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Wednesday, April 30, 2014

L.J. Smith, Inc., v. Auditor and Board of Revision of Harrison County, Ohio, et al., Case no. 2013-0934
Ohio Board of Tax Appeals

Gator Milford, LLC, v. Clermont County Transportation Improvement District, Case no. 2013-1177
Twelfth District Court of Appeals (Clermont County)

Dayton Bar Association v. John J. Scaccia, Case no. 2013-1982
Montgomery County

U.W. v. Department of Youth Services, Case no. 2013-0824
Tenth District Court of Appeals (Franklin County)


May Property Owner Contest Land Valuation When There Is No Evidence of Formal Complaint?

L.J. Smith, Inc., v. Auditor and Board of Revision of Harrison County, Ohio, et al., Case no. 2013-0934
Ohio Board of Tax Appeals

ISSUE: May the Board of Tax Appeals deny a taxpayer the right to proceed with a complaint against the valuation of real estate because of irregularities in the processing of the complaint by the county auditor and board of revision?

BACKGROUND:
A parcel of land located in Bowerston and owned by L.J. Smith, Inc., was assessed by the Harrison County Auditor and valued at $4,517,510 for the 2008 tax year. According to an affidavit from the chief financial officer at L.J. Smith, the property owner mailed a complaint in March 2010 to the auditor seeking a reduction in the property value for the 2009 tax year. The auditor’s office does not have a record that the complaint was received.

Even though there is no record of the reduction request being filed, an informal meeting between L.J. Smith and the Conotton Valley Union Local School District Board of Education was held in November 2010 to discuss reducing the property’s value. In February 2011, the board of revision issued an order to reduce the value to $3,493,000.

L.J. Smith appealed the decision to the Ohio Board of Tax Appeals (BTA), requesting that the property value be further reduced to $2,700,000. The Conotton Valley Board of Education asked the BTA to reinstate the original value of the property, arguing that L.J. Smith never filed a formal complaint, so the board of revision did not have proper authority to adjust the property’s value.

L.J. Smith claimed that it did file a complaint with the auditor, yet the auditor and board of revision failed to notify the board of education and hold a formal hearing on the matter. The BTA found in favor of the board of education and sent the case back to the board of revision instructing it to vacate its decision and reinstate the auditor’s original $4.5 million valuation.

L.J. Smith appealed to the Ohio Supreme Court.

In his brief to the Supreme Court, L.J. Smith’s attorney contends that the BTA erred when it followed a legal presumption that “public officials do things properly.” He maintains that the property owner filed a complaint and presented the board with evidence to support its claim that the auditor did not handle this matter properly, so the presumption does not apply. Citing the Ohio Supreme Court decision in Cedar Bay Constr., Inc., v. Fremont (1990), L.J. Smith’s attorney asserts that public officials are presumed to have performed their duties properly only when there is an absence of evidence to the contrary.

He argues further that the property owner should not be punished because the auditor failed to time-stamp the complaint, which then led to the board of revision failing to give notice to the board of education and conduct a formal hearing on the complaint. The taxpayer should not be at fault for procedural errors committed by the auditor and board of revision, he concludes.

The Harrison County Board of Revision and Harrison County Auditor agree that this case is unusual because the property valuation was determined through informal proceedings and a formal complaint was never filed, even though there is evidence to show a complaint exists. The board of revision and auditor state in their brief that if the court finds the proceedings did not meet the requirements of Ohio law, then they have no objection to the matter being sent back to the board of revision for “further proceedings in accordance with the BTA decision.”

Attorneys for the Conotton Valley Union Local School District Board of Education assert that the board of revision never had the authority to reduce the property value of the land because a formal complaint must be filed before the board of revision can act. L.J. Smith never filed a complaint, they argue, because the Ohio Supreme Court, in Fulton v. State ex rel. General Motors Corp. (1936), held that filing requires actual delivery into official custody and not just placing the document in the mail.

The board of education’s attorneys also argue that the BTA reached a reasonable conclusion even assuming there was conflicting evidence. Pursuant to established law, there is a presumption that the auditor properly performed his duties, so the BTA did not abuse its discretion when reaching its decision, they conclude.

The state’s tax commissioner did not file a brief in this case, so he will not be permitted to present an oral argument before the court.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing L.J. Smith, Inc.: J. Kevin Lundholm, 330.343.5585

Representing the Harrison County Board of Revision and the Harrison County Auditor: Michael Washington, 740.942.2621

Representing the Conotton Valley Union Local School District Board of Education: Thomas Holmes, 216.520.0088

Representing Tax Commissioner Joseph Testa: Attorney General Michael DeWine, 614.462.7519

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When Does Time Period for Filing Appeals Begin in Cases Where Knowledge of Judgment Exists But Service by Court Clerk Has Not Occurred?

Gator Milford, LLC, v. Clermont County Transportation Improvement District, Case no. 2013-1177
Twelfth District Court of Appeals (Clermont County)

ISSUE: Does actual knowledge and receipt of a judgment entry that is a final appealable order begin the 30-day time period during which parties may file an appeal, or does the 30-day period only begin following service and notation of service on the docket by the clerk of courts?

BACKGROUND:
The Clermont County Transportation Improvement District filed a lawsuit against Gator Milford in 2010 seeking the right to use Gator Milford’s property for the purposes of widening a state highway from three to five lanes. Following a two-week trial, a jury awarded Gator Milford $366,384, and the trial court entered the judgment in October 2012. Gator Milford appealed the decision to the Twelfth District Court of Appeals, which dismissed the case because there was an unresolved issue about attorney fees.

On November 27, 2012, the trial court filed a decision denying Gator Milford an award of attorney fees. The trial court’s bailiff certified that copies of the decision had been sent to all parties, and the clerk of courts indicated in the docket that the decision was distributed to all parties and/or their counsel. On January 30, 2013, the trial court instructed the court clerk to serve notice of the earlier November 27 decision to all parties. Five days later, Gator Milford appealed to the Twelfth District for the second time, but the court concluded that the appeal was untimely because it was not filed within 30 days of the trial court’s November decision.

The Twelfth District also certified a conflict between its decision and one from the Tenth District Court of Appeals. The Supreme Court determined that a conflict exists between the appellate districts and agreed to hear the case. 

Gator Milford’s attorneys argue that receiving a copy of a judgment entry is not sufficient notice and does not complete service by the court, as required by various court rules. They assert that in civil cases in which the final appealable order is not served within the three days allotted in the rules of procedure for civil cases, then the 30-day time limit for filing an appeal under appellate rules only begins to run when the clerk of courts “serves” the final judgment entry on all parties and notes that service has occurred on the docket.

They maintain that actual knowledge of a decision is not a substitute for service. The term “service” is used in both Civ.R. 58(B) and App.R. 4(A) and is defined in Civ.R. 58(B), which reads, “Within three days of entering the judgment upon the journal, the clerk shall serve the parties in a manner prescribed by Civ.R. 5(B) and note the service in the appearance docket. Upon serving the notice and notation of the service in the appearance docket, the service is complete.” Civ.R. 5(B) states that a document is “served” in multiple ways, including if it is handed to a person, dropped off at the person’s office, mailed to a person’s last known address, or faxed or emailed in accordance with court rules.

Gator Milford’s attorneys cite five Ohio appeals courts that have adopted the same rationale they are advocating. They also point to two other jurisdictions that require the time for appeal to be determined by the date that the clerk of court serves notice and not by a party’s actual knowledge of the decision.

Attorneys for Gator Milford argue that while the property owner had actual knowledge of the November decision, service did not occur until January 30, 2013, so the appeal should not have been dismissed as untimely. Distribution by the trial court’s bailiff was not sufficient to overcome the provision in App.R. 4(A), which delays the start of the 30-day time limit in cases where service was not completed within three days of a judgment, they conclude.

Attorneys for the Clermont County Transportation Improvement District counter that there is no conflict of law, and the Twelfth District’s ruling should stand. They assert that the conflict was already resolved by the Ohio Supreme Court decision State ex rel. Hughes v. Celeste (1993). In Hughes, they contend, the court concluded that the clock for filing an appeal started running because service was made when a copy of a court order was delivered to the party. They maintain that service in this case was completed in November 2012.

They note that the first part of the certified conflict question requiring actual knowledge and receipt of the judgment are not enough to start the 30-day limit for appeal. Actual service is required, they acknowledge.

However, they contend that nowhere in App.R. 4(A) is there a requirement that the clerk serve or make notation of the judgment in the docket. Citing Hughes and two other Supreme Court cases dealing with appeal timeliness, they claim that a court clerk is not required to serve a judgment or to note the service in the docket.

They conclude that the time period for filing an appeal under App.R. 4(A) begins upon service, and service is completed by any method allowed in Civ.R. 5(B). They add that Gator Milford’s appeal was properly rejected by the Twelfth District based on the plain language of App.R. 4(A) and Hughes, and the Ohio Supreme Court should dismiss this case because the certified conflict has already been resolved.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Gator Milford: William Santen, 513.721.4450

Representing the Clermont County Transportation Improvement District: John Brody, 614.462.5400

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Attorney Discipline

Dayton Bar Association v. John J. Scaccia, Case no. 2013-1982
Montgomery County

The Board of Commissioners on Grievances & Discipline has recommended that Dayton attorney John Scaccia be suspended for one year, with six months stayed, for failing to act competently, neglecting a legal matter, not maintaining complete records, mishandling client funds, and other misconduct.

In March 2004, Scaccia left a Dayton law firm and started a solo practice. He continued to represent a group of clients who were claiming wrongful termination from the Mound Laboratory in Miamisburg. The case was filed in the U.S. District Court for the Southern District of Ohio. Following a request to extend the time for filing an amended complaint by a few weeks, Scaccia then missed the extended deadline by two days.

The Dayton Bar Association, which brought the charges against Scaccia in this matter, made several references in its filings to orders issued by the federal district court judge in the former Mound employees’ case. The judge’s orders note that Scaccia exceeded page limits in memos submitted to the court; filed several documents late, without the correct signature, with conflicting captions, and without required court approval; and disregarded local court rules.

Scaccia also received $21,875 from the former employees to represent them. The attorney spent all the funds but provided records documenting only $4,716 of his expenses.

In cases for two other clients, the disciplinary board found that Scaccia also improperly accepted a flat nonrefundable fee and did not deposit funds into a client trust account as required.

The attorney for Scaccia has filed objections to the board’s recommended sanction. Scaccia’s attorney asks the Supreme Court to impose either probation with monitoring and the assignment of a mentor, or a one-year suspension with the entire year to be stayed on the condition of monitored probation and mentoring. He contends that besides missing a filing deadline, Scaccia’s other violations all involve client fee arrangements and handling of those funds. As a sole practitioner, Scaccia showed no dishonest or selfish motive, but rather a misunderstanding of his financial obligations, his attorney argues. While he concedes that there is no excuse for an attorney violating the professional conduct rules, he maintains that his client’s poor office management is better remedied by having him work with a mentor while continuing to capably serve his clients.

The bar association responds that Scaccia did not merely miss one deadline but instead repeatedly disregarded the rules of the district court in the former Mound employees’ case. The association concludes that these actions combined with his other violations warrant the disciplinary board’s recommended suspension of one year, with six months stayed.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Dayton Bar Association: Brian Weaver, 937.278.9077

Representing John J. Scaccia: David Williamson, 937.223.3277

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Which Statute of Limitations Applies to Claims Against the State Alleging Child Sexual Abuse?

U.W. v. Department of Youth Services, Case no. 2013-0824
Tenth District Court of Appeals (Franklin County)

ISSUE: Is a claim of childhood sexual abuse against a state agency time-barred by the two-year statute of limitations in the law governing civil actions against the state (R.C. 2743.16), or should the 12-year statute of limitations in the child sexual abuse statute (R.C. 2305.111) apply?

BACKGROUND:
In July 2012, a woman identified as U.W. filed a complaint against the Ohio Department of Youth Services (DYS) and two of its employees. The woman alleged that she was sexually abused by the employees between April 2000 and April 2001 while she was in custody at the Scioto Juvenile Correction Facility in Delaware. She filed her complaint in the Ohio Court of Claims, which hears civil actions filed against the state and its agencies.

The department asked the court to dismiss the claim, arguing that the deadline by which she had to file her lawsuit (statute of limitations) against the state had passed. However, U.W. countered that the 12-year statute of limitations for childhood sexual abuse, set out in R.C. 2305.111, applied.

The Court of Claims determined that U.W.’s legal claim arose in August 2004 when she turned 18. Given that she was suing a state agency, the Court of Claims ruled that her claim was prohibited because the two-year limit for filing suit in R.C. 2743.16 applied and had expired.

U.W. appealed the dismissal to the Tenth District Court of Appeals, which affirmed the Court of Claims’s decision.

She filed an appeal with the Ohio Supreme Court, which agreed to hear the case.

The attorney for U.W. writes in her brief to the court that the “essential character” of U.W.’s action is childhood sexual abuse rather than a claim against a state-run facility. The attorney argues that the General Assembly intended a lengthy statute of limitations for these types of cases and meant for the 12-year limit it enacted in R.C. 2305.111 to apply to all civil actions involving childhood sexual abuse, even those brought against the state. An extensive statute of limitations is needed because of the nature of childhood sexual abuse, she asserts.

She maintains that the Ohio Supreme Court supported this long filing timeframe in Pratte v. Stewart (2010), though she notes that “[t]he Court did not contemplate the statute in conjunction with ORC 2743.16 regarding claims against state.”

She argues that the two-year limit for filing lawsuits against state agencies in R.C. 2743.16 is unreasonable and violates public policy. She also contends that the 10-year difference between the two limits deprives U.W. of equal protection under the law. This case, she asserts, involves the fundamental right to privacy and the two-year statute of limitations was not narrowly tailored to meet a legitimate objective of the government.

“The Court of Claims ruling effectively treats childhood sex abuse victims differently based on whether they were abuse[d] at a private versus public facility,” she writes in her brief. “This distinction is arbitrary and could not have been intended by the legislature when it drafted ORC 2305.111.”

Attorneys for DYS assert that the language of R.C. 2743.16 clearly states that the two-year limit applies to civil actions against the state and contains no exceptions for childhood sexual abuse cases. The attorneys also contend that a provision in Chapter 2305 states that the statutes of limitations in that chapter, which includes the 12-year limit, apply “unless a different limitation is prescribed by statute.” They reason that the 12-year limit applies to cases against private parties, while the two-year timeframe is a “different limitation” that governs child sexual abuse cases when they are filed against the state.

The agency’s attorneys also argue that the Pratte decision does not apply in this case because the alleged abuser was a private party, so the court did not have a reason to consider the law that specifically deals with claims against the state.

They contend that U.W.’s arguments depend on policy assertions that cannot overcome the language in the statutes. They maintain that the state and DYS are “dedicated to protecting Ohio children and families” and have taken concerns about child sex abuse into consideration by delaying the start of the statute of limitations until a child reaches the age of 18. If the General Assembly wants to make an exception to the two-year limit for claims against the state, the department’s attorneys assert that this “would take legislative change, not judicial interpretation.”

The attorneys also argue that U.W. sued the state for negligent infliction of emotional distress and breach of fiduciary duty for the department’s hiring and retention of her alleged abusers. Those types of claims, the attorneys maintain, have two-year and four-year statutes of limitations, respectively. Those limits may apply to this case, they assert, though the Court of Claims would be the appropriate body to decide this issue. They also contend that U.W. may have a civil remedy against the two alleged abusers as individuals in the court of common pleas.

As far as the argument that the two-year limit violates U.W.’s constitutional right to equal protection, the state’s attorneys maintain that U.W. cannot make this argument because she did not raise it in the Court of Claims. Also, the Tenth District did not address the equal protection argument, which the state suggests is an indication that the court considered the argument to be waived.

In addition, the DYS attorneys assert that after the legislature enacted laws concerning claims against the state, the Ohio Supreme Court ruled in Conley v. Shearer (1992) that the state may “‘qualify and draw perimeters’” around the right to sue the state without infringing on equal protection under the law. They argue that the state has legitimate interests in having a consistent statute of limitations for all lawsuits against the state for monetary damages. Those interests include limiting the state’s liability and quickly resolving claims.

They conclude that the two statutes do not deny a fundamental right to privacy to one group but instead only treat individuals differently based on whether they bring suit against the state or against a private party.

An amicus curiae (friend of the court) brief supporting the U.W.’s position has been submitted by the Landskroner Foundation for Children.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing U.W.: Jill Flagg, 330.807.9594

Representing the Ohio Department of Youth Services: Eric Murphy, 614.466.8980

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.