[Cite as Lima Area Chamber Found. v. Testa, 2015-Ohio-5441.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                              ALLEN COUNTY




LIMA AREA CHAMBER
FOUNDATION,

        APPELLANT,                                             CASE NO. 1-15-19

        v.

JOSEPH W. TESTA, TAX
COMMISSIONER OF OHIO,                                          OPINION

        APPELLEE.




                  Appeal from Allen County Common Pleas Court
                            Trial Court No. 2014-1699

                                     Appeal Dismissed

                         Date of Decision: December 28, 2015




APPEARANCES:

        Derek A. Younkman for Appellant

        Melissa W. Baldwin for Appellee
Case No. 1-15-19


ROGERS, P.J.

      {¶1} Appellant, the Lima Area Chamber Foundation (“the Foundation”),

appeals the March 24, 2015 decision of the Ohio Board of Tax Appeals (“BTA”).

On appeal, the Foundation argues that the BTA erred when it affirmed the decision

of Appellee, Joseph Testa, Tax Commissioner for the State of Ohio (“the

Commissioner”), who found that certain real property owned by the Foundation

was not exempt from taxation. Additionally, the Foundation argues that the BTA

erred by dismissing the Foundation’s second appeal.             Finding that the

Foundation’s notice of appeal does not sufficiently set forth the errors complained

of in the BTA’s decision, the appeal is dismissed.

      {¶2} The Foundation owns a building at 144 S. Main St. in Lima, Ohio

(“the building”). On January 21, 2010, the Foundation applied for real property

tax exemption regarding the building for the 2009 tax year. The Foundation

sought exemption through R.C. 5709.08. In its application, the Foundation stated

that the building was used as a rental property with tenants including the

Lima/Allen County Chamber of Commerce (“the Chamber”), the Lima/Allen

County Convention & Visitors Bureau, and the Allen Economic Development

Group. On March 1, 2010, the Foundation applied for real property tax exemption

regarding the building for the 2010 tax year. This time, the Foundation sought




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exempt status through R.C. 5709.12. The Foundation stated that the building was

still being used as a rental property.

       {¶3} On March 17, 2014, the Commissioner determined that the building

was not exempt for the 2009 tax year. Specifically, the Commissioner found that

the Foundation was not a public entity as required for exemption under R.C.

5709.08.    In a separate document filed on the same date, the Commissioner

determined that the building was not exempt for the 2010 tax year. Specifically,

the Commissioner found that the Foundation was not a charitable institution as

required by R.C. 5709.12 and 5709.121.

       {¶4} On April 8, 2014, the Commissioner issued a new determination,

which vacated his previous decision in regard to the 2009 tax exemption status.

The Commissioner’s new determination merely recited the language of its March

17, 2014 decision. Thus, the Commissioner denied the Foundation’s application

for real property tax exempt status for the 2009 tax year.

       {¶5} The Foundation filed two separate notices of appeal, one for each

application, with the BTA. The 2009 exemption application case was assigned

BTA Case No. 2014-2003, while the 2010 exemption application case was

assigned BTA Case No. 2014-1699.




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        {¶6} The BTA held a hearing on January 12, 2015, where the BTA heard

both cases.1 At the hearing, the Commissioner argued that Case No. 2014-2003

should be dismissed because the Foundation argued a different theory than it did

before the Commissioner. The BTA heard testimony from people representing the

Foundation and the tenants of the building.

        {¶7} The BTA issued its decision on March 24, 2015, where it ultimately

dismissed Case No. 2014-2003 and decided that the building was not exempt for

the 2010 tax year in Case No. 2014-1699. Specifically, regarding Case No. 2014-

2003, the BTA agreed with the Commissioner and determined that the Foundation

was precluded from raising any arguments in support of exemption pursuant to

either R.C. 5709.12 or 5709.121 because it did not claim exemption under those

sections at the time the application was filed. In regard to Case No. 2014-1699,

the BTA determined that the Foundation was not a charitable institution and,

therefore, the Commissioner was right to deny the Foundation’s application.

        {¶8} The Foundation filed this timely appeal, asserting the following

assignments of error for our review.



1
  We note that the Foundation has filed one notice of appeal with this court. Even though the notice of
appeal contains both BTA case numbers, it appears the Foundation should have filed a separate notice of
appeal for each case. Apparently, the BTA consolidated both cases although this court cannot find any
reference to such an action in the record other than a brief statement by the Commissioner’s counsel at the
hearing. We acknowledge the fact that the BTA issued one written decision disposing of both cases
(dismissing BTA No. 2014-2003 and affirming BTA No. 2014-1699). We are concerned about whether
this was appropriate. Nonetheless, because we find other errors that require dismissal of the Foundation’s
appeal in regard to both cases, we choose not to address this possible inadequacy.

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                            Assignment of Error No. I

       THE BOARD OF TAX APPEALS ERRED IN THAT THE
       DECISION AND ORDER IS NOT LAWFUL.

                            Assignment of Error No. II

       THE BOARD OF TAX APPEALS ERRED IN THAT THE
       DECISION AND ORDER IS NOT REASONABLE AND THE
       RECORD OF THE PROCEEDINGS DOES NOT CONTAIN
       RELIABLE AND PROBATIVE SUPPORT FOR ITS
       FACTUAL DETERMINATIONS.

                            Assignment of Error No. III

       THE BOARD OF TAX APPEALS ERRED BY DISMISSING
       BTA CASE NO. 2014-2003.

       {¶9} Before we can address the merits of the Foundation’s arguments, we

must first determine if the Foundation complied with R.C. 5717.04. In his brief

and at oral argument, the Commissioner argued that the Foundation failed to

specify what errors it complained of in its notice of appeal and, therefore, the

appeal should be dismissed. We agree.

       {¶10} “R.C. 5717.04 provides that a notice of appeal from the BTA to the

court ‘shall set forth the decision of the board appealed from and the errors therein

complained of.’ ” Global Knowledge Training, L.L.C. v. Levin, 127 Ohio St.3d

34, 2010-Ohio-4411, ¶ 22.

       {¶11} The Supreme Court of Ohio has found that a notice of appeal from a

BTA case is defective if it “uses general language which could be used in nearly


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any case * * *.” Deerhake v. Limbach, 47 Ohio St.3d 44, 45 (1989). In Deerhake,

the court found the appellant’s notice of appeal defective where the complained of

error was that “the decision and order of the Board of Tax Appeals is against the

manifest weight of the evidence and contrary to law.” Id. at 44. The court relied

on its previous decision in Lawson Milk Co. v. Bowers, 171 Ohio St. 418, 420

(1961), where the court dismissed an appeal from the BTA because the notice of

appeal “[did] not sufficiently set forth ‘the errors therein complained of’ and,

therefore, [was] not a sufficient compliance with the statutory requirement.” In

Lawson, the complained of error was “the decision by the Board of Tax Appeals to

modify and affirm the final order of the Tax Commissioner in the following basic

amounts: Sales tax [$]3,213.70. Use tax [$]3,266.57.” Id. at 419.

      {¶12} In contrast, when a notice of appeal from a BTA case includes

specific assertions, then the notice of appeal will be found sufficient. See Lomaz

Financial Corp. v. Limbach, 77 Ohio App.3d 568, 570 (11th Dist.1991). In

Lomaz, the notice of appeal alleged that the BTA erred in granting the tax

commissioner’s motion to dismiss because “(1) the notices of appeal filed with the

BTA pursuant to R.C. 5717.02 sufficiently specified the claimed errors; (2) the

BTA erred, as a matter of law, in relying upon distinguishable cases; and (3) the

board failed to serve its decision in accordance with R.C. 5717.03.” Id. The court

distinguished Deerhake because the notice of appeal before it contained specific


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claims rather than general arguments regarding manifest weight and decisions that

were unreasonable. Id.

       {¶13} After examining the Foundation’s notice of appeal before us, it is

clear that the Foundation failed to comply with the requirements of R.C. 5717.04.

This case can be easily distinguished from cases such as Lomaz. Unlike the notice

in Lomaz, the Foundation’s notice uses broad general terms without providing any

specifics regarding its argument, e.g., “THE BOARD OF TAX APPEALS

ERRED IN THAT THE DECISION AND ORDER IS NOT LAWFUL.” The

Lomaz notice was sufficient because it gave specific examples of how the BTA

erred, e.g., “the board erred, as a matter of law, in relying upon distinguishable

cases.” (Emphasis added.) 77 Ohio App.3d at 570. Although the notice in Lomaz

included some general language about how the board erred as a matter of law, the

notice also included a specific assertion that the board erred by relying upon cases

that were distinguishable.

       {¶14} In support of its argument, the Foundation cites Inter-City Foods,

Inc. v. Kosydar, 30 Ohio St.2d 159 (1972), syllabus, for the proposition that its

notice sufficiently states the complained of errors. In Inter-City Foods, the court

found that a notice that states that the BTA’s decision was against the manifest

weight of the evidence satisfied the requirements of R.C. 5717.04. Id. at 162. The

Foundation argues that since Inter-City Foods is more recent than Lawson Milk,


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then the proper authority to rely on is Inter-City Foods. We reject this argument

because Deerhake was decided 17 years after Inter-City Foods. Thus, by the

Foundation’s own argument, the proper authority to rely on would be Deerhake

because it is more recent than Inter-City Foods.

       {¶15} The Foundation also argues that this court should find that its notice

was sufficient since this court accepted jurisdiction over a case with similar

language in the notice of appeal. See Brandy’s Inc. v. Zaino, 3d Dist. Hancock

No. 5-01-43, 2002-Ohio-1923, *2. In Brandy’s Inc., the appellant asserted one

assignment of error: “THE DECISION OF THE BOARD OF TAX APPEALS IS

UNREASONABLE AND UNLAWFUL AND AGAINST THE MANIFEST

WEGIHT OF THE EVIDENCE.” Id. Although this court issued a decision on the

merits in that case, the issue of whether the notice was sufficient was never raised

by either party nor was the issue ever discussed by this court. Thus, that decision

provides little insight as to whether the Foundation’s notice was sufficient.

       {¶16} The Supreme Court of Ohio has repeatedly found that “an appellant

must strictly comply with the requirements of R.C. Chapter 5717.” Deerhake, 47

Ohio St.3d at 45. One of the requirements of R.C. 5717.04 is that an appellant not

use general language which could be used in nearly any case. Id. Rather, an

appellant must state the errors complained of with some level of specificity.

Because the Foundation’s notice clearly lacks specificity and consists solely of


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general language that could be used by nearly any appellant in any case, the

Foundation failed to comply with the requirements of R.C. 5717.04.

Consequently, we lack jurisdiction to decide the merits of this case.

       {¶17} Accordingly, for the aforementioned reasons, the appeal is dismissed.

                                                                  Appeal Dismissed

PRESTON, J., concurs.

HALL, J., concurs.
    (Hon. Michael T. Hall, Sitting by Assignment from the Second District
    Court of Appeals)

/jlr




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