[Cite as Musarra v. Cuyahoga Cty. Aud., 2012-Ohio-3967.]


                 Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98321



                                      LORI MUSARRA

                                                       PLAINTIFF-APPELLANT

                                                    vs.

               CUYAHOGA COUNTY AUDITOR, ET AL.
                                                       DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                                Cuyahoga County Common Pleas Court
                                      Case No. CV-770727

           BEFORE:         E. Gallagher, J., Celebrezze, P.J., and Rocco, J.

           RELEASED AND JOURNALIZED:                       August 30, 2012
ATTORNEY FOR APPELLANT

Christopher A. Lencewicz
The Lencewicz Co., LPA
P.O. Box 221032
Cleveland, Ohio 44122


ATTORNEYS FOR APPELLEES

For Cuyahoga County Auditor

William D. Mason
Cuyahoga County Prosecutor

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

For Shaker Heights School District

Shaker Heights School District, pro se
15900 Parkland Drive
Shaker Heights, Ohio 44120
EILEEN A. GALLAGHER, J.:

         {¶1}   This is an accelerated appeal authorized pursuant to App.R. 11.1 and

Loc.App.R. 11.1.

         {¶2} Lori Musarra appeals from the decision of the trial court, which dismissed her

administrative appeal from the Cuyahoga County Board of Revision. Musarra argues the

trial court erred when it found that she did not comply with the requirements of R.C.

5717.05. For the following reasons, we affirm the decision of the trial court.

         {¶3}   On March 15, 2011, Musarra filed a complaint against the valuation of

property, permanent parcel numbers 732-04-006, 732-04-014, and 732-04-015.               On

November 7, 2011, the Board of Revision for Cuyahoga County, Ohio, rendered a decision

on Musarra’s complaint, denying any relief on the valuation of the property. On December

6, 2011, Musarra filed her notice of appeal with the Cuyahoga County Court of Common

Pleas.     Immediately after filing the notice, Musarra’s attorney provided the Board of

Revision with a copy of the notice and received a time stamp from the Board

acknowledging its receipt. Musarra forwarded a copy of the notice to the Shaker Heights

School District via certified mail, but failed to serve the Board of Revision or the Cuyahoga

County Fiscal Officer by certified mail.

         {¶4} On March 2, 2012, the Cuyahoga County Fiscal Officer (“Fiscal Officer”) filed

a motion to dismiss. In said motion, it was argued that Musarra failed to comply with the

mandates of R.C. 5717.05, which requires that all parties shall be served by certified mail.
The Fiscal Officer argued that Musarra failed to properly serve the Board of Revision as

well as the Fiscal Officer with notice of the appeal by certified mail and that this violation

of R.C. 5717.05 deprived the trial court of jurisdiction to hear the appeal.           Musarra

opposed the motion and on April 9, 2012, the trial court granted the Board’s motion, finding

as follows:

      Cuyahoga County Auditor motion to dismiss * * * is granted. The Ohio

      Supreme Court has been adamant that the R.C. 5717 appeal requirements be

      strictly construed.   See Austin Company v. Cuyahoga Board of Revision

      (1989), 46 Ohio St.3d 192, 193; Clippard Instrument Lab., Inc. v. Lindley

      (1997), 50 Ohio St.2d 121, 122; Salem Medical Arts and Development v.

      Columbiana County (1998), 80 Ohio St.3d 62. For these reasons, Defendant’s

      motion is granted. Final.

      {¶5}    Musarra appeals, raising the two assignments of error contained in the

appendix to this opinion.

      {¶6} In her first assignment of error, Musarra argues the trial court erred in finding

that she did not comply with the requirements of R.C. 5717.05. We disagree.

      {¶7} In 4747 Mann, LLC v. Cuyahoga Cty. Bd. of Elections, 8th Dist. No. 95596,

2011-Ohio-2593, this court held as follows:

      The jurisdiction of common pleas court is fixed by statute. Mattone v.
      Argentina, 123 Ohio St. 393, 397, 175 N.E. 603 (1931). See also Article IV,
      Section 4(B) of the Ohio Constitution (“The courts of common pleas and
      divisions thereof shall have such original jurisdiction over all justiciable matters
      and such powers of review of proceedings of administrative officers and
      agencies as may be provided by law.”). When the right to appeal to the court
      of common pleas is conferred by statute, “[t]he exercise of the right conferred is
      conditioned upon compliance with the accompanying requirements.” Zier v.
      Bur. of Unemp. Comp., 151 Ohio St. 123, 84 N.E.2d 746, (1949), paragraph
      one of the syllabus. In Huber Hts. Circuit Courts Lts. v. Carne, 74 Ohio St.3d
      306, 308, 1996-Ohio-157, 658 N.E.2d 744, the supreme court held that the
      requirements of R.C. 5717.05 are “mandatory and jurisdictional.” Id. at 307,
      658 N.E.2d 744.

      {¶8} Musarra concedes that she failed to serve the Board of Revision and the Fiscal

Officer by certified mail. However, Musarra attempts to distinguish Huber Hts. and 4747

Mann, arguing that unlike the appellants in those cases, both the Board and the Fiscal

Officer had actual notice of the complaint. Musarra hand delivered a copy of the notice of

appeal to the Board of Revision and received a time-stamped receipt from the Board.

Although she admits no attempt at service on the Fiscal Officer, Musarra argues that both

parties had notice and accordingly, she complied with the spirit of the statute.

      {¶9} The Supreme Court rejected this argument in Olympic Steel, Inc. v. Cuyahoga

Cty. Bd. of Revision, 110 Ohio St.3d 1242, 2006-Ohio-4091, 852 N.E.2d 178, stating that

the “mandatory and jurisdictional” language used in R.C. 5717.05 and addressed in Huber

Hts. applied to “the requirement of joinder and service.” Id. at paragraph two, 658 N.E.2d

744. The court’s use of the language “joinder and service” in Olympic Steel confirmed that

these were statutory requirements, both of which were mandatory and jurisdictional. See

also 4747 Mann. As stated by this court in 4747 Mann,

      “Olympic Steel” is consistent with a long line of cases that require strict
      compliance with statutorily-granted rights of appeal in administrative law cases.
       See, e.g., Austin Co. v. Cuyahoga Bd. of Revision, 46 Ohio St.3d 192, 193, 546
      N.E.2d 404 (1989) (actual notice insufficient substitute to satisfy appeal notice
      requirements); Clippard Instrument Lab., Inc. v. Lindley, 50 Ohio St.2d 121,
      122, 363 N.E.2d 592 (1977) (letter an insufficient substitute for statutorily
      required copy of a notice of appeal); Salem Med. Arts & Dev. v. Columbiana
      Cty., 80 Ohio St.3d 621, 1998-Ohio-657, 687 N.E.2d 746 (delivery of a copy of
      a notice of appeal to an assistant prosecutor with whom the taxpayer had been
      negotiating a settlement did not satisfy the R.C. 5717.01 requirement that an
      appellant must file a copy of its notice of appeal from a Board of Revision with
      the Board of Revision).

      {¶10} It is uncontested that Musarra failed to serve both the Board of Revision and

the Fiscal Officer with her notice of appeal by certified mail. This was a jurisdictional

failure of joinder and service, thus depriving the court of common pleas of subject matter

jurisdiction to hear the appeal. See 4747 Mann, George Whalley Co. v. Cuyahoga Cty. Bd.

of Revision, 8th Dist. Nos. 47890 and 47984, 2011-Ohio-2593, (Nov. 21, 1984); Foster v.

Cuyahoga Cty. Bd. of Revision, 8th Dist. No. 96841, 2011-Ohio-5508. Accordingly, we

affirm the decision of the trial court and overrule Musarra’s first assignment of error.

      {¶11} In her second and final assignment of error, Musarra argues that the Fiscal

Officer waived the filing requirements of R.C. 5717.05 when the Board of Revision

accepted a copy of the notice of appeal. We disagree.

      {¶12} In putting forth this argument, Musarra has failed to cite to any case law

supporting her position. An appellate court may disregard an assignment of error pursuant

to App.R. 12(A)(2) if an appellant fails to cite to any legal authority in support of an

argument as required by App.R.16(A)(7). State v. Martin, 12th Dist. No. CA99-01-003,

1999 Ohio App. LEXIS 3266 (July 12, 1999), citing Meerhoff v. Huntington Mtge. Co., 103

Ohio App.3d 164, 658 N.E.2d 1109 (12th Dist.1995); Siemientkowski v. State Farm Ins.,

8th Dist. No. 85323, 2005-Ohio-4295.         “If an argument exists that can support this

assigned error, it is not this court’s duty to root it out.” Cardone v. Cardone, 9th Dist. Nos.

18349 and 18673, 1998 Ohio App. LEXIS 2028 (May 6, 1998).
      {¶13} Further, even if we were to address the merits of this assigned error, we find

Musarra’s argument lacking. The Cuyahoga County Board of Revision and the Office of

the Cuyahoga County Fiscal Officer are separate and distinct. The Cuyahoga County

Board of Revision is a quasi-judicial body charged with the responsibility of hearing

complaints as to the valuation of real property within the county. The Fiscal Officer of

Cuyahoga County is charged, by Charter, to exercise the powers and duties that had

previously been the responsibility of the Cuyahoga County Auditor. The agencies have

separate purposes and functions and neither reports to the other for purposes of approval

and authority. Thus, we cannot imagine a factual scenario whereby service to one agency,

i.e., the Board of Revision, would be sufficient to provide another separate and distinct

agency, i.e., the Cuyahoga County Fiscal Officer, with notice of the complaint. Musarra

failed to serve the Cuyahoga County Fiscal Officer in any manner; that, coupled with her

failure to serve the Board of Revision via certified mail constituted a failure to comply with

the requirements of R.C. 5717.05.

      {¶14} Accordingly, Musarra’s second assignment of error is overruled.

      {¶15} The judgment of the trial court is affirmed.

      It is ordered that appellees recover from 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 common pleas

court 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.
EILEEN A. GALLAGHER, JUDGE

KENNETH A. ROCCO, J., CONCURS;
FRANK D. CELEBREZZE, JR., P.J., CONCURS
IN JUDGMENT ONLY


                                     Appendix

Assignments of Error:

     “I. The trial court erred when it granted Appellee's motion to dismiss
     concluding that Appellant did not substantially comply with the appeal
     requirements of ORC 5717.05 where Appellant personally filed her Notice of
     Appeal with the Board, received a time stamp confirming the Board received the
     Notice of Appeal and the Board forwarded the transcript from the Board
     hearing to the Trial Court.

     II. The Trial Court erred when it granted Appellee's motion to dismiss
     concluding that Appellee did not waive the filing requirements of ORC 5717.05
     where Appellant personally filed her Notice of Appeal with the Board, received a
     time stamp confirming the Board received the Notice of Appeal and the Board
     forwarded the transcript from Board hearing to the Trial Court.”
