017-Ohio-4415, ¶ 7. As to factual findings, an appellate court may not
substitute its judgment for that of the BTA. Bethesda Healthcare, Inc. v. Wilkins, 101
Ohio St.3d 420, 2004-Ohio-1749, ¶ 18. However, facts determined by the BTA must be
No. 18AP-939                                                                                   3

supported by sufficient probative evidence. First Baptist Church of Milford, Inc. v.
Wilkins, 110 Ohio St.3d 496, 2006-Ohio-4966, ¶ 9.
       {¶ 6} R.C. 5717.01 provides, in pertinent part:
              An 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 provided in division (A) of section 5715.20 of the Revised
              Code. * * * Such appeal shall be taken by the filing of a notice
              of appeal, in person, or by certified mail, express mail,
              facsimile transmission, electronic transmission, or by
              authorized delivery service, with the board of tax appeals and
              with the county board of revision. If notice of appeal is filed by
              certified mail, express mail, or authorized delivery service as
              provided in section 5703.056 of the Revised Code, the date of
              the United States postmark placed on the sender's receipt by
              the postal service or the date of receipt recorded by the
              authorized delivery service shall be treated as the date of
              filing.

       {¶ 7} " '[A]n appeal, the right of which is conferred by statute, can be perfected
only in the mode prescribed by statute. The exercise of the right conferred is conditioned
upon compliance with the accompanying mandatory requirements.' " Holm v. Clark Cty.
Auditor, 168 Ohio App.3d 119, 2006-Ohio-3748, ¶ 4 (2d Dist.), quoting Great N.
Partnership v. Cuyahoga Cty. Bd. of Revision, 8th Dist. No. 57277 (July 19, 1990).
" '[T]he filing of a notice of appeal with the Board is jurisdictional, and not merely
procedural.' " Id., quoting Great N. Partnership (referring to requirements under R.C.
5717.05 to file the notice of appeal with the BOR). Thus, when a party fails to perfect an
appeal of a BOR decision by failing to file a notice of appeal, pursuant to R.C. 5717.01, the
BTA lacks jurisdiction to review BOR's decision. See id. at ¶ 7 (referring to R.C. 5717.05).
       {¶ 8} In the present case, the BOR mailed its decision on August 13, 2018.
Pursuant to R.C. 5717.01, appellant had 30 days, until September 12, 2018, to file its
notice of appeal with the BTA and the BOR. Appellant submitted a timely electronic
appeal to the BTA on September 12, 2018. As mentioned above, according to Jonte's
affidavit, she "mailed" a notice of appeal to the BOR on September 12, 2018. However,
Jonte does not specify what method she used when she "mailed" the appeal. Appellant
presented no evidence, and did not even allege, that it filed the appeal with the BOR via
certified mail, express mail, or authorized delivery service and presented no evidence of a
No. 18AP-939                                                                                  4

sender's receipt from the United States Post Office or a date of receipt recorded by an
authorized delivery service. Having presented no evidence of such, the date of receipt by
the BOR, September 17, 2018, is deemed the date of filing. Accordingly, appellant's notice
of appeal was filed with the BOR five days after the 30-day deadline imposed by R.C.
5717.01.
       {¶ 9} Appellant's arguments in its assignments of error are not well-taken.
Appellant argues the affidavits of Haley Callahan, the clerk of the BOR, and Jonte prove
the appeal was filed with the BOR on September 12, 2018. Appellant claims Callahan's
averment that the BOR received the appeal on September 17, 2018 was proof it was
mailed on September 12, 2018 because this is the amount of time that it would normally
take for U.S.P.S. mail to be delivered, i.e., three business days. However, these facts are
irrelevant to the timeliness analysis under R.C. 5717.01. Despite the averments of
Callahan and Jonte, appellant presented no "sender's receipt" showing the date of mailing
via certified mail or express mail or the date of receipt recorded by an authorized delivery
service. Without any sender's receipt or the date of receipt recorded by an authorized
delivery service, the affidavits from Callahan and Jonte do not aid appellant's argument.
See, e.g., Oak Hills Local School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 134
Ohio St.3d 539, 2012-Ohio-5750, ¶ 14-17 (the school board's failure to present the
sender's receipt to support its claim regarding the time that its notices were mailed was a
striking omission because R.C. 5717.01 specifically calls for reliance on the date of the
United States postmark placed on the sender's receipt by the postal service; no weight was
accorded to the extrinsic evidence of the affidavit of counsel's paralegal that indicated the
time she placed the notice in the mail because the sender's receipt was not in the record).
       {¶ 10} Insofar as appellant argues the BTA erred when it indicated appellant was
required to prove not only that it sent the appeal to the BOR but also that the BOR
received the notice, we find no error. Appellant contends Callahan's affidavit establishes
the notice was received by the BOR. However, our reading of the BTA's decision was not
that it found the BOR did not receive the notice, but that appellant failed to prove the
BOR received the notice within the 30-day time limit in R.C. 5717.01. Because appellant
did not file its notice via certified mail, express mail, or authorized delivery service, it was
No. 18AP-939                                                                                 5

incumbent on appellant to prove the notice was received by the BOR within 30 days.
However, the record demonstrated the BOR did not receive the notice within 30 days.
       {¶ 11} Furthermore, to the extent appellant believes the BOR's receipt of the notice
on September 17, 2018 "proves" it filed the notice on September 12, 2018, this argument
has two obvious shortcomings. First, appellant cites no definitive authority, or even an
applicable presumption, that a letter received via first class U.S.P.S. mail on September 17,
2018 was necessarily mailed on September 12, 2018. Second, there is no provision in R.C.
5717.01 that provides a letter mailed via first class U.S.P.S. mail is deemed filed on the
date of mailing. R.C. 5717.01 specifically provides provisions for delivery via certified mail,
express mail, or authorized delivery service, but also requires a sender's receipt or the
date of receipt recorded by the authorized delivery service. Thus, that the notice may have
been "mailed" on September 12, 2018 is of no consequence for purposes of determining
timeliness under R.C. 5717.01 because it was mailed via first class U.S.P.S. mail with no
sender's receipt of any kind. For all the foregoing reasons, we find the BTA did not err
when it found appellant's notice of appeal to the BOR was untimely filed. We overrule
appellant's first and second assignments of error.
       {¶ 12} Accordingly, we overrule appellant's two assignments of error. The decision
and order of the Ohio Board of Tax Appeal is affirmed.
                                                                             Order affirmed.

                      SADLER and LUPER SCHUSTER, JJ., concur.

                               _____________________
