[Cite as Genesis Real Estate Holding Group v. Cuyahoga Cty. Bd. of Revision, 2014-Ohio-1724.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100054



           GENESIS REAL ESTATE HOLDING GROUP
                                                          PLAINTIFF-APPELLANT

                                                    vs.

                    CUYAHOGA COUNTY BOARD OF
                         REVISION, ET AL.
                                                          DEFENDANTS-APPELLEES



                                           JUDGMENT:
                                            DISMISSED


                               Administrative Appeal from the
                                 Ohio Board of Tax Appeals
                     Case Nos. 2011-Q-1552, 2011-Q-1553, 2011-Q-1554,
                    2011-Q-1557, 2011-Q-1558, 2011-Q-1559, 2011-Q-185,
                                  2011-Q-357, 2011-Q-358

        BEFORE: Celebrezze, P.J., Jones, J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: April 24, 2014
ATTORNEY FOR APPELLANT

David M. Lynch
Attorney at Law
333 Babbitt Road
Suite 333
Euclid, Ohio 44123


ATTORNEYS FOR APPELLEES

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mark R. Greenfield
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Appellant, Genesis Real Estate Holding Group (“Genesis”), appeals the

decision of the Board of Tax Appeals of the State of Ohio (the “Board”) in several cases

regarding the assessed value of real property located in Cuyahoga County, Ohio.

Unfortunately, Genesis did not properly invoke the jurisdiction of this court, so the appeal

must be dismissed.

                       I. Brief Factual and Procedural History

       {¶2} Genesis filed several tax valuation complaints that were heard before the

Cuyahoga County Board of Revision (the “BOR”). In seven cases, Genesis’ evidence of

value was based on appraisals done at its behest. The BOR would not accept evidence of

the appraisals because the appraiser was not present to testify and the document generated

by him was not presented within the time period required. The BOR issued decisions

lowering the values of only two of nine properties.

       {¶3} Genesis filed appeals with the Board, which were consolidated for hearing.

A hearing was conducted where Genesis relied on appraisal reports to support its opinion

of value for most of the properties. On May 30, 2013, the Board issued its Decision and

Order, which lowered the value of one property that was the subject of a recent

arm’s-length transaction; remanded one case to be dismissed because it was

jurisdictionally defective; reversed the BOR’s decision to reduce the value of one

property based on a lack of competent, probative evidence; and affirmed the assessed
values of the remaining properties. The Board found that Genesis did not carry its burden

to support its opinion of value with competent, probative evidence.

      {¶4} Genesis filed a notice of appeal with this court on June 27, 2013. A second

notice of appeal was filed with the Board on July 2, 2013.            Genesis assigned the

following two errors for review:

      I. The Board of Tax Appeals committed error in not relying on the
      documents created by the appraiser, even if he did not appear at the original
      Board of Revision Hearing.

      II. The Board of Tax Appeals committed error in rejecting Board of
      Revision value opinions for similar properties.

                                   II. Law and Analysis

      {¶5} “[W]hen the right to appeal is conferred by statute, an appeal can be perfected

only in the manner prescribed by the applicable statute.” Welsh Dev. Co. v. Warren, 128

Ohio St.3d 471, 2011-Ohio-1604, 946 N.E.2d 215, ¶ 14. R.C. 5717.04 sets forth the

jurisdictional requirements to perfect an appeal from a decision of the Board. In part, it

provides:

      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 situated 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.

      ***
       In all such appeals the commissioner or all persons to whom the decision of
       the board appealed from is required by such section to be sent, other than
       the appellant, shall be made appellees. Unless waived, notice of the appeal
       shall be served upon all appellees by certified mail.

       {¶6} These requirements are jurisdictional in nature, and a failure to fulfill any one

will require this court to dismiss the appeal. A.K.J., Inc. v. Wilkins, 8th Dist. Cuyahoga

No. 94594, 2011 Ohio App. LEXIS 74, *5 (Jan. 13, 2011).

       {¶7} In A. Schulman, Inc. v. Wilkins, 112 Ohio St.3d 1208, 2006-Ohio-6677, 859

N.E.2d 553, the Ohio Supreme Court strictly construed the timing requirements of the

governing rule for instituting an appeal from a decision of the Board. It noted, “‘[a]

notice of appeal from the Board of Tax Appeals shall be filed with the Supreme Court

and the Board within 30 days from the date of the entry of the decision of the Board.’

S.Ct.Prac.R. II(3)(A)(1)).” Id. at ¶ 3. This case affirmed a long line of cases that

required appellants to comply with the 30-day timing requirement for perfecting an appeal

by filing dual notices with the reviewing court and the Board. Id. at ¶ 4, citing Kenney v.

Evatt, 144 Ohio St. 369, 59 N.E.2d 47 (1945); Ahrns v. Bd. of Tax Appeals, 22 Ohio

App.2d 179, 181, 259 N.E.2d 518 (3d Dist.1970). The Ohio Supreme Court explained

that the appellant timely filed its notice of appeal with the court, but the notice to the

Board was not filed until 41 days after the appealed decision was issued. The court

dismissed the appeal for lack of jurisdiction. Id. at ¶ 5.

       {¶8} In the present case, the Board issued its decision on May 30, 2013. Genesis’

notice of appeal was timely received by this court on June 27, 2013. However, the notice
of appeal to the Board was not sent until July 1, 2013,1 and was not received until July 2,

2013.

        {¶9} Genesis relies on Berea City Sch. Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of

Revision, 111 Ohio St.3d 1219, 2006-Ohio-5601, 857 N.E.2d 145, for the proposition that

its notice of appeal was timely filed with the Board because it was mailed on July 1, 2013.

 In Berea, the Ohio Supreme Court dismissed an appeal because the appellant failed to

initiate certified mail service on the appropriate tax commissioner within the 30-day

period required under R.C. 5717.04. The holding in the case indicates that service is

“‘initiated’ when the notice of appeal is placed in the mail.” Id. at ¶ 2. However, the

case does not address the filing of a notice of appeal. Filing is distinct from service.

Welsh Dev., 128 Ohio St.3d 471, 2011-Ohio-1604, 946 N.E.2d 215, ¶ 36. “In the general

sense, filing is actual delivery.” Id.

        {¶10} The Ohio Supreme Court has indicated that “the act of depositing the notice

in the mail, in itself, does not constitute a ‘filing,’ at least where the notice is not received

until after the expiration of the prescribed time limit.” Dudukovich v. Lorain Metro. Hous.

Auth., 58 Ohio St.2d 202, 204, 389 N.E.2d 1113 (1979) (dealing with R.C. 2505.07(B)

and the filing of a notice of appeal from a housing authority’s decision terminating an

employee). See also Welsh Dev. at ¶ 39 (“Filing does not occur until there is actual

receipt by the agency within the time prescribed * * *”).


          June 30, 2013, fell on a Sunday, giving Genesis until Monday, July 1, 2013, to file its notice
        1


of appeal with the Board.
       {¶11} Here, the Board presented evidence, and Genesis does not dispute, that

receipt of the notice of appeal did not occur until July 2, 2013. This is the date of filing

for purposes of R.C. 5717.04.       Unfortunately, this is outside of the 30-day period

provided for in the statute.     Accordingly, appellant failed to properly invoke the

jurisdiction of this court, and the appeal must be dismissed. This holding renders moot the

Board’s argument that the appeal should also be dismissed because appellant failed to

name and timely serve the tax commissioner.

       {¶12} This court previously granted the Board’s motion to dismiss, but sua sponte

vacated that decision based on our interpretation of the Board’s Decision and Order and

its failure to file stamp its decision as it does with other documents it journalizes. We

remanded the case for proper journalization of the decision. The Board responded by

indicating the order was properly journalized. The order indicates it was “entered” May

30, 2013. The signature line of the Decision and Order, signed by the Board’s secretary,

includes an attestation stating, “I hereby certify the foregoing to be a true and complete

copy of the action taken by the Board of the State of Ohio and entered upon its journal

this day, with respect to the captioned matter.” The only date “this day” may refer to is

the “entered” date that begins the Decision and Order. This is sufficient for its statutory

requirements, but is not the most clear method to inform potential appellants of the time

within which they must exercise their appellate rights.

                                     III. Conclusion
       {¶13} Genesis did not timely perfect its appeal by filing a notice of appeal with

this court and the Board within 30 days of the journalization of the Board’s decision.

Therefore, this appeal must be dismissed for lack of jurisdiction.

       {¶14} Accordingly, the appeal is dismissed.

       It is ordered that appellees recover from appellant costs herein taxed.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR
